Ingabulu Investments (Pvt) Ltd & Anor v National Railways of Zimbabwe & Anor

### Preamble
1
HB 77/21
HC 1216/10
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INGALULU INVESTMENTS (PVT) LTD

And

MARK MASINYAZANA MBAYIWA

Versus

NATIONAL RAILWAYS OF ZIMBABWE

And

MOFFAT BANDA

IN THE HIGH COURT OF ZIMBABWE

TAKUVA J

BULAWAYO 14 JUNE 2019 AND 20 MAY 2021

Civil Trial

J Tshuma, for the plaintiffs

T Sibanda, for the defendants

TAKUVA J: 	Plaintiff issued summons against both defendants on 25 June 2010.  Plaintiff’s claim is for;

An order that the defendant pays an amount of US 37 700-00.

An order that defendant pays interest on the amount demanded in (a) above at the prescribed rate from date of summons until the amount has been paid in full.

An order that defendant pay costs of suit.

Subsequently by consent of the defendants, plaintiffs amended their summons to read as follows;

(a)	Defendants jointly and severally one paying the other being absolved an amount of US 66 702-00.

(b)	An order that defendants pay interest on the amount demanded in (a) above at the prescribed rate from date of summons until the amount has been paid in full.

(c)	An order that defendants pay costs of suit.

Defendants entered appearance to defend and filed a request for further particulars which were duly supplied after which defendants filed their plea.  In addition, the 1st defendant filed a claim in reconvention wherein the 1st defendant in convention is the plaintiff in reconvention and the plaintiff is the defendant in reconvention.  The 1st defendant claims payment of;

“(a)	A sum of $93 391-90 and

(b)	A sum of $31 230-88 and

(c)	A sum of $1 282-46 and

(d)	A sum of $15 761-12 and

(e)	A sum of $7 253-12 and

Interest on the above amounts at the prescribed rate from the date of the issuance of this claim to date of payment.”

The basis of the claim is that plaintiff is liable to compensate 1st defendant for the damage suffered as a result of repairs to locomotive 2014 and wagon, repairs to the damaged railway track together with consequential cost of delays to trains 556 and 532.

Plaintiff filed its plea to 1st defendant’s claim in reconvention.  At a joint Pre-trial Conference , the parties agreed that the following are the issues for determination in this trial;

“(a)	whether defendants are liable to compensate plaintiff for the damages it suffered due to the 1st defendant’s failure to properly maintain and service the Myrtlechan Siding Somabula-Rutenga section level crossing.

(b)	whether defendants are liable to compensate plaintiff for the damages it suffered due to the 2nd defendant’s failure to reduce speed and stop at a section of the railway track where caution was supposed to be exercised and also the failure by the 2nd defendant to stop the train when an accident was imminent.

(c)	whether or not plaintiff was the proximate cause of the accident that occurred on the 18th of September 2009 between the parties.

(d)	If so, whether or not the 1st defendant suffered the damages alleged and if so whether plaintiff is liable for those damages.”

The onus on issues (a) and (b) is on the plaintiff, while on defendant on issues (c) and (d).

Background

On 14th September 2009 at Somabhula near Dorset, plaintiff’s truck, a combination of horse and trailer got stuck at a level crossing.  A train belonging to the 1st defendant and driven by the 2nd defendant hit the truck despite attempts having been made to warn the 2nd defendant to stop the train.  The impact separated the horse from the trailer which had a load of 28 tonnes of maize.  The trailer was dragged from the scene of collision leading to the derailment of two locomotives and two wagons belonging to the 1st defendant.  The accident damaged the horse and the trailer beyond repair and 28 tonnes of maize that was in the trailer was lost.

Plaintiff’s Case

Plaintiff averred that the accident was caused by the 1st defendant’s negligence in that it failed to maintain the rail road in sound and useable condition.  In addition to 1st defendant’s negligence, it was also claimed that the collision was a result of 2nd defendant’s failure to exercise due care and caution in operating the locomotive in that;

(1)	2nd defendant was speeding under the circumstances and

(2)	2nd defendant failed to stop when he was signalled to do so.

To prove its case, plaintiff called three witnesses and produced a number of documentary exhibits.  Mark Masinyazana Mbayiwa (Mark) testified first.  Apart from being a director of 1st plaintiff, he was also the operator driver of the truck that was involved in the accident.  On 18th September 2009 he was driving an E.R.F. Horse AAF 4312 and Trailer AAF 6909 in the Somabhula area looking for maize to purchase for resale in Bulawayo.  The vehicle is a commercial vehicle and Mark had a Road Transport Operator’s Licence.  He crossed the railway line at Myrtlechan Private Level crossing (Level crossing) and purchased 560 bags x 50 kg bags of maize at a business centre.  The maize whose weight was 28 000 kg was loaded into the trailer.  This was well within the carrying capacity of the trailer as indicated on Exhibit 2.

On his way back to Bulawayo, he had to cross the railway line at the same level crossing.  Upon approaching it, he stopped and checked on both sides and was satisfied that it was safe to cross.  He took off but when he was in the middle of the rail the truck got stuck on the dome-shaped level crossing.  It could not move forward and he engaged the reverse gear but realised that the wheels were skidding due to loss of traction.  He then disembarked to investigate what was impeding the truck’s motion.  Upon inspection they realised that the ‘concrete pavers/slabs’ had gone up trapping the jumbo legs of the trailer in the process.  The vehicle was trapped by the concrete slabs that were loose.  They together with farmers tried to “free” the jumbo legs by lifting the back using a jack.  Realising that this process was going to take long, Mark decided to secure the scene by sending two men either side of the truck along the railway line to alert oncoming trains if the need arose.  As the two men left, they looked for stones to support the jack to raise the trailer and release the pavers.  Their efforts came to naught.  As they were working underneath the truck they heard a hissing sound and on looking to the eastern side, he saw a huge yellow train engine coming.

From a distance, the witness saw a man waving a red T shirt frantically to warn the driver of the danger.  The man had just gone past a zinc warning board towards Bannock Barn.  When he first saw the train, it had just passed a bend and gone past another warning board.  He said the distance between the two warning boards is 400 m and the distance between the level crossing and the first board is 430 metres.  Therefore the total distance between the level crossing and the last board is 830 m.  These measurements are shown on Exhibit 9 as follows; (a) Distance from B1 –B2 = 400 m. (b) Distance from B2- Level crossing = 430 m. (c) Total distance from B1 – Level crossing = 830 m.  (See Exhibit 9 on plaintiff’s bundle of documents).

