Lizzie Chokwela v DDNS Security Services (Pvt) Ltd and Michael Chirimuuta

### Preamble
1
HH 264/13
HC 2631/10
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LIZZIE CHOKWELA						Plaintiff

versus

DDNS SECURITY SERVICES (PVT) LTD				1st Defendant

and

MICHAEL CHIRIMUUTA						2nd Defendant

HIGH COURT OF ZIMBABWE

BERE J

HARARE, 21 FEBRUARY 2011 and 28 AUGUST, 2013

P.C. Paul, for the plaintiff

P. Mbano, for the defendant.

BERE J:  The story of Lizzie Chokela (the plaintiff) is follows:

The first defendant which is a duly incorporated company contracted Nick Tsigisai Maheve a mechanic and operating as Nick Motors to repair and service its motor vehicles as and when the need arose. Nick was a mechanic but not an electrician. When an opportunity to do some electrical related work on one of the first defendant’s motor vehicles arose Nick then subcontracted the plaintiff to go and work on the motor vehicle in question in the Ngezi area.

In order for the plaintiff to get to Ngezi she had to be driven by the first defendant’s driver who happens to have been cited as the second defendant although proper procedure dictates that the driver ought to have been cited as the first defendant.

The second defendant was driving a motor vehicle belonging to the first dependant. As fate would have it the motor vehicle in question was involved in an accident thereby injuring the passengers who were in that vehicle who included the plaintiff. It is common cause that the plaintiff sustained the most serious injuries as a result of the accident. The injuries noted by the orthopedic surgeon who attended the plaintiff were referred to as “midshaft fracture of the right femur”. The treatment that the plaintiff had to undergo entailed her admission at the Avenues Clinic from 3 July 2009 to 9 July 2009.

This civil suit by the plaintiff is as a result of this accident. The plaintiff alleged in her declaration that the accident was caused solely by the negligent driving of the second defendant and further that the first defendant is vicariously liable as the accident occurred whilst the second defendant was acting within the scope and course of his employment with the first dependant.

For the injuries sustained the plaintiff sought as against the two defendants jointly and severally the one paying the other to be absolved special damages of US$7 863.00, general damages amounting to US10 000 together with interest at the prescribed rate and  costs of suit.

In her declaration the plaintiff gave the particulars of negligence and reasoned that the accident was caused by the driving conduct of the first defendant in one or more of the following;

“(a) 	that the second defendant was driving at an excessive speed  despite his full knowledge that the vehicle he was driving was defective as it failed to engage in gears number 2 and 4 thereby forcing the second defendant to constantly travel in gear number 3.

(b)   	that the second defendant failed to keep his motor vehicle under proper control, and

(c) 	that the second defendant failed to keep proper lookout”

In their joint plea filed on 8 June 2010 both defendants initially denied any liability and insisted that the plaintiff proves her case as against them.

The main thrust of the defendants’ position is well captured in paragraph 8 of their joint plea which for purposes of clarity is reproduced and reads as follows;

“4 Ad paragraph 8

This is denied. The 1st defendant contracted Nick Motors to repair and services its vehicles as and when needed. In turn Nick Motors subcontracted plaintiff who cannot as a matter of fact and law claim anything from the 1st defendant as her principal Nick Motors, per “Annexure” hereto attached, indemnified 1st defendant and its employees from any liability arising out of any accident or attack in which its employees and/or representatives would sustain injury or fatality whilst being carried in 1st defendant’s vehicles. At best, plaintiff should direct her claim against her employer or principal, Nick Motors”

The defendants’ plea was built around the passenger indemnity document Exhibit 3 which Nick Motors had signed upon securing its contract to repair and service the first defendant’s motor vehicles. It is necessary to re-state the nature of the indemnity that was relied upon by the defendants. It was framed as follows:

“TITLE: PASSENGER INDEMNITY FORM

DDNS SECURITY OPERATIONS (PRIVATE) LIMITED t/a SECURIO MULTI-LINK (PRIVATE LIMITED)

I, NICK TSIGISAI MAHEVE representing Nick Motors as duly authorized in my capacity as mechanic being aware that SECURICO and MULTI-LINK (PRIVATE) limited are not covered by insurance for the carriage of non-company personnel in their vehicles and being desirous that our representatives travel in their vehicles, hereby indemnify SECURICO and MULTI-LINK (PRIVATE)| LIMITED and their employees from any claim or liability arising out of any accident or attack in which our representative sustains any injury or fatality whilst being carried in their vehicle and further who may travel in such vehicles have been or well be advised of the aforesaid ……………”

It will be noted that when the parties held their pre-trial conference four issues were identified as the basis for referral of the matter to trial. The jointly adopted issues were given as follows;

“(a) 	whether or not Plaintiff’s principal was Nick Motors;

(b)	whether or not the Plaintiff’s principal indemnified the 1st Defendant and all its

employees from any claim or liability arising out of any accident or attack in which its employees and/or representatives would sustain injury or fatality whilst being carried in 1st Defendant’s vehicles

(c)	whether or not the Defendants are liable for damages being claimed by the Plaintiff.

(d) 	Quantum of damages due in the event that Defendants are found liable”

It is apparent that on the same day the pre-trial conference was held, the defendants specifically made an admission to the effect that the 2nd defendant’s negligence caused the accident which resulted in the plaintiff sustaining injuries as outlined in her claim.

It is significant that subsequent to the holding of the pre-trial conference, the plaintiff, on 21 January 2011 sought to further narrow the issues for the trial by seeking further admissions from the defendants in terms of Order 27.

