Leo Zambellis v Veronica Pichard and Laws Organisation (Private) Limited

### Preamble
HH 96-2006
HC 5543/04
LEO ZAMBELLIS
versus
VERONICA PICHARD
---------


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LEO ZAMBELLIS
versus
VERONICA PICHARD
and
LAWS ORGANISATION (PRIVATE) LIMITED

HIGH COURT OF ZIMBABWE
MAKARAU JP
HARARE, 30 March, 10 August and 13 September 2006

Trial Cause

Mrs J. Wood, for the plaintiff
Mr T.K. Hove, for the defendants

MAKARAU JP: On 24 July 2003 around 15.20 hours, an accident occurred between the plaintiff’s car, which at the time was being driven by his wife and the first defendant’s car, at the time being driven by first defendant herself. The accident occurred at the intersection of Natal and East Roads in Avondale. The first defendant was driving westwards along East Road while the plaintiff’s wife was driving due north along Natal Road. The intersection is controlled by a Give Way sign along East Road.

A police detail attended the scene of the accident and drew a sketch plan of the scene. He also recorded statements from the parties and from an independent witness who was nearby. He duly compiled a Traffic Accident Book (“TAB”) and this was adduced into evidence before me by consent. As a result of their investigations, police preferred charges of driving without due care and attention against 1st defendant. The police thereafter invited the first defendant to pay an admission of guilt fine, which she did.

On 11 May 2004, the plaintiff sued the defendants for the sum of $1 314 886 500.00, allegedly being damages due to him as a result of the accident, whose sole cause he attributed to the first defendant’s negligence. He sued the second defendant vicariously.


The plaintiff specifically averred in his declaration that the first defendant was negligent in failing to give way to the plaintiff’s wife, that she failed to keep a proper look out, was traveling at an excessive speed in the circumstances and failed to stop or act reasonably, when the collision was imminent.

The claim was defended with the first defendant denying that she was as negligent as averred or at all and the second defendant denying that it is vicariously liable for the first defendant’s delicts.

At the commencement of the trial, the first defendant applied to amend her plea to allege in the alternative, contributory negligence on the part of the plaintiff’s wife.

At the trial of the matter, the plaintiff’s wife gave evidence first. Her evidence may be summarized as follows.

She is a licenced driver and has been driving for the past 23 years. She was doing around 55 Km/h along Natal Road due North. At the intersection of Natal and East Roads, she noticed the first defendant’s car bearing at a high speed due westwards. She applied her brakes but the first defendant did not stop before entering the intersection. The first defendant’s vehicle hit the vehicle she was driving on the right front side and turned it 90 degrees. Both vehicles came to a halt parallel to each other, past the intersection and along East Road, facing westwards.

Under cross-examination, Mrs Zambellis was adamant that the first defendant did not give way before entering the intersection.

I found the evidence of Mrs Zambellis credible and reliable. She did not seek to exaggerate and her narration of how the accident occurred sounds plausible and is consistent with the other reliable evidence adduced before me, notably the contents of the TAB, that I have referred to above. I also found her honesty enamouring when she readily conceded that she did not have any personal knowledge of where the first defendant was employed save the information that she and her husband retrieved from the police. I however find that instead of the first defendant’s car hitting into the plaintiff’s vehicle as alleged by the witness, the two cars got into the intersection almost at the same time and the right hand side of the plaintiff’s vehicle hit against the left front wheel of the first defendant’s vehicle that was unlawfully in the intersection at the time.

On the basis of the foregoing, I shall rely on the evidence of Mrs. Zambellis.

The plaintiff gave evidence after his wife. He is the owner of the Ford Cortina that was involved in the accident with the first defendant’s vehicle. He has had the motor vehicle for 30 years and it is now a collector’s item with most spare parts unavailable in this country or in South Africa.

On the day of the accident, he visited the scene of the accident and saw both parties still at the scene. He also saw the second defendant’s Managing Director at the scene consoling the first defendant. He took photographs of the damage to the car and these were adduced into evidence with the consent of the defendants. The photographs show obvious damage to the right front part of the motor vehicle.

He obtained quotations for the supply of spare parts from a company in the United Kingdom. A local panel beating company was prepared to panel beat the motor vehicle provided he supplied the spare parts. The process of obtaining quotations from the United Kingdom was long due to distance. After obtaining the quotations, he computed the cost of importing the spare parts at $930 730 519.00. In addition to that, he obtained a quotation from the panel beating shop at $193 200 000.00 for labour and paint. In addition to the two figures quoted, he would need to procure other parts locally available and this would account for the difference between the amount claimed and the figures given in his evidence.