According to Mark, visibility between B1 and the level crossing was very good and he could see clearly.  When asked whether the 2nd defendant could see the truck from B1, his answer was “with good eyesight, he could have seen it from its size and his high position in the locomotive.”  When it dawned on them that the train was not stopping, they ran for dear life.  Shortly thereafter, they heard a loud bang and he saw the horse being tossed up in the air facing where it had come from.  The trailer disintergrated into smaller pieces with maize being scattered all over the bush.  The witness observed that two locomotives plus 4 wagons had derailed.  He disagreed with the 2nd defendant’s assertion in his plea to the effect that he saw someone waving him down with a red T shirt when he was only 170m away from the level crossing saying the man had gone past B2.

The concrete pavers that trapped the jumbo legs were captured on Exhibit 10(2) on page 11 of the plaintiff’s bundle of documents.  He listed his observations in picture 1 as follows;

There is a gap on the right side of the line.

The pavers are worn out and far away from the line.

There was loose gravel around the line.

The pavers moved up at the time the wheels of the horse were in the middle of the track.

Pavers should have been closer to the line.

From the above, the witness concluded that the level crossing especially the pavers between and around the lines had not been maintained for a while.  Diagram 2 shows the condition of his vehicle tyres which he said was very good.  The Police confirmed after a check that there were no defects on the plaintiff’s vehicle.  Mark said the train was travelling at an excessive speed when it hit the truck such that it “simply flew past the slippers.”  He explained Exhibits 10(3), 10(4), 10(5) and 10(6) and the circumstances leading to their destruction by a veld fire that caught up with the diesel that spilled from a derailed diesel locomotive.  The fire burnt the remnants of the trailer and its entire maize consignment.  As a result of the accident the trailer was reduced to a wreck, the horse could not be articulated to the trailer rendering it unuseable since its chase had been burnt.

The witness was asked to comment on the following assertions by the defendants;

1.	That the witness failed to maintain his truck and that he stopped due to a mechanical fault.  The witness insisted that his vehicle was in good working condition.

2.	That his truck was overloaded.  The witness denied this saying he was certain about the load because his customer Ingwebu Breweries insisted on weighing the vehicle.

3.	That he failed to give way to the train that was coming.  It was Mark’s evidence that he arrived at the accident scene way before the train.  He said he cleared the track before midday while the train arrived long after that.

4.	That he failed to give adequate notice to the train driver of the blocked rail road crossing.  The witness insisted that as a driver trained in defensive driving the first thing he did was to send people either way to alert the driver of an approaching train of the hazard.

Asked by Mr Tshuma what caused the accident, Mark said if the level crossing had been properly maintained to allow passage that accident would not have happened.  Further, if the train driver had kept a good lookout for boards and a man who was waving a red T-shirt vigorously and frantically to alert him, the accident would have been avoided.  He maintained that it was the 1st defendant’s responsibility to maintain the pavers that flipped blocking the truck.  These pavers were within the tracks and one row outside the tracks.  The jumbo leg according to Mark was trapped near the right lane and the truck was in between the lines with its jumbo leg trapped.  Therefore Mark concluded that the 1st defendant was responsible for maintaining that sector or portion of the rail.

As regards the quantum of damages he sustained, the witness gave detailed evidence of where and how much he purchased the horse and trailer for.  He also produced Exhibits 12(1) to 12(3) and 13(a) (b) to Exhibit 14 as proof of his testimony.  See pages 16 to 18 of the plaintiff’s bundle of documents.  The witness explained how he quantified the value of the lost maize.

Under cross examination the witness maintained that the jumbo leg was caught by the pavers on either side of the right railway line.  He conceded that the embarkment (dome-shape) of the level crossing could have contributed to the lifting of the back of the truck but insisted that had they not been caught by the pavers, they would have crossed safely.  He further conceded that he does not know the difference between a private level crossing and a public level crossing.  In his view the 1st defendant has a responsibility over level crossings.  As regards the 610mm “rule”, the witness said “my truck was stuck within the 600mm range – between the two metal rail lines i.e the paved area which they admit is their responsibility.”  While conceding that he does not know the difference between a Warning Board and a Level Crossing Indicator Board, the witness said whatever the terminology used both definitely communicate some message to the driver who was expected to act in a prudent manner by keeping a proper lookout, reduce speed to enable him to respond to any danger on the level crossing.  He challenged the defendant’s position that the driver’s obligation upon approaching a level crossing is only to sound his whistle.

He also denied that the accident was caused by his negligence.  Plaintiff called Mr Rodger Muhlwa as an expert witness who had occupied various positions at the NRZ up to Superintendent/Regional Manager.  The witness visited the scene of the accident and confirmed positions reflected on Exhibit 9 (the diagram).  He said the warning board he saw was erected to draw attention of the train driver that there was a level crossing ahead and he should anticipate that there could be obstacles at the level crossing.  More significantly, he indicated that at the level crossing a train driver must bring his train under control and prepare to stop should there be any obstruction.  According to him a level crossing was not a designated stopping place.  He said as a stocker, one of his duties was to learn how to drive a train.  It was during this period that he learnt that trains could be stopped by a device in case of emergency.  As a Line Manager or Traffic Officer he handled serious acts of misconduct arising from traffic accidents.  In that capacity, he would conduct disciplinary hearings to establish liability.

At the scene, he saw a warning board situated in an area where it was possible to see the level crossing.  The driver, according to him had ample time to take evasive action should there be an obstacle.  He stated that the driver was not keeping a proper lookout if he failed to see a big truck from a distance.  The witness indicated that every train driver was obliged to follow the Train Working Regulations to the point.  In the witness’s view the driver was negligent and should have been charged for such negligence.  He so concluded because according to him the train driver should have seen the truck on the level crossing when he was 800m away, that is at the first warning board.  If the train driver failed to see the obstacle at that point then it meant that he was asleep and therefore ignored that warning board.

