KUDYA
J: On 6 September 2008, at the 283 km
peg along the Harare Chirundu road, an ERF vehicle registration number 811-031E
driven by the first defendant during the course and scope of his employment
with the second defendant collided with the plaintiff's vehicle, a Freightliner
horse registration number AAZ 9473 and trailer registration number ABB 0565.
Arising from that collision, the plaintiff issued summons on 18 June 2009 and
sought the necessary costs of repairs to its horse in the sum of US$9 751-22,
interest thereon and costs. The action is based on the purported negligence of
the first defendant.
Seven particulars of negligence are listed in the declaration in these
terms:
- He encroached into the plaintiff's lane of travel
resulting in the collision with the plaintiff's horse and trailer;
- He was overtaking a motor vehicle in front of
oncoming traffic and against prohibition road markings;
- He failed to keep a proper look out;
- He failed to take evasive action when the accident
seemed imminent;
- He drove his vehicle in a negligent manner resulting
in a collision with the plaintiff's vehicle which was in its correct lane
on a marked road;
- He drove at a speed which was unsafe and excessive in
the circumstances; and
- He drove recklessly or without due care and
attention.
The
defendants admitted that the collision took place. They however disputed both
liability and the measure of damages. On liability they averred that the
plaintiff's driver was the one who drove its vehicle negligently in that he was
driving downhill at a high and unsafe speed and failed to keep a proper look
out. In the alternative, the defendants pleaded contributory negligence by the
plaintiff's driver and prayed for an apportionment of the proved damages
suffered by the plaintiff based on each party's degree of negligence.
At
the pre-trial conference held on 24 March 2010, three issues were referred to
trial. These were:
a)
Whether the accident was caused by the first
defendant's negligence or the plaintiff's driver's negligence?;
b)
Whether the defendants are liable; and
c)
What is the quantum of such damages.
In
order to answer these questions, the plaintiff called the evidence of two
witnesses and produced three documentary exhibits while the defendants called
two witnesses and produced one documentary exhibit.
a) Who between the two drivers was negligent?
Standreck Tavirimirwa, who was driving the plaintiff's vehicle when the
collision took place, testified to the following effect: He was driving a horse
and drawing a 30 tonne trailer laden with sugar down the Makuti Hills at a
speed of 45 km/hr in broad day light at around 1 pm. On his extreme left were
steep and treacherous gorges. He was finishing negotiating a blind sharp curve
when he saw some 20 meters away on the straight stretch of the road ahead two
on coming trucks. The truck driven by the first defendant was in Tavirimirwa's lane
and was overtaking the other truck, which belonged to Sabot, against double
continuous prohibition lines marked in the center of the road. He reduced speed
and moved to his extreme left pulling off the road to avoid the truck driven by
the first defendant.
The
two vehicles side swiped. The right front axle of his horse hit the diff axle
and the all trailer axle of the truck driven by the first defendant. The damage
to his horse was extensive. The whole front suspension, that is, the axle,
springs, and one of the tyres burst while the other was damaged; the bonnet,
radiator and the right side tank were damaged.
He produced exh 2, the police report dated 22
May 2010 that indicated that the police preferred charges of negligent driving
against the first defendant. The trial failed to commence because the first
defendant failed to attend court and was on a warrant of arrest. He compiled
exh 1, the J & J Transport Driver Accident Report Form two days later in
which he wrote out how the accident happened and drew a sketch plan of the
scene of the accident.
He was cross examined. He gave the following
responses. The speed limit on the stretch of road was 60 km/hr. The Sabot truck
was not stationary. The witness avoided a head on collision. The first
defendant's horse was in the witness' lane of travel. The right front tyres and
right diff tyres of the defendants' horse were damaged.
