Jeremia Tsodzai v Collin Mageza and Clifford Mutuvira

### Preamble
HH 193-2011
HC 4725/09
JEREMIA TSODZAI
---------




JEREMIA TSODZAI

versus

COLLIN MAGEZA

and

CLIFFORD MUTUVIRA

HIGH COURT OF ZIMBABWE

BERE J

HARARE, 20 – 21 July, 12 & 16 September 2011

Civil Trial

P. Takawadiyi, for the plaintiff

S. Manyangwa, for the defendant

BERE J:  On 6 October 2009 the plaintiff issued summons out of this court against the two defendants claiming US$3 013.00 being the cost of repairs caused to his motor vehicle by the alleged negligent driving conduct of the second defendant who was employed by the first defendant as a driver.

The basis of the plaintiff’s claim was that his motor vehicle was damaged as a result of the second defendant’s driving conduct at the corner of Willowvale and Nyandoro Road, Harare.

The second defendant’s liability derives from the concept of vicarious liability having been the employer of the first defendant who was driving the offending bus on the date in question and during the course and within the scope of his employment.

On 4 June 2010 the parties held a joint pre-trial conference where the issues for referral for trial were basically the nature and extent of damages to the plaintiff’s motor vehicle and the quantum thereof.

THE EVIDENCE

The plaintiff’s case was precise and to the point.  He testified that the damage caused to his motor vehicle as a result of the accident were the damages notes on exh 2, which was a quotation from the company that carried out the repairs to his motor vehicle.

He disclosed to the court that his motor vehicle had no pre-accident damages and that all the damages were a direct result of the accident of 6 September 2009.

I had no difficulties in following the evidence presented by the plaintiff and both defendants could not possibly have been expected to controvert the plaintiff’s averments that his motor vehicle was damaged as a result of the accident in question.  The defendants speculated that the motor vehicle could have been damaged on the front left mirror, the left door moulding and wheel arch moulding prior to the accident in issue.  The defendants’ natural disadvantage in this regard was that they did not enjoy the privilege of having seen the plaintiff’s motor vehicle prior to the accident.

The defendants sought to rely on the damages noted and recorded by the attending detail Sgt Farai Musarurwa on p15 of the traffic accident book, exh 8.  I do not believe that that approach is consistent with the correct reading of the evidence of the Sergent in its totality.  It will be noted that the officer concerned did make a concession that the rudimentary assessment of damages made by the police at the scene of the accident cannot possibly override the detailed damages which are recorded by those expertly qualified to carry out vehicle repairs like High Tech Panel Beaters (Pvt) Ltd who noted the damages and eventually repaired the motor vehicle.

In the court’s view, the damages noted by High Tech Panel Beaters (Pvt) Ltd are a fair reflection of the damages sustained by the plaintiff’s motor vehicle.  This is particularly so if regard is had to the impossible to challenge evidence by the plaintiff that prior to the accident of 6 September 2009 his motor vehicle had had no damages at all.

In their joint plea filed in this court on 1 February 2010 both defendants did accept partial liability of the damages sustained by the plaintiff’s motor vehicle. That admission was based on the damages that they claimed to have seen at the scene of the accident coupled with the damages noted by Sgt Farai Musarurwa on the date of the accident. I have already dealt with the limitations of the evidence of the attending detail who himself conceded not to be an expert in vehicle repairs and further that those who repaired the vehicle in question were better positioned to advise the court on the extent of the damages to the plaintiff’s vehicle.

When the second defendant gave evidence he did not only challenge the extent of the damages to the plaintiff’s vehicle but went further to challenge the manner in which the plaintiff presented evidence of the damages in the nature of the three quotations sourced.  He reasoned that plaintiff was obliged to seek the services of a loss adjuster in addition to getting the three quotations.

The position taken by the second defendant did not impress the court for the following reasons.  Firstly, this new stance was a departure from the content and thrust of the joint plea filed where this was never taken as an issue.

Secondly, even in his proposed summary of evidence filed on 4 March 2010, the second defendant had not raised this new ground of his defence to the plaintiff’s claim.

Such approach adopted by the second defendant, is a desperate attempt to avoid the abvious for in civil proceedings one’s plea must form the foundation of one’s case.  That plea cannot be embellished at every window of opportunity that presents itself to the defendant.  If that happens, like in this case, the defendant can only present himself in bad light to the court.

In justifying the quantum for damages, the plaintiff did not only present to the court three quotations as is the practice but went further to rely on the evidence of one Clever Feruka who for all intents and purposes the court accepted as an expert in assessing damages.  He carried with him 12-13 years of experience and is a foreman at High Tech Panel Beaters (Pvt) Ltd which was mandated to repair the plaintiff’s motor vehicle.

The evidence of Feruka was brief and to the point.  He was impressive.  I am satisfied from his testimony that the cost of repairs effected on the plaintiff’s vehicle were necessary and the cost thereof fair and reasonable if regard is had to the other two competing quotations tendered.  I am certain the approach adopted in the quantification of damages to the plaintiff’s vehicle is in line with the ratio pronounced in the case of Heath V L.E. Grange.

In all the circumstances of this case I am satisfied that the plaintiff has established to the satisfaction of the court the extent and cost of repairs to his motor vehicle.