During the initial hearing of this matter on 21 February 2011 the defendants through their counsel confirmed acceptance of the quantum of damages as put forward by the plaintiff . This unequivocal acceptance of the quantum of damages was however altered by the evidence of Willie Tapera Mhishi, the Orthopedic Surgeon through exhibit 1 which reduced the claim of US$3 300.00 in the declaration to US$1 615.00.  It is commendable that in his address to Court at the conclusion of the hearing, the plaintiff’s counsel conceded that the plaintiff’s claim had to be reduced accordingly.

I propose to deal with the issues which remained alive after the various concessions and admissions had been made.

WAS THE PLAINTIFF’S PRINCIPAL NICK MOTORS?

This issue need not detain the Court if regard is had to the evidence of the plaintiff herself. It is quite clear that there was no privy of contract between the plaintiff and the defendants in so far as the intended vehicle repairs were concerned. The plaintiff was subcontracted by one Nick and it was with Nick that the plaintiff was supposed to discuss the terms relating to his work. This conclusion is inevitable from the questions and answers which the plaintiff exchanged with the defendants’ counsel during cross examination. The following questions and answers were recorded.

Q.	Nick subcontracted you to do work for the 1st Defendant

A. Yes …………….

Q. Who did you arrange with for the payment modalities?

A. I had not talked to anyone except Nick who had invited me to come and do work for the

1st Defendant".

The court further sought clarification from Nick Maheve who confirmed that it was him who was supposed to pay the plaintiff for the work which she was supposed to do.

I have not the slightest doubt in my mind that the plaintiff’s principal was Nick.  However, it, is not the resolution of this  issue which determines whether or not the defendants should escape liability in this matter.

The issue which is central to this matter is whether or not the passenger indemnity (Exhibits 3) must exonerate the defendants from liability in the light of the defendants’ unequivocal acceptance of negligence which caused that plaintiff to sustain injuries.

WHAT EFFECT IF ANY DID THE INDEMNITY CONTRACT (EXHIBIT 3) HAVE ON THIS SUIT?

A reading of the evidence led coupled with the submission made at the close of the case by the defendants’ counsel clearly show that the defendants have sought to take refuge in the indemnity contract in order to avoid liability.

These bellicose submissions by the defendants counsel did not impress me particularly if regard is had to the unequivocal admission of negligence on the part of the defendants.

The plaintiff’s claim is based on the delict associated with the driving conduct of the second defendant who the evidence clearly established that at the time of the accident he was driving the 1st defendant’s vehicle which was defective, and whose defect he has not denied he was aware of.  The wrongful act which caused the plaintiff’s injuries has not been disputed and I find the reasoning by the defendants to be quite ludicrous.

A great deal of argument was concerned with the alternative position that was calculated to shoot down the first defendant’s alleged vicarious liability. The argument put up by the defendants’ legal representative was clearly not borne out by the evidence led in Court.

Contrary to the view taken by the defendants through their legal representative that the first defendant was not aware that the plaintiff had been ferried to Ngezi in the first defendant’s motor vehicle, there was evidence led  through Agrippa Mangoma which demonstrated the exact opposite.  The evidence showed quite clearly that the first defendant’s zone manager had in fact authorized the ferrying of the plaintiff to Ngezi. This position is confirmed by the following questions and answers which emerged during the cross examination of Agrippa Mangoma who gave evidence for and on behalf of the first defendant;

“Q	Are you saying it was not your obligation to provide transport to the plaintiff?

A	Yes, our zone manager who manages the Ngezi Mine had some business in town and this led to the carrying of the plaintiff in our vehicle.

Q	The driver is employed by you?

A	Yes

Q	In carrying the plaintiff he was doing what he was told to do by your company?

A 	Yes”

There can be no denial that when the second defendant was involved in an accident he was about his master’s business and that he consequently held his employer liable in the light of his admitted negligence. See African Guarantee and Indemnity Company Limited v Minister of Justice . It does seem to me that the defendants are incapacitated from denying liability by the weight of evidence against them. It is entirely up to the defendants to have recourse against the indemnifier, Nick Motors, should they so desire but after dealing with the plaintiff’s claim. This position is entrenched in the seminal case of Syfin Holdings Ltd v Pickering where Fieldsend C.J. (as he then was) summed up the legal position of the law as follows;

“………………. It is clear that in contracts of indemnity a claim against the indemnifier accrues only when the person who has the benefit of the contract has paid or at least where his liability has been determined by agreement or legal process”

WHAT IS THE QUANTUM OF DAMAGES?

The defendants’ counsel, having indicated to the Court that “we accept the quantum as put forward by the plaintiff”, it shall not be necessary for the Court to deal with the quantification

Of the claim except not to lose sight of exhibit I which all the parties concurred had the effect of reducing future medical expenses from US$3 300.00 claimed in the summons commencing action to US$1 615.00.

In the final analysis, it is ordered as follows   ;

That judgment be and is hereby granted in favour of the plaintiff against the 1st and 2nd defendants jointly and severally the one paying the other to be absolved in respect of special damages in the sum of US$6 178.00 and general damages in the sum of US$10 000.00

That interest at the prescribed rate be levied on the total amount of damages from date of judgment to date of payment in full.

That the defendants pay costs of suit.

Wintertons, Plaintiff’s Legal Practitioners

Mapombere, Musakana & Ruzengwe, 1st and 2nd Defendant’s Legal Practitioners