The
defendants relied on the testimony of the first defendant on the manner of the
collision. He stated that as he approached the scene of the collision he
stopped some 10 metres behind a 22 m long stationary Sabot truck. The left side
wheels of the Sabot truck were off the road while the right side wheels were on
the road in his lane of travel. He stopped for two minutes in order to check if
it was safe for him to proceed as he was on a steep incline and 50 to 60 metres
ahead the road curved sharply to his right. Two small vehicles sped past both
his and the Sabot truck. He followed the two small vehicles and was almost
overtaking the stationary truck when he saw the plaintiff's truck some 40
metres away emerge from the sharp curve coming towards him in its correct lane
of travel. He moved from its path but it struck the right rear wheels of his
horse and the back wheels of his trailer. He estimated that the plaintiff's
truck was going at 70km/hr while he was doing 10km/hr. He attributed the
collision to the speed of the plaintiff's driver, which precluded him from
stopping to avert the accident. The tyres of his truck were damaged and the
springs were broken. He admitted that he overtook against the prohibition
markings on the road. He conceded that he was negligent but attributed
contributory negligence to the plaintiff's driver for traveling at an excessive
speed and failing to stop when an accident seemed imminent. He also conceded
that he had been charged with negligent driving arising from the collision but
the trial was yet to commence.
He was cross examined on his version that the
Sabot truck was stationary. He stated that the driver of the Sabot truck
enquired whether anyone had been injured. When the two colliding drivers
returned with the police an hour latter the Sabot truck was no longer at the
scene. He maintained that the plaintiff's driver was negligent in that he
failed to stop. He conceded that the other driver reduced his speed by applying
his brakes. He denied that he was negligent in any of the respects outlined by
the plaintiff.
The
driver of the plaintiff's truck gave his evidence well. His version on the
manner of the collision was confirmed by the first defendant. In my view, he
did all that a reasonably careful and skilful driver was expected to do in the
circumstances. I believed him. In contrast, the first defendant was uneasy in
the witness box. He was shaken under cross examination. If he stopped 10 m
behind a 22 m long Sabot truck and the blind curve was 50 m to 60 m ahead, it
meant that the Sabot truck was 20 m to 30 m away from the curve. And if he had
overtaken the 8m long horse of the Sabot truck as he alleged, then the curve
was at that stage some 10 to 20 m away. He thus untruthfully averred that he
first saw the plaintiff's truck when it was 40 m away from him. The fact that
the accident did not stop the smooth flow of traffic coupled with the failure
by his counsel to question the plaintiff's driver on the part played by the
Sabot driver after the accident and the disappearance of the Sabot truck from
the scene of accident are all probabilities which demonstrate the lie in his
version that the Sabot truck had broken down and was stationary. Rather they
confirm the truth in the version of the plaintiff's driver that the first
defendant overtook the slow moving Sabot truck at dangerous spot.
His
version of events was untruthful. It also did not accord with the
probabilities. I did not believe his version wherever it differed with that of
the plaintiff's driver. Contrary to his plea, he admitted in his evidence in
chief that he drove in a negligent manner. Under cross examination he denied
driving negligently and blamed the plaintiff's driver for the accident. When
pressed on his manner of driving during cross examination, he prevaricated
between conceding to contributory negligence and outright denial of negligence.
His
denials of negligence were incomprehensible in the face of his admissions that
he disobeyed double continuous lines marked in the centre of the road by
driving in the lane of on coming traffic and overtook the Sabot truck 20 m away
from a blind curve. It is apparent that he increased speed to beat the blind
curve ahead. The plaintiff's driver was driving at a safe speed oblivious of
the danger that lurked beyond the curve. When he suddenly saw the first
defendant in his lane, he reduced speed and moved as far as he could to the
extreme left of his lane of travel. He was descending an incline and could not
apply emergency brakes for fear of jackknifing his vehicle and overturning. He
could not move to his extreme left beyond the distance he went to avoid falling
into the deep gorges below the left shoulder of his lane of travel. In my view
the plaintiff's driver took all the avoiding action that any reasonable driver
in his shoes could have taken.
Mr
Ndomene, for the defendants,
submitted that the first defendant was faced with a sudden emergency. The
doctrine of sudden emergency was commented upon in Thornton & Anor v Fismer
1928 AD 398 at 412 in these words:
“a man who, by
another's want of care, finds himself in a position of imminent danger, cannot
be held guilty of negligence merely because in that emergency he does not act
in the best way to avoid the danger.”
These
sentiments were quoted with approval by ELS J in Ntsala & Ors v Mutual & Federal Insurance Co Ltd 1996 (2) SA 184 (T) at 192C. At 192D the
LEARNED JUDGE went on to state that:
“a party to an
action can only rely on the doctrine of sudden emergency if and when the sudden
emergency in which he finds himself is not of his own doing. If his actions or
neglect are the reason or cause of the sudden emergency, he can for that reason
also be found to be negligent.”
