REPORTABLE
(46)
Judgment
No. SC 50/04
Civil
Appeal No. 173/01
(1)
COMMERCIAL UNION FIRE MARINE AND GENERAL INSURANCE
COMPANY LIMITED
(2)
UNIFREIGHT (PRIVATE) LIMITED (3) MOYANA JEZENGA
v
(1)
PEGGY CHINGWARU (2) RICHARD SHAMBAMBEVA NYANDORO
SUPREME
COURT OF ZIMBABWE
SANDURA
JA, ZIYAMBI JA & MALABA JA
HARARE,
JANUARY 15 & SEPTEMBER 9, 2004
R
Fitches, for the
appellants
D
Drury, for the
respondents
MALABA
JA: On 27 July 1996 the third appellant was driving a DAF truck
registration number 501 944 Q without a trailer belonging
to his
employer the second appellant in the course and within the scope of
his employment along Mazowe Harare Road towards Harare.
At the junction of Mazowe
Harare Road and Eskbank Farm Road the horse driven by the third
appellant collided with a Mazda B
2200 pick up registration number
519 920 E driven in the opposite direction by the first respondents
husband with the second respondents
wife being a passenger. Both
occupants of the Mazda B 2200 died from injuries sustained in the
accident.
On
25 July 1998 the respondents instituted action in the High Court
claiming damages for loss of support and funeral expenses from
the
appellants jointly and severally one paying the others to be
absolved. The first appellant was sued because it was the approved
insurer for the purposes of Part III of the Road Traffic Act [Chapter
13:11).
The
respondents alleged that the accident was caused solely by the third
appellants negligence in that he overtook in front of
oncoming
traffic, failed to keep a proper look out, failed to keep his motor
vehicle under proper control, failed to stop or act
reasonably when
an accident seemed imminent and drove at an excessive speed in the
circumstances.
The third appellant denied the
allegations of negligence pleading instead the defence of sudden
emergency. He alleged that, at
the time his motor vehicle collided
with the deceaseds car, he had been presented with a sudden and
unexpected emergency by a
bus which had abruptly stopped in front of
his motor vehicle upon completing the overtaking manoeuvre.
The court a
quo found that the
collision was caused by the third appellants negligent driving and
awarded the respondents damages. This appeal
is against the finding
by the court a quo
on the liability of the appellants. There was no appeal against the
quantum of damages.
The contention advanced on
behalf of the appellants is that the learned judge erred in rejecting
the evidence of the third appellant
that, he was faced with a sudden
emergency and holding instead that, he negligently caused the death
of the deceased.
It is common cause that Mazowe
Harare Road is a tarred road with two lanes for traffic going in
the opposite directions. Before
one gets to the junction between
Mazowe Harare Road and Eskbank Farm Road which joins it from the
left when facing Harare, the
road has an open bend to the left before
it enters a straight stretch. The centre of the road where it has
the bend and forms the
straight stretch is marked by double unbroken
white lines. There are signs on either side of the road prohibiting
any stopping
by motor vehicles in the area.
The third appellant gave
evidence to the effect that before he entered the bend he saw a bus
driving behind his motor vehicle.
The bus driver indicated his
intention to overtake his motor vehicle. For 50 metres the bus
tried to overtake his truck. He
lifted his foot from the
accelerator but did not reduce speed to allow the bus to overtake.
The bus eventually overtook his motor
vehicle at the end of the bend.
A Toyota Hilux quickly moved into the space between the bus and his
truck. He said he had not
realised that the Toyota Hilux had also
been overtaking his motor vehicle because of smoke spewed out by the
bus.
When the bus was about 10
metres in front of his motor vehicle the third appellant said it
suddenly and without warning stopped
on the left hand side of the
road. The Toyota Hilux quickly swerved to the right successfully
avoiding colliding with the back
of the bus before driving on. He
said he applied brakes to avoid ramming into the back of the bus.
His motor vehicle swerved
to the left. He turned it to the right
thereby avoiding a collision with the back of the bus. He said his
truck stopped in the
centre of the road. The Mazda B 2200 came and
collided with his motor vehicle whilst it was stationary. The Mazda
B 2200 was
on impact pushed backwards across the Mazowe bound lane.
He said he did not see the Mazda B 2200 before it collided with his
truck.
He was driving at 60 km/hr.
