Court name
Harare High Court
Case number
HC 855 of 2009

Vengai v Chuma & Anor (HC 855 of 2009) [2010] ZWHHC 215 (28 September 2010);

Law report citations
Media neutral citation
[2010] ZWHHC 215

                                                                                        

BERNARD VENGAI

versus

BENJAMIN CHUMA

and

NEW DONNINGTON FARM (PRIVATE) LIMITED

 

 

HIGH COURT OF ZIMBABWE

KUDYA J

HARARE, 7, 8 and 9 July and 29 September 2010

 

 

Civil Action

 

 I Mabulala, for the plaintiff

 I Kurawley, for the defendants

                    

 

KUDYA J:      On 10 September 2008 at around 7.30 pm the plaintiff was driving an E 200 Kompressor Mercedes Benz 1998 model from Gweru to Harare. At the 49 km peg, just before reaching Norton he drove into the back of a trailer. The trailer was being towed by a tractor driven by the first defendant during the course and scope of his employment with the second defendant. Both the trailer and the tractor belonged to the second defendant.

 

 THE PLEADINGS

 

        The plaintiff issued summons against both defendants on 25 February 2009. He sought US$30 000-00 being the replacement value of the Mercedes Benz together with interest at the rate of 30% from the date of the accident to the date of payment in full; damages for hiring a vehicle for his use at the rate of US$2 000-00 per month from the date of the accident to the date of payment;  general damages for pain and suffering in the sum of US$10 000-00 from the date of the accident to the date of payment together with interest at the rate of 30% and costs of suit. The defendants contested the action.

           In his declaration, the plaintiff averred that the accident was caused by the negligence of the first defendant and the unroadworthiness of both the tractor and trailer. He particularized the negligence thus:

 

  1. The tractor driver was not licensed to drive.
  2. The trailer which had 30 passengers had no rear lights despite the fact that it was around 7.30 pm.
  3. The driver was driving in the middle of the road instead of the extreme left of the road
  4. The driver drove without due care and attention and failed to avoid an accident when it was imminent.
  5. The rear lights of the tractor, even if they were on, would have been obstructed to trailing traffic by the width of the trailer, its height and overcrowded workers inside the trailer.
  6. The vehicles were not licensed to carry workers on public roads.

 

He further averred that the second defendant was negligent in using an unlicensed and under age driver to drive an unregistered and uninsured tractor and trailer to carry workers on a public highway and especially at night.

           In their joint plea, the defendants denied liability and disputed the particulars of negligence that were raised against them. They averred that the accident was caused as a result of the negligence of the plaintiff who drove at an excessive speed; failed to keep a proper look out and attempted to overtake the tractor and trailer when it was not safe for him to do so. While confessing that the trailer did not have rear lights they denied that this contributed to the accident by averring that both the trailer and tractor were visible as the tractor’s hazard indicator lights were flashing and the trailer had reflectors at the rear. They admitted that the first defendant was not licensed but denied that this was a contributory factor to the accident. They also put the extent and nature of the damages and loss suffered by the plaintiff to his vehicle and person in issue.

           In his replication the plaintiff averred that he noticed the tractor drawn trailer when it was 10 -15 m in front of him because his head lamps were on low beam as he had just passed a vehicle traveling in the opposite direction and could not overtake as there was an on coming vehicle. He further averred that the chevron reflectors were fixed above one and half metres from the ground instead of the statutory “not more than one meter and twenty centimeters”.

           On 9 July 2009 the matter was referred to trial on the following issues:

 

  1. Whether or not the accident was caused either as a result of the negligence of the first defendant or the condition of the tractor and trailer; or both
  2. Whether or not the accident was caused by the negligence of the plaintiff
  3. In the event that the plaintiff and the first defendant were both partially negligent, what are the degrees of negligence
  4. What is the quantum of plaintiff’s damages?

