Dururu Transport (Private) Limited v Michelle Rutendo Mutamuko (Executrix Testamentary in the Estate of Tatenda Calvin Mutamuko) and Premier Banking Corporation Limited

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DURURU TRANSPORT (PRIVATE) LIMITED
versus
MICHELLE RUTENDO MUTAMUKO
(Executrix Testamentary in the Estate of Tatenda Calvin Mutamuko)
and
PREMIER BANKING CORPORATION LIMITED

HIGH COURT OF ZIMBABWE
PATEL J

Civil Trial

HARARE, 23 to 25 November 2010 and 31 May 2011

J. Dondo, for the plaintiff
V. Nyemba, for the 1st defendant
A. Moyo, for the 2nd defendant



       PATEL J:     This matter arises from a collision that occurred on 20

July 2009 between the plaintiff’s truck and a motor vehicle driven by the

1st defendant’s deceased husband. The plaintiff claims the replacement

value of its vehicle, damages for loss of income and goods, together with

interest and costs of suit.

       The claim against the 2nd defendant was founded on its admitted

ownership of the vehicle driven by the deceased who, at the time of the

accident, was employed by the 2nd defendant. During the trial, however, it

became apparent that the deceased was not driving the vehicle in the

scope and course of his employment. In the event, the plaintiff formally

withdrew its claim against the 2 nd defendant by consent, with no order

being made as to costs.

       Consequently, the primary issue for determination herein is

whether it was the plaintiff’s driver or the deceased who caused the

accident. If it was the latter, the secondary issues relate to the
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replacement value of the plaintiff’s truck and the quantum of damages

that it claims.


The Evidence

       Tinashe Masviba has been employed as the plaintiff’s driver since

August 2007. He obtained his driver’s licence in 2002 and started driving

trucks in 2003. His evidence was as follows. He drove the plaintiff’s truck-

cum-trailer on the day in question. He began his journey in Mtoko at 6.00

p.m. and stopped to refuel in Glenara (Harare) at 8.00 p.m. before

resuming his journey a few minutes before midnight. He was driving

along Churchill Avenue West (in Harare) at a speed of 40 to 50 km per

hour. He saw an approaching vehicle, dipped his lights and applied his

jack-brake to slow down. He did not apply his foot-brakes. The other

vehicle then encroached into his lane and, although he moved to the

extreme left, the vehicles collided head-on in the left lane. He lost control

of the truck after impact and continued along the left, crashing through

the durawall of a house and eventually stopping in a swimming pool

beyond the durawall. The distance from the point of impact to the

durawall was about 16 to 20 metres, with a further 4 metres to the

swimming pool. The other vehicle, an Isuzu twin-cab, remained on the

road and another vehicle stopped behind the Isuzu. A man called Shingi

alighted from it and said that the driver of the Isuzu was drunk and had

been told not to drive that night. The damage to the truck was extensive

and about 3 to 4 tons of the 30 tons of maize in the trailer fell open or

into the swimming pool. The Isuzu was also severely damaged. The road

in question was bumpy and had no street lights. There was no centre-line

marked on the road. It was not too narrow for a truck to be driven along

it. His truck was 1 metre away from the centre-line when the collision
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occurred. The truck-cum-trailer weighed 18 tons and their combined

length was 16 metres. The front width of the truck was about 2.5 metres.

The truck was manufactured in 1994 and was in good condition before

the accident. He was not driving at an excessive speed and could not

have done anything else to avoid the collision. He made indications to the

police the following morning and told them that the deceased was drunk.

