MAVANGIRA J: The first plaintiff's claim as amended is
for the replacement cost of his motor vehicle, being a 1996 model Mitsubishi
Canter truck imported from Japan in the amount of USD 7000 and ZAR 58 043,99
for freight and duty charges.
The
second plaintiff's claim as amended is for loss of support for herself and on
behalf of her minor children in the sum of USD 15 840 and funeral expenses in
the sum of Z$34 336 000.
Both
plaintiffs also claim interest on the stated capital sums at 30% per annum
calculated from 20 June 2007, the date of the accident, to date of payment in
full.
All
four defendants deny liability.
Both
the plaintiffs claim against all the defendants jointly and severally, the one
paying the others to be absolved. The plaintiffs' claims arise from a road
traffic accident which occurred on 20 June 2007 at the 65km peg along the
Beitbridge/Masvingo road involving on the one hand, the first plaintiff's
vehicle, a Mitsubishi Canter truck which was being driven by the second
plaintiff's husband, the late Emmanuel Chigwida and on the other, two trucks;
one belonging to the first defendant and driven by the second defendant and the
other belonging to the third defendant and being driven by the fourth
defendant.
The
late Emmanuel Chigwida who drove the first plaintiff's vehicle was also a
brother to the first plaintiff. On the date in question he was driving the
first plaintiff's Mitsubishi Canter truck from Beitbridge in the direction of
Masvingo. He was following behind the first defendant's truck which was also
going in the same direction. Sometime between 6.30 pm and 7.00 pm, a sack of
cotton lint dropped from the third defendant's truck which was going in the
opposite direction. The sack fell onto the driver's side of the first
plaintiff's motor vehicle. This happened soon after the third defendant's truck
had by-passed the first defendant's truck. The first plaintiff's vehicle veered
from its lane of travel but the driver, the late Emmanuel Chigwida, applied
brakes and it came to a halt. By the time well wishers who arrived at the scene
forced open the driver's door, the driver Emmanuel was already dead.
It
is common cause that the accident was a result of the side-swiping between the
first defendant's and the third defendant's vehicles' loads as the vehicles by-passed
each other going in opposite directions. The first defendant's vehicle was
carrying a load of cotton cake bags or sacks which were about 1/1/2
metres high from the floor of the trailer. (The question whether it was cotton
lint or cotton cake {both of which are products of cotton} that was in the bags
or sacks remained unresolved throughout the trial.) The third defendant's
vehicle on the other hand was carrying an excavator whose width at some levels
overlapped the sides of trailer on which it was loaded.
It
is common cause that the protruding part of the excavator came into contact
with the load of bags of cotton cake resulting in the ripping open of the tarpaulin
that covered the bags or sacks and cutting through and the straps and belts
that held the bags together.
The plaintiffs contend that the
accident was caused by the negligence of all the defendants. They contend that second
defendant was driving during the course and within the scope of his employment
with the first defendant and that they were both negligent in that they failed
to ensure that the load on their vehicle was safely secured before embarking on
the trip as well as during the course of the trip. The plaintiffs also contend
that the third and fourth defendants were negligent in that their vehicle which
was carrying an excavator encroached into the lane of travel of vehicles
travelling in the opposite direction resulting in the side swipe with the first
and second defendants' vehicle thereby off-balancing the load of cotton cake
bags one of which then fell on to the first plaintiff's vehicle. They contend
that the third defendant's driver was negligent in encroaching into the other
vehicles' lane and that as the vehicle was carrying an abnormal load it should
not have been travelling at that time of the day particularly as it had no
escort, beacon lights or flags. They further contend that the fourth defendant
was driving during the course and within the scope of his employment with the
third defendant and that he was also driving while under the influence of
alcohol.
Both
sets of the defendants have denied liability with each blaming the other for
the accident. The first and second defendants further contend that the late
Emmanuel Chigwida who was driving the first plaintiff's vehicle was negligent
and that he also contributed to the accident in that his vehicle was travelling
at a speed which was excessive in the circumstances and that when the collision
was imminent he failed to stop or take evasive action in order to avoid the
cotton cake bags falling onto the first plaintiff's vehicle.
The
following issues were referred to trial:
“1. Whether the accident was caused by the
negligence of the first and second
defendants or by the negligence of
the third and fourth defendants or by the negligence of all or any of the
parties. If all or any of the parties contributed to the accident, in what
proportions did each contribute and would be liable? (sic).
2.
What
is the quantum of damages suffered by each of the plaintiffs?”
The plaintiffs' first witness was
Lovemore Mukura. He was seated on the front passenger seat of the first
plaintiff's Canter truck which was being driven by Emmanuel Chigwida, now
deceased. The vehicle was travelling along the Beitbridge/Masvingo road towards
Masvingo, the final destination being Harare.
In front of them and travelling in the same direction was a truck carrying what
he thought was a caterpillar. (It is now common cause that it was an excavator
and that it was loaded on the third defendant's truck.) He said that the driver
of the Canter truck, the late Chigwida, tried at various stages to overtake the
third defendant's truck but failed. One of the reasons why he failed to overtake
the third defendant's truck was that the third defendant's truck was long and
the driver seemed not to anticipate that he was going to be overtaken. At
another stage he said the failure to overtake was because the driver in front
would not allow the driver of the Canter truck to overtake him as he would
increase his speed making it impossible for the late Chigwida to overtake and
thus forcing him to remain behind hoping for another opportunity when he might
successfully overtake.