 

THE TRIAL

 

           The plaintiff gave evidence in person. He further called the evidence of his nephew Shawn Munawa who was with him in the vehicle on the night in question. On the replacement value of his motor vehicle he relied on the testimony of George Muzunze, a panel beater with M and G Panel beaters and Zivanai Naggo an internal vehicle assessor with Nicoz Diamond Insurance Brokers. The plaintiff produced thirteen documentary exhibits. The witnesses who testified on behalf of the defendants were the first defendant; Lovemore Ndodo, a driver with the second defendant and Anthony Kakorera, the workshop manager of the second defendant. The defendants did not produce any exhibits.

 

The plaintiff’s case

 

           The plaintiff stated that he met an on-coming vehicle just as he came out of the curve near Triple C Company. He reduced his speed from 100km/h to about 70 and 80 km/hr and dipped his headlamps. He was familiar with this stretch of the road. It was common cause that the road ahead ran straight for 800 metres. He had traveled on low beam for 300m, when some 13 metres in front of him a large trailer “like a ghost” loomed large in the middle of his lane of travel. He could not ascertain whether it was moving or stationary. He rammed his brakes and although he saw an on-coming vehicle he changed lanes hoping to drive between the trailer and the on coming vehicle. He expected that the on coming vehicle would move to its extreme left but it did not do so. To avert a head-on collision he consciously went underneath the rear right corner of the trailer. His vehicle stuck to the trailer and the two moved attached together for 19 metres before coming to a standstill in the middle of the road. The draw bar of the trailer left a 10 metre long gorge in its wake. It was common cause that the trailer was not licensed and did not have any rear lighting. The only safety feature on it was a reflective chevron pattern that was between 1,3 m and 1,5 m from the ground. It was also common cause that the road was 11,5 m wide; the tarmac beyond the yellow line was 1,6 m wide; the flat grass verge extended for 1,4 metres beyond the edge of the road and was bounded by the electric fence of a nearby farm.

           The airbags popped out and minimized the impact of the collision to his person. He managed to free himself. The trailer was sitting on top of the front passenger door. His nephew who was seated in the front passenger seat was trapped under the trailer and was screaming in agony. He, however, was rescued by about 10 young men who were passengers in the trailer. The Mercedes Benz was detached from the trailer with assistance of a passing motorist who pulled it off using his vehicle. The nephew was taken to Norton hospital with 8 passengers from the trailer. The trailer passengers were discharged that night as they had sustained superficial injuries but his nephew who had sustained life threatening injuries was transferred to the Avenues Clinic in Harare.  

           Sergeant Makarutse, a police officer, attended the scene and took a statement from him and compiled the sketch plan produced as exh 1. The second defendant’s manager came to the scene on a motor cycle. The driver of the tractor could not be found. On the instructions of the attending police detail, the manager switched the lights of the tractor on. The front lights were working as was one tail light. The other tail light was missing. He did not know whether it had been damaged during the accident or not. He was unsure whether the indicators of the tractor were flashing. He said even if they were, they emitted very soft light which was obliterated by the glare of the full beam of the on coming vehicle. He further stated that he could not see the tail and flashing hazard indicator lights of the tractor from behind as his vision was blocked by the height of the trailer, its passengers and cargo.

           He stated that the accident was caused by the absence of lighting on the trailer to warn vehicles traveling behind it of its presence on the road and the failure by the driver of the tractor to keep to the extreme left of the road. He produced exh 2, the three admissions of guilty fines paid by the first defendant for drawing a trailer which did not have tail lights; for carrying passengers in the trailer drawn by a tractor on a public road and for not carrying a tractor driver’s permit on his person.

It was common cause that the front portion of the Mercedes Benz was extensively damaged. The electrics and computer box were destroyed; the chassis was bent and jammed the front left wheel, the roof and front passenger door were damaged. The air bags popped out and the dash board was destroyed. He produced exh 3, the photograph showing the mangled sight of the Mercedes Benz after the accident. The damage was concentrated towards the left front side covering the lights, grill, and front bumper, left front fender, left front wheel house, bonnet, roof, the left front roof panel, the front chassis and suspension. The windscreen was shattered. The vehicle inspection report of 18 September 2008 gives in detail the damage observed by a vehicle inspector attached to the Vehicle Inspection Department. In contrast, exh 8, the photograph of the same vehicle shows that the rear and the right side of the vehicle were not damaged. He produced photographs of the tractor, exh 9, and 13 and of the trailer as part of exh 9. He photographed the road on which the accident happened and produced exh 12 to highlight the gorge left on the tarmac by the tow hitch.