      Isaac Dururu is the Managing Director of the plaintiff. His evidence

was that Tinashe Masviba has been driving long haulage trucks for the

plaintiff for over 5 years. During that period, he has not had any accident

or committed any traffic violation. The witness was at the scene of the

accident within 10 to 15 minutes of its occurrence. When he arrived, the

truck was in the swimming pool and the Isuzu was almost in the middle

of the road. He observed drag marks on the road, showing that the Isuzu

had been dragged backwards from the point of impact, which was about

one metre or more towards the left lane. This tallies with Sketch Plan A

prepared by the attending police detail soon after the accident. The road

in question is 9 metres wide at the point of impact. He visited the site of

the accident the following morning and took several photographs which

he produced in court. In March 2010, he obtained a traffic accident report

from Avondale Police Station and passed it on to the plaintiff’s insurer.

According to this report, the deceased was found to be negligent and to

have caused the accident. At the time of the collision, the truck was

carrying 30 tons of maize for Delta Corporation. The latter accepted 30

tons and rejected 5 tons as being either soiled or wet. The plaintiff’s claim

in this respect is for the loss of 5 tons of maize at US$300 per ton,

amounting to US$1500.       The truck itself is a Freightliner 1994 model

which was in good condition and used for regional transport, with an

annual certificate of fitness issued on 2 May 2009. The truck was declared
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to be beyond economical repair by three different panel beaters. The

value of a similar 1999 model is US$46000 according to an invoice from a

local truck dealer. The accident assessor’s report, dated 5 October 2009,

places the market value of the truck at US$45000. The amount claimed

for the truck is US$33250, being US$40250 less the sum of US$2000 (paid

out by the 2nd defendant’s insurer) and US$5000 (the residual value of the

wreckage). The average net income from the truck from January to July

2009 was US$5600 per month. In this regard, the plaintiff claims an

amount of US$22760 for the period from July to October 2009 and the

sum of US$189.67 per day thereafter to the date of payment of the

replacement value of the truck.

      Michelle Rutendo Mutamuko is the widow of the deceased and the

executrix of his estate. She had been married to him for 8 years. She

testified that the deceased was the Head of Treasury with the 2 nd

defendant and would often meet clients or other bankers after work. He

used to drink at Premier Belgravia Sports Club on Fridays and Saturdays

but never during the week. The policy of patrons at the Club was to be

driven back by non-drinking drivers. The deceased died as a result of the

collision on 20 July 2009, which was a Monday. He was driving from his

office at the time. There was no inquest or other court proceedings

relating to his death. She has never seen the traffic accident report

produced by Isaac Dururu. She could not say whether it was the

deceased or the other driver who was negligent and was not in a position

to respond to any of the plaintiff’s claims.

      Inspector    Joel   Muchirawatu      is   the   Officer-in-Charge   of

investigations at Harare Traffic Section. He has been with that Section for

over 10 years and has two certificates in the analysis, evaluation and

drawing of accident plans. His evidence was that he visited the site of the
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accident for evaluation three days after the collision. Scale Plan A was

drawn up by Sgt. Chaparika soon after the accident. The witness himself

prepared Scale Plan B soon after he visited the site, with indications

provided by Tinashe Masviba and Sgt. Chaparika. The debris had already

been cleared but the chalk marks made by the latter were still visible. He

observed gouge marks starting from the left lane towards the centre and

extending into the right lane. The point of impact was 2 metres from the

edge of the left lane and 2.5 metres from the centre of the road. The road

is 9 metres in width and in good repair. It is open to all motor vehicles

and not subject to any tonnage prohibition. The speed limit on the road is

70 km per hour. There was a sharp curve in the road at Point B on the

scale plan. The collision was caused by the Isuzu encroaching into the left

lane. The distance from the point of impact to Point C (where the Isuzu

eventually ended after the collision) was 24.4 metres. This deflection

distance was proportional to the amount of force at the point of impact.

The Isuzu was punched backwards, as opposed to being dragged, from

the point of impact to Point C. There were no skid marks from either

vehicle before the point of impact. After the collision, the truck veered

forward to a distance of 52 metres. It was therefore possible that the

truck was travelling at an excessive speed. Following his visit to the site,

the witness inspected the Isuzu but not the truck. The Isuzu was

extensively damaged by a head-on collision. The traffic accident report

(dated 11 March 2010) was compiled by Avondale Traffic Section

following an inquest and verdict of the Harare Magistrates Court. No

witnesses were called to the inquest hearing. He was not aware of the

court procedure pertaining to sudden death dockets and inquests.