The
witness said that he did not check to see if the excavator was fully
accommodated inside the trailer of the truck in front of them. He however
described the excavator as a big load and also said that it was of considerable
height. He said that the Canter truck had been travelling at between 80 and 90
km per hour before they caught up with the third defendant's truck. They drove
behind it for about fifteen (15) to twenty (20) minutes during which period the
driver of the Canter truck had reduced his speed to between 75 and 80
kilometres per hour, the same speed that the third defendant's truck appeared
to have been travelling at. All of a sudden, he saw a sack landing on the
windscreen of the Canter truck on the driver's side resulting in the driver
being slung onto the steering wheel. The witness was struck on the right lower
chest and was also injured on the right cheek and on the back of his head by
the shattering windscreen.
When
asked where the sack came from the witness said that it fell off a truck that
was travelling from the opposite direction. When asked why or how it fell he
said that he did not know what actually happened between the two trucks. He
said that after the sack fell on their truck, the Canter truck left its lane
and went of the road. It came to a halt after the driver applied the brakes.
The truck with the excavator did not stop. After the accident he observed
cotton cake sacks strewn on the road.
Whilst
being cross-examined by the third and fourth defendants' legal practitioner the
witness said that as they travelled behind the third and fourth defendants'
truck he observed that the trailer in which the excavator was was not stable as
it was swerving and thus making it difficult for the driver of the Canter truck
to overtake it. He also said that when the accident occurred the Canter truck
was some forty metres behind the truck with the excavator. He did not see how
or why the sacks fell onto the road; he only saw them on the ground. However,
the Canter truck was in motion at the same time that the sack that eventually
fell on it was also in motion.
The
plaintiffs' next witness was Shepherd Bhebhe, an Assistant Inspector in the Zimbabwe Republic and stationed at Masvingo
National Traffic Section. The morning after the accident, he arrived at work
and saw the third and fourth defendants' truck parked at the police station.
The driver of the truck, the fourth defendant was in the office. He was then assigned
to visit the scene of the accident. In the company of Constable Mudzimirwa he
took the fourth defendant to the vehicle parked at the station. He examined the
vehicle and saw that it had a sticker in front on which was written the word
“abnormal”. The vehicle had a load which the third defendant told him was an
excavator. He examined the excavator and observed that its height was abnormal
as it was about 4,5 to 5 metres high. The top width of he excavator was
protruding beyond the sides of the trailer by about 15cm while the bottom park
was wholly accommodated within the sides of the width of the trailer. He
observed cotton lint on the top part of the excavator. The third defendant
expressed ignorance as to where the cotton lint had come from. He also observed
that the truck had no red flags on its sides to show that it was carrying an
abnormal load. They then went to the scene of the accident with the driver.
At
the scene of the accident he observed the first defendants' truck which was
parked off the road on the left side. He went to examine the truck and saw that
it had not sustained any damages. He however observed the tent which was torn on
the top right side. He also observed some bales of cotton (cake) which were
scattered beside the road. The load of cotton cake bales remaining on the truck
had moved or was leaning to the right. He interviewed the second defendant and
asked him how he had secured the load. The second defendant said that he had
had a problem with his load which he had then off loaded in Masvingo in order
to rectify it. He did so with the help of some young men from the locality who
he was directing on how to reload and secure the load.
The
witness said that the second defendant said that the excavator on the third
defendant's truck had caused his load to shift to the right. He said that he
heard two bangs which caused him to stop. The second defendant's version which
he recorded in the Police Traffic Accident Book states:-
“I was travelling towards Beitbridge
border post along Masvingo Beitbridge road. I was hit by an abnormal truck on
the left side of my trailer. The abnormal load did not stop. Tent damaged and
bags of cotton cake. I was travelling at 70km/hr. Time 19:15pm” (sic)
The witness also interviewed the fourth
defendant who said that he did not hear anything. He proceeded with his journey
as he drove towards Harare
until he met police officers at Midzi business centre along the Masvingo-Harare
road, some 105km away from the scene of the accident. The third defendant's
version as recorded in the Police Traffic Accident Book was also to the effect
that when the accident happened he did not hear anything and was only informed
about it later.
The witness said that he then also
observed an unregistered truck which was off the road. The windscreen had been
smashed by a cotton cake bale which was still on the vehicle. The front fender,
lights and the cabin were extensively damaged. There were blood stains on the
driver's seat and the steering wheel. He said that he has been in the traffic
department for seven years. Both the second and the fourth defendants are being
charged with culpable homicide and the case is still pending at the Masvingo
Magistrates Court. He produced a report to that effect which was produced as an
exhibit.
The witness said that the third
defendant's truck was carrying an abnormal load and that it did have an
abnormal lead permit. One of the conditions of the abnormal load permit was
that the truck carrying an abnormal load should not move after 6.00pm until
6.00am. He said that that was the only condition on that permit that could be
of relevance to this case. He also said that he did not observe any marks on
the road that could have suggested that the Canter truck was over speeding. He
said that the Canter truck's final resting place was some 70 metres from the
point of impact. The driver of the Canter truck died whilst two passengers from
the Canter truck were referred to hospital as they had sustained serious
injuries.
When he was being cross-examined by
the first and second defendants' legal practitioner, the witness said inter alia, that in view of the cotton
cake that was left on the excavator, it appeared to him that the side swiping
between the first defendant's truck and the third defendant's truck could have
been the cause of the accident. He also said that he blamed both drivers for
the accident. He said that the fact that the load on the first defendant's
truck was tilting to the right when he saw the truck at the scene after the
accident suggested that when the second defendant tried to secure the load at
Masvingo, it had not been done properly.