           He took the wreck to two panel beaters and spray painters on 23 and 24 February 2009. Exhibit 6 indicates that these companies, that is, M and G Panel Beaters and Spray Painters and The River Between Enterprises considered the vehicle a complete write off. This view was confirmed by his insurer Nicoz Diamond Limited on 24 February 2009.  His insurer assessed the value of the damaged Mercedes Benz at US$25 000-00. Exhibit 7 demonstrated that the replacement value of the Mercedes Benz, inclusive of freight and duties was US$25 000-00. Exhibit 7 consists of two quotations obtained from two used car dealers and an engineer’s report that was complied by the plaintiff’s insurer. The correctness of the assessments was affirmed by the testimony of Zivanai Naggo. The plaintiff sold the wreck on 7 May 2009 for US$2 000-00 to Parktown Car breakers, who were the highest bidder amongst the three car breakers whom he approached. He alleged that he had purchased the car six months before the accident for US$14 000-00 in Durban and had expended more than US$30 000-00 in freight, duty and other charges in importing it into the country. He sought damages of US$30 000-00 for the loss of the vehicle.

           He averred that he was physically shaken by the impact of the accident. He did not break any bones. He was treated for pain and shock. As a result of the accident, he suffers from a consistent back pain and finds it hard to bend. Two weeks before the commencement of trial he consulted his personal physician. He was told he had to take anti-inflammatory drugs for the rest of his natural life. He is 59 and he takes them at the rate of three a week. He believed US$10 000-00 was fair compensation for the pain, trauma and shock arising out of accident. He was responsible for the hospitalization and treatment of Shawn Munawa. He did not produce any documentation to show the nature and extent of both their injuries. He also sought US$2 000-00 per month as the reasonable cost of hiring a replacement motor vehicle for his use in his farming activities. He produced exh 10, an agreement for the hiring of a vehicle at the rate of US$2 000-00 that he executed on 1 October 2008 with Mbudaya Enterprises (Pvt) Ltd for a Land Rover Defender. He is the managing director of that company. He said he hired it six months after the accident after his claim had been rebuffed by the defendants and used it for six months until the company’s  indebtedness to him of US$12 000-00 had been extinguished.

           He is facing criminal charges of negligent driving, which were suspended by this court on 3 February 2010, pending the conclusion of the present matter.

           He was cross examined. He revealed that his lights and power brakes were in perfect condition. He provided the basis for his averment that he was traveling at between 70 km/hr and 80 km/h as being the fact that he managed to stop after pushing the trailer for 10 m. He estimated that the two lanes could both accommodate four vehicles and not just two. He stated that the hazard indicator lights on the tractor were 1.5 m above the ground and disputed that the height of the trailer was 1.4 m. He insisted that it was the same height as the tractor. He denied that the chevron was1.7 m long but did not dispute it was 19 cm wide. He stated that he could not see the chevron pattern with a low beam. He stated that though the lights of the on coming vehicle were on full beam he did not see the tractor and its trailer. He supplied three reasons for electing to drive in the face of the on-coming vehicle instead of moving to the extreme left of his lane. These were his fear of either landing in a ditch or being electrocuted by the nearby electric fence or crashing into a diagonally parked broken down truck. He maintained that when he suddenly saw the trailer he applied his full brakes and tried to squeeze between the trailer and the on coming vehicle. He denied the presence of any vehicle on the road in front of him that overtook the tractor.