As regards the difference between a private and a public level crossing, the witness indicated that the latter is constructed on public property (i.e NRZ) and has large volumes of traffic.  A private level crossing point may be erected by the NRZ at the farmer’s expense on private property.  When asked to comment on the maintenance of the line, the witness said it is the sole responsibility of the 1st defendant as the Regulations make it an offence for anyone to temper with the line.  Upon being shown Exhibit 10, the witness said “Sleepers are not supposed to move.  Sleepers rest on sand/ballasts.  It is supposed to be fitted regularly otherwise the slabs are not supposed to flip.  Patrol men would walk on the track looking for this type of fault.”

Under cross-examination, the witness was asked on the difference between a “Warning Board and a Level Crossing Indicator Board” and he said the former is specific while the latter is not.  However both warn the driver of the possibility of danger and in terms of the Regulations, the driver is instructed to bring his train under control to enable him to stop short of the level crossing.  When it was put to him that in terms of the Regulations, it is only a Warning Board that requires a driver to bring train under control and prepare to stop, the witness said the Regulations do not allow a train driver to drive “blindly” when approaching a level crossing whether private or public.

He denied that a train driver’s only obligation upon approaching a level crossing is to “whistle.”  The witness said the train driver’s further duty was to bring the train under control and prepare to stop in case there was an obstacle.  In answer to 1st defendant’s Legal Practitioner’s suggestion that no-one can win an argument with a train at a level crossing the witness retorted that “Plaintiff did not argue with the train but was stuck on the railway line.”  When asked to indicate on Exhibit 10 where 1st defendant’s responsibility would be, he said he did not know but what he knew was that the “concrete ballast or slabs were the responsibility of NRZ.”  The witness conceded that “Warning Boards” were not placed next to the level crossings, but next to stations, sidings, spars and halt (Exhibit 10) but remained adamant that the intention they portray namely safety was the same.  He was steadfast in his evidence that even when approaching a level crossing, the driver must be prepared to stop.

Plaintiff’s third and last witness was one Abednigo Ndema Sijabule Mbayiwa who was Mark’s assistant on the fateful day.  His evidence was substantially similar to that of Mark.  He confirmed the load and weight of the trailer on the return trip.  He described the accident as follows; “while crossing, an unusual sound/noise came from the vehicle.  The driver stopped and we disembarked to discover that one of the jumbo legs had been trapped by the pavers.  We tried to dislodge the paver from the jumbo leg but we failed.  I used a jack but it could not dislodge.  The driver dispatched 2 men either side to warn any approaching train of the danger at the level crossing.  We tried to balance the pavers by creating an even surface using stones.  The driver tried to reverse but it could not release the jumbo leg.  I heard noise of an impending train.  One of the men sent by the driver to warn train drivers was waving his T-shirt signalling the driver to stop but he did not stop the train.  We ran away from the scene and the train hit the truck “movie-style”.”

This witness also said the horse was dislodged from the trailer which was itself dragged for a long distance throwing the maize all over the railway line.  He said the truck had no mechanical faults.  As a result of the accident they could not salvage anything as they lost the horse, trailer and the maize.  When asked which pavers trapped the jumbo leg the witness said; “Those inside the railway line.  The driver could not reverse or drive forward .... as there was another loose paver that prevented truck from reversing.” The witness agreed that the level crossing was dome-shaped but could not say if this affected the loss of traction but said the loose soil and loose pavers prevented the truck from moving as the wheels kept rolling at one spot.

The plaintiff closed its case after the evidence of this witness and the defendants opened their case.  Both counsel agreed that the following facts are common cause;

1.	The train was travelling at a speed of 54 km/h.

2.	The braking distance at that speed is 0,755 km i.e 755 metres.

3.	The level crossing was a private one not a public level crossing.

In his opening remarks, Mr Sibanda for the 1st and 2nd defendants submitted that the defendants deny liability for the damages suffered by the plaintiff as a result of the accident.  They will deny that the accident was caused by loss of traction due to the absence of concrete slabs on the level crossing or that they were loose leading to them being caught by the jumbo leg.  He further indicated that the defendants will lead evidence to support their counter claim for damages showing that plaintiff negligently placed the truck in the face of oncoming train by failing to determine its capacity to cross the level crossing whilst loaded.

Defendants then called Mr Moffat Banda who was driving the train that was involved in the accident.  He is also the 2nd defendant.  He had worked for the Railways as an engine man for 27 years, driving on this route.  He knew this route very well.  The witness was now retired and at the time of his retirement he had not been charged by his employer for this accident.  On the day in question, he was driving a train pulling 1 705 tonnes of weight from Bannockburn to Somabula in the company of a guard a Mr Chiradza.  As this route was a “Paper Order Section” he was given the requisite order authorising travel.  He had driven trains over this route for 30 years hence he knew the stations sidings and level crossings like the “back of his hand.”

Commenting on the scene diagram Exhibit 9, the witness said he observed that on approaching there were two boards.  The first was a warning board for trains coming from Somabula.  The second board was a Level Crossing Indicator board 400m from a private level crossing.  He outlined that when approaching a warning board he must put his train under sufficient control and prepare to stop – see Exhibit 16, 17 and 18.  According to him, when approaching a level crossing indicator board, he was obliged to “whistle only” to alert persons on the level crossing to “give way” to the train as it has right of way.

The witness indicated that as he came out of the bend approximately soon from the level crossing, he observed a truck at the level crossing.  He noticed that it was “halfway” through and assumed that it was crossing as motorists “always cross at the last minute.”  As he approached the second board (about 400m) from the level crossing he saw people waving a red T-shirt which he immediately observed to be a warning for him to stop.  He immediately applied emergency brakes but the momentum of the train took it over the level crossing where it collided with the truck.  Just before the collision, the guard jumped off but he remained inside trying to stop the train which eventually came to a halt a “short distance” from the impact zone.

According to the witness, what he did was reasonable in the circumstances.  Further, he was of the view that the cause of the accident was the failure of the truck owner to send people “a longer distance away from the obstruction.”  He explained that at a level crossing the reason to stop is when a “danger signal is observed.”  In this case he said he saw the danger signal at a time when it was “too late to stop the train” short of the obstruction.

Under cross examination the witness provided the following evidence;

1.	That their motto at NRZ is “Safety First.”

2.	He stuck to the categorisation of the warning and level crossing boards, and reiterated that they are different and that a driver behaves differently when faced with each.