Prior to the accident, he valued the motor vehicle at one thousand four hundred pounds. This would amount to about $1, 4 billion using the parallel rate of exchange. He placed the current market value of the vehicle at between $300 and $400 million. Since the accident, he has not had the car repaired as he was waiting for the defendant to make good the damage she had inflicted.

The witness was subjected to lengthy cross-examination. In my view, such cross-examination, while it helped clarify some of the witness’s way of reasoning in coming up with the figure of his claim for instances, did not destroy his credibility. He was honest with the court that he used the parallel market rate when computing his claim and that he only dealt with one panel beating company in this country and one supplier of spare parts in the United Kingdom.

Before closing his case, the plaintiff called one Tinaye Mujeri. He is a workshop Manager at B & P Panelbeaters (Private) Limited, the company that quoted the plaintiff the cost of panel beating and the spares required to repair the accident damage. The witness testified as to the damage he saw on the vehicle and explained how he had updated and revised the quotation that was given to the plaintiff earlier.

In my view, nothing much turns on the evidence of this witness. I however found him a reliable witness.

The defendants opened their case with the first defendant testifying. She gave the following evidence.

She is a consultant with the second defendant in that she does not get a monthly salary from the second defendant. She gets a commission and meets all her expenses.

On the day of the accident, she had left the offices of the second defendant and was on her way to meet some contacts in the vicinity of Avondale, where she also resides. She was driving her Toyota Conquest along East Road. When she came to the junction with Natal Road, she slowed down. She looked to the left and saw the plaintiff’s car in the distance. She looked to the right and presumably, it was clear. (She did not say so). She looked to the left again and then moved into the intersection. As she was moving across, she realized that the plaintiff’s motor vehicle was approaching at speed. She applied her brakes she saw the driver in the other vehicle lift her hands off the wheel. The other car hit into her car on the left front wheel. The force of the impact forced her car across the road and she had to take swerving action to avoid her car hitting the give way sign on the opposite side of the intersection. Her car came to a stop on the opposite side of Natal Road., across the intersection, still facing westwards. The other car also came to rest along East Road, facing in the same direction.

An hour after the accident, a police detail who was off duty came to the scene and recorded statements. She then paid a fine for driving without due care and attention after a police officer had intimidated her a difficult time generally.

In her view, the plaintiff’s wife caused the accident in that she was speeding. She herself was not traveling at an excessive speed. She thought she had enough time to cross the intersection. She had braked and was stationary when the plaintiff’s car hit into the front wheel of her car.

Under cross-examination, the witness did not fare well. She emerged unreliable and untruthful. She contradicted herself and changed goal posts as the trial progressed to such an extent that she had three versions of how the accident occurred. Firstly, she thought she had enough time to cross the intersection and thus pulled into the intersection even though she had seen the plaintiff’s car approaching. When it was put to her that she must have misjudged the distance between the two cars in the circumstances, she changed to her second version. This was to the effect that she was stationary just inside the intersection when the plaintiff’s vehicle hit into hers. The impact of the collision made her vehicle move forward and across the intersection while turning the plaintiff’s vehicle by 90 degrees. When in turn it was put to her that the plaintiff’s vehicle would not have hit into hers if she was stationery just inside the intersection and the plaintiff’s wife was on her correct side of the road, she came up with the third version, that the plaintiff’s wife veered off her correct side of the road and came and hit onto the left wheel of her vehicle. This was a clear fabrication that must have even caught her legal practitioner by surprise. Whether she genuinely believed in any of these versions or that all three versions are consistent and can read as one is not necessary for me to determine. The net effect of these three versions on her testimony in my view, is to rob it of any credibility.

Raymond Walbridge took the stand on behalf of the second defendant. He is its Managing Director. He is a registered estate agent. It is common practice of estate agents to employ freelance property negotiators. Such a practice is recognized by the Estate Agents Council and by the Estate Agents Act [Chapter 27:17]. The second defendant engaged the first defendant on this flexible arrangement. She is an independent contractor in that the second defendant doe not deduct PAYE from her earnings nor does the employer deduct NSSA contributions on her behalf. She had a written contract with the second respondent.

[The witness then adduced into evidence a copy of the contract].

When the accident occurred, one of the first defendant’s friends called him to the scene. He attended the scene to check on her and left when he was satisfied that there was nothing seriously wrong with her. He could not tell whether she was on second defendant’s business when the accident occurred.