The defence of
sudden emergency does not avail the defendants in the present matter as it was
foolhardy of the first defendant to overtake the Sabot truck on an incline,
against the prohibition markings on the road and 20 m from a blind and sharp
curve.
I determine the first issue referred to
trial in the plaintiff's favour.
b) Whether the defendants
are liable
I
do not find any contributory negligence on the part of the plaintiff's driver.
I hold that the accident was caused by the sole negligence of the first
defendant. A fortiori, as the first
defendant was acting in the course and scope of his employment with the second
defendant, both defendants are liable to make good the proven accident damages
arising from the collision. The second issue is answered in the affirmative.
c) The
quantum of damages
In
a bid to prove its damages, the plaintiff called the evidence of its workshop
manager Richard Vernon Kee Tui. He qualified as a diesel, petrol and tractor
mechanic at the Bulawayo
Technical College
in 1983. Thereafter he worked for three companies before joining the plaintiff.
He has been a workshop manager for 15 years. He was responsible for validating
all workshop work. He issued out job cards, checked and supervised staff. He
observed the damage to the horse occasioned by the collision. The front axle
was completely damaged and had to be replaced; the bonnet was damaged and had
to be remolded, the belly housing made of aluminum had to be replaced, the rear
diff was extensively damaged. The tyres were replaced. The horse was repaired
using an assortment of parts listed in the job card exh 3. Panel beating and
spray painting were carried out in his workshop. The assortment of parts, oils
and paints are listed on pp 2 and 3 of exh 3. They cost the plaintiff US$ 1
350-00. These smaller items and their values were not challenged by the
defendants. The bigger components utilized in replacing the front axle, the
belly housing and the rear differential together with three rear suspension air
bags, fuel filter housing, mudguard bracket and front shock bracket, valued at
US$ 6 325-25, were cannibalized from a broken down truck that belonged to the
plaintiff.
The
labour costs for the whole repair job amounted to US$450-00. The total amount
of US$9 751-25 was the aggregate of US$884-04 for panel beating and spray
painting, US$7 241-98 for materials and US$1 625-20 for sundries and
disbursements. He stated that the plaintiff, as a big transporter, stock piled
large quantities of an assortment of second hand spare parts for its fleet that
it imported from the United States
and South Africa.
It benefited from large discounts which came with these bulk purchases. At the
time availability of spare parts was a problem. The plaintiff had a big
workshop which employed mechanics, panel beaters and spray painters. It
conducted in house repairs and out sourced machining functions only. It was
cheaper to repair the horse in-house as opposed to outsourcing the job. He
stated that the cost of repairs in exh 3 were necessary and reasonable. He
believed that had the job been outsourced it would have cost the plaintiff in
excess of US$10 000-00.
He
was cross examined. The damaged horse had been in use for 4 years. He estimated
its value at the time at between US$45 000-00 and US$55 000-00. The values that
were challenged in exh 3 in cross examination were of the front axle, belly
housing and rear diff. He estimated the cost of a new rear diff at US$3 000-00
and that of a good second hand at US$1 800-00. He was adamant that a used
complete axle would cost US$3 500-00 instead of the sum of US$200-00 that was
suggested by the defendants. He agreed with the defendants that a good second
hand belly housing would cost US$425-00.
Mr
Kee Tui gave his evidence well. He exhibited immense technical knowledge on the
mechanics and dynamics of the collision and the resultant damage it wreaked on
the plaintiff's horse. He was not shaken in cross examination. He was a
credible witness.
The
defendants challenged the values of the replacement parts of the three major
components used by the plaintiff in the repair of the horse. They disputed the
values of the front axle, belly housing and rear diff. They called the expert
evidence of James Mwanaka, a qualified class 1 motor mechanic. He completed his
journeyman in 2000. He worked for three reputable companies before joining his
present employer, Country Petroleum, as a workshop manager. I am satisfied from
his professional experience in general motor mechanics that he is an expert in
his field. He indicated that good second hand front axles presently cost
between US$900-00 and US$1 200-00; used belly housings in good working
condition presently cost between US$300-00 and US$450-00. He estimated the cost
of the rear diff similar to the one replaced by the plaintiff at between US$1
100-00 and US$1 300-00. He opined that the values that were supplied by the
plaintiff were inflated.