3.	That a train has a right of way at all crossings, and there are no speed restrictions on level crossings, (except the general speed limit).

4.	That he could not tell whether the truck was moving or not.

5.	When asked if he is an experienced driver who put safety first he was supposed to see the possibility that a car may not cross and that he should have acted responsibly by reducing speed so as to be able to stop if the need arose, the witness said as soon as he realised that the vehicle was not moving, he applied brakes.

6.	That he saw the truck before 800m but he did not apply emergency brakes since he thought the truck was moving.

7.	That the train had a right of way and whoever was on its path did so at their peril.

In fact the following exchange occurred during cross-examination by Mr Tshuma;

Q -	What is the difference between a warning board and a level crossing indicator board?

A -	A warning board tells driver to bring train under control and prepare to stop.  At a level crossing you just whistle.

Q -	But motorists and people use a level crossing?

A -	Yes

Q -	They can form an obstruction?

A -	They are not supposed to be there or to do so.

Q -	Why whistle?  Is it not an appreciation that there could be traffic at a level crossing?

A -	Yes

Q -	No other obligation other than to whistle?

A -	No.  At a level crossing no obligation to slow down or to prepare to stop.  Just continue travelling at the original speed.

Q -	You could see the level crossing from Warning Board No. 1.

A -	Yes even further.

Q -	You could see the truck on the level crossing?

A -	Yes.

Q -	Saw it when you were more than 800m before you got to it?

A -	Yes.

Q -	Obviously you could see it was not moving.

A -	No.

Q -	Asked yourself, is he crossing or not?

A -	Yes

Q -	You should have formulated an opinion that he was not crossing because he did not?

A -	I could not tell that it was stationary.

Q -	Since there was a possible obstruction, does it not follow that as a reasonable driver you should have brought train under control to be able to stop?

A -	Just whistle.

Q -	You had more than 800m to anticipate what truck in front of you would do?

A -	Yes.

Q -	Despite being aware of the braking distance, you did nothing when you were more than 800m away?

A -	After emergency brakes, there are no other brakes.

Q -	The problem is you believed that you had the right of way, you went and hit the truck without taking any measures whatsoever to try to avoid the accident.  Your attitude was I have whistled, I do not have to stop?

A -	I applied brakes well before the level crossing.” (my emphasis)

When asked by the court why he did not take precautionary measures timeously, the witness said a train has a “right of way over the railway line.”

The defendants called Since Zhuwawo to testify on the general design and layout of level crossings.  His evidence was that a slab placed at a level crossing was 692 mm by 502 mm with a height of 254 mm.  It has a mass of 124,2 kg.  Its design was such that it wedged to the bottom of the railway track and was firmly held in place by timber wedges.  The bottom of the slab is hollow to allow it to wedge on to the railway sleepers.  According to him, Exhibit 10 showed a fairly functional level crossing with all wedges in place.  He further disputed that the amount of wear and tear at the level crossing was such that it rendered the slabs unusable.

The witness continued that due to this design, a slab could not be lifted from its position without lifting the sleepers with it.  He concluded that it was highly unlikely that any of the slabs had been lifted from their positions.  This witness opined that if plaintiff’s story that one of the slabs was in an upright position at the time of the impact, it would have been smashed to pieces by the train pushed by 1 700 tonnes of weight.  As regards the cause of the accident, the witness’s opinion was that the truck driver failed to realise that under load, the jumbo legs of his trailer would be nearer the surface.  Coupled with the dome-shape of the level crossing, this would lead to the jumbo legs to be wedged by the railway track itself and not the slabs.

Under cross-examination, the witness conceded that he was not there during the occurance of the accident and was not in a position to witness on the state of the level crossing.  Further, he conceded that he was not there when the level crossing was constructed or repaired, so his evidence was on an ideal level crossing and not the one in question.  The witness indicated that there is indeed a department whose workers/trackers move along the line checking on the condition of balasts stones, sand and pavers at level crossings.  He opined that pavers are not supposed to move.  Upon examination of Exhibit 10, he confirmed that the plank was worn out at the bottom, that slabs were chipped or worn out.  Despite all these defects the witness insisted that a vehicle would not be trapped by loose pavers at the level crossing.

The defendants’ last witness was Elliot Muzaradope a mechanical section engineer employed by the 1st defendant since 1982.  He outlined the nature of the damages to the locomotives and wagons and explained the costs incurred in repairing same.  The total recoverable costs he indicated was a sum of $64 365-00.  Under cross examination, he conceded that apart from Exhibit 20 he did not have invoices and or receipts to justify the 1st defendant’s claim.  He stated that the repairs were carried out by 1st defendant’s employees who worked over-time and were paid.  The defendants closed their case after the evidence of this witness.

ANALYSIS OF EVIDENCE

The issues for determination in this case which were referred to trial are as follows;

(a)	Whether defendants are liable to compensate plaintiff for the damages it suffered due to the 1st defendant’s failure to properly maintain and service the Myrtlechan siding Somabhula-Rutenga section level crossing?

(b)	Whether defendants are liable to compensate plaintiff for the damages it suffered due to the 2nd defendant’s failure to reduce speed and stop at a section of the railway track where caution was supposed to be exercised and also the failure by the 2nd defendant to stop the train when an accident was imminent.

(c)	Whether or not the plaintiff was the proximate cause of the accident that occurred on the 18th of September 2009 between the parties?

(d)	If so, whether or not the defendant suffered the damages alleged and if so whether plaintiff is liable for these damages?

In order to resolve these issues the court has to closely assess the evidence by both parties including their witnesses’ credibility.  The crisp issue is who caused the accident.  Whoever caused it will be liable to pay damages suffered by the other party arising from the accident.  As shown by the evidence, plaintiff’s contention is as follows;

(a)	The 1st defendant was negligent in its failure to maintain and service the railway level-crossing and 2nd defendant was negligent in his failure to reduce speed and stop at a section of the railway track where caution was supposed to be exercised.

(b)	The negligence of the defendants unlawfully and wrongfully caused the collision between the train and a truck belonging to the plaintiff and causing the plaintiff to suffer pecuniary loss as a result of the collision.

