Elizabeth Ndava v Tendai Chivizhe Takaruva and Elizabeth Artzinger

### Preamble
1
HH 407-12
HC 6537/10
---------


ELIZABETH NDAVA

versus

TENDAI CHIVIZHE TAKARUVA

and

ELIZABETH ARTZINGER

HIGH COURT OF ZIMBABWE

DUBE J

HARARE, 18 June 2012, 11 July 2012 and 25 October 2012

CIVIL ACTION

A. Muchandiona, for the plaintiff

J. Samkange, for the defendants

DUBE J:       This is a claim in delict for damages arising out of bodily injuries sustained as a result of a road traffic accident. The plaintiff issued summons against three defendants claiming payment of damages totalling US $ 71 051.00. Jupiter Insurance Company (Pvt) Ltd was cited as the 3rd defendant and is the defendants’ insurer. A settlement was reached between it and the plaintiff before the commencement of the trial. The defendants are the driver of the vehicle involved in the accident and its owner.

The claim arose out of the following facts. On 12 February 2010, the applicant boarded a Nissan Civilian commuter omnibus (hereinafter referred to as the minibus), from Beitbridge to Harare. The bus was being driven by the first defendant. The second defendant is the owner of the bus and employs the first defendant as a driver. After the 45km peg along the Masvingo-Beitbridge road, the minibus was involved in an accident. It overturned and landed on its side resulting in the plaintiff sustaining injuries. The plaintiff claims that the accident was caused by the negligence of first defendant in that he,

a) was travelling at an excessive speed in the circumstances,

b) did not keeping a proper lookout,

c) was following too close to the vehicle which was travelling in front of him and

d) did not stop or act reasonably when the accident seemed imminent.

On 16 September 2010, the plaintiff instituted proceedings against the first and second respondents claiming the following relief:

Past medical and hospital expenses (USD 8500-00)

Transport costs incurred in seeking treatment (USD 1300-00)

Accommodation expenses incurred in connection with treatment (USD 1200-00)

Shock, pain and suffering, disfigurement, loss of amenities of life and permanent disability (USD 50000-00)

Future medical expenses(USD 10000-00)

Interest on the total damages amounting to USD 71050-00 at the prescribed rate of 5%  from 12 February 2010 to the date of payment and

Costs of suit

The plaintiff called four witnesses including her. The plaintiff took to the witness stand and testified as follows. She is a nurse by profession. On 12 February 2010, she was on her way to Chinhoi University where she intended to write an exam. She boarded a minibus being driven by the first defendant. Whilst on the way she slept and when she woke up, she realised that the minibus was lying on its side and her right arm was stuck under the minibus. She later discovered that the bus had been involved in an accident. She did not witness the accident as she was asleep. She sustained serious injuries to her hand. Her husband was later phoned and came and ferried her to Beitbridge Hospital and later to South Africa for treatment. The plaintiff was later taken to West End Hospital in Harare where she underwent skin grafting. She outlined the extent of the injuries she sustained as a result of the accident and the expenses she incurred in getting herself treated. The witness gave a clear account of her injuries. Her evidence is important only for purposes of detailing the injuries she sustained.

The next witness was the plaintiff’s husband. He testified that after he received a message that his wife had been involved in an accident, he rushed to Beitbridge District Hospital and later to South Africa. He later took the plaintiff to West End Hospital in Harare for further treatment. His evidence serves to confirm the medical and other expenses incurred in the treatment of the plaintiff. Proof of the medical expenses incurred was produced with the consent of all parties.

The next witness, Liah Mugonapanga Manyowa was a passenger in the minibus. She told the court that the accident happened at about 12 am to 1 am at night. She sat directly behind the driver on the front seat together with another passenger. She could see what was happening on the road ahead of them. The road was straight. She testified that the driver of the omnibus was over speeding although she could not tell the speed. There was a vehicle travelling ahead of them which suddenly stopped in the middle of the road. When the vehicle stopped she shouted this fact to the driver and the driver failed to apply brakes when an accident seemed imminent. The driver failed to keep a proper lookout. The driver swerved to the right resulting in the bus overturning. The minibus did not collide with the stationary vehicle. After the accident, she lost consciousness. The witness was injured on the right hand. She insisted under cross examination  that the driver was speeding because he did no manage to apply brakes and also that he was driving too close to the vehicle ahead of him The witness was not very clear on whether the vehicle travelling ahead of them was in motion or stationery at the time of the accident. Her evidence was not specific on the speed at which the driver was speeding.  This witness was subjected to lengthy cross-examination. It was suggested to her that the reason why she was testifying to the effect that the driver was over speeding is because she is angry that she was injured as a result of the accident. She insisted that the driver was speeding and suggested that the driver may have been travelling at 80 kilometres an hour. She explained that she was angry after the accident but that she was not angry anymore.