The witness also said that he did
not believe the fourth defendant's claim that he heard nothing when the
accident occurred and that as a result there is a docket for the fourth
defendant's failure to stop after an accident. This is in addition to the
charge of culpable homicide that he faces jointly with the second defendant
although both drivers have not yet been brought before the criminal courts. He
said that the two year delay in finalising the matter is because it has been
difficult for the police to locate the fourth defendant who is based in South Africa.
Whilst under cross-examination by
the third and fourth defendants' legal practitioner the witness said, inter alia, that the excavator on the
third defendant's vehicle was properly secured with chains although it had
protruding ends. He said that he was unaware that the fourth defendant had been
cleared of the charge of failing to stop after an accident by one Inspector
Mubvuta as alleged by the third and fourth defendants' legal practitioner. He
said that the said Inspector Mubvuta was the Officer In-Charge of Masvingo
National Traffic Section. He also said that after his investigations he allowed
both the second and the fourth defendants to proceed with their journeys. He
also said that what the fourth defendant had was a large red cloth on which was
written the words “abnormal load” and that the cloth covered the length of the
front of the vehicle from one end to the other. The cloth was not reflective.
He said that he was hearing for the first time while before the court, the
allegation that the third defendant's vehicle was travelling in a zig-zag
manner.
The
witness also explained that the note which it was being claimed was evidence of
the fourth defendant having been cleared of charges by Inspector Mubvuta was in
fact a note that the fourth defendant requested for purposes of explaining to
his employers the delay he had experienced in Masvingo as he had a time frame
within which to complete his journey.
Luke Chigwida the first plaintiff
gave evidence next. He runs a company called Swedde (Pvt) Ltd. He bought and
imported the Mitsubishi Canter truck from Japan. His claim against the
defendants is for the replacement cost of the vehicle which was damaged in the
accident on 20 June 2007. He also wants to be compensated for the freight and
duty charges. He produced documents which confirmed the importation as well as
the cost price of the vehicle as USD5100. He also paid ZAR 36000 to the South
African Revenue Service for the vehicle to be shipped from Japan to Durban
and this included freight and insurance. He also paid ZAR 21744 to a company
called Exploranka Freight (Pvt) Ltd for handling charges. He paid to Freight
Solutions (Pvt) Ltd, a Zimbabwean Company, the sum of Z$3 876 830,74 for the
vehicle to be imported into Zimbabwe.
He also paid duty at the Zimbabwean border in the amount of Z$2 830 000 to
ZIMRA. He produced all the relevant supporting documents.
After clearing the vehicle at the
border and paying all dues as described above, he took possession of the
vehicle. He then asked his brother, the now deceased Farai Emmanuel Chigwida to
drive it while he led the way driving another vehicle, on their way from
Beitbridge border post. As they progressed on their journey he drove past a
Mainline, tanker, presumably the third defendant's vehicle. Then after some
time he realised that he could no longer see his brother following behind him.
He stopped in Masvingo waiting for his brother to arrive. As there was a long
delay he flagged down a bus and asked if they had seen a Mitsubishi Canter
truck. On receiving a report from the bus driver, he made a u-turn and drove to
the mortuary. He then went to the scene of the accident in the company of some
police details. He incurred towing costs in the sum of Z$ 34 million. The
Canter truck had to be towed as it could no longer be driven due to the
extensive damage that it had sustained. The vehicle was assessed as being
beyond economic repair by the assayer. He said that he has since ascertained
that it would cost him USD 7000 to replace the truck and he produced a
quotation to that effect. He said the wreck was valued at USD 800 as that was
the last offer he got from a potential purchaser.
Under cross-examination he confirmed
that he was claiming the replacement value of the vehicle and all the other
stated charges less the amount that he is able to realise from the sale of the
body being USD800.00.
The first plaintiff's case was then
closed.
The second plaintiff then gave
evidence. She said that she was customarily married to the deceased Emmanuel
Chigwida who died as a result of the accident described above. She has four
children from her marriage to the deceased, one of whom being Arthur, is now above
the age of 18 and is a major, Lorraine Kudakwashe was born on 4 August 1991.
Tanyaradzwa was born on 1 December 1994 and Kudzai on 30 June 2000.
The
deceased then aged 59, was employed by Medicines Sans Frontiers as a driver. He
earned USD 308 per month. She is not employed. For herself and the three minor
children she is claiming USD 15 840. She met the funeral expenses relating to
her husband's death with the assistance of her late husband's brother. She paid
Z$159 735-00 to Homage Funeral Services and Z$18 342-00 to Moonlight Funeral
Services.
Under
cross-examination she said that the deceased had worked for Medicines Sans
Frontiers for 6 months at the time of his death. Before then he had been
employed by the Swedish Embassy for five years.
The
second plaintiff's case was then closed.
The
second defendant gave evidence on behalf of the first and second defendants. He
is employed by the first defendant and was driving its truck on 20 June 2007.
He has 12 years experience as a long distance truck driver. He was carrying
cotton cake bags from Harare to Johannesburg. From the trailer his load was 11/2
(one and half) metres high. It was high enough to have had contact with load of
the third defendant's vehicle which was going in the opposite direction.