(c)	The 2nd defendant, in driving the train, acted in the course of his employment by the 1st defendant and thus the 1st defendant ought to be held vicariously liable for all the damages proved by the plaintiff.

(d)	Plaintiff opposed the 1st defendant’s counter-claim as it denied that plaintiff was the proximate cause of the accident.  Plaintiff also denied that the truck was improperly maintained or overloaded and or that plaintiff or its driver was negligent in any manner.

The defendants’ evidence in summary is that;

(a)	The plaintiffs assumed risk by failing to realise that a loaded truck could not safely traverse a dome shaped level crossing of this nature.

(b)	That the plaintiff failed to adequately warn rail traffic of the obstruction.

(c)	The driver of the train acted as a reasonable driver would in the circumstances.

(d)	The plaintiffs’ pleadings differ from their evidence as regards the cause of the accident.

I now turn to the issues:

Issue 1

Was there negligence on the part of the 1st defendant?

Our law requires that in a case for delictual damages for a negligent omission, one must establish that there was a duty of care or duty to act on the part of the defendant.  In casu it is accepted that the 1st defendant has a statutory duty to “construct and maintain railway lines” in terms of the Railways Act (Chapter 13:09) in Part V sections 33-34.

Plaintiff led credible evidence through Mark to prove that the railway line at the level crossing was in disrepair and thus the 1st defendant was in breach of its statutory duty to maintain such line.  The witness was candid and consistent in his evidence.  He made concessions where he was supposed to do, for example he readily conceded the fact that the level crossing was dome shaped, his ignorance on the status of the level crossing, his ignorance of the difference between a warning board and a level crossing indicator board.  His evidence traverse events shortly before and after the accident.  He took pictures of the objects at the level crossing when events were still fresh in everyone’s mind.

Crucially, the witness gave credible testimony which I believe that the slabs/pavings in between the railway line were loose and therefore flipped when stepped on and caught onto the jumbo legs of the truck which accordingly got stuck.  He was able to effectively demonstrate this through the pictures in Exhibit 10.  This evidence was corroborated by the plaintiffs’ 2nd witness Abednigo Mbayiwa.

To counter this argument, the 1st defendant called a witness one Since Zhuwawo to testify that the railway line was kept in good repair and therefore the slabs never moved, and that the only reason why the jumbo legs of the truck were caught is because they were too low due to an overload of the truck and hence were caught in the line.  Under cross-examination, this witness conceded that he had never attended to the scene, he was never formally informed of the accident and that he never inspected the level crossing in question before or after the accident.  Further, he conceded that the “trackers” were the best people to testify on the condition of the line and level crossing at the time.

In my view, the plaintiffs through their witnesses demonstrated through Exhibit 10 that they used stones in order to wedge the slabs that were worn out on the edges so that they could stick them under the railway line.  They gave evidence of their attempt to jack the horse up so that the slabs would fall back to place on the ground.  None of this evidence was materially disputed.

I therefore find that the evidence of Mark as to the state of the railway line at the level crossing in issue must be preferred to that of Since Zhuwawo which was merely suppositions of what the railway crossing ought to have been like and not what it actually was.  The defendants’ version of what caused the accident is not only speculative but contradictory.  They contend that the jumbo legs were caught by the out rail line and not by the pavers or slabs.  However no explanation was given as to why if this is what happened, the truck could not reverse.  An attempt was made by the 1st defendant to shy away from the responsibility to maintain the level crossing beyond 61cm either way.  This argument lost relevance the moment it was proved that the truck was stuck in between the two railway lines right inside the 1st defendant’s area of responsibility.  Apart from bald assertions that the level crossing was in good repair, the 1st defendant has not led any evidence as to when last the level crossing was repaired or inspected by its trackers.

In all premises that it was the duty of the 1st defendant to maintain the line and the slabs in between cannot be controverted.  I find that 1st defendant’s failure to do the same was the sole cause of the truck being stuck on the line.

Issue No. 2

Was there negligence on the part of the 2nd defendant?

As pointed out above, plaintiff’s contention is that there was negligence on the part of the 2nd defendant who failed to exercise due caution when approaching the level crossing and failed to stop the train, despite warnings, resulting in a collision with the truck belonging to the plaintiff causing total damage to the property of the plaintiff.  Plaintiff led Exhibit 16 (The Rhodesian Railways Working Regulation) into evidence showing that the 2nd defendant had a duty to act with due care and attention in driving a train.

The test for negligence has been authoritatively laid down as follows in Kruger v Coetzee 1966 (2) SA 428(A) at 430 E.

“For the purposes of liability, culpa arises if –

a diligens paterfamilias in the position of the defendant –

would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss, and

would take reasonable steps to guard against such occurrence; and

the defendant failed to take such steps.”

There are two critical elements in this test namely; reasonable foreseeability and the reasonable preventability of damage.

REASONABLE FORESEEABILITY OF HARM

A rail road intersection is inherently a danger zone in which the possibility of harm taking place is a constant.  It accordingly is, naturally a “danger zone” that requires both train drivers and road users to exercise a higher than normal level of caution when approaching and crossing it.  The 2nd defendant admitted in oral evidence that he was well acquainted with that particular route as he had driven along it for many years.  This is in line with section 50 of the Rhodesian Railways Working Regulations which states;

“A driver must not drive a locomotive over any portion of the line with which he is not acquainted unless accompanied by a Locomotive Inspector ...”

The issue of the negligence in the context of a train driver at a rail crossing came up in the South African Supreme Court in Jacobs v Transnet Ltd t/a Metrotrain (803/13) [2014] ZASCA 113 (17 Sept 2014).  The court expressed itself thus;

“The foreseeability of harm at a place where rail and vehicular traffic intersect is unquestionable.  More than a century ago the dangers associated with level crossings were recognised in Workington & Others v Central South African Railways as follows;

“The level crossing itself is common both to the railway and the public.  Each has the right to pass over it and to expect that due care will be exercised by the other to avoid mishaps; but it is quite clear from the nature of the case that a train cannot in the ordinary course be expected to pull up at a crossing to allow passengers by the public road to get over the crossing.  The train must necessarily have the preference over passengers by road.  It is the duty of the traveller to look out for and wait for the train.  At the same time a condition is attached to the preference which the railway has, and that is that the train ought to give due warning of its approach when it is nearing a level crossing of this nature, so that persons might stop and allow the train to pass.  The train is bound, in my opinion, to give due and timely warning of its approach, and also not to be travelling at such an excessive rate of speed that the warning it might give should be of no avail.  What is an excessive speed and what is due warning must entirely depend on the special circumstances of each case.  Where there are obstructions to prevent persons travelling along the road from seeing an approaching train, or where there are only other circumstances which would make it difficult to ascertain that a train is approaching, then of course, better warning would have to be given, and the train would have to travel at a slower speed.” (my emphasis).