He
has been involved in repairing and rebuilding trucks similar to the
plaintiff's. Used spare parts are sourced from such local suppliers as Zimapan
Investments (Pvt) Ltd, Balance Sales and Sam Trucking, which companies were
already operational at the time of the collision. These local suppliers import
used parts from the United
States. He produced a quotation sourced by
the second defendant from Zimapan on 3 June 2010 as exh 4. He was not the
author of the document. It indicates that one Freightliner complete front axle
would cost US$900-00 while one engine bell housing would cost US$425-00 and one
new crown and pinion for a diff costs US$1 200-00. The three major components
in his opinion should have cost the plaintiff US$2 325-00. In his estimation
labour would have cost between US$1 500-00 and US$1 600-00.
He
was cross examined. He exhibited technical knowledge of Freightliners. He did
not see the damages on either motor vehicle. He relied on the written documents
availed him by the defendants on the cause of the accident and extent of the
damages. His opinions of the cause of the accident and the resultant damages
were coloured by the one sided version that he relied on. Although he was never
in the employ of the second defendant, he identified himself with the
defendants' cause and abandoned his earlier pretensions at impartiality. He was
shown a quotation from Selected Motor Suppliers which indicated that a used
front axle was selling for US$6 235-00 and a new one for US$11 132-00; while a
used diff was selling for US$1 800-00 and a new one for US$2 297-00. He averred
that they were inflated as Selected Motor Suppliers was a new parts dealer who
purchased used parts from cheaper dealers and sold them at a profit. He was
adamant that a used horse such as the plaintiff's could be purchased for US$6
000-00. He also challenged the 90 hours allegedly spent on repairing the horse.
He estimated that a total of 40 hours was all that was needed to complete the
whole job. He also stated that at the time labour would have been paid in local
as opposed to foreign currency. He averred that used spares were available at
the time in local currency.
Mwanaka was not an impressive witness. He was
a biased expert. He did not observe the damages on either truck yet he could
with a straight face describe the collision as minor. He under priced the value
of the belly housing at US$200-00 and misled the court that a used Freightliner
horse in good working condition could be purchased for US$6 000-00. He did not
produce any evidence to show the prices of the materials used by the plaintiff
in repairing the horse at the time that the repairs were done. He did not
provide any evidence to refute the assumption that in-house repairs done in
September 2008 were cheaper than commercial repairs. See the remarks of MUBAKO
J in Minister of Defence v Chikumbirike HH 61-95 at p 6 of the
cyclostyled judgment.
The defendants did not challenge the value of
the smaller parts used in the repairs amounting to US$1 350-77 that are reflected
in the job card. The plaintiff claimed labour costs under the headings of
labour and panel beating and spray painting in the sum of US$1 334-04. It
failed to establish that it paid its employees in foreign currency at the time.
In addition it failed to prove the claim in the sum of US$1 625-20 under the
head sundries/disbursements on p 4 of the job card, exh 3. It, however,
established that the materials it used in repairing the horse were purchased in
foreign currency at the time of the repairs. The reasonable cost of repairs
adduced by the plaintiff consisted of the aggregate figure of the undisputed
cost of the smaller parts of US$1 350-77, the rear suspension air bags of
US$150-00, fuel filter housing of US$100-00, the mudguard bracket and front
shock bracket of US$25-25 and belly housing of US$425-00 and that of the
disputed values of the complete front axle and rear differential. The
reasonable cost of repairs proved by the plaintiff was in the sum of US$ 7
351-02
I am satisfied that the plaintiff has
established that the reasonable cost of repairs of the horse was US$7 351-02.
Accordingly
it is ordered that:
The
first and second defendant shall jointly and severally the one paying the other
to be absolved pay to the plaintiff:
a)
The sum of US$ 7 351-02
b) Interest thereon at the rate
of 5 % per annum from the date of the service of
summons to the date of
payment in full.
c) Costs of suit.
Mbidzo, Muchadehama & Makoni, plaintiff's legal practitioners
Thondhlanga &
Associates, 1st and 2nd defendants'
legal practitioners
