Oswald Tagwirei t/a Tagwirei Transport v Triangle Estates (Pvt) Ltd

### Preamble
1
HH 128-18
HC 6644/16
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OSWALD TAGWIREI

t/a TAGWIREI TRANSPORT

versus

TRIANGLE ESTATES (PVT) LTD

HIGH COURT OF ZIMBABWE

TAGU J

HARARE, 25 and 26 October 2017, 2 November 2017, 29 and 30 January 2018 & 14 March 2018

Civil Trial

G K Muchapirei with C Tawanda, for the plaintiff

E T Moyo, for the defendant

TAGU J: The plaintiff in this matter claims from the defendant the sum of

US$64 544.45 (Sixty four thousand five hundred and forty four dollars and forty-five dollars) being damages arising from a road traffic accident between his commuter omnibus and a late motor cyclist formerly employed by the defendant which he blames on the deceased employee of the defendant, interest at the prescribed rate from date of summons to the date of full and final payment of the judgment debt and costs of suit on a legal practitioner – client scale. The defendant is being said to have been vicariously liable. The accident occurred on 24 December 2014 at the 114 km peg along the Roy-Buffalo Range road. The late employee of the defendant who is said to have been working on the course and scope of his duties with the defendant died instantly from the collision.

The defendant denies liability and disputed the amount of damages claimed. Liability is denied for two reasons namely that it is disputed that the accident occurred as a result of the negligence of the defendant’s deceased employee and that the deceased was in the course and scope of his duties when the accident occurred. He is said to have been on a frolic of his own.

That an accident occurred between the plaintiff’s commuter omnibus and the cyclist employed by the defendant is not in dispute. It is not disputed that the commuter omnibus sustained some damages and the cyclist died on the spot. The sole issue to be decided in this matter as shown on the joint pre-trial conference minute is whether or not the defendant is liable to the plaintiff in the sum of US$64 544.45 or any amount at all.

The plaintiff himself, the driver of the Iveco mini bus one Esau Mutekede, a passenger and an eye witness to the accident one Marimbe Dzinashe as well as the investigating officer of the matter sergeant Tendai Mukungatu testified on behalf of the plaintiff’s case. The defendant led evidence from one witness Pious Sebastin Fabian who was the supervisor of the defendant’s deceased employee Tawana Tarumirira who was on the motor cycle which was involved in an accident with the plaintiff’s Iveco mini bus. This witness was not an eye witness to the accident.

OSWALD TAGWIREI

He told the court in his evidence that he was the owner of the Iveco Minibus which was involved in an accident with the defendant’s employee who was on the motor cycle. This witness did not witness the accident. He only attended the scene the following day on the 25th of December 2014. He observed damages on his motor vehicle which included a cracked windscreen, damaged front, bumper, bonnet, left front fender, radiator, head light and various body indentures. He obtained three quotations from panel beaters. Laz Bac panel beaters quoted the damages at US$ 6 572.00, Roxmate Enterprises (Pvt) Ltd gave a quote of US$5 746.00 and Manlist Investments t/a High Class panel beaters gave a quote of US$5 600.00 to repair the minibus. He then settled for the cheapest quotation of US$5 600.00 to have his minibus repaired. It was his evidence that he lost business from December 2014 the time of the accident to August 2015 when the minibus went back on the road. Using a ticket book he told the court that the minibus would realize a net revenue of US$100.00 daily less peak days. During peak periods like Christmas, Easter he would get as much as US$400.00. He told the court he therefore lost revenue to the tune of US$17 900.00 on normal days and a total of US$15 200.00 during peak periods. He further told the court that the minibus was hired at least 4 times per month averaging US$400.00 per trip. It was his evidence that had the minibus not been involved in an accident he would have managed to buy another minibus which would have given him a third of the revenue lost to the tune of US$14 767.00. His calculations left him at the figure of US$64 544.45 as damages for the minibus and lost income.

ESAU MUTEKEDE

This witness was the driver of the minibus in question. His evidence was to the effect that he saw one light ahead of him. It was about 7.00 pm. When the light was about 2m away the motor cycle/ bike suddenly came to his lane and hit onto the right side of his minibus. A tyre then burst and he lost control of the minibus when it veered off the road to the right. He only managed to stop after he plunged into a ditch. After getting out of the minibus he observed the damages to the minibus, and that the motor cycle had fallen on the right side of the road. The rider was now deceased. Because he was injured he was carried to Shingayi Hospital for treatment by a passing motorist. A statement was later recorded from him by the police from Triangle. Although he explained to the police at the scene later he disputed the diagram that was later drawn by the investigating officer since it was never shown to him. He maintained that the point of impact was on his side of the road. He said he was driving at a speed he estimated to have been between 60 and 80 km per hour because the road was bad due to potholes though it was not raining and at the point of accident the road was a bit better. According to him the deceased was the one who was negligent in that he left his lane and drove into this witness’s lane. He was summoned to appear at court but was never prosecuted because the State refused to prosecute him for lack of evidence.