Who Caused the Accident
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      Mr. Dondo invokes the principle of res ipsa loquitur in support of the

plaintiff’s case. More specifically, he relies upon the expert evidence of

Inspector Muchirawetu as showing that the deceased was driving on the

wrong side of the road at an excessive speed at the time of the collision.

He submits that this evidence corroborates and complements that of

Dururu and Masviba and demonstrates on a balance of probabilities that

the collision was caused by the sole negligence of the deceased. He did

not pursue the allegedly drunken condition of the deceased at the time,

presumably because the evidence in that regard was obviously hearsay.

Ms. Nyemba counters these submissions by pointing to the inconsistent

and inconclusive evidence that emerged at the trial pertaining to the

physical evidence on the ground after the collision.

      As was aptly cautioned by McNally JA in Ramotale v The State SC

249/92, credibility in collision cases cannot be measured by demeanour,

but only by comparing the testimony against the real evidence. To put it

differently, the testimony of the witnesses must be tested against the real

or extrinsic evidence available, i.e. the sketch plan of the scene of the

accident, the damage occasioned to the motor vehicles involved, and the

facts recorded in the Traffic Accident Book. Similarly, as was further

observed by McNally JA in Matambo v Mutsago SC 19/96, where a witness

makes an assertion that is mechanically impossible, one cannot judge his

veracity by reference to his demeanour, but by applying the laws of

physics.

      Turning to the physical evidence, according to the sketch plan

which was drawn by Sgt. Chaparika soon after the collision (Plan A), the

point of impact appears to be close to the centre of the road, while the

resultant glass debris is shown as being in the middle of the road.

Inspector Muchirawetu’s sketch plan (Plan B) indicates the point of
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impact as being further left. However, it is important to note that this

plan was drawn up three days after the accident, when the debris had

already been cleared. It also seems highly unlikely that the chalk marks

made on the road immediately after the accident would still be visible

three days later.

      According to the testimony of Masviba and Dururu, there were

drag marks on the road showing that the Isuzu had been dragged

backwards for about 24 metres after the collision. This appears to tally

with the gouge marks drawn on Plan B. However, it does not tally with

Inspector   Muchirawetu’s      evidence   that   the   Isuzu   was   punched

backwards, as opposed to being dragged, from the point of impact to

where it eventually ended after impact. It is therefore not at all clear

whether the Isuzu was punched or dragged 24 metres backwards. More

curiously, Plan B shows that the truck veered to the extreme left from the

point of impact, away from the Isuzu. But, if the gouge marks are

anything to go by, logic would suggest that the Isusu was dragged

backwards by the truck in the same direction (up to Point C) before the

truck continued its journey.

      What the evidence from all accounts does demonstrate is this. The

truck driven by Masviba continued leftward after impact, crossed the

verge adjoining the road, crashed through the durawall surrounding a

house, and eventually terminated its journey in a swimming pool beyond

the durawall, traversing a distance of 52 metres from the point of impact.

This graphic scenario of devastation clearly contradicts Masviba’s

evidence that he reduced his speed upon sighting the approaching

vehicle. To my mind, his evidence makes a mockery of the laws of

physics. If anything, the physical evidence as to what transpired

immediately after impact, in particular, the eventual resting places of the
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truck and the Isuzu, suggests that it was Masviba rather than the

deceased who was driving at an excessive speed, and that it was Masviba

who failed to take evasive action when the accident seemed imminent. It

is highly possible that Masviba did not anticipate any other traffic on the

road at that time of the night and might have been over-speeding in

order to quickly complete his arduous overnight journey to his eventual

destination in Chinhoyi.