The court a
quo found that the
third appellant was not being truthful as to what he did and where he
stopped after swerving his motor vehicle to
the right to avoid
ramming into the back of the bus. The evidence of tyre marks and
debris revealed that his motor vehicle travelled
for 60 metres on its
correct side of the road after it had successfully avoided ramming
into the back of the bus. At the time it
collided with the Mazda B
2200 the evidence showed that the third appellants motor vehicle
had encroached onto the incorrect side
of the road by 0.7 metres.
The point of impact was found to have been on the Mazowe bound lane.
Evidence also revealed that the
Mazda B 2200 had been pushed
backward on impact over 10 metres. The third appellant had said he
did not swerve to the left side
of the road because there was a ditch
or storm water drain. The court a
quo found that an
inspection in loco had revealed that there was no ditch or storm
water drain on that side of the road.
The court
a quo found as a fact
that the third appellant failed to control his motor vehicle over a
distance of 60 metres before colliding with the
Mazda B 2200 because
he was driving at an excessive speed in the circumstances. His
speed was estimated as having been 100 km/hr
in an 80 km/hr maximum
speed limit zone. For the same reason (driving at an excessive
speed) the court a quo
found that he had failed to keep the vehicle under proper control or
act reasonably when the accident seemed imminent. It also
found
that he did not see the on coming motor vehicle before the collision
because he was not keeping a proper look out.
The court a
quo rejected the third
appellants evidence of sudden emergency finding instead that there
was no such occurrence. The learned judge
said:
He
became aware that the bus and the Toyota Hilux were overtaking his
vehicle at a dangerous stretch of the road. According to his
evidence in re-examination the bus and Toyota Hilux were overtaking
for a distance of some 50 metres. A careful driver would have
applied his brakes in order to allow the bus and the Toyota Hilux to
overtake safely. The third defendant did not do so. When
the bus
brake lights came on showing that the bus was going to stop it should
have been at that point in time that the third defendant
should have
applied his brakes. Allowing for his reaction time, the third
defendant must have become aware that the bus was going
to stop at
least some 10 or 50
metres before he applied his brakes. Even if some allowance were to
be given by accepting that he reacted quickly to what he
saw, he
should have begun to react some five metres before he applied his
brakes. The third defendant was unable to stop his motor
vehicle
for 60 metres as indicated by the tyre marks on the road. Thus at
the very least he had 65 70 metres within which to
stop his
vehicle and an even longer distance to apply his brakes from the time
that the other motor vehicles were overtaking his
own. His failure
to do so is telling
. He was driving a horse without a trailer
which in all probability should stop much quicker
than when it is
pulling an 18 ton loaded trailer.
I
am satisfied that the third defendant was negligent in that he failed
to take reasonable action in the circumstances. It is on
this
reasoning also that I am satisfied that the situation which he faced
did not qualify as a sudden emergency. He should have
reduced his
speed when the other vehicles were overtaking his own. All he did
was to remove his foot from the accelerator. That
was not
sufficient action in the circumstances. I am satisfied too that he
was negligent in that he failed to stop when he had
at least 60
metres within which to do so. I am satisfied that he was travelling
at a speed which was excessive in the circumstances.
He thus failed
to act reasonably when an accident seemed imminent. He also failed
to keep his horse under proper control hence
the swerving
and his deliberate steering of the horse to the right. On impact
his vehicle pushed the deceaseds vehicle some 10 metres
off the
road before it came to a stop. The extensive damage sustained by
the deceaseds vehicle suggests that the third defendants
horse
did not only stop at the continuous white lines but also that it was
still in some considerable motion at the moment of the
collision. I
am satisfied that the third defendant was negligent and he must be
found liable for the collision.
It
seems to me that the learned judge was on the facts wrong in holding
that the third appellant was not faced with a sudden emergency.
An
emergency is a dangerous act which happens suddenly which a
reasonable driver cannot anticipate and guard against. He accepted
the evidence of the third appellant that the bus abruptly stopped in
front of his motor vehicle thereby creating a sudden and unexpected
dangerous situation to which he had to react and deal with in the
best manner possible. There was no suggestion that the third
appellant caused the dangerous situation by his failure to reduce
speed when the bus was overtaking his motor vehicle.