MARIMBE DZINASHE

This witness was a front passenger in the vehicle driven by Esau Mutekede. He is not related to any party. He was an eye witness to the accident. His evidence was that he saw one light coming from the opposite direction. When the light was closer he noticed that it was a motor bike. As they were about to pass each other the motor bike swerved to their lane and hit onto the driver’s side of the commuter omnibus. After the collision he heard a tyre burst. The driver of the minibus lost control of the vehicle and it veered to the right side of the road. The vehicle stopped after it landed into a ditch. He disembarked and noticed the damages to the vehicle and the fact that the driver of the motor bike was now deceased. He attributed the accident to the negligence of the motor bike driver who swerved to their lane. He gave a statement to the attending police detail who recorded in hand writing. He was never shown the typed statement and he disputed the signature on the written statement. Further he disputed the contents of paragraph 5 of his statement where it is recorded that the driver of the motor vehicle was driving at 85 km/hr. He said the driver was driving between 60 and 70 km per hour. He corroborated the driver on the fact that they were called three times to Chiredzi Magistrate court were the driver was charged with culpable homicide but the prosecution indicated that there was no evidence to implicate the kombi driver.

TENDAI OBRY MUKUNGATU

This witness was an attested sergeant in the Zimbabwe Republic Police stationed at Triangle Traffic Police Post where he was doing Administration and Investigation duties. He received the report of an accident and he attended the scene after about one hour due to lack of transport. His evidence was basically that he found the vehicles still at the scene. He could not locate the driver of the minibus. The rider of the motor cycle was now deceased. He failed to get an independent witness to the accident hence he recorded statements from some of the passengers who were in the minibus. He observed the damages to the minibus as well as the motor cycle. According to his observations all the debris of the broken parts of the vehicle and motor cycle were spread on the extreme right side of the lane in the Roy- Buffalo Range lane indicating point of impact in the rider’s lane. He concluded that the driver of the minibus was negligent. He later completed the TAB and drew up the sketch plan. He indicated the point of impact as having been on the side of the driver of the minibus and explained that that was the indication given by the driver of the minibus. He however, did not indicate where he thought was the exact point of impact after his observations. Be that as it may, he maintained that the driver of the minibus was negligent and charged him with the offence of Culpable Homicide. After summoning him to court he did not know the outcome of the case.

With that evidence the plaintiff closed its case.

PIUS SEBASTIAN FABION

He was the only witness to testify on behalf of the defendant. He was the supervisor of the defendant’s deceased employee Tawana Tarumirira who was riding the motor cycle which was involved in an accident with the plaintiff’s Iveco mini bus. In short his evidence was that he visited the scene of the accident the following 25 December 2014 with a team from his work place. They made investigations and came to the conclusion that the driver of the mini bus encroached into the motor cycle’s lane thereby causing the accident because debris from the accident was more on the motor cycle’s side. While admitting that the deceased Tawana Tarumirira was allocated a motor cycle which was standard company issue, which he could use when not on duty, on the day of the accident he was on leave and was more than 50 km from where he carried out his duties. He produced a copy of the annual leave form. He however, could not explain how and why Tawana ended up with the motor cycle on that particular day and time despite the fact that the defendant was the owner of that property and had a duty to know of its whereabouts. He disputed some of the damages sustained by the mini bus and denied that the company was vicariously liable for the said damages. No other evidence was produced.

ANALYSIS OF EVIDENCE

That an accident occurred involving the plaintiff’s motor vehicle and the defendant’s motor cycle is not in dispute. It is also not in dispute as revealed by the three quotations produced in court that the plaintiff’s vehicle sustained various damages whose value range from US$5 746.00 to US$6 572.00. Further it is not in dispute that the plaintiff’s vehicle which was being used as a public service vehicle was off road from 24 December 2014 to August 2015 when the motor vehicle went back on the road. During the time the minibus was off the road it lost some revenue. The sole issue to be decided is whether or not the defendant is vicariously liable to the plaintiff in the sum of US$64 544.45 or any amount at all. In making that determination the court is enjoined to decide whether or not the defendant’s employee was negligent or not.