The next witness was Cedon Moyo. He testified as follows. He boarded the same minibus to Beitbridge the previous day. The conductor of the bus is the one who drove the minibus on that day. He was a passenger on the same minibus on 12 February 2010 on his way back to Harare. He was awake when the accident occurred. The first defendant was driving at an excessive speed and failed to avoid an accident when it was imminent and the minibus overturned. Before the accident occurred he saw a stationery vehicle in the middle of the road which was pulling a trailer. The trailer had reflectors. He did not know why it was stationery in the middle of the road. When the driver saw the stationery vehicle he panicked and tried to swerve. He suggested that the driver may have been sleeping. He explained that the driver failed to apply brakes and that the vehicle collided with the stationery vehicle and landed in the lane for oncoming traffic after the collision. He insisted that there was a collision as he heard a bang. He explained that if the driver had not been travelling at such an excessive speed, he would have been able to apply breaks and avoid the accident. He testified that the damages sustained by the minibus reveal that the driver was speeding. He not say the speed that the driver was travelling at but that he was speeding. After the collision, the minibus rested in the lane of oncoming traffic. He sustained minor injuries. He saw the plaintiff at the scene of accident and helped her to make a call to her husband. Under cross examination, the witness contradicted himself on whether he had met the plaintiff’s counsel at court or at his offices that morning. He was evasive about when he met him and whether they came to court together. He was not clear on whether they discussed the case. Initially he denied discussing the case with the lawyer and later said they discussed the case at the office and on their way to court. The witness explained that he initially denied talking to the lawyer because he was nervous as this was his first time in court. The impression created is that the witness was told what to say. The witness did not impress as a good witness. His evidence cannot be safely relied on.

The defendants contended that the accident was caused by the Malawian registered vehicle which was travelling ahead of the minibus. The defence called two witnesses. Elina Ruvengo was its first witness .She told the court that she was one of the passengers on the minibus and was sitting behind the driver with another lady. Her vision was clear and she was not obstructed by the driver. Her narration of the events in issue is that after the bus had travelled for about 50 kilometres from Beitbridge, she observed a truck pulling a trailer which was in front of the minibus. She first noticed the truck about a kilometre before the scene of the accident. There were no reflectors on the trailer but it visible. The driver was travelling at a slow speed or average speed. The accident was caused by a pickup truck which was travelling in front of the bus. The driver of the bus tried to overtake the truck pulling the trailer and at that moment, the trailer unhooked from the truck and the trailer encroached onto the side of the minibus. When this happened the minibus was about 20 metres from the trailer. The trailer was moving backwards towards the minibus. The driver moved from left to right and the trailer followed him. She told the court that the driver braked and tried to avoid the trailer. The passengers screamed when the driver applied brakes and that it is at this moment that the minibus collided with the trailer and the bus fell on its right side and began to slide on the tarmac. The trailer remained in the middle of the road. After the accident the driver of the truck parked his vehicle and came to where the minibus was. The witness was consistent in her story and gave a clear and straight forward story. She maintained under cross-examination that the cause of the accident was the trailer that disengaged from the truck and collided with the minibus.

The first defendant testified that he holds a class 2 driver’s licence and that his insurance cover allowed him to drive the commuter omnibus which is a class one vehicle .He was the driver of the omnibus on that day. When he passed the toll gate along the Beitbridge –Harare road, he saw a Malawian yellow registered vehicle with a trailer ahead of him. The trailer had no tail lights. He was travelling at about 55 to 60 kilometres an hour in a 80km\hour zone. The distance between the bus and the trailer was estimated to be big enough to fit four small cars. He signalled to the driver of the truck his intention to overtake him by flashing his lights at him and the driver of the truck indicated with the truck lights that it was safe to overtake. He was travelling at 60 km an hour when he started overtaking and at the time the accident occurred. He moved to the right side and as he neared the vehicle with the intention of overtaking it, the trailer detached from the truck and encroached onto his lane. He applied brakes and held onto the steering wheel. The trailer hit the bus on the left side and it fell on its side. The vehicle skidded until it came to a halt. When he managed to get out of the vehicle, he saw the trailer on its own and he could not locate the truck. He assisted the passengers of the omnibus out of the vehicle. He sustained an injury on his left shoulder. He attributed the accident to the driver of the truck whose trailer disengaged from the truck. He stated that the driver of the truck was not charged as he negotiated his release with the police. The prosecution declined to prosecute him. He insisted under cross-examination that he was travelling at a safe speed and that the cause of the accident was the truck travelling ahead of him. He contended that if he had been over speeding, the passengers would have suffered more serious injuries. He denied that he paid the driver of the Malawian registered vehicle US $1500.00 as damages after the accident. His evidence is similar to that of the last witness. The witness gave his evidence well. He did not contradict himself under cross examination. The second defendant did not testify.

