Apportionment of damages

Collision between vehicles

Bradshaw v Salisbury United Omnibus Co A-102-70

Orne-Glieman v General Accident Insurance & Anor 1980 ZLR 454 (G) Car and motor cycle - car turning to right colliding with motor cyclist who was trying to overtake car.    Apportionment: Car driver 50% and motor cyclist 50%.

HomelavMunyama S-49-82 Two cars, driver endangering overtaking traffic by crossing to incorrect side of road and driver of overtaking vehicle failing to react to danger.       Apportionment: Driver on wrong side of road 50% and overtaking car driver 50%.

Manuel v SA Eagle Insurance HH-270-83 Car and motor-cycle already dark and motor cycle had no lights car going round corner on wrong side of road and hitting oncoming motor-cyclist  likely that car driver had drifted onto wrong side as thought there was no oncoming traffic and that it was safe for him to do so.

           Apportionment: Car driver 75% and motorcyclist 25%.

Automotive Diesel Ltd v Minister of State (Security) HH-291-85 Driver, faced with oncoming traffic travelling on wrong side of road, trying to effect right-hand turn to avoid oncoming vehicle.

           Apportionment: Oncoming vehicle 75% and turning vehicle 25%.

Cargo Carriers & Anor v Nettlefold & Anor 1991 (2) ZLR 139 (S) P was travelling on a main country road. She was dazzled by oncoming lights and slowed down to 50 km/h but saw D’s large unmarked truck parked halfway across her lane when it was too late for her to stop. She was held to be slightly negligent in not having slowed down more, since she had travelled for some distance while she was blinded and could not rely on any knowledge that the road ahead was clear; she was more negligent in not having picked out the shape of the truck earlier.

           Apportionment: P 20% and D 80%.

Madzamba v Mutsonziwa HH-218-90 D turned his car left on to a main road from a side road and collided with P’s vehicle, which was overtaking another vehicle on the main road while approaching the T junction formed by the intersection of the main road and the side road. Traffic entering the main road from the side road was controlled by a Give-way sign. Each party claimed damages from the other. Both parties were found to have been negligent. P was negligent for overtaking whilst approaching an intersection in contravention of s 7(d)(i) of the Roads and Road Traffic (Rules of the Road) Regulations, 1974. D was negligent in that he should have given way to all traffic on the main road, irrespective of whether that traffic was lawful or unlawful.

           Apportionment: P 20% and D 80%.

Makwawa v Wozhele HH-39-91 After seeing traffic behind him, a driver indicated his intention to turn right but did not check whether this traffic was responding to his signal to slow or distant enough not to be endangered. A driver turning right has a duty to both oncoming and following traffic. Parties held equally at fault.

Munorwei v Muza HH-804-15 Collision – D entering controlled intersection against traffic sign – P travelling at excessive speed

           Apportionment: P 25% and D 75%

Collision at robot controlled intersection

Haynes v Minister of Defence & Anor 1992 (2) 2) ZLR 262 (H) A party turning right across the path of another vehicle when the robot is on amber must be even more careful than someone turning when the light has already turned red. Although the army vehicle should have stopped there was no indication that it was going to do so. P should therefore not have proceeded, especially as her vehicle was rather slow-moving and as special caution needed in Zimbabwe in respect of large army vehicles.

           Apportionment: P 50% and D 50%. (This figure was based on a concession made by D - if this concession had not been made the finding would have been more adverse to P.)

Mutendi v Maramba & Anor 1994 (2) ZLR 41 (H) P turned right at a robot controlled intersection and was struck by an oncoming emergency taxi. The lights had turned red before the taxi entered the intersection. The blameworthiness of the taxi driver was high. But P was also foolish in proceeding when the taxi was approaching at speed.

           Apportionment: P 20% and D 80%.

Collision at night with stationary vehicle on road

Nyamanhare v Minister of Defence S-49-94 P collided at night with an unlighted camouflaged army vehicle parked partly on road. To leave unlit vehicle on main road carrying fast traffic is prima facie evidence of negligence on the part of the driver, but on the other hand users of roads must exercise caution to enable them to meet an emergency presented by the fact that someone has left an unlighted vehicle on the road, perhaps for unavoidable reasons such as a break-down. Moreover, drivers must drive within the limits of their vision, and it is for a driver to explain how, if he was driving with due care and attention, the presence of an obstacle in front of him eluded him. While much depends on the facts of each individual case, where collisions with unlit objects at night occur the starting point is that it was negligent on the part of the driver who left his vehicle so unlit on the road, thus creating a hazard for other drivers. The degree of negligence of others who collide with the unlit object is unlikely to be the primary cause of the accident, unless it can be proved that the obstacle was one which is capable of being seen in good time by a driver keeping a proper look-out. On the facts, P’s headlights allowed him visibility of about 30 m, whereas the traffic regulations required headlights to give at least 50m visibility. If the army vehicle had not been camouflaged, its driver would have been 75% to blame for the accident; because it was camouflaged the court found its driver 80% to blame.

