Paul Gavaza v Bonface Shumba and Swift Debt Collection (Private) Limited t/a Ruby Auctions

### Preamble
1
HH 268-2012
HC 5409/07
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PAUL GAVAZA

versus

BONFACE SHUMBA

and

SWIFT DEBT COLLECTION (PRIVATE) LIMITED

t/a RUBY AUCTIONS

HIGH COURT OF ZIMBABWE

MATHONSI J

HARARE, 19 June 2012 and 27 June 2012

Civil Trial

N B Munyuru, for the plaintiff

Ms T R Hove, for the 1st and 2nd defendants

MATHONSI J:   On the night of 25 October 2006 the plaintiff, a farmer in Chegutu, was driving a Landrover Defender motor vehicle registration number AAU 0482 which is a 1996 model along Prince Edward approaching Lezard Avenue in Milton Park Harare at about 23:00 hours, when he beheld a Leyland Truck registration number AAA 4555 belonging to the second defendant from a distance of about 10 metres.

The Leyland truck had broken down and according to a sketch diagram produced by the attending police detail, it was parked straddling both the left edge of the road and the dotted yellow line of the left lane. Part of the Leyland truck was on the left lane being used by the plaintiff. The first defendant, an employee of the second defendant, had been driving the Leyland truck when it broke down resulting in him parking it as aforesaid.

The plaintiff was unable to stop or avoid the stationary truck, resulting in a collision as he hit the Leyland truck with his Landrover defender from behind resulting in what the plaintiff has described as extensive damage to his motor vehicle.

Police officers attended the scene of the accident and later conducted investigations which resulted in them preferring criminal charges of violating the Road Traffic Act, initially against the plaintiff. It turns out that when