The following issues were referred for trial,

Who caused the accident

What injuries were suffered by plaintiff as a result of the accident

Quantum of damages suffered by the plaintiff as a result of the accident

Are the defendants liable to pay damages to plaintiff and if so ,to what extent

It is common cause that the plaintiff was a passenger on a minibus which was being driven by the first defendant and that the bus was involved in an accident with a truck pulling a trailer. It is also common cause that the plaintiff sustained injuries as a result of the accident. The nature and extent of the injuries was not challenged. It was not disputed that the first defendant was driving the minibus during the course and within the scope of his employment with the second defendant.  The only remaining issue is whether the accident is attributable to the first defendant’s manner of driving and whether the two defendants are liable for the damages sustained by the plaintiff as a result of the accident and the quantum of damages suffered.

The plaintiff submitted that the first defendant negligently caused the accident. That the defendants in their plea did not give an account of how the accident occurred. The plaintiff  further submitted that the first defendant only sought to suggest for the first time in his evidence in chief that the accident was caused by the sudden detachment of a trailer from the truck. That his plea does not satisfy the requirements of r104 and r116 of the High Court Rules. Plaintiff further submitted that the defence was an after thought and that the defence was trying to avoid attracting an onus to prove how the accident occurred. The plaintiff further submitted that the suggestion that the first defendant was authorised by the insurers of the bus to drive the vehicle using a class 2 driver’s licence cannot be taken seriously for the simple reason that insurers do not make legislation.

The defendants maintained in their submissions that the accident was caused by a trailer that detached from the Malawian registered truck resulting in the omnibus and the trailer of the truck colliding. That the first defendant was alert and was driving at a safe speed and was not negligent in his manner of driving. The defence attributes the accident to the driver of the Malawian registered truck. The Malawian truck driver was not called as a witness. He could have shed light into the events preceding the accident. The police who attended the scene after the accident, if called would have shed light into what they discovered at the scene of the accident.

The onus is on the plaintiff to prove his claim on a balance of probabilities.

The court will have to determine the circumstances in which the accident occurred. Looking at the plaintiff’s version, there is no clear and uniform account of the sequence of events leading to the accident and the ultimate cause of the accident.Their version does not flow. There are contradictions in the plaintiff’s version. Cedon Moyo claims that there was a collision with the trailer which was stationery in the middle of the road. Liah Mugonapanga Manyowa claimed that the  truck had been travelling ahead of them but as they approached it and at the time of the accident, it was stationary in the road  She maintained that the minibus did not collide with the trailer and  but that the drivers swerved to the right resulting in the minibus overturning. There is no doubt that there was a collision between the trailer and the minibus. The fact that Cedon Moyo did not realise that the truck ahead had been moving before the collision suggests that he was not watching the road. The damages sustained by the minibus at the front are suggestive of a collision and this is contrary to Liah Munogonapanga’s version. It is interesting that she failed to hear the noise of the collision that Cedon Moyo and others heard. There is no logical explanation why she would fail to hear the sound of the collision. It is possible that the witness was sleeping at the time of the accident.

Plaintiff’s witnesses did not explain why they said the driver did not apply brakes. The suggestion that the first defendant failed to apply brakes when an accident seemed imminent was refuted by the defence witnesses.  They explained that when the driver applied brakes, that is when the passengers screamed. The plaintiff’s witnesses were not clear on the reason why the passengers screamed. Unfortunately the plaintiff did not produce the Traffic accident Book. This book could have shed light into whether the police found any evidence of breaking on the road surface. The defence witnesses on the other hand, told a consistent story on this point. They maintained that the driver applied brakes.

The plaintiff’s witnesses did not give clear and satisfactory evidence to support the assertion that the first defendant was driving at an excessive speed. A suggestion was made by Liah Mugonapanga that the driver may have been driving at about 80 km per hour. This was shown to have been in compliance with the speed limit of that area which is 80km per hour. The speed would not be in excess of the speed limit. No definite and clear speed at which the driver was travelling was given. Liah Mugonapanga did not indicate the speed at which the driver was travelling. None of the two witnesses could say why they concluded that first defendant was over speeding.