           Apportionment: P 20% and D 80%

Johannes v South-West Transport 1994 (1) SA 200 (Nm HC) Where a vehicle runs into a stationary unlighted vehicle on a road at night, the question whether either driver was negligent has to be decided on the totality of the facts presented to the court. A great number of factors enter into consideration: the visibility of the obstructing vehicle, its colour, the background against which it stood, possible light from other sources, variations of light and shade and weather conditions.

Collision with parked stationary vehicle obstructing traffic

Taunton Enterprise v Ministry of Defence S-73-85 Car driver travelling at night at 95 km/h colliding with unlit army lorry stopped so as to obstruct half the carriageway.    Apportionment: Car driver 15% and army lorry driver 85%.

Vehicle turning right colliding with overtaking vehicle

James v Fletcher 1973 (1) SA 687 (RA) Car trying to overtake bus when bus turning to right - bus driver clearly indicating intention to turn right. Overtaking driver failed to keep proper lookout.

           Apportionment: Bus driver 15% and car driver 85%.

Mayisva v Commercial Union Insurance HH-469-84 Driver driving at excessive speed and failed to keep proper lookout - collided with a lorry which was indicating intention to turn right.

           Apportionment: Car driver 75% and lorry driver 25%.

Grindlays Industrial & Ors v Tawengwa HH-441-87 Car trying to overtake bus when bus turning to right. Bus driver failing to check that it was safe to turn but visibility was good and the car driver should have been alerted by the movement of the bus and have taken avoiding action.           

           Apportionment: Car driver 50% and bus driver 50%.

Machakaire v Mavenge & Anor HH-19-88 D1 was travelling at excessive speed along a national highway when he approached a slow-moving vehicle travelling in the same direction. He attempted to overtake this vehicle, not noticing that its indicators were on, showing that its driver intended to turn right into a side road. The driver of this vehicle started his right-hand turn, not having noticed first D’s vehicle behind him, and the two vehicles collided.

D1 was entirely to blame since she had failed to keep the other vehicle under observation before attempting to overtake it.

Newlands Farm (Pvt) Ltd v Matanda Bros S-100-91 Car driver trying to overtake bus when bus was giving clear warning that it intended to turn to right - car driver failing to heed warning signs.

           Apportionment: Car driver 85% and bus driver 15%.

Collision with pedestrian

Crow v Royal Insurance 1973 (1) SA 579 (R) car colliding with pedestrial trying to cross road.The driver saw P in time to stop when she was only a yard or two from the pavement but thought that P had either seen him earlier and would give way before entering his line of travel or that she would in any event look right after a few steps, observe the car and give way. For that reason he did not immediately hoot or apply hisbrakes. A little later he realised she was not going to stop and applied his brakes sharply, but it was then too late to avoid a collision.P had been negligent in failing to keep a proper look-out in circumstances where the timing of her crossing called for particular vigilance, and that this negligence continued right up to the moment of impact.The driver had been negligent in failing to hoot or substantially to reduce his speed by applying his brakes when he first observed the plaintiff walking into his line of travel.

           Apportionment: Pedestrian 40% driver 60%.

Jackson v Motor Insurance Pool 1975 (2) RLR 155 car colliding with pedestrian. Pedestrian was unreasonably trying to cross the  road when the car too close; driver negligent in travelling too fast and failing to keep a proper lookout. Driver was in more advantageous position to avoid accident.

           Apportionment: Pedestrian 25% driver 75%.

Silatsha v Santam Insurance 1982 (2) SA 387 (A) Pedestrian attempting to cross road in good visibility, car colliding with him, pedestrian more to blame.

           Apportionment: Pedestrian 60% and driver 40%.

Collision with cattle on road

Viriri v Wellesley Estate 1982 (1) ZLR 200 car colliding with cow on the road at night. Owner of cow negligent in failing to take precautions to prevent cow that had propensity for escaping from paddock and being on the road. Driver knew there were cattle on the adjoining land but drove at excessive speed and did not keep a proper lookout.

           Apportionment: P two thirds; D one third.

Kennedy v P Hall & Co S-46-87 collision between a lorry driven too fast at night and a herd of 31 cattle allowed by a rancher to stray onto the road through an unsecured gate.

           Apportionment: Driver three fifths and rancher two fifths.

Other cases

Limire v Rhodesia Railways 1981 ZLR 251 (G) Passenger attempting to board a train that was already in motion.

           Apportionment: P 80% and D 20%.

Financial dealings

Bank of Credit and Commerce Zimbabwe Ltd v UDC Ltd 1990 (2) ZLR 397 (S); 1991 (4) SA 82 (S) A finance house had negligently agreed to finance the sale of a non-existent farm and had issued a cheque in the name of the alleged seller, Mixed Tums (Pvt) Ltd. No such company existed. The person who received the cheque paid it into a bank account which he operated in the name of his company, Mixed Tans (Pvt) Ltd, the bank having failed to notice the discrepancy in the names even though the cheque was crossed and endorsed “not negotiable account payee only”. The finance house then sued the bank for the amount of the cheque. The court held that the finance house was negligent to a greater degree than the bank.

Apportionment: Finance house 80% and bank 20%.