In casu the following facts were established in oral evidence;

1.	Warning signs or what the defendants referred to as level crossing indicator boards were present at the scene and the 2nd defendant admits to having seen the signs.  The defendants however strongly argued that the signs only gave him a duty to sound an alarm.  The plaintiff’s 2nd witness who led evidence as an expert materially challenged this evidence.  The plaintiff’s expert witness’s testimony was to the effect that the signs or boards he saw at the scene of accident also give the train driver an obligation to put the train in control so that he may stop in the case of an emergency.  He was of the view that simply sounding an alarm might not always be effective, as was the case in these circumstances where the truck could not move.  The driver must be prepared to stop short of the impact.

This evidence is further fortified by similar expert evidence that was accepted by this court in a matter relating to train collision in Tredgold N.O v National Railways of Zimbabwe (HH 142-2004) [2004] ZWHHC 142 (27 July 2004), it was stated that;

“The 4th witness Simon Prickard Schoeman professed to be an expert witness.  He is a former railway engine driver.  He outlined his experience with the railways departments, and it emerged that he had last worked for the railways in the sixties and that he left that occupation more than thirty years ago.  He is currently running a business in an unrelated field and stated that he had come to be a witness in response to a request by Ms Visser’s parents with whom he is acquainted.

He testified to the rules and regulations which a train driver is expected to observe by reference to the relevant manuals.  Exhibits 2 and 3.  He proved to be helpful at the inspection in loco by pointing out the various warning boards, signs and signals and what they represent.

In his opinion a driver was expected to whistle upon passing or reaching a board a little over 700 metres from a level crossing and again at various other points before the crossing and was in addition expected to have his train in check with brakes applied to enable him to stop the train short of the crossing should the need arise.” (my emphasis).

The defendants strenuously argued relying on the regulations, Exhibit 16 and case law that it is not negligence for a train driver to fail to stop at a level crossing.  They also relied on the distinction between a public and a private level crossing concluding that the train driver’s duty at the latter is lower.  Defendants relied on the following cases;

Pretoria City Council Council v SAR & H 1957 (4) SA 333.

Fortman v Sar & H 1948 (3) SA 595 (N) at 598.

Tredgold N.O v NRZ 2004 (2) ZLR 28 (H).

Finally on this issue, defendants submitted that assuming the 2nd defendant had a duty to act, he in fact took reasonable steps to stop the train but it could not stop due to the short distance.

I am not convinced by this argument for the following reasons;  The 2nd defendant admitted to having seen the truck from more than 800m.  The 2nd defendant admitted that there was no obstruction to his view and therefore was able to notice that there was a truck on the railway line.  He also admitted that he actually saw beyond the truck very clearly.  Further 2nd defendant admitted in oral testimony that he saw the man with a red T-Shirt waving him down and indicating that he should stop.  The 2nd defendant did not explain why he failed to see this man when he/2nd defendant was at the first board if he was able to see beyond him (man with red shirt) and beyond the level crossing (the truck).  See Exhibit 9.

This view is supported by the evidence led by plaintiff’s expert witness who referred to the train regulations for train drivers which outline danger signals.  Section 123 – “Danger Signals

The following must be observed as “Danger” Signals:-

(1)

(a)	A red flag or red banner.

(b)	A red light

(c)	Any object or light waved violently by any one or beside the railway line with the evident intention of attracting the attention of train men.

(2)	Drivers must stop immediately on receiving a danger signal.” (my emphasis)

This evidence that once this signal is made it imposes a duty on the train driver to stop was not contested by the defendants.  In casu, that the harm was foreseeable to the 2nd defendant cannot be in doubt in view of the warning signs, the frantic waving of a person to warn the 2nd defendant and the fact that the truck was actually visible to the 2nd defendant.  In my view, the harm in such a scenario is foreseeable both subjectively and objectively.  A reasonable man in the position of the 2nd defendant would understand such conduct or action to mean that there was some kind of danger ahead and should accordingly take steps to avoid such danger.  In fact the 2nd defendant should have taken these steps when he was 800m away.  It was negligent on his part to simply assume that the truck was moving.

In Virir v Wellesly Estate (Pvt) Ltd 1982 (1) ZLR 200 (SC) at 206 B-C BARON JA set out the test of negligence thus;

“A driver will be guilty of negligence provided the state or the plaintiff as the case maybe has proved that the obstacle was one which was capable of being seen in good time by a driver keeping a proper lookout.”

REASONABLE MEASURES TO GUARD AGAINST SUCH HARM.

Once harm is foreseeable, reasonable measures have to be put in place to prevent it from occurring.

In Ngubane v South African Transport Services KUMLEBEN JA adopted the following comments from Lawsa and Harscher v Mrupe 1954 (3) SA 464 (A) and 477 A-C

“Once it is established that a reasonable man would have foreseen the possibility of harm, the question arises whether he would have taken measures to prevent the occurrence of the foreseeable harm.  The answer depends on the circumstances of the case.

There are, however, four basic considerations in each case which influence the reaction of the reasonable man in a situation posing a foreseeable risk of harm to others,

the degree or extent of the risk created by the actor’s conduct;

the gravity of the possible consequences if the risk of harm materialises;

the utility of the actor’s conduct; and

the burden of eliminating the risk of harm.”

The first two considerations were discussed in Herschel v Mrupe supra as follows;

“No doubt there are many cases where once harm is foreseen it must be obvious to the reasonable man that he ought to take appropriate avoiding action.  But the circumstances may be such that a reasonable man would foresee the possibility of harm but would nevertheless consider that the slightness of the chance that the risk would turn into actual harm, correlated with the probable lack of seriousness if it did, would require no precautionary action on his part.  Apart from the cost or difficulty of taking precautions, which may be a factor to be considered by the reasonable man, there are two variables, the seriousness of the harm and the chances of its happening.

