IGNATIUS HORE versus TRUST CHIVASA. HIGH COURT OF ZIMBABWE DUBE J HARARE, 27 February & 2 March Trial

Transcription

1 1 IGNATIUS HORE versus TRUST CHIVASA HIGH COURT OF ZIMBABWE DUBE J HARARE, 27 February & 2 March 2015 Trial S Musapatika, for the plaintiff ZM Kamusasa, for the defendant DUBE J: The plaintiff claims damages sustained by his vehicle when it was involved in a road traffic accident with the defendant. On 27 May 2012, the plaintiff s son was driving the plaintiff s Toyota Corolla when he was involved in an accident with the defendant s Mitsubishi Pajero at the intersection of The Chase and Golden Stairs in Emerald Hill, Harare. The plaintiff claims that the accident was caused by the defendant who was negligent in one or more of the following respects:- 1) he was driving at an excessive speed and 2) failed to keep a proper look as he approached an intersection with no functional working lights. 3) he failed to keep his vehicle under proper control and give way to the plaintiff s vehicle which had already entered the intersection and 4) he failed to stop or act reasonably to avoid the accident when it seemed imminent. The plaintiff s vehicle sustained damages which necessitated repairs in the sum of $ The defendant s insurer has since paid the sum of $ , leaving a balance of $ outstanding.the defendant paid an admission of guilt fine for the offence of driving without due care and attention.

2 2 The defendant denies liability for the accident. He insists that the accident was caused by the plaintiff s son. He contends that he was in the middle of the intersection when his vehicle was hit. That the plaintiff s son had no right of way and ought to have stopped to give way to his vehicle. The defendant admits that he paid an admission of guilt fine, but that he did so under duress. The plaintiff opened his case by calling his son, Takunda Hore. His evidence may be summarised as follows. He was driving along The Chaseat about 10km per hour. He approached the intersectionof Golden Stairs and the Chase and stopped. He checked to see if it was safe to proceed. The robots were not working.he moved into the intersection and as he was doing so, while in the intersection, he noticed the defendant s car coming from his right hand side.he entered the intersection first. He also noticed a commuter omnibus coming from his left side. The commuter omnibus stopped to give him way as the robots were not working. The defendant was doing about 80km per hour. He was driving at an excessive speed ashe entered the intersection. The defendant tried to avoid his car but he failed to stop. He swerved into the lane of oncoming traffic in a bid to avoid colliding with his car. The defendant saw the commuter omnibus which was stationary, tried to avoid hitting it and swerved into his lane. He hit the front left side of his car and stopped about50metres away from the point of impact. When the police attended the scene of accident, the commuter omnibus had left. He later learnt that the defendant had agreed to pay a fine. Under crossexamination, the witness insisted that he was in the middle of the intersection when the collision occurred and that the defendant was travelling at an excessive speed. He insisted that the point of impact was in the middle of the intersection.the witness insisted that his vehicle was hit on the front left side of the vehicle as defendant was trying to swerve back into his lane. The defendant s vehiclesustained damages on its front left wheel.he refuted that he drove his father s vehicle negligently on that day. He never admitted liability for the accident. He insisted that there was a commuter omnibus in the intersection although he did not mention to the police. The witness maintained his version of events and was not shaken under crossexamination. I believed him. The plaintiff was next to testify in his own case. He told the court that after the accident, he obtained three quotations from three different garages for the repairs. He opted for the first and cheaper quotation. The vehicle was repaired and he paid $ for the

3 3 repairs. The defendant s insurer has paid $ for those damages. He claims the outstanding amount. He testified that only the left side head light was damaged. The bumper was damaged on the left side and the whole bumper had to be replaced because it is not repairable. He refuted that the right hand side headlamp was also damaged as a result of the accident. The witness s evidence was purely formal. I will not comment on his credibility. The defendant testified in his own case. His evidence was as follows:- He was driving due north along Second Street Extension, Golden StairsRoad. As he approached the intersection, he reduced his speed from 70km per hour to about 40km per hour. There was a stationary vehicle to his left outside the intersection along The Chase. When he was in the intersection, that vehicle took off and hit his car on the left wheel. As a result, the ball joint of the left front wheel broke resulting in the vehicle moving on an angle almost flat to the road. He allowed the car to move slowly till he found a safe place to stop it.he stopped about 50 metres from the point of impact. The witness contended that the stationary vehicle started to move into the intersection when he was almost a metre into the intersection. He refuted that there was ever a commuter omnibus in the intersection at the time of the collision. His car was hit on the left side wheel by the plaintiff s front part of the vehicle. The robots were not functional at the intersection. He had the right of way because he was coming from the right and he was first in the intersection. He paid an admission of guilt fine because the police told him that both parties had been negligent. He did not want to waste time by going to court when both parties were wrong. He was not threatened by the police. The witness still insisted that he signed the admission of guilt fine under duress but indicated that he was not clear what that entailed. He paid the fine because he had travelled at 70km per hour in a 60km per zone. He took issue with having to go to the police station several times before being able to sign the admission of guilt form and lodged a complaint over that. He insisted that the first witness s mother was present when he paid the fine. Her view was that her son had been negligent as well. He paid the fine because he was told that both drivers had been negligent. His car was damaged on both lights and the front. The sketch plan of the scene of accident drawn by the police shows that the point of impact was in the first witness lane and in the intersection. The point where the defendant s vehicle stopped after the accident is way past the intersection. This distance was given as 50metres away fromthe point of impact. The point where the commuter omnibus is supposed