In my view, Mr Walbridge gave his evidence well. I note that there was a minor discrepancy between his evidence and that of the first defendant as to who informed him of the accident. She testified that she called him. He thought it was a friend of hers who had done so. Rather than find him guilty of attempting to mislead the court in this regard, I
 find that he may have simply forgotten as to the identity of the person who called him.

In the main, I find him reliable as a witness.

On the basis of the above evidence, I have to determine three issues. These are firstly, whether the first defendant was negligent and solely caused the accident. Secondly and only if the first issue is positively answered, I have to determine whether the second defendant is vicariously liable for the damage caused to the plaintiff’s car and finally, the quantum of damages that the plaintiff is entitled to.

Regarding the first issue, it is my finding that the accident occurred as Mrs Zambellis testified, with the slight modification I observed when I commented on her credibility. Thus, it is my finding that the accident occurred due to the conduct of the first defendant who moved into the intersection without giving way to traffic proceeding along Natal Road, and when it was not safe for he to do so. I reject the suggestion by the first defendant that the plaintiff’s wife veered off her correct side of the road and hit into first defendant’s vehicle that was stationary just inside the intersection. In fact, I reject all the versions of how the accident may have occurred that have been proffered by the first defendant as I found her an unreliable witness.

The sketch plan that was drawn by the police detail who attended the scene and the final resting positions of both vehicles fortify me in accepting the story as told by Mrs Zambellis and rejecting the first defendant’s versions.

On the basis of the foregoing, I find that the balance of probabilities tip heavily in favour of the plaintiff and he has thus discharged the onus on him on the first issue.

An attempt to allege that Mrs Zambellis was also negligent in proceeding across the intersection in the circumstances flopped on its belly as no evidence was led which categorically placed the first defendant in a dangerous position such that Mrs Zambellis had to take avoiding action. Due to the nature of her defence and testimony, the first defendant could not forcefully argue that the provisions of the Damages (Assessment and Apportionment) Act [Chapter 8:06] should apply as she denied that she was personally at fault in any manner. In any event, I did not find any evidence that Mrs Zambellis was at fault in proceeding as she did as she had the right of way and was clearly visible to the other driver who had to yield to her.

I now turn to the second issue.

It would appear to me that the second defendant employed the first defendant as a property negotiator. In terms of the contract between the two parties, the first defendant was placed on a probationary period of three months. In terms of the written contract between the parties, the first defendant is required to work certain hours per day and is entitled to a certain number of days off as vacation leave. The second defendant is responsible for 50% of the medical aid contributions of the first defendant and her direct dependants.

In my view, the above are all incidences of an employer–employee relationship. The fact that the first respondent is not paid a salary but a commission on her sales and further, that no PAYE and NASSA contributions are deducted on her behalf by the employer do not detract from her legal status as an employee. In my view, she is not an independent contractor for the purposes of avoiding vicarious liability on the part of the second defendant.

Further, it is my finding that the first defendant was on her employer’s business when she was involved in the accident. According to her testimony, she was going to meet some contacts to chat and explore business opportunities. In terms of her contract, she could not engage in any business whether in conflict with the interest of the second respondent or not without the written consent of the second defendant. No such written consent was given her ever during her time with the second defendant up to the date of trial. Thus, she was on her way to cultivating a potential business client for the second defendant when the accident occurred.

I now turn to the final issue of this matter. This relates to the quantum of damages that the plaintiff is entitled.

It is the duty of the court trying a claim for damages to assess the damages due to the plaintiff where the liability of the defendant has been established. This is why in our court procedure, the quantum of damages due to the plaintiff is always in dispute even where the defendant has not specifically put it in issue.

In my view, it is trite that damages claimed in delictual actions arising out of damage to property are to be assessed on the principle that that the plaintiff must by monetary compensation be placed in as good a position as he would have been had the damage not been inflicted. Thus, the loss to the plaintiff’s estate or patrimony is to be assessed and compensated so that the plaintiff is restored to his or her former position immediately prior to the delict. In general, the measure of damages that will have this effect is the diminution in the market value of the property due to the damage. In appropriate cases, such diminution in value is assessed as being equivalent to the cost of restoring the damaged property to its original state. Thus, ordinarily, where a vehicle is damaged in an accident caused through the negligence of the defendant, the defendant is held liable for the reasonable cost of repairs to the vehicle. This appears to have been the approach taken by the plaintiff before me as he is claiming the cost of repairs to his vehicle.