The
witness said that as he was entering Masvingo he realised that his load had
shifted to the left. He then drove to a place where lorries are usually parked.
He looked for young men who usually roam the place looking for odd jobs. When
asked as to how he had picked those who then assisted him he said that he had
known them for some time and knew them to be experienced in that work. They
assisted him to re-secure the load. Before leaving his port in Harare the vehicle had been loaded by young
men engaged as casual workers. According to company policy he must check his
load after every 300 kilometres and that is what prompted him to check his load
as he was entering Masvingo which is some 291 kilometres from Harare.
The
witness said that he was carrying 600 bags. They were covered by tarpaulin and
secured by 21 belts which tightened them. After re-securing the load he left
Masvingo at 5.45pm and the accident occurred about 7.20pm. As he approached the
third defendant's vehicle which was travelling in the opposite direction, he
dipped his lights and switched on his right indicator to show the on-coming
driver what space was occupied by his vehicle. He did not realise that the
third defendant's vehicle was carrying an abnormal load. He did not see the
cloth said to have been at the front of the vehicle on which the words
“abnormal load” were written. As the vehicles passed each other going in
different directions, he heard two separate and distinct noises. His vehicle
swerved off the road and he then stopped it. The first noise was from the
impact of the loads of the two vehicles. The second noise was from the impact
of the cotton bags on the deceased's vehicle. He thought that the now
deceased's vehicle must have been travelling too close to the third defendant's
vehicle and was travelling at an excessive speed otherwise he would have found
the cotton bags already on the ground.
The
witness said that he was then approached by a witness from the deceased's vehicle
who made a report to him and indicated the deceased's vehicle to him. The
witness got to the deceased's vehicle and removed the driver from the vehicle.
He was already dead. The witness also removed two passengers who were seated in
front, a man and a woman. The witness went back to check on his truck and
realised that the tarpaulin and the ropes had been cut though on the right
side. He thought that it was possible that the fourth defendant may not have
heard the sound of the impact of the two loads as the fourth defendant's load
was very large. He believed that immediately before the accident his load was
in a safe position as it had just been re-secured in Masvingo. The load was
properly accommodated inside the trailer and was not overlapping the sides of
the trailer. Furthermore as a professional driver, he was checking his view
mirrors every forty-five seconds. He was also switching the worklight on at
intervals in order to check on the security of his load.
On
being cross-examined by the plaintiffs' legal practitioner the witness said inter alia that the load he was carrying
was from Cottco and the young men who loaded the truck were employed by Cottco
to do the job. The young men who re-secured the load in Masvingo were not
employed by Cottco. The witness used to know them when they used to work for an
organisation called CARE where they used to perform the same duties on a daily
basis; however on this occasion they had since left employment with CARE. The
witness was questioned also about his statement whilst he was giving evidence
in chief that loads normally slant to the left and not to the right. He said
that this is what he had grown to know from his observations during the years
of experience that he had. He further stated that it is unusual for a load that
would have shifted to the left, to thereafter shift to the right.
The
witness said that if he had noticed as he approached the third defendant's
truck that it was carrying an abnormal load he would have pulled off the road.
He did not expect to meet an abnormal load vehicle at that time. He denied that
he was not exercising due care and attention or that he failed to keep a proper
look out. He said that if he had been driving without due care and attention
there would probably have been a head-on collision or the horses of the two
trucks would have collided. He said that the bags fell off because the tent or
tarpaulin and the ropes had been ripped and cut through when the two loads came
into contact.
The
witness said that he did not see the deceased's vehicle before the accident and
conceded that his conclusions regarding how closely it was following the third
defendant's vehicle were based on assumptions. He said that his conclusions
were based on the fact that the bags fell and landed onto his vehicle and that
one would have expected him to have run over the bags if he was not too close
to the third defendant's vehicle and was not travelling too fast.
The
witness said that he had travelled some 65 kilometres from Masvingo when the
accident happened. He denied that his constant checking of the view mirrors
disturbed his concentration on keeping a proper look-out.
On
being cross-examined by the third and fourth defendants' legal practitioner the
witness said that he did not believe that his load had already shifted to the
right before the impact. He said that the impact caused his vehicle to go off
the road. He said that the tarpaulin was torn at the height of some 40 cm from
the trailer and that it was torn right across its whole length on the right
side. He said that as the tent and ropes were ripped open and cut through, some
bags of cotton cake were carried away by the abnormal load and some landed on
the third defendant's vehicle. He said that as the third defendant's vehicle
carried an abnormal load it did not leave sufficient room for the two trucks to
pass each other safely. He also said that he did not see if the third
defendant's truck encroached onto his lane of travel or it was in its own lane.
All he heard was the impact on collision. He said that the third defendant's
load overlapped the sides of the trailer but would not agree nor could he deny
that it overlapped by 15 centimetres. He also said that he could neither agree
nor deny that such an overlap would be the same as that of a view mirror and
would therefore not be a danger to other road users.
No
other witness testified on behalf of the first and second defendants and their
case was then closed.
The
fourth defendant gave evidence on behalf of the third and the fourth defendants.