Contributory negligence of children

Children under 7

Tena v UANC HS-387-81 A child under the age of 7 does not have the capacity to be negligent and there can thus be no contributory negligence on his part leading to apportionment. A boy aged 6 had been knocked down by a car.

Muchechetere v Boka HH-148-89

Children between 7 and 14

Weber v Santam Insurance 1983 (1) SA 381 (A) the first task is to decide whether the child has capacity for negligence. Only if he does will apportionment apply. Even where the child is found to have capacity, the negligence of motorist will always be adjudged to be greater than the child’s.

S v Ferreira 1992 (1) ZLR 93 (S) A motorist must exercise special care and vigilance when he knows that there are young children in the vicinity of the road because such children are known to engage in impulsive behaviour such as dashing out onto the road.

Intentional wrongdoing

MabasovFelix 1981 (3) SA 865 (A) It is doubtful that apportionment applies where there is intentional wrongdoing, such as when there is an assault.

Minister van Wet & Orde & Anor v Ntsane 1993 (1) SA 560 (A)  Before there can be an apportionment of damages between joint wrongdoers in terms of the South African equivalent of s 4 (1) of our Act, the fault of the joint wrongdoer must be the same form of fault. Thus, where the fault of one joint wrongdoer consists of negligence while the fault of the other amounts to intentional wrongdoing, there can be no apportionment of damages between them.

Joint wrongdoers

Diesel Electric v S & T Import HH-330-80.

Dependant’s action

Knight v Rhodesia Railways & Anor 1975 (1) RLR 213 (R) collision between two cars. The driver of one of the cars, P’s husband, had deviated from the reasonable person standard by 80% and the other driver had deviated from the reasonable person standard by 60%. (Note this sort of case would now be dealt with in terms of s 8 of the Damages (Apportionment and Assessment) Act [Chapter 8:06].

Additional compensation under workers’ compensation system

Mpande v Forbes & Anor 1980 ZLR 302 (G) The employee’s claim for additional compensation is defeated if there is negligence on his part in the causing of his injuries as apportionment does not apply in this situation. The correctness of this case is open to doubt. Certainly if it is correct, it will lead to inequitable results as even slight negligence on claimant’s part will lead to his claim failing.

The worker’s claim for additional compensation is now governed by s 9 of the National Social Security (Accident Prevention and Workers’ Compensation Scheme) Notice SI 68 of 1990. Where the worker is claiming for his own injuries there seems to be no provision relating to the effect of contributory negligence on his part. On the other hand, where a dependant is claiming arising out of the death of her breadwinner, s 9(6) provides that it is no defence to such action that there was contributory negligence on the part of the worker who was killed.

Costs where apportionment

Limire v Rhodesia Railways 1981 ZLR 251 (G) Where there is a claim for damages and no counterclaim or tender by D, P will ordinarily recover all his costs, notwithstanding that the court has reduced his damages on account of his contributory negligence.

Haynes v Minister of Defence & Anor 1992 (2) ZLR 262 (H) although there was apportionment, the court declined to apportion the costs as in seeking to have P’s claim dismissed with costs, D had forced P to come to court to obtain an award of damages and P had succeeded in his claim. If D had wanted to safeguard its position in relation to costs, it should have made a payment into court.

Failure or refusal by passenger to wear seat belt or crash helmet

Koen v Keates 1989 (3) ZLR 9 (H) A motor vehicle left the road and overturned due to the negligence of the driver. A passenger in the vehicle was not wearing his seat belt despite being asked to put it on by driver. As it was the passenger’s failure to take reasonable precautions for his own safety by wearing a belt, his damages were subject to reduction on the basis of his contributory negligence. Apportionment: Passenger 15% and driver 85%.

General Accident v Uijs NO 1993 (4) SA 228 (A) (Afrik) A passenger in a car had failed to put on his seat-belt and was seriously injured in a collision whose sole cause was the gross negligence of the driver. The trial court reduced his damages by a third. On appeal, it was held that allowance had to be made for the fact that he had not contributed to the accident and that his fault was of a different kind from that of the driver, but the trial court declined to vary its apportionment of damages. Apportionment: P one third and D two thirds.

See also:

           Vorster v AA Mutual 1982 (1) SA 145 (A)

           Union Insurance v Vitoria 1982 (1) SA 444 (A)

           Pasternack v Poulton [1973] 2 All ER 74 (QB)

           Froom & Ors v Butcher [1975] 3 All ER 520 (CA)

           Capps v Millner [1989] 2 All ER 322 (CA) Motor cyclist failing to fasten properly the strap of his helmet which came off just before he hit his head on the road when an accident occurred. This amounted to contributory negligence on the part of the motor cyclist.

Concurrent wrongdoers

Graham & Anor v General Accident Assurance & Anor 1972 (1) RLR 52 (GD)

Nu-life Batteries & Anor v Boddington & Anor 1974 (1) RLR 1; 1974 (2) SA 175 (R) Old common law position.

Marais v Eagle Insurance & Anor HH-270-83 Position under present legislative provisions.

Joint wrongdoers

Diesel Electric v S&T Import HH-73-80