           He was offered US$1 000-00 by one car breaker and US$1 500-00 by another for the wreck. He settled for the US$2 000-00 offered by Parktown Car breakers.  He did not seek independent evidence on the reasonable cost of hiring a vehicle before executing exh 10. He was not referred to a specialist for treatment.

           He called Shawn Munawa. He was 14 at the time of the accident. He could only say he remembered seeing the chevron pattern of the trailer before the Mercedes Benz hit the trailer. Under cross examination he said the plaintiff tried to go to the right of the trailer but saw an on coming vehicle which caused him to suddenly reduce speed before he went under the trailer. He was not a useful witness to the plaintiff as he suffered concussion which affected his ability to make useful observations of what transpired before, during and after the collision.

           George Muzunze was called to establish the salvage value of the plaintiff’s vehicle. He has been in the panel beating industry since 1974. It was his expert opinion that the cost of repairing the Mercedes Benz would be higher than the cost of buying another similar model. It would have been difficult to restore it to its pre-accident state. He placed the salvage value at between US$1 500-00 and US$2 000-00.

           Zivanai Naggo of Nicoz Diamond holds a certificate in Motor Vehicle Body repairs from a local technical college and a Class 1 journeyman certificate in the same field. He confirmed that the Mercedes Benz was damaged beyond repair. He estimated its pre-accident value at US$25 000-00. He arrived at this estimate after surfing through the internet and consulting local used car dealers for the cost of a comparable model.

           The plaintiff’ version on how the accident occurred was not corroborated by the testimony of Shawn Munawa. Shawn was disoriented in the witness box. He had no recollection of what happened. This may have been due to the concussion that he sustained. He, however, intimated that the plaintiff only reduced speed when he saw the on-coming vehicle. There were disquieting features in the plaintiff’s version. He was driving a top of the range Mercedes Benz on a clear night. He was traveling on a straight stretch of the road. His testimony and the submissions made by his legal practitioner, Mr Mabulala, demonstrated that he calculated his speed from the distance that his vehicle stopped after the collision. He calculated the speed of 70-80km/h from the gorge marks of 10 metres long and not the 19 metres left by his tyre marks. It was common cause that the tyre marks started from the point of impact. Applying his own method of calculation; he would have been traveling at double the speed he indicated. If his calculations were correct they would reflect that he was traveling at a speed which was twice than the one he deposed to. His speed would have been between 140 km/h and 160 km/h. More importantly, by relying on the distance traveled by the vehicles after impact to calculate his speed, he demonstrated that he was not paying attention to his speedometer and did not know the actual speed he was traveling at when the collision occurred. The tone of his version indicated that he commenced to overtake but returned his lane and hit the trailer because he had misjudged the distance of the approaching vehicle. His reasons for failing to see the tractor were unclear. He stated that the headlamps of the approaching vehicle were on full beam. In my view he ought to have noticed the presence of the tractor and trailer much earlier from the light cast by the on coming vehicle. He did not explain why he kept his headlamps deflected in the face of the full beam. As he was on a straight stretch of the road the reasonable action for him to take would have been to flash his full beam at the approaching car to warn it to deflect its dazzling beam. Had he taken this precaution, on his version, he would have seen the trailer much earlier. The plaintiff’s version that he violently braked when he was about 13 metres from the trailer was at variance with that of his witness who stated that he braked when he observed the on-coming vehicle as he was overtaking the trailer. It was also negated by the absence of any evidence of violent braking on the tarmac before the impact. Mr Kurawley, for the defendants, made various valid criticisms of the plaintiff’s conduct based on probabilities of the case which I will advert to when I determine the issue of liability.

           While I did not believe the version of the plaintiff on how the accident happened his testimony on the measure of his damages for the value of his vehicle at the time of the delict and of hiring a vehicle for his use for six months was credible.