He is employed by the third defendant as a driver and has been so employed
since November 1989. He has been driving heavy vehicles since 1976. On 20 June
2007 he was driving the third defendant's truck and on it was loaded an
excavator which he was transporting from a harbour in Durban
to a destination in Ndola in Zambia. On the
way from Beitbridge to Masvingo he was involved in the accident that has given
rise to this suit. When asked if he had seen the first defendant's truck coming
from the opposite direction whilst it was still some distance away he said that
he had. He was asked if he had noticed anything that was out of order on or
about the first defendant's vehicle. His answer was:
“I did not see the slanting or
position of the load because the road was straight. I did not see that the load
was protruding. I did not see anything abnormal or if the load was in any way
not properly positioned”
The
witness said that he travelled for some distance with the deceased's vehicle
trailing behind his. He noticed the deceased's vehicle at Ngundu Halt and also
at another place called Maringire. He said that he did not at any stage notice
any indication of the deceased's intention to overtake him.
The
witness said that his load was not an abnormal load. An abnormal load protrudes
out of the trailer significantly. The height of the load and the tonnage also
determine whether a load is abnormal or not. He said that an excavator is constructed
in such a way that the bottom part is wider than the top part and it is the
bottom part which was on the trailer. Three quarters of the chain wheels were
contained in the trailer with a protrusion of about ten to fifteen centimetres.
It is thus the bottom part which was overlapping and not the top part. A load would
be abnormal if the overlap would be such as to interfere with the other lane of
travel for vehicles from the opposite direction.
The
witness said that his load was 3,8 to 4 metres high and to his knowledge a load
of 5 metres and above would be abnormal. A weight of 35 tonnes and above on a 3
wheeled axle would also qualify to be labelled as an abnormal load. The witness
also said that an abnormal load must be carried on a low bed trailer. When
intending to carry an abnormal load, one must obtain a permit from the Ministry
of Transport first. One is also allocated a route to use or follow. One must
also have two vehicles to escort the abnormal load with one vehicle in front to
alert on-coming traffic. Abnormally loaded vehicles are not allowed to travel between
6pm and 6am. When entering a town one is supposed to telephone the police who
would then escort the abnormally loaded vehicle through the town in order to
avoid accidents. In this instance no application was made for a permit to carry
an abnormal load from Durban to Ndola as he was carrying a normal load. He
said that all he had was what he called a “cross-border permit”. The police
would not have allowed him to pass or proceed without that permit if he had
been carrying an abnormal load. If carrying an abnormal load, one does not go
to the weigh-bridge at the border. A different gate is used and the vehicle is
parked in the clearance yard. On the day in question he went through the weigh
bridge as he was not carrying an abnormal load. He produced the weigh-bridge
ticket.
The
witness said that he stopped some 40 kilometres after Masvingo on his own
accord as he needed food and refreshments. He was only alerted to the fact that
he had been involved in an accident by the owner of the shop where he had
parked. They then examined his vehicle using torches as it was dark and they observed
some pieces of cotton cake on his trailer by the chain wheels. By the view
mirror close to the driver's cabin were pieces of bags. The owner of the shop
then called Masvingo Traffic Police and asked the witness to wait for them
there. The police finally arrived at 3.30am and they drove back to Masvingo
Central Police Station where he disengaged the horse from the trailer and drove
back to Ngundu with three police details.
The
witness said that at the scene he saw bags of cotton cake on the right side of
the road. A truck had hit against a rock. The first defendant's truck was
parked off the road. On the first defendant's truck he noticed that just after
the centre of the trailer the tent was ripped open. It looked like the vehicles
had side swiped causing the bags to fall off. He said that the glass or
windscreen of the driver's cabin on the excavator was not damaged. He believed
that the bags must have been raked by the view mirror of the excavator as there
is no other part of the vehicle or its load which could have come into contact
with the bags. He said that they realised that the protruding bottom part of
the excavator had not come into contact with the cotton cake bags. He also said
that the horse of the first defendant's truck was not dented. He said that he
also observed that the tearing of the tarpaulin was concentrated more on the
area where the load was slanting. He did not see a tear running the whole
length as stated by the second defendant. The load was slanting to the right.
He denied being partly or wholly responsible for the accident.
Under
cross-examination by the plaintiffs' legal practitioner the witness said that
as he observed the second defendant's truck approaching he saw that its load
was the same height as his. He said he travelled at a maximum speed of 80km per
hour reducing to lower speeds when the terrain or circumstances required that.
He said the document that he had produced, the weigh-bridge ticket showed three
weights taken from the front axle, the diff and the tri-axle trailer. He said
that the total weight would then be the total of the three stated weights. He
said that he does not know the width of his trailer but it was like any other
tri-axle trailer.
The
witness was asked why the plaintiffs' witness, the police officer, was not
challenged when he said that the top part of the excavator was protruding from
the trailer. He said that he had not been given an opportunity to personally
cross-examine the witness. He said that it was not true that there was a piece
of red cloth stuck at the front of the horse of his truck. He said that there
was a permanently stuck abnormal load sticker on the horse of the trailer. On
the day in question he was using a truck with a low bed. The witness denied
that he was negligent by failing to warn other road users of the load that he
was carrying. He denied that he is being charged with culpable homicide and
failing to stop after an accident as he has not been formally charged nor has
he received documentation to that effect. Furthermore, the police had cleared
him after the accident and had also given him a document to show to his
employers indicating that he had been delayed at Masvingo Police.