If the harm would probably be serious if it happened, the reasonable man would guard against it unless the chances of its happening were very slight.  If, on the other hand, the harm, if it happened, would probably be trivial the reasonable man might not guard against it even if the chances of its happening were fair or substantial.  An extensive gradation from remote possibility to near certainty and from insignificant inconvenience to deadly harm can, by way of illustration, be envisaged in relation to uneven patches and excavations in or rear ways used by other persons.”

In the present case the extent of the damage to the train and plaintiff’s truck in the event of a collision was clearly inevitable.  There was also a real possibility of damage to the cargo in both vehicles.  Also, such a scenario posed a risk of loss of human life.  The 2nd defendant had the burden of eliminating the risk of harm in these circumstances.  That the truck was stuck on the level crossing is common cause.  Therefore, it could only have been the train that stopped.

In terms of the Rhodesian Railways Working Regulations, the train driver had a duty to take reasonable steps to prevent to the collision of the train and the truck.  In these circumstances, the train driver had a higher duty of care and obligated to act in terms of the regulations.  These duties are contained in sections 121(1), 122, 123 and 124 of the  said regulations.  Taking all the circumstances into account, I disbelieve the 2nd defendant’s evidence that the distinction between a warning board and a level crossing indicator board would require him to simply “whistle.”  It does not make sense to me that a train driver confronted with an obstacle that becomes visible to him at a distance within or over the stopping distance has no duty to stop before the level crossing just because of the absence of a “warning” board.

FAILURE OF 2ND DEFENDANT TO TAKE STEPS TO PREVENT HARM

In view of his obligations 2nd defendant failed to reduce speed and stop at a section of the railway track where caution was supposed to be exercised.  Further the 2nd defendant failed to heed the warning of the danger signals and failed to react timeously to the stationary truck obstructing his passage and well within his view.  The 2nd defendant’s evidence is unreliable in that he gave conflicting and contradictory evidence as regards the distances he allegedly first applied the brakes.  See paragraph 5.1 of his plea.  In my view from the evidence including 2nd defendant’s, a reasonable inference can be drawn that the 2nd defendant in fact never tried to apply the brakes in time and only tried to apply brakes when a collision was imminent.

In Jacobs v Transnet Ltd t/a Metrorail supra, the court concluded thus;

“In summary; on the facts and in the circumstances of this particular case, the harm of the train colliding with a vehicle at the uncontrolled minimally protected level crossing was reasonably foreseeable.  The respondents failed to take adequate reasonable steps to prevent the materialisation of the harm namely by reducing the speed restriction to 40km/h on that part of the railway line from second whistle board.  Such a reduction would have entailed no cost at all to the respondents.  On the uncontested evidence this simple precautionary measure would have averted the collision altogether.  In the circumstances, the respondents are jointly and severally liable for the damages caused by the collision.  The appeal must therefore succeed.”

In casu, I find on the totality of the evidence that the plaintiff has proved negligence on the part of the defendants.

VICARIOUS LIABILITY OF THE 1ST DEFENDANT

As admitted in oral testimony, the 2nd defendant was acting in the course and scope of his employment as a train driver for the 1st defendant.  In Biti v Minister of State Security 1999 (1) ZLR 105 (S) it was held that:

“The standard test for vicarious liability requires the court to decide whether the wrong doer was engaged in the affairs or business of the employer when he committed the delict.”

ISSUE NO. 3

WAS THE PLAINTIFF THE PROXIMATE CAUSE OF THE ACCIDENT

In their counter claim, defendants allege that plaintiff was the proximate cause of the accident on the ground that the truck must have been overloaded and this was the reason why it got stuck.  Accordingly, the onus to satisfy the requirements of the negligence test is on the defendants.  In order to rebut this assertion plaintiff led the following evidence:

(a)	That both the vehicle and the driver were properly licensed and in good roadworthy condition with all the valid certifications of the same.  See Exhibits 1-8 which were produced by consent.

(b)	That the truck had a weight capacity of 30 tonnes and was carrying 28 tonnes of maize.  The truck was therefore well within its weight limit.

(c)	Upon reaching the level crossing, the driver stopped and checked both sides, ensuring that it was safe for him to cross.  The train was not in sight at that time.

(d)	Upon crossing, the jumbo leg of the truck got stuck due to the flipping of loose slabs at the level crossing.  The driver disembarked from the truck and attempted to dislodge the truck from the line.

(e)	As a safety measure Mark sent two people in both directions to warn trains of the stuck truck.  This evidence is corroborated by the 2nd defendant who confirmed that he saw the man who had come to warn him by waving a red T-shirt.

As indicated earlier the plaintiff’s evidence as to what caught the truck’s jumbo leg is credible and preferred to that of the defendant.  This is so because plaintiff’s evidence is based on what actually happened and what was observed at the scene of the accident as opposed to defendants’ evidence that is pure speculation and suppositions on why the jumbo leg was caught.  The 1st defendant did not dispatch a team from the engineering section to the scene to investigate the accident.  If it did, no evidence was placed before the court as to its findings.  All this court was told is 2nd defendant was exonerated of all wrong doing.

I take the view that a reasonable man in the position of the truck driver would have foreseen the possibility of harm where the truck got stuck on the railway line and would have taken steps to prevent that harm ensuing.  The truck driver proved that he did in fact take reasonable steps of immediately deploying individuals to flag down the train to stop while they attempted to move the truck.  In my view, there was no other reasonable measure that the truck driver could have taken that he failed to take.  Accordingly, the defendants’ counter claim has no merit.

Quantum of Damages

In Mbundire v Buttress 2011 (1) ZLR 501 (S), the court said the following in relation to the assessment of damages;

“It is appropriate at this stage to consider the approach that has been followed by the courts in the assessment of damages in general, and special damages in particular.  In Hersman & Shapiro & Co 1926 TPD 367, 379-80 STRATFORD J observed;

“monetary damages having been suffered it is necessary for the court to assess the amount and make the best use it can of the evidence before it.  There are cases where the assessment by the court is very little more than an estimate, but even so, if it is certain that pecuniary damage has been suffered, the court is bound to award damages.  It is not so bound in the case where evidence is available to the plaintiff which he has not produced; in those circumstances the court is justified in giving and does give, absolution from the instance.  But where the best evidence available has been produced, though it is not entirely of a conclusive character and does not permit of a mathematical calculation of the damages suffered still, if it is the best evidence available, the court must use it and arrive at a conclusion based upon it ...”