Evidence emerged that the driver was driving at a distance of about four vehicles from the vehicle ahead ,that cannot be said to have been driving too close to the vehicle ahead .It was contented  that the defendant  failed to keep a proper lookout. The driver told the court that he had been following the vehicle for a distance and that when he wanted to overtake the other driver he signalled his intention to do so and began to overtake. This evidence is suggestive of the fact that he was alert and actually communicated with the other driver his intention to overtake and hence kept a proper lookout. The driver did not see the other vehicle or trailer at the last moment but had been following the other vehicle and seeing it. I am satisfied that the defendant kept a proper lookout. He insisted that when he was faced with an accident, he swerved to the right in order to avoid the accident and applied brakes to control the vehicle. That in my view shows that the driver acted reasonably to avoid an accident when one seemed imminent. The plaintiff’s witnesses’ evidence was unreliable and was discredited in cross-examination. Cedon Moyo conceded that there was no way that the accident could have been avoided. The defence witnesses gave a straightforward account of what happened. This version in my view, accords with the probabilities. What seems to have happened in this case is that the trailer of the truck travelling ahead of the minibus disengaged from the truck as the first defendant tried to overtake it. This is explained by the fact that after the accident, the truck and the trailer were at two different spots.

I reject the plaintiff’s version of the events leading to the accidents because of the inconsistencies and contradictions therein. The defence story on the other hand is consistent and more probable.

This seems to me to have been a case of sudden emergency. In S v Mauwa 1990 (1) ZLR 235 (S), the accused was driving a minibus, a vehicle abruptly stopped ahead of the minibus. The accused swung the omnibus to the right to avoid a collision with the rear of a stationery vehicle ahead and collided with a motor cyclist coming from the opposite direction and killed him. KORSAH JA said at p 241 A-B remarked as follows,

"In Brandon v Osborne, Garrett & Co [1924] 1 KB 584 at 552, SWIFT J expressed the view that if a person does something which a reasonable person in the circumstances ought not to have done, that person would not be entitled to damages, but if what that person did was done instinctively and was in the circumstances a natural and proper thing to do then she would be entitled to recover. I infer from this dictum that where a person or third party is placed in danger by the wrongful act of another, that person is not negligent if he exercised such care as may be reasonably expected of him in the reasonable apprehension of the danger in which he is so placed. He is not to blame if he does not do quite the right thing in the circumstances."

The court held that by swerving to the right to avoid colliding with the rear of the stationery vehicle in the state of emergency the driver of that motor vehicle acted as any ordinary and careful driver ought to have acted in such circumstances. That he acted with the reasonable care and skill which any ordinary driver confronted with such a dilemma may employ.

The first defendant was placed into danger by the wrongful act of the driver of the Malawian driver ahead of him or the disengaging of the trailer from the truck. Looking at the reaction and conduct of the first defendant, it is clear that what he did in response to the accident that was imminent is something which a reasonable person ought to have done. He applied his brakes and swerved to the right in order to avoid the accident. I am satisfied that the first defendant exercised such care as was expected of him when an accident seemed imminent. He took evasive action by swerving to the right. The evidence of the plaintiff’s witnesses does not support a finding of negligence on the grounds relied upon.

The first defendant denied paying the driver of the Malawian registered vehicle an amount of US$1500.00 as damages. There was no proof to show that he paid that money. Even if it is accepted that he paid the money, the fact is, the facts do not disclose negligence on his part. The prosecution declined to prosecute him. It is common cause that the 1st defendant was not a holder of a class one driver’s licence when he drove the minibus. Whether the 1st defendant had the requisite driver’s licence is not the issue before this court. The court is concerned only with the defendant’s manner of driving on that day. I am comforted in my approach by the sentiments expressed in S v Chaita 1998(1) ZLR 213 (HC) where the court held that the fact that a person drives a vehicle when he is not a holder of a requisite licence does not on its own constitute negligence. The plaintiff did not outline in its declaration what the cause of the accident was. The plaintiff simply stated the particulars of negligence without giving the actual facts leading to the accident. The defendants also failed to did indicate in their plea that the minibus was hit by a trailer of a Malawian vehicle and the fact that the trailer detached from the truck. Both parties fell foul of the requirements of the rules.

In the result the plaintiff’s claim is dismissed.

Costs follow the event.

Danziger and Partners, plaintiff’s legal practitioners

Venturas and Samkange, defendant’s legal practitioners.