The
witness was then cross-examined by the first and second defendants' legal
practitioner. He said that he although he had not seen that the first
defendant's truck's load was slanting before the accident, he did not agree that
the contact between the two loads or trailers caused the load to be in the
slanting position that he saw it in after the accident. He said that if his
trailer had side swiped the first defendant's truck's trailer there would have
been more extensive damage than what transpired. Tyres would have burst and the
chains securing the excavator would probably have been severed with a
possibility of the excavator being thrown out of the trailer. He said that the
first defendant's truck would then have probably veered off the road and the
driver would have lost control. He maintained that the cause of the accident
were the cotton cake bags which were slanting to the right and that the
protrusion of his own load had no effect on other road users. He had travelled
a long distance all the way from Durban
for about one and half days and he had left in the evening. The protrusion of
his load had not caused any problem then.
The
witness further said that he did not think it was the second defendant's fault
that the load was slanting. As roads are bumpy and there are holes, that can
result in loads shifting without there being any negligence on the part of the
driver. He said that his own load did not shift as it was secured by chains. If
it had slanted it would have fallen. He denied that he obstructed the second
defendant preventing him from overtaking and maintained that his vehicle
occupied its correct lane only and did not protrude into the other lane for
traffic from the opposite direction.
The
third and fourth defendants' cases were then closed.
The
plaintiffs' claims are for delictual damages arising from alleged negligence on
the part of all defendants. In Cape Town Municipality v Paine 1923 AD 207 at 216 – 217
Innes CJ stated:
“It has repeatedly been laid down in
this court that accountability for unintentioned injury depends upon culpa, - the failure to observe that
degree of care which a reasonable man would have observed. I use the term
reasonable man to denote the diligens
paterfamilias of Roman law, - the average prudent person. Every man has a
right not to be injured in his person or property by the negligence of another,
- and that involves a duty on each to exercise due and reasonable care. The
question whether, in any given situation a reasonable man would have foreseen
the likelihood of harm and governed his conduct accordingly, is one to be
decided upon a consideration of all the circumstances. Once it is clear that
the danger would have been foreseen and guarded against by the diligens paterfamilias, the duty to take
care is established, and it only remains to ascertain whether it has been
discharged.”
It
is common cause that first and second defendants' load of cotton cake or lint
came into contact with the third and fourth defendants' vehicle or load
(excavator). It is also common cause that although the loads of the two
vehicles made contact, the horses of the two vehicles did not make contact when
they passed each other as they proceeded in opposite directions. The police
investigating officer said that the top part of the excavator was protruding
outside the trailer and that he observed traces of cotton lint on the excavator.
The third defendant however said that it was the excavator's view mirror which
raked the cotton lint or cake bags and that there were traces of cotton lint or
cake on it. Although this may appear to be a difference in their versions, the
fact remains that a part of the excavator was protruding and that that part
raked the cotton bags.
The second defendant said that as he
drove he would constantly check on his load to make sure that it had not
shifted as it is known that a load may shift whilst in transit due to the
movement of the vehicle as well as the terrain on which the road passes. He
also said that he noticed that his load had shifted before he got to Masvingo and
that this necessitated him having the load re-secured in Masvingo before he
proceeded further with his journey. The accident occurred after the stop-over
in Masvingo and after he had travelled some 65 km. he suspected that by the
time of the accident his load may possibly have shifted again.
That the fourth defendant's load may
have shifted again by the time of the accident appears to be strongly supported
by the fact that the re-securing of the load at Masvingo was done by people who
were not professionals at the job. Furthermore, that the accident occurred only
some 65 km after he had left Masvingo. This ought to be viewed in light of the
second defendant's evidence that his employer requires him to check on his load
every 300 km. That the load had shifted at the time of the impact also seems to
be supported by the fact of the impact itself as it is highly unlikely that
there would otherwise have been contact between the two vehicles. The first and
second defendants were thus negligent in not ensuring that the load was
properly secured and would not cause danger to other road users. They were
therefore negligent and thus cannot escape liability for the plaintiffs'
claims.
It however appears to me that it
could not only have been the shifting of the second defendant's load that led
to the impact of the two loads. The protrusion of part of the fourth
defendant's load, the excavator, appears to me to have also played a part in
the occurrence of the impact between the loads. The fact that the two horses
did not collide with or side-swipe each other suggests that the two drivers must
have each been driving well within the confines of their respective lanes. I
thus find the first and second defendants' contention that the third and fourth
defendants' vehicle encroached into their vehicle's lane to be highly
improbable. There would otherwise have been a collision or side-swiping of the
horses and the fourth defendant would have become aware of the accident as it
happened or at the very least very soon thereafter.
It
appears from the evidence adduced by the parties that neither driver was able
to see the state of the other's oncoming vehicle. Each could only see the
approaching headlights of the other's vehicle. This is not unusual when one
considers that the accident occurred at about 7.20pm when it was already dark.
The second defendant stopped soon after the impact. The fourth defendant did
not stop as he was not even aware of the accident until he was advised about it
when he was already some (one hundred kilometres – or is it forty?) away. This
could well be explained by the fact that the fourth defendant's load being a
solid and presumably metal piece of equipment was not affected or moved by the
impact. On the other had the second defendant's load being non metal was torn,
ripped and strewn off the vehicle by the excavator or more specifically the
part of the excavator that it came into contact with. During daylight the
second defendant would have seen the slanted load of the oncoming vehicle and
would have taken the necessary avoiding action. The fourth defendant would also
have seen the protrusive part of the oncoming vehicle's load and would also
have taken the necessary action to avoid the impact of the loads. As neither
saw the state of the other's vehicle or load, neither took evasive action and
this resulted in the accident.