In Ebrahim v Pittman NO 1995 (1) ZLR 176 (H) at 187 C-D BARTLETT J quoted with approval the remarks of BERMAN J in Aarons Whale Rock Trust v Murray & Roberts Ltd & Anor 1992 (1) SA652 (C) at 655 H to 656 F that;

“Where damages can be assessed with exact mathematical precision a plaintiff is expected to adduce sufficient evidence to meet this requirement.  Where, as is the case here, this cannot be done, the plaintiff must lead such evidence as is available to it (but of adequate sufficiency) so as to enable the court to quantify his damage to make an appropriate award in his favour.  The court must not be faced with an exercise in guesswork, what is required of a plaintiff is that he should put before the court enough evidence from which it can, albeit with difficulty, compensate him by an award of money as a fair approximation of his mathematically unquantifiable loss.”

In casu, the best possible proof of the damages suffered by the plaintiff has been adduced by Mrk in the following manner;

a)	the trailer of the truck was totally damaged to the extent that none of it was salvaged from the scene.

b)	all the maize that was in the trailer was destroyed and none was recovered from the scene.

c)	the horse of the truck was pulled to Bulawayo where it was declared a write off.  1st defendant has inspected the horse and agreed that it is indeed a write-off.

All this evidence is common cause.  The value of the damage was quantified and evidenced by the plaintiff in the following manner;

1.	The truck and all its parts were imported from the United Kingdom as a second hand vehicle.

2.	Plaintiff through its witness Mark, produced a catalogue showing the cost of importing a trailer and truck of the same or similar make and age in order to restitute the plaintiff.

3.	Plaintiff also claims the amount that would have been realised by the sale of the maize.

The total claim is broken down in the following manner;

(i)	Trailer						US$20 000-00

(ii)	Horse						US$10 000-00

(iii 	Freight Charges				US$10 192-00

(iv)	VAT 15%					US$  7 078-80

(v)	Duty 25%					US$11 798-00

(vi)	Maize						US$  7 700-00

TOTAL					US$66 768-80

The defendants did not challenge this evidence.

As regards payment in foreign currency, plaintiff argued that justice requires that a plaintiff should not suffer by reason of a devaluation of a currency between the due date on which the defendant should meet his obligation and the date of actual payment or the date of enforcement by the judgment.  See Makwindi Oil Procurement (Pvt) Ltd v National Oil Co. Of Zimb 1998(2) ZLR 482 and Zimbabwe Express Services (Pvt) Ltd v Nyanetsi Ranch (Pvt) Ltd SC 21-09.

Relying on these authorities, plaintiff argued that since it has shown that the damages it suffered were in United States dollars, it was entitled to be paid in foreign currency.  This will restore to the position it was in before the collision.

Both parties’ amounts of damages is expressed in United States Dollars.  However Zimbabwe introduced a new currency called the R.T.G.S. Dollar in terms of section 2(b)(iii) of SI 32/19 which amended the Exchange Control Regulations 1996.  According to SI 33/19 which introduced S44C to the Reserve Bank of Zimbabwe Act (Chapter 22:15), the newly introduced R.T.GS. dollar has the same value as the United States Dollar.  It further provided that all assets or liabilities valued and expressed in United States Dollars shall be deemed to be valued in the R.T.G.S dollar at a parity rate – see section 44 C(4)(1)(d).  Accordingly all claims made by the parties are deemed to be R.T.G.S dollars at equivalent of one is to one to the United States Dollar with effect from the effective date which is 22nd February 2019.

In the result both parties’ claims fall at a date before the effective date and are now expressed in R.T.G.S dollars at the rate of one-to-one to the United States dollar.  Both claims do not fall within the recognized exceptions.  See Zambezi Gas Zimbabwe (Private) Ltd v  1. N.R. Barber (Private) Ltd, 2. The Sheriff For Zimbabwe SC 3-20.

This court is in terms of the doctrine of stare decisis bound by this decision.

DEFENDANTS’ QUANTIFICATION OF ITS DAMAGES

In view of my earlier finding that the defendants’ counter claim has not been established, it is purely academic for this court to comment on whether or not the alleged damages were adequately quantified.  The position was aptly put by the court in Mbundire v Buttress case supra in the following words;

“Thus where evidence is available to a plaintiff to place before the court to assist it in quantifying damages and this is not produced so that it is impossible for the court to do so or there is no, or quite insufficient evidence which can be produced by an unfortunate plaintiff he must fail and the defendant must be absolved from the instance…”

In the present matter the 1st defendant called one witness to prove damages which witness conceded under cross-examination that he had not even compiled the schedule showing the damages that was relied upon.  The person who quantified the alleged damages was not called to corroborate and could not be cross examined to properly test the evidence.  I find therefore that the defendants failed to produce the best possible evidence to quantify their damages despite such evidence being available, like proof of overtime payments to employees for the repairs to take place, and receipts of items that they allege were purchased to repair the train engine.  No evidence was led from the people who carried out such repairs to prove them.

In the circumstances, I find as follows;

(1)	The 1st and 2nd defendants acted negligently and such negligence was the cause of the collision that took place between the train and the truck and trailer belonging to the plaintiff.

(2)	The plaintiff suffered patrimonial loss in the sum of US$66 768-80 and has shown the best evidence available of such loss.

(3)	The defendants’ counter-claim has no merit as the plaintiff was not negligent in any way.

Accordingly, it is ordered as follows;

1.	The 1st and 2nd defendants be and are hereby ordered to pay jointly and severally the sum of $66 768-80 to the plaintiff.

2.	The 1st and 2nd defendants be and are hereby ordered to pay interest at the prescribed rate of 5% per annum calculated from the date of issue of summons being the 22nd day of June 2010.

3.	The defendants’ counter-claim be and is hereby dismissed.

4.	Defendants to pay costs of suit.

Webb, Low & Barry Incorporating Ben Baron & Partners, plaintiffs’ legal practitioners

James, Moyo-Majwabu & Nyoni, Defendants’ legal practitioners