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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 respondent’s husband with the second respondent’s 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 appellant’s 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 deceased’s 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 appellant’s 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 appellant’s 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 appellant’s 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 deceased’s vehicle some 10 metres off the road before it came to a stop. The extensive damage sustained by the deceased’s vehicle suggests that the third defendant’s 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 Stoomvaart’s 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 Mauwa’s 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 appellant’s 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, appellant’s legal practitioners

Gollop & Blank, respondents’ legal practitioners

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