It
was common cause that the third and fourth defendant's vehicle had no flashing
beacon and no escort. The plaintiffs contend that as the third and fourth
defendants' load was abnormal they needed to have taken the stated precautions.
The third and fourth defendants disputed this contention. However, the police
witness said that the horse had a sticker at the front on which were inscribed
the words “Abnormal Load”. He also said that the excavator was about four to
five metres in height. The fourth defendant however put it at four metres high.
The police witness also said that the fourth defendant had an abnormal load
permit. I have no reason to doubt the truth of his evidence. The evidence
placed before the court tends to support the plaintiffs' contention that the
third and fourth defendants load was an abnormal load which required compliance
with the permit's restrictions on the times when movement on public roads is
allowed as well as the other precautions that are meant to avoid danger to
other road users. I am also persuaded by the plaintiffs' contention that even
if the third and fourth defendants' load was not abnormal, the type of the item
carried as well as the size of it were such that they should have foreseen that
it might cause danger to other road users and should have taken the necessary
precautions which would include not travelling after 6.00pm, or at least after
dark, and would also include flashing a beacon. The type of load that the
fourth defendant was carrying was in my view such that it not to have been
transported on a public road after dark.
The evidence of the passenger who
sat in the front passenger seat of the deceased's vehicle was to the effect
that for some distance the deceased failed to overtake the fourth defendant as
his trailer was zig-zagging along the road. I have no reason to disbelieve this
witness' testimony. In any event, the fourth defendant himself confirmed that
the deceased travelled for a long distance behind him without overtaking him,
although he said that he assumed that the driver (the deceased) was happy to
follow behind him. As regards the third and fourth defendants it would appear
to me that the evidence adduced before this court supports the plaintiffs'
claim or contention that they were also negligent and that such negligence also
contributed to the accident.
The third and fourth defendants
averred in their pleas that plaintiff's (presumably the first plaintiff's)
motor vehicle “was either travelling at too fast a speed, and/or too close to
the defendant's motor vehicle and trailer” and that they therefore deny any
liability to the subsequent damages suffered by the plaintiffs as a result of
the accident. It is however common cause that immediately before the impact the
deceased had been travelling behind the fourth defendant for a long distance.
The fourth defendant himself said that he was travelling at 80 km per hour. It
follows that the deceased must have thus been travelling either at the same or
a lower speed as he drove behind him. Lovemore Mukura, the passenger in the
deceased's vehicle also confirmed that the deceased was travelling at a speed
of between 75 and 80 km per hour. The deceased can thus not be said to have
been travelling at an excessive speed. Regarding whether the deceased's vehicle
was travelling too close to the fourth defendant's vehicle I propose to do no
more than quote a portion of the plaintiffs' closing submissions.
“The issue of the Canter driving too
close to the 4th defendant was raised in the defendants' pleadings.
However, this allegation is based on an assumption which has been challenged.
Nobody could tell at what point in relation to the accident the side swiping
took place. It could have occurred a distance away from the scene of the
accident. The bags may have started falling a little while after the side
swipe, nobody knows. It is therefore submitted that the allegation was not
proven. … .”
I therefore find that no
contributory negligence on the part of the plaintiffs has been proven. On the
other hand, by travelling at night with the type of load on their vehicle, the
third and fourth defendants were negligent as they ought to have foreseen that
their vehicle could pose a danger to other road users.……………….
It is the plaintiffs' contention
that whilst all the defendants are jointly and severally liable for the damages
that they have sustained, the third and fourth defendants' blameworthiness is
higher than that of the third and fourth defendants. The plaintiffs urged the
court to find that an apportionment of 70% of the blame (for the accident) to
the first and second defendants with the other 30% being apportioned to the
third and fourth defendants would be reflective of the respective defendants'
levels of blameworthiness.
In
Portwood v Samvur 1970 (1) RLR 225 @
231H to 233C; 1970 (4) SA 8 (RAD) Beadle CJ stated:
“It is trite that as a very general
principle before any act of negligence can be regarded as being responsible,
even in part, for an injury, it must be shewn that that act was a sine qua non of the accident causing the
injury, and, unless it can be shewn that the accident would not have happened
but for that act, such act of negligence is not regarded as a sine qua non. (See McKerron's Law of Delict, 6th Edn., pp.
117 and 272, and cases there cited.) …………….. . McKerron goes so far as to say
that there is only 'one exception' to this 'rule'. This exception is where the
damage is brought about by two concurrent causes, each of which, operating
alone, would have been sufficient to cause the damage (McKerron, loc cit., p. 117). Instances of this
exception are not difficult to imagine. Take, for example, this situation. A
and B are the drivers of two motor-cars approaching each other from opposite
directions on a straight and open road. They collide 'head-on', and C, an
innocent bystander on the side of the road, is injured in the collision. Both A
and B are driving at a furious speed and neither is keeping a proper look-out.