As I pointed out earlier the driver of the minibus Mr Esau Mutekede was taken to court on a charge of culpable homicide. The driver was never prosecuted for lack of evidence.

In this case Mr Esau Mutekede attributed the accident to the negligence of the motor cyclist whom he said suddenly changed lane and rammed onto the right side of his minibus. This version was corroborated by Mr Marimbe Dzinashe, an eye witness and a front passenger who attributed the accident to the negligence of the motor cyclist who suddenly changed his lane and drove into the mini bus driver’s lane and rammed onto the right side of the mini bus. One Tendai Isaac, another eye witness who was in the mini bus, though she did not give viva voce evidence in court, but whose version of events were recorded by sergeant Mukungatu, whose statement is at page 12 of the plaintiff’s bundle, also attributed the accident to the negligence of the motor cyclist. The relevant part of her statement says-

“…………

6. When approaching Mungwezi area at 114km peg along the same road I saw a motor cycle coming from the opposite direction. The motor cycle had its head lump on and was travelling just beside the white demarcating line. (my emphasis)

7. Whilst we were travelling the motor cycle suddenly encroached into the lane of the minibus and rammed onto the right side of the minibus. The Iveco minibus veered to the right lane and moved off to the extreme right of the road.

8………”

The attending detail sergeant Mukungatu who arrived at the scene of the accident more than an hour later attributed the accident to the negligence of the minibus driver. His conclusions were as a result of some debris that he saw on the extreme right edge of the road on the motor cyclist’s lane. However, he drew a sketch plan which showed that the point of impact (x) was on the side of the minibus driver as pointed to him by the minibus driver. He however, did not mark the exact point he suspected to have been the point of impact as per his own observations. His views were supported by Pius Sebastian Fabion the sole witness for the defendant who said the minibus driver must have been negligent because the following day he saw some debris on the right side of the road. He assumed that the point of impact must have been somewhere on the lane of the motor cyclist.

The court indeed saw and scrutinized the sketch plan. It showed some debris marked along the edge of the road on the right side of the road spread along the edge of road for a distance not given. Point “A” was indicated as the final resting point of the now deceased and is well off the edge of the road to the right some distance away from the trail of debris, but a few metres before where the debris ended. It is 12 m away from the point of impact “x”. Noted was point “B” where the motor cycle rested along the edge of the road on the right but 10m away from “x” and 5m away from “A”. Noted also was point “C” which was indicated as the point where the minibus finally landed which is 30m from “x” and a further 18m from “B”.

My analysis of the diagram gives the impression that after the impact the debris, the deceased and the motor cycle were all thrown or dragged along the edge of the road on the right which is consistent with the evidence given by some of the plaintiff’s witnesses that the minibus burst its right front tyre and the vehicle veered to the right. If indeed the point of impact was somewhere where the debris was spread along the edge of the road on the right side then the minibus could have finally landed some distance away from the right lane in the ditch. But as it stands the minibus landed in the ditch very close to the right lane, meaning the point of impact could possibly not have been where the debris is spread. I say so because from where the debris start along the edge of the road, to where the motor cycle finally rested as well as the minibus, all these points are on a straight line. It is common cause that a vehicle normally veers to the side of a burst front tyre and would not travel in a straight line, but should have veered off the road to the right in this case. That to me shows that the impact must have occurred somewhere near or at point “x” as explained by the driver and supported by the sketch plan. Some debris and or the motor cycle may have flown to the edge of the road due to the impact, or was dragged there as the minibus skidded off the road to the right. This may explain why the motor cycle was in a straight line to where the minibus finally landed.

However, in my view the puzzle of what could have actually happened could have been solved without doubt if an accident scene evaluator had been called. This was not done in this case. What the court has is the evidence of two eye front witnesses who corroborated the evidence of the minibus driver. These eye witnesses in my view were not related to the driver of the minibus since they were mere passengers. This reduced the risk of colluding with the minibus driver. I had no reason to disbelieve them. On a balance of probabilities I found the evidence of the plaintiff‘s witnesses to have been more credible than the sole witness for the defendant. However, the evidence of the attending detail leaves a lot to be desired since he did not mark the point he perceived to have been the probable point of impact as observed by him. It is probably for the above reasons why the Prosecutor General’s Office may have declined to prosecute the minibus driver on a charge of Culpable Homicide. If one goes by the evidence of the plaintiff’s witnesses, it becomes clear that the motor cyclist must have been negligent in that he suddenly veered off his lane to the lane of the minibus driver and hit onto the right front tyre of the minibus since he was riding “just beside the white centre demarcating line” which had faded as per the statement of Tendai Isaac.