On the evidence, the third
appellant could not have expected the bus to stop suddenly in front
of his motor vehicle in the manner
it did upon completion of the
overtaking manoeuvre because the indication had been that the bus
driver intended getting back into
the correct side of the road and
drive on. The no stopping signs on either side of the road
entitled the third appellant
to anticipate that the bus would
continue moving on. In my view the facts show that the third
appellant was faced with a sudden
emergency when the bus abruptly
stopped in front of his truck.
The question is what allowance
should be given to the sudden emergency in determining whether the
duty the third appellant owed
to the deceased to take care and use
reasonable skill in driving his motor vehicle and avoid colliding
with their motor vehicle was
discharged. The failure by the third
appellant in his duty of care towards the deceased excused by the
sudden and expected occurrence
of the emergency must be such that
although he may not have done what was the right thing to do he was
not culpable for the tragic
consequences.
In S
v Mauwa 1990 (1) ZLR
235 (S) KORSAH JA at 241A-B said:
In
Brandon
v Osborne,
Garrett and Company (1924) 1KB 548 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, in the
agony
of the moment, he exercises 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.
But
the doctrine of sudden emergency cannot be taken too far. Not every
act taken in a situation of sudden emergency excuses the
actor from
the duty to take reasonable care and use reasonable skill to avoid
foreseeable harm to others. In each case in which
the defence of
sudden emergency is raised the question whether or not the act which
caused the actionable damage is evidence of what
a reasonable person
would have done in the circumstances will depend on the particular
facts.
There
must be a proximate connection in time and space between the act
undertaken in the spur of the moment to avoid a dangerous
situation
created by some one else and damage caused by that act.
In Stoomvaart
Maatschappy Nederland
v Peninsular &
Oriental Steam Navigation Company
(1880) 5 AC 876 (HL)
at 891 LORD BLACKBURN said:
a
man may not do the right thing,
nay may even do the wrong thing, and yet not be guilty of neglect of
his duty, which is not absolutely to do right at all events,
but only
to take reasonable care and use reasonable skill; and I agree that
when a man is suddenly and without warning thrown into
a critical
position, due allowance should be made for this, but not too much.
If, to take the example LORD JUSTICE JAMES gives,
the driver of a
van cracking his whip makes the horses of a carriage suddenly
unmanageable, the fact that the driver of the carriage
pulled the
wrong rein would be much less cogent evidence of want of reasonable
skill or of reasonable care on his part, than if he
did the same
thing when driving along in the ordinary way, but it would still be
evidence.
As pointed out by Lord
BLACKBURN IN Stoomvaarts
case, supra,
the question is, how much allowance should be made in each case for
the suddenness of the thing when determining whether there was
a want
of reasonable care and reasonable skill. In this case the facts
show that the third appellant coped with the critical situation
which
confronted him when the bus suddenly and unexpectedly stopped in
front of his motor vehicle. He swerved to the right which
in my
view, was a thing any reasonable driver faced with the same situation
would have done.
The act of colliding with the
oncoming vehicle did not, however, occur when he was still in the
process of avoiding the dangerous
situation. In Mauwas
case supra
the defendant hit the scooter in the course of performing the act of
avoiding ramming into the back of the army truck that had stopped
suddenly and unexpectedly in front of his bus. After successfully
avoiding the collision with the bus and having overtaken it the
third
appellants motor vehicle moved over a distance of 60 metres on its
correct side of the road before encroaching on its incorrect
side and
colliding with the oncoming truck. At that time the sudden
emergency which had occurred was no longer dictating the manner
in
which the third appellant drove his motor vehicle.
He was under a duty to take
reasonable care and use reasonable skill in driving his motor vehicle
to prevent a collision with other
motor vehicles. There was no good
reason why he failed to see the on-coming truck. He was not keeping
a proper look out. He
failed to keep his motor vehicle under proper
control because he was driving at an excessive speed in the
circumstances. These
failures were in my view evidence of want of
reasonable care and skill on his part. The sudden emergency did not
in the circumstances
have a proximate connection with his failure to
act reasonably to avoid the collision.
I therefore reach the same
conclusion as the court a
quo that the third
appellant negligently caused the collision in which the deceased
received the injuries from which they died. I make
that finding
notwithstanding a finding that he was faced with a critical situation
when the bus had earlier on suddenly stopped in
front of his motor
vehicle.
The
appeal is accordingly dismissed with costs.
SANDURA JA: I agree.
ZIYAMBI JA: I agree.
Wintertons,
appellants legal practitioners
Gollop
& Blank,
respondents legal practitioners