However, the enquiry does not end here.  It will be remembered that during the course of this trial, pursuant to an enquiry made by the court, the plaintiff revealed for the first time to court, that he had been paid the same amount he was claiming in this action by his insurers and incidentally his employers Altfin Insurance Company Ltd.

The revelation by the plaintiff brought to the fore the issue of plaintiff’s locus standi in judicio in bringing up this action and this then triggered the consideration of the principle of subrogation.

SUBROGATION

Counsel for the plaintiff gave a spirited and persuasive argument calculated to justify that at law the plaintiff had a recognised right to bring this action against the defendants.  Counsel referred me to several authorities which I found to be quite instructive.

Defendants counsel held a completely different view.  Her view, well expressed in the various authorities she cited was that the plaintiff, having been indemnified by his insurer could not possibly have had a right to initiate action against the defendants to recover the same amount paid to him.  In support of her position counsel sought inter alia to lean on the ratio stated in the case of Ackerman v Loubser.

Perhaps before I deal with the issue of subrogation, I should deal first with the implications of the pre-trial conference minute held by the parties which formed the basis for referral of this matter to court.  One school of thought seems to be that once the parties have agreed on the pre-trial conference minute, that should form the basis of the subsequent trial proceedings and the outcome of that trial must be determined by such issues as agreed at the pre-trial hearing.

The other competing position is that whilst it is desirable to be guided by the pre-trial conference issues as agreed, there may be occasions when the outcome of a case is determined on a completely different issue which may have completely escaped the attention of the parties as well as the judge presiding over such a pre-hearing meeting.

The position that I take is that a pre-trial minute must never be looked upon as an immutable document but merely as a guide.  It is a document which must not enslave or hold the presiding judge hostage.  It must be departed from where the ends of justice so demand like in this case where the determining issue arises unexpectedly.

Having taken the view that it is possible to expand the pre-trial issues during the course of trial, I must now go back and consider whether or not the plaintiff has locus standi in judicio to bring this action against the defendants in the light of him having been indemnified by his insures.

By way of definition  I find the following to be quite instructive.  “Subrogation means the substitution of one person for another so that the person substituted or subrogated succeeds to the rights of the person whose place he takes.  It expresses the insurer’s right to be placed in the insured’s position so as to be entitled to the advantage of all the latter’s rights and remedies against the third parties.  The law of subrogation rest on the principle that no main should be paid twice over same loss.”  (My emphasis).

This principle of law finds eloquent expression in among other authorities in the much celebrated case of Ackerman v Loubser (supra) where the headnote reads:

“ a person insured against accident has the right to recover damages from a wrongdoer for any wrong done to him although he has already been compensated in respect of such wrong by the insurers, but, as the principle of subrogation is applicable in our law, the insured, if fully compensated by the insurer, becomes a trustee for any compensation paid him by the wrongdoer and is bound to hand over to the insurer whatever money he receives from the wrongdoer over and above the actual loss he has sustained after taking into account the amount he has received under the contract of insurance.

Semble:  An insured who has been fully compensated by the insurer may cede his right of action against the wrongdoer to the insurer and the insurer may then sue in the name of the insured.”

I do make a firm observation and deduction from precedent that where the insured takes the initiative to institute action against an offending party like in the case before me, the pleadings must leave no one in any doubt that the insured is taking action for the benefit of his insurer.  Anything short of that would lead to the inevitable conclusion that he intends to have a double benefit over the same loss.  The court must not be left to speculate as to whether the plaintiff may or may not hand over the benefits of his litigation to the insurer.

In Ackerman v Loubser (supra) the pleadings made the plaintiff’s intention abundantly clear and this is what his evidence stated.  “I am bringing the action to recover the amount of damage sustained.  The amount has been paid by the African Guarantee and Indemnity Company with whom the car was insured.  I produce the policy.  By condition 16 I am compelled to take action if requested by the company.  The company have requested me to take action.”  In cross-examination he states:  “The claim I bring before the court today has been paid on the understanding that I take action against the defendant….”

Compare the plaintiff’s disclosure in Ackerman’s case (supra) with the apparent non-disclosure by the plaintiff in the instant case.

Had the plaintiff not inadvertently revealed to the court that he had been indemnified, it is quite clear that the plaintiff intended to keep that development to his breast.

Even after the issue of his indemnification came to light, the plaintiff did not through his evidence advise the court that he intended to hold the “fruits of his action” for the benefit of his insurer.

To further compound his position, the plaintiff’s declaration and his summary of evidence deliberately withheld this vital information about his indemnification.  I am unable to countenance such level of dishonesty.  In my view all this was calculated to ensure that the plaintiff would quietly enjoy a double benefit over a single loss knowing fully well that his insurer, Altfin Insurance had adequately indemnified him.  There is nothing on paper or in his evidence that his actions were meant to benefit his insurer.  If anything, there is overwhelming evidence that he intended to line up his pockets, thus running foul to the very basic principle of subrogation.  I am unable to positively reward the plaintiff’s non-disclosure.

Consequently, I am more than satisfied that the plaintiff has no locus standi in judicio to bring this action against the defendants.

On this technicality the plaintiff’s action is dismissed with costs.

P. Takawadiyi and Associates, plaintiff’s legal practitioners

Messrs Mabuye and company, defendants’ legal practitioners