In my view, it is important to note that the cost of repairs itself does not necessarily and automatically translate into the quantum of the plaintiff’s loss. It is but one method of ascertaining that loss. It appears to me that the focus of the court assessing damages for patrimonial loss must remain on the duty of the court to place the injured plaintiff in the position he would have been had the delict passed him by. In this regard,


I believe it is instructive to make reference to the dicta of WESSELS JA in Erasmus v Davis 1969 (2)1 at 7E-G where he had this to say:

“It must further be borne in mind that generally speaking, the repair of damaged corporeal property, like a motor vehicle so as to restore it to the condition in which it was prior to being damaged, would result in the property having the same money value as it had before being damaged. It is for this reason that evidence regarding the reasonable cost of repairing the damage, so as to restore the property to its original condition and value, is in most cases a reliable yardstick (and often the only one) to employ in measuring diminution in the money value of the property caused by the damage to it.”

And to the remarks by MULLER AJA at page 18C-D. After he reviewed an earlier South African decision and made reference to McKerrn, Law of Delict (6th Ed), he put the point succinctly in my view as follows:

“From the above passages and particularly from the words underlined, it is clear that the cost of repairs as a method of establishing damages is not appropriate where, in the particular circumstances, it would clearly be in excess of the diminution in value of the vehicle.”

As observed by WESSELS JA in the passage cited above, the reasonable cost of repairs is generally a correct yardstick to measure the diminution in value of the damaged property. It is however simply a method of calculating the loss. It is not an immutable principle. In addition, there are certain instances where it cannot be used to assess the patrimonial loss sustained by the plaintiff. One such instance is when the cost of repairs exceeds the pre-accident value of the property. Such appears to be the case before me.

It appears to me that the facts revealed by the evidence are similar to the example given by GALGUT J in Enslin v Meyer 1960 (4) SA 520 at 523C-E. After agreeing with the author McKerrn as to the correct method of assessing the damage due to a plaintiff in a claim arising from damaged property, the judge observed that:
 “In many cases in practice a convenient way of assessing this damage is to accept the necessary and reasonable cost of repairs. A very old car may be worth say $50 and well cost because of its age, $200 to repair. It could never be suggested that a court could award the owner of the car more than $50- a moment’s reflection will show that if the cost of repairs was regarded as basis upon which damage should be assessed in all cases, the results could often be ruinous to the defendant.”

It was specifically pleaded that the plaintiff’s motor vehicle was valued at 1 444-00 pounds prior to the accident. This the plaintiff translated to $1 billion using the parallel market rates. It is trite that this court knows not of such a rate. I take judicial notice of the fact that as at the date of the accident, 24 July 2003, the official exchange rate was $1 316,34 to a pound. Thus, the plaintiff’s motor vehicle was valued at $1 842 867 (old currency).

It was also specifically pleaded that after the accident, the motor vehicle was valued at $5 million. These two values were not disputed in the plea filed on behalf of the defendants. I however do not put much score on the absence of a direct challenge to this evidence as the quantum of damages is always in issue.

In his evidence in chief, the plaintiff reiterated that the pre-accident value of the vehicle was one thousand four hundred pounds. He also gave its current market value at between $400 and $300 million dollars. In my view, the loss to the plaintiff and his correct measure of damages is the difference between these two figures.

In assessing the quantum of damages due to the plaintiff in this matter, I note that the plaintiff was ill advised to concentrate on proving the cost of repairs to the motor vehicle in a case where this turned out to be the inappropriate yardstick to use. Even on his own evidence, the cost of repairs at $1,9 billion exceeded the pre accident value of the vehicle at $1,4 billion, using the parallel market rate to convert the value of the vehicle in pounds to local currency.


I am inclined to return an absolution from the instance verdict in the matter to enable the plaintiff to prove his loss. I remain so inclined even in light of the remarks of GALGUT J in *Enslin v Meyer* (supra) at 523 F-H where he enjoins courts as follows:

“Nevertheless where there is evidence that damage is caused a court (must) make an assessment on the material before it even if the damage cannot be computed exactly.”

In my view, I do not have enough evidence to calculate the loss due to the plaintiff. The evidence before me suggests that the plaintiff’s vehicle was valued at about $1 842, 88 (revalued currency) immediately before the accident. After the accident, it is valued at an amount in excess of its pre- accident value due to inflation presumably. It would appear to me that plaintiff in this matter had to take special care to lay facts before me from which I could clearly discern the extent of his loss. That regrettably, he has not done. That he has suffered a loss cannot be denied. I simply do not have sufficient facts with which to put a monetary value to the loss due to the complications arising from a highly inflationary environment.

In the result, I make the following order:

1. The defendants are absolved from the instance.

2. Each party shall bear its own costs.

*Byron Venturas & Partners, plaintiff’s legal practitioners. T K Hove & Partners, defendants’ legal practitioners.*
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