           The evidence that he called on the measure of damages in regards to the pre-accident value of the motor vehicle was not seriously challenged in cross examination. While he did not produce any documentary proof of the cost of purchase, freight and import and registration charges, the expert witness, Naggo, the insurance assessor, demonstrated by his oral testimony the methodology he used to arrive at the pre-accident value. It was common cause that the vehicle was a write off. MrKurawley conceded that the salvage value of the vehicle was US$2 000-00. He also conceded that the measure of damages for the vehicle would be the difference between the pre-accident value and the salvage value. Mr Mabulala initially submitted that the loss suffered by the plaintiff was in the sum of US$28 000-00 but conceded that in the light of the expert evidence it was US$23 000-00. I would find on the evidence of the expert witness that the loss suffered by the plaintiff for the damage to his vehicle was in the sum of US$23 000-00.

           On the claim for hiring an alternative vehicle for his use, Mr Kurawley conceded that the plaintiff was entitled to claim under this head. He, however, averred that the plaintiff had failed to lead evidence to show that the amount of US$2 000-00 per month was a fair and reasonable cost for hiring a motor vehicle for his use. The agreement was entered into between the plaintiff and the company for which he is the managing director. The close relationship between the plaintiff and the hiring company may raise eye brows but its authenticity was not put in issue during cross examination. The defendants did not suggest that the figure agreed to was outside the normal market rates prevailing from March to September 2009 the period for which the vehicle was hired. Neither did the defendants challenge the existence of the indebtedness. In the light of these views, I would have been satisfied that the plaintiff established the loss of US$12 000-00 for hiring the vehicle.

          On the claim for pain and suffering of US$10 000-00, Mr Kurawley correctly submitted that in the absence of medical evidence, the plaintiff failed to prove and justify his claim. I would grant absolution from the instance under this head.

           However, judgment on the amount of damages that he suffered is dependent on whether the defendants are liable for his losses.

 

The defendants’ case

 

           The first defendant had the authority of the second defendant to drive its tractor though he was not a licensed driver or the holder of a written permit. He had been driving the tractor for three years. On the day in question he was instructed by Anthony Kakorera, the second defendant’s workshop manager, to drive about 30 farm employees from the farm to their homes in Norton. He was drawing a seven meter long trailer which had a one and half meter long draw bar. He satisfied himself that all the passengers were seated in the pan of the trailer before he left the farm. At about 7:30 pm he drove into the Harare-Bulawayo road and proceeded towards Norton at a speed of 25 km/hr. He drove in the middle of his lane of travel. His trailer was not licensed. It did not have tail lights or any form of rear lighting. It had a large reflective 1,7 metres long and 19 centimetres wide reflex reflector with a chevron pattern affixed to its tail gate. The headlamps of the tractor were on. The tractor had park and indicator lights on the front section of each mudguard and tail and indicator lights on the back section of each mudguard. The park and tail lights were on. The indicator lights were all on hazard and were flashing. The flashing served to warn both on coming and overtaking vehicles of the potential danger posed by the unlit trailer drawn by the tractor.

           He had traveled for 200 m to 300 m along the road when he was overtaken by two speeding vehicles. He observed that the indicators of the two overtaking vehicles were on as they raced past him. He saw an on-coming vehicle. As this vehicle was passing another vehicle traveling from behind him collided with his trailer. The draw bars of the tractor fell. The draw bar of the trailer was raised and it struck and broke the tail and indicator lights on the left mudguard of the tractor. The tractor swerved to the right and automatically engaged the neutral gear as a result of the impact. The tractor careened into the lane of on coming traffic and halted on the grass verge with its lights on; still facing its original direction of travel. He disembarked from the tractor and sat on the ground in daze and shock.

           It was his testimony that the point of impact was on the right side of the trailer but at the back, close to the right wheel and axle. He maintained that the trailer was not hit from the rear. He pointed to a spot behind the plaintiff but next to the tree on the photograph of the trailer that was produced as exh 9. He believed that the plaintiff was racing with the other two vehicles that overtook him before the accident; tried to overtake the trailer but was forced to return to his lane by the proximity of the on-coming vehicle and in the process went under the trailer.