4 4 to have been stationary was not marked on the sketch plan and was only indicated to the court by the first witness. That point is opposite the direction the defendant was coming from. The defendant s version of events to the police is that as he approached the intersection, he saw a stationary vehicle at the intersection. The vehicle took off when he was in the intersection resulting in an accident. He was doing 70km per hour.in his evidence however the defendant changed his version and said that although he had been travelling at 70km per hour, he reduced his speed to 40km /hour as he approached the intersection. He accepted that a speed of 70 km/hour was outside the speed limit of the area.the plaintiff s witness told the police that when he reached the intersection, he noticed the defendant s vehicle which was a distance away travelling at an excessive speed. The evidence suggests that the defendant was travelling at an excessive speed. In Kingstone v Seagar (1938) 1 KB 397, the court held that in any case where it is shown that a driver was exceeding the speed limit in a restricted area, that on its own is prima facie evidence of negligence. This is an intersection where the robots were not working. The defendant was required to reduce his speed and approach the intersection with caution. The defendant did not travel at a speed that would enable him to stop when danger seemed imminent and avoid an accident.i find that the defendant was travelling at an excessive speed and his manner of driving contributed to the accident.a driver who approaches a robot controlled intersection where it is clear that the robots are not working is required to reduce his speed and proceed with caution. A driver cannot just bulldoze his way into an intersection just because he is coming from the right side and has the right of way. The evidence led discloses that it is the first witness who arrived at the intersection first and stopped. He looked to both sides and noticed the defendant s car coming from his right but was a distance away and he entered the intersection. As he entered the intersection a collision occurred. It appears to me that the plaintiff s son was keeping a proper lookout.the defendant failed to keep a proper lookout and just decided to proceed into the intersection because he had the right of way. Once he saw the plaintiff s vehicle enter the intersection, he was required to stop his vehicle in order to avoid the collision which was imminent. Harm was foreseeable. This was an intersection where the robots were not working,both drivers were required to proceed with caution. The defendant should have taken precautions to prevent the occurrence. The defendant failed to take reasonable steps to guard against an accident occurring.the defendant collided with a vehicle which was clearly visible. He has

5 5 no excuse for colliding with the defendant s car.the plaintiff s witness told the police that when he reached the intersection, he stopped and he noticed the defendant s vehicle which was a distance away. It appears that the reason why the defendant failed to stop is because he was travelling at an excessive speed and failed to keep the vehicle under control. There is no doubt in my mind that he did not keep a proper lookout. Because he was travelling at an excessive speed, he failed to stop and avoid the accident it was imminent. There is no evidence to show that he did anything to avoid the accident that was imminent. The defendant never tried to apply any breaks before the collision occurred or take any other step to avoid the accident.although he saw the plaintiff s vehicle in motion and entering the intersection,, he failed to take the necessary steps to avoid the accident. He failed to act reasonably. The plaintiff s son testified that the damages sustained by his car are on the front left side of the car. They still remain frontal damages. The police who attended the scene of accident recorded the damages observed by the plaintiff s car as follows, front bumper, front grill, front fender, and front headlights. These damages are consistent with a collision with the left front side of the plaintiff s car. The quotation relied on shows that the following work was done on the vehicle, chassis straightening, supply nose complete with bumper, grill, head lights,corner lamps and battery. Internal parts,radiator, air con-complete with coolings and fans. Bonnet Front and inner and outer fender. Repair aircon system The plaintiff testified that the battery of the vehicle is on the left side of the vehicle and was damaged as a result of impact on the left side of the vehicle. The witness explained that if a part of a bumper or bonnet is damaged, it is not repairable and the whole part will require to be replaced. This explains why it was necessary to replace entire parts. The damages are still consistent with the plaintiff s case. The witness testified that although only the left head light was broken, the repairer may have included the right headlight in error. The defendant s vehicle sustained the following damages, damage to the front wheel suspension, rear left wheel, left side two doors, left step and left fender. This means that the left side of the defendant s vehicle had impact with the front/left side of the plaintiff s vehicle. These damages are consistent with the plaintiff s version that he was hit on the left side of the vehicle. The defendant paid an admission of guilt fine. That is an indication that he accepted the wrongfulness of what he had done. The plaintiff claims in his plea that he was forced by the police to payan admission of guiltfine and did so under duress. He abandoned that line of

6 6 defence at the trial. It emerged in court that the police did not force him to pay a fine. He acknowledged that he was not forced to pay the fine and that he had not paid it under duress. He did not seem to understand the import of signing things under duress. His concern seems to have been that he was not immediately made to sign the admission of guilt fine and was able to do so after he lodged a complaint with the police administration. The defendant s insurer have paid part of the claim, presumably because they are satisfied that the defendant caused the accident. The plaintiff is entitled to the order sought. In the result it is ordered as follows, 1. The defendant is ordered to pay $ Interest on the sum of $ at the prescribed rate. 3. Costs of suit. Attorneys, for the plaintiff, Attorneys, for the defendant