       Having regard to the totality of the evidence before the Court, it is

not possible to determine with any measure of certainty whether it was

Masviba or the deceased who caused the accident in question. The police

investigation and evaluation of the accident were patently deficient. The

overall probabilities suggest that both drivers might have contributed to

the collision, in which event questions of contributory negligence and

reciprocal liabilities may arise. However, these are not issues that are

presently before the Court. What is clear on the inconclusive forensic

evidence available is that res non ipsa loquitur in casu and that, on a

balance of probabilities, the plaintiff has failed to substantiate its case

against the 1st defendant.


Quantum of Damages

       In view of my finding on the question of liability, it seems

unnecessary to address the issues relating to the quantum of damages

claimed by the plaintiff. Nevertheless, it may be pertinent and instructive

to make some general observations on the evidence tendered by the

plaintiff in that regard.

       It is trite that an award of damages seeks to attain the financial

equivalent of restitution in kind insofar as this is possible. The courts are

not obliged to adopt any specific method of calculation but should
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endeavour to assess an amount that is fair towards all of the parties

concerned. Each case will obviously depend on its own facts. See Jacobs v

Cape Town Municipality 1935 CPD 474; Roberts v London Assurance Co Ltd

1948 (2) SA 841 (W); Erasmus v Davis 1969 (2) SA 1 (A) at 17; General

Accident Insurance Co SA Ltd v Summers 1987 (3) SA 577 (A) at 608. The

basic objective is to place the plaintiff, as far as may be possible, in the

position he would have occupied had the wrongful act causing the injury

not been committed. The level of compensation that is assessed must

take into account not only the positive loss suffered by the plaintiff but

also the negative loss in the form of gains which the plaintiff was

prevented from making in consequence of the defendant’s wrongful act.

See McKerron: The Law of Delict (7th ed.) at p. 106; Union Government v

Warneke 1911 AD 657 at 664-665. As a general rule, the party claiming

damages must lead all the evidence which it is possible for him to lead.

See Appliance Repairs & Maintenance Services (Pvt) Ltd v Little 1973 (2) RLR

318 (AD) at 325. In the specific case of damage to a motor vehicle, the

measure of damages is the sum which would in fact be required to give

the plaintiff complete reparation. This must equate to an amount that is

not only necessary but also fair and reasonable. In this regard, it does not

invariably suffice simply to produce a quotation or statement of account

from a reputable firm. See De Witt v Heneck 1947 (2) SA 423 (C) at 426-427.

      In the instant case, the plaintiff claims damages under three

separate heads, to wit, the replacement value of the damaged truck,

damages for loss of income from the usage of the truck, and damages

for loss of the maize that was conveyed by the truck at the time of the

accident. As regards the first head, all that was produced was a pro forma

invoice from a truck dealer for an equivalent 1999 model and the

accident assessor’s estimate of market value. The dealer’s invoice is
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clearly unhelpful vis-à-vis the plaintiff’s truck, which is a 1994 model; and

the assessors’ estimate is inadequate per se because, apart from being

terse and unsupported by any explanation, it appears to have been

produced for the benefit of the plaintiff’s insurer (and not the 2 nd

defendant’s insurer as is contended by Mr. Dondo). Turning to the

damages for loss of income, the plaintiff’s claim is founded on a revenue

analysis prepared by its own transport manager. However, no oral

evidence was lead from the manager himself and there was no

documentary evidence in the form of invoices and receipts to support the

revenue analysis. Finally, with respect to the claim for the damaged

maize, no documentation was produced to show that the customer in

question had in fact rejected 5 tons of maize. In short, the overall

evidence adduced by the plaintiff in support of its various claims is

inadequate for the purpose of computing a relatively accurate measure

of the damages allegedly sustained.


      In the result, consequent upon the above findings as to liability

and damages, the plaintiff’s action is dismissed with costs.




Chinamasa, Mudimu & Dondo, plaintiff’s legal practitioners
V. Nyemba & Associates, 1st defendant’s legal practitioners
Kantor & Immerman, 2nd defendant’s legal practitioners