           He did not change his story under cross examination. He denied that the accident was caused by any of the illegalities that he committed that night. He denied that these illegalities constituted negligence. He maintained that there was nothing amiss about his manner of driving. He maintained that the trailer was lower than the tractor and averred that any motorist who was traveling behind him would have observed the neon light cast by the flashing hazard indicators of his moving tractor. He disputed that the trailer was wider than the tractor. He denied that the tractor careened for 81 m but insisted it did so diagonally for 30 m.

           The first defendant’s version of events was confirmed by Lovemore Ndodo, a licensed driver and an employee of the second defendant who was seated in the trailer on the fateful night. He was seated on the floor at the front right corner of the trailer facing the direction they were coming from. He had an unimpeded view of the road behind the trailer. He saw the two vehicles that overtook them. He observed the plaintiff’s attempt to overtake the trailer and his sudden swerve back to his lane to avoid an on coming vehicle. The plaintiff hit the back of the right side of the trailer. The trailer rose and its disengaged draw bar hit the mudguard of the tractor. The draw bar of the tractor broke and the tractor moved to the off side lane and stopped on the grass verge with its lights on.

           Under cross examination he maintained his version. He did not see the plaintiff dip his lights. He demonstrated the position on the right side of the trailer that was hit by the plaintiff much as had been done by the first defendant. He assisted in rescuing Shawn Munawa from the plaintiff’s vehicle. He was adamant that the plaintiff did not brake before the accident. He formed the opinion that the plaintiff was speeding from the effects of the collision. These were that the impact broke the draw bar and dislodged the tractor from the trailer; deflated the right back wheel of the trailer and thereafter the plaintiff’s vehicle pushed the trailer with 30 passengers for 19 m leaving a 10 m long gorge on the tarmac.

           Anthony Kakorera, the second defendant’s workshop manager, authorised the plaintiff to drive the farm workers to Norton. The lorry which often did so had broken down and he was repairing it. He was not aware that Lovemore Ndodo was at the farm as he was off duty on that day. He accepted that the trailer was deficient in all the respects that were enumerated by the plaintiff. He arrived at the scene of accident on a motor cycle and found the attending police detail present. He found the tractor idling with its lights on. He switched off the engine and the lights. He maintained his version during cross examination. He further denied that the accident was caused by the defects on the trailer or the absence of a driver’s licence from the first defendant.

           The first defendant gave a straight forward account of what transpired. That account was confirmed by Ndodo and Kakorera. I am aware that by virtue of their employment with the second defendant, these witnesses could have colluded to give complementary evidence. It was, however, the duty of the plaintiff to expose their complicity through cross examination. Their evidence was consistent both in-chief and under cross examination. They were honest on their shortcomings. Ndodo’s version on the stage at which the plaintiff braked was confirmed by the plaintiff’s own witness, Shawn Munawa. Their versions were unscathed by cross examination. The probabilities supported their testimonies. I believed them.

 

THE RESOLUTION OF THE ISSUE OF LIABILTY

 

           I proceed to determine the issue of liability in the light of the evidence led and the submissions made at the trial.

 

Whether or not the accident was caused either as result of the negligence of the first defendant or the condition of the tractor and trailer; or by both

 