Suppose that the facts are that neither A nor B, had he not been negligent,
could have avoided the consequences of the other's negligence. If the sine qua non principle was applied to
test the liability of A and B, both could escape, because each could plead that
his own negligence was not a sine qua non
of the accident because, even had he been diligent, the accident would
still have happened as a result of the other's negligence. It would appear that
it is in order to avoid this absurd result that the exception mentioned by
McKerron is introduced. This exception, however, is of little assistance in the
instant case, as the facts do not fall within it, …. This is not a case where
the accident would still have happened if one of the concurrent factors causing
it was removed. With respect, however, to such an eminent writer on the law of
delict as Professor McKerron, I do not think that tests of causation in delict
can be circumscribed by rules and exceptions to quite the extent which he
appears to suggest. I would quote here what was said by CLERK and LINDSELL on Torts, 12th Edn., para. 297:
'Test
of causation. The courts have repeatedly disavowed scientific and
philosophical tests by which to determine this most troublesome question. They
prefer instead to approach the matter broadly on a common-sense basis, and it
is, therefore, difficult to reduce the innumerable decisions to hard and fast
principles. There is a frequent allusion in the judgments to the causa causans, the effective factor, as
distinct from the causa sine qua non, the
factor without which the damage could not have occurred, but these phrases give
no indication as to how the distinction between them is to be drawn. It is
profitless to seek a precise test; nothing could be more explicit than the
judicial disavowal of any such thing. The most that can be said, perhaps, is
that in any given case the judge, adopting a common-sense approach, will try to
pick out the factor which, in his opinion, overshadows all others in
importance. 'The decision of the case,' said Lord Wright, 'must turn not simply
on causation, but on responsibility.' The very vagueness of such an idea as
this imparts considerable flexibility to the whole concept of legal causation.
Frequently it is just as plausible to select one out of a mass of contributory
factors as another. When a court does pick out one as being the 'responsible
cause' this is the result in some cases of a common-sense balancing of the
various factors involved, such as their relative blameworthiness, or in other
cases of a policy decision.''.
I would also refer to the case of Yorkshire Dale Steamship Company v. Minister
of War Transport (1942) A.C. 691. In that case, Lord Wright (at p. 706) is
reported as saying:
'This choice of the real or
efficient cause from out of the whole complex of the facts must be made by
applying common-sense standards. Causation is to be understood as the man in
the street, and not as either the scientist or the metaphysician, would
understand it. Cause here means what a business or seafaring man would take to
be the cause without too microscopic analysis but on a broad view.''.
It
seems to me that this is the proper approach.
In the example I have given of the suicidal motor-drivers colliding head
on with each other, I think it would be quite profitless to expect C, the
injured bystander, to have to try to prove what might or might not have
happened if one or other of A or B had not been negligent. The proper approach,
surely, is the direct common-sense approach of the man in the street; and, in the
example given, he would, without doubt, simply say: 'Of course, they are both to
blame.' This is how I propose to approach the facts of this case.” (The emphasis is mine)
For
the reasons discussed above I am in agreement with the plaintiffs' legal practitioner's
submission that a higher level of blameworthiness ought to be apportioned to
the third and fourth defendants. I agree that on an overall assessment of the
evidence adduced and the findings already made by the court, the third and
fourth defendants' blameworthiness ought to be placed at 70% and that of the
first and second defendants at 30%.
The defendants did not challenge or
dispute the quantum of any of the two plaintiffs' claims. It is thus not
necessary for me to delve into the merits of this aspect of the matter save to
state firstly, that the extent of their respective liabilities shall be in
accordance with the above stated levels of blameworthiness apportioned to the
respective sets of defendants jointly and severally, the one paying the other
to be absolved. Secondly, with the dollarisation of the economy, the second
plaintiff's claim for funeral expenses, which claim is denominated in Zimbabwe dollars, would even if it were to be
granted by this court, be of no real meaning or benefit to her. It will thus
not be granted. In addition, the rate of interest can only be granted as the law
stipulates, at 5% per annum. The plaintiffs' claims as stated above must otherwise
succeed. Costs will follow the cause.
It
is therefore ordered as follows:
- Judgment
is granted in favour of the first
plaintiff against the first and
second defendants jointly and severally, the one paying the other to
be absolved, in the sums of:
(a) USD 2 100 (Two thousand one hundred United States
dollars)
(b) ZAR 17 413.20 ( Seventeen thousand
four hundred and thirteen Rand and twenty cents)
(c) Interest on each of the said amounts
at the rate of 5% per annum as
calculated from 20 June 2007 to the date of full payment.
(d) Costs of suit.
2.
Judgment is granted in favour of the first
plaintiff against the third and fourth
defendants jointly and severally, the one
paying the other to be absolved, in the sums
of:
(a) USD 4 900 (Four
thousand nine hundred United
States dollars)
(b) ZAR 40 630.80 (Forty
nine thousand six hundred and thirty Rand and eighty cents)
(a) Interest on each of the said
amounts at the rate of 5% per annum as
calculated
from 20 June 2007 to the date of full payment.
(d) Costs of suit.
3.
Judgment
is granted in favour of the second
plaintiff against the first and second
defendants jointly and severally, the one paying the other to be absolved, in
the sums of:
(a) USD 4 752 (Four thousand seven
hundred and fifty two United States Dollars).
(b) Interest on the said amount at
the rate of 5% per annum as
calculated from
20 June 2007 to the date of full payment.
(c) Costs of suit.
4.
Judgment
is granted in favour of the second plaintiff
against the third and fourth defendants
jointly and severally, the one paying the other to be absolved, in the sums of:
(a) USD 11 088 (Eleven thousand and eighty
eight United States Dollars).
(b) Interest on the said amount at
the rate of 5% per annum as
calculated from
20 June 2007 to the date of full payment.
(c) Costs of suit.
P. Takawadiyi &
Associates,
plaintiffs' legal practitioners
Byron Venturas &
Partners, 1st
& 2nd defendants' legal practitioners
Robinson
& Makonyere, 3rd
& 4th defendants' legal practitioners