The plaintiff therefore, managed, on a balance of probabilities to prove that the motor cyclist was negligent in causing the accident. Having found that the cyclist was negligent in causing the accident, the next issue is for the court to determine whether or not the defendant, being the employer of the cyclist and owner of the motor cycle was vicariously liable or not. If vicarious liability is not established that is the end of the matter. However, if vicarious liability is established the last issue to determine is the quantum of damages to be paid to the Plaintiff.

The doctrine of vicarious liability lays down that an employer is vicariously liable for all delicts committed by his employees who are acting in the course and within the scope of their employment at the time the delicts were committed.

The test as to whether or not the defendant’s employee was acting in the course of employment when the accident occurred was laid down in the case of Feldman (Private) Ltd v Mall 1945 AD 733 where TINDAI JA said-

“In my view the test to be applied is whether the circumstances of the particular case shows that the servant’s disgression is so great in respect of space and time that it cannot reasonably be held that he is still exercising the functions to which he was appointed, if this is the case the master is not liable. It seems to one not practicable to formulate the test in more precise terms. I cannot see no escape from the conclusion that ultimately the question resolves itself into one of degree.”

In this case the plaintiff submitted that the defendant is vicariously liable to pay for the damages being claimed by the plaintiff because the defendant was the employer of the driver of the motor cycle and it is common cause that an employer- employee relationship existed between the defendant and one Tawana Tarumirira. On the other hand the defendant averred that its employee had deviated from his course of employment, as the accident occurred 50 km from where he carries out his normal duties. Moreover, it was off crop season, thus he was on his annual leave. On this point the plaintiff argued that the defendant was negligent by allowing an employee to go out with the motor cycle.

The court, however, does not doubt the fact that the accident occurred 50 km away from the defendant’s work place. The court further does not doubt the fact that at the time of the accident the rider was not on duty. The defendant produced a copy of an annual leave application form which shows that indeed the now deceased Tawana Tarusarira had applied for and had been authorized to go on vacation leave from 23 December 2014 to 2 January 2015. The accident in question occurred on 24 December 2014. Strictly speaking the deceased was not at work. Whatever he was doing 50 km away from his work place had nothing to do with the employer. If one says he was on a frolic of his own one cannot be faulted. The plaintiff said the defendant was negligent in allowing the cyclist to go away with the motor cycle. Evidence has been led from the defendant to the effect that an employee was authorized to go on private errands with a company vehicle whether on or off duty.

I indeed perused the defendant’s company motorcycle policy produced as exh 2. On private use clauses b. i, vi and vii are very relevant. They provide as follows-

“Employees are permitted to take their motorcycles home (on Triangle) at night to enable them to react timeously to a call-out for work purposes (carry out night checks or operations in the fields’ case).

…………

(vi) Reasonable private use within the boundaries of Triangle Estate is allowed.

(vii) Under no circumstances would the user be allowed or authorized to use the motorcycle outside the estate boundaries.”(again my emphasis)

In casu the employee was not at work since he was on annual leave. He took the motorcycle on private use outside Triangle Estate without authority since the accident occurred 50 km away from his work place. In my view if the accident occurred within the radius of the workplace, or when he was going to work or from work, or at work then one might be tempted to invoke vicarious liability. Yes, the employer might be said to have been negligent in not making sure the motor cycle was not taken outside the perimeter of the work place, but it would be extending the doctrine of vicarious liability too far. The situation we have here is where the worker was not in the course and scope of his duties. He was on a frolic of his own. The defendant cannot therefore be said to be vicariously liable. In fact, and in my view, the plaintiff sued the wrong party. If the plaintiff had sued the now deceased’s estate it may have made sense. It is the deceased’s estate that is liable to pay any damages that the plaintiff may have suffered and not the defendant. The plaintiff therefore failed to prove any case against the defendant and I will accordingly dismiss the claim with costs.

IT IS ORDERED THAT

The claimed is dismissed.

The plaintiff to pay defendant’s wasted costs.

Tawanda Law practice, plaintiff’s legal practitioners

Scanlen & Holderness, defendant’s legal practitioners.