           The onus to prove that the collision was caused by the first defendant’s manner of driving or by the use of an unroadworthy trailer and tractor lies on the plaintiff. It was common cause that the first defendant neither possessed a driver’s licence nor a permit issued in terms of s 8 (2) (a) of the Road Traffic Act [Cap 13:11] to drive a tractor on public roads. It was also common cause that he was driving the tractor in the middle of his lane of travel and not on the extreme left of that lane. The plaintiff failed to establish how the failure to hold a drivers’ licence or permit affected the manner in which the first defendant drove the tractor and trailer that night. Mr Mabulala for the plaintiff argued that as the second defendant was driving a slow moving vehicle, he ought to have hugged the extreme left of the lane. He contended that had the first defendant done so, the plaintiff would have been able to drive on without fear of a head on collision with the on-coming vehicle. The first defendant explained that the local police had in outreach programmes that targeted tractor drivers in the area exhorted them to drive in the middle of their correct lane to avoid accidents caused by drivers who sought to squeeze through as the plaintiff wanted to do on the fateful night. It seems to me that once the second defendant was on the road, he had the same legal rights, privileges and responsibilities conferred on any driver by the law. He was entitled to drive on the left lane. It was the first defendant and Ndodo’s uncontroverted testimony that two other vehicles had overtaken the tractor and trailer while traveling in the middle of its lane without any mishap. It was apparent from the plaintiff’s version that the tractor driver maintained a steady course. The plaintiff neither stated nor suggested that the second defendant meandered from his initial course into the plaintiff’s path when he commenced to overtake. It was submitted that he failed to keep a proper control of the tractor after the accident because it stopped 81 m from the scene of the accident and on the opposite side of the road. It was common cause that after impact the draw bar of the trailer disengaged from the tow hitch and the tractor engaged the neutral gear. The careening of the tractor off course did not cause the collision; rather it was caused by the collision. The second defendant explained that he was shocked and dazed by the collision but he still managed to stop the tractor on the other side of the road without any mishap. It seems to me that the first defendant’s manner of driving both before and after the collision cannot be faulted. The plaintiff failed to establish negligence in the manner the second defendant drove the tractor and trailer.

           The plaintiff further contended that the collision was caused by the unroadworthiness of the trailer. It was common cause that the trailer did not have any rear lighting. It was common cause that there was a reflex reflector in the form of a chevron pattern which was 1, 7 m long and 19 cm wide that was affixed some 1, 3 m from the ground-level.  Neither the trailer nor the tractor was registered. The first defendant conceded the shortcomings that were on the trailer. Both the first defendant and Ndodo maintained that the head lamps of the tractor were on as were the four hazard flashing lights on the big wheel of the tractor. The hazards were flashing as a warning to traffic behind and in front that there was danger lurking on the road. That these lights were functioning was affirmed by the farm manage. Although the plaintiff suggested that they were switched on by the farm manager at the request of the attending police officer, he confirmed that they were functioning. The plaintiff failed to explain why he did not observe these flashing hazard indicators. He suggested that his view was obstructed by passengers who were seated inside the trailer. He failed to explain why he failed to observe the amber light waves that were cast by the flashing hazard indicators.

           In his declaration, the plaintiff portrayed the impression that he did not observe the flashing hazard lights. I did not believe his testimony that the hazards were off. It seems to me that he saw the tractor in time and commenced to overtake. It was only while he was doing so that he realized that he had misjudged the distance of the on-coming vehicle and he had no option but to drive under the right hand side of the trailer towards the rear. In my view the accident was not caused by the unroadworthiness of the trailer.

           I agree with the submission made by Mr Kurawley that the plaintiff’s version of events was highly improbable. He alleged that the trailer suddenly appeared like a ghost in front of him when he was 13m away from it; yet there were no tyre marks to indicate that he applied emergency power brakes between the observation and impact points. The tyre marks only start at the point of impact and run for the 19 metres that he pushed the trailer. It was highly improbable that a man of his driving experience would on suddenly seeing a trailer in front of him risk a head on collision with an on-coming vehicle by failing to drive to his extreme left. His explanation that he feared that there might have been a broken down truck blocking the extreme left did not make sense to me. As it turned out there was no such truck. Again, his explanation that he feared hitting against the electric fence that demarcated the farm boundary was devoid of any reasoning. He was familiar with the stretch of the road. He knew there were no ditches. These explanations were after thoughts that he contrived in order to explain his failure to act as a reasonable driver in his shoes would have done. When these improbabilities are juxtaposed against the distance that his vehicle pushed the trailer with 30 people and uncoupled the tractor tearing of its rear left lights, and breaking a draw bar, the inescapable conclusion is that he was flying on the road. If the methodology he used in calculating his speed was correct, he was traveling at a speed of between 140 km/h and 160 km/h. At such a speed, indeed, the trailer would have suddenly appeared as an apparition. He drove at an excessive speed, failed to keep a proper lookout and attempted to overtake when it was not safe to do so. I am satisfied that he was racing after the other two vehicles that overtook the tractor. He must have seen them overtaking the tractor. It seemed to me that the defendants were correct in their averments and testimony that the plaintiff was the sole cause of the accident.

           Mr Mabulala further submitted that the failure to follow the provisions of s 6 (1) the Vehicle Registration and Licensing Act [Cap 13:14] was adequate proof of the defendant’s negligence. Section 6 reads:

 

6  Vehicles to be used on roads to be registered

 

(1)        Every vehicle which is to be used on any road shall be registered in terms of this Act.

(2)        If an owner of a vehicle referred to in subsection (1) fails to register it in terms of this Act, he shall be guilty of an offence and liable to a fine not exceeding level four or to imprisonment for a period not exceeding three months or to both such fine and such imprisonment.

 (3)       For the purposes of this section, a vehicle shall not be regarded as being used on any road—

(a)        if it—

(i)         Is owned by a farmer or miner; and

(ii)        is used exclusively on roads which are within the boundary of the farm or mine of the owner or,

in the case of a tractor or trailer, is used exclusively on roads within the area consisting of the farm or mine of the owner and the belt ten kilometers in width immediately outside the boundary of such farm or mine; and

(iii)       is used exclusively for the farming or mining purposes of the owner;

or

(b)        …         .(not relevant)

 

         

 While subs (1) of s 6 of the Vehicle Registration and Licensing Act, supra, provides for the mandatory registration of every vehicle that is to be used on any road, subs (3) of the same section specifically exempts from registration a tractor or trailer that is exclusively used on the roads within the farm or mine and in a ten kilometer radius outside the boundary of the farm or mine and is used exclusively for farming and mining purposes. In the present matter, the plaintiff did not prove that the exemption did not apply to the tractor and trailer in question. That alleged ground of negligence would not avail him.

           Mr Mabulala further submitted that the defendants contravened the provisions of s 35 of the Road Traffic (Construction, Equipment and Use) Regulations RGN 412 /1972 in that the chevron pattern at the rear of the trailer was in excess of 1, 2 metres from the ground level. Section 35 provides for the positioning of a white reflex reflector at the front of a tractor. The section which deals with rear reflectors on trailers is s 39. This subsection is made subject to the requirements of s 29 of the same regulations and provides for the transfixing of a reflex reflector to the rear of a trailer not less than 300 millimetres and not more than 1,2 metres from the ground level.  Section 29 requires that such a reflex reflector fixed to a trailer should have an area of 3 000 square millimetres and be visible at night at a distance of at least 50 m when illuminated by two headlamps on full beam. It does not provide for a chevron pattern. The provision of a chevron pattern is dealt with in s 34 of the same regulations. Subsection (2) of s 34 provides for the placing of the chevron pattern on heavy vehicles such that its lower edge is not less than 300millimetres and its upper edge not more than 1,2 metres from the ground-level. It, however, through the medium of a proviso allows for substantial compliance where “the structure of the vehicle is such that it is not possible to comply with the provisions of this subsection”. In the present matter the chevron pattern at the rear of the tractor was “so placed as to comply as is reasonable possible” with subs (2) of s 34 of the regulations. The plaintiff conceded that were his headlamps on full beam he would have seen the trailer much earlier than he alleged he did.

           In my view, the collision was not caused by the absence of rear lighting or the defects the defendants admitted were on the trailer but by the error of judgment of the plaintiff who decided to overtake the tractor he knew was on the road in the face of an on-coming vehicle. I find that the plaintiff was the sole cause of the accident. He was the author of his own misfortune. I do not find the defendants liable in any way for the collision and the subsequent damages that the plaintiff sustained.

           Accordingly, the plaintiff’s claim is dismissed with costs.

 

 

 

 

 

Mabulala & Motsi,plaintiff’s legal practitioners

Gollop & Blank, the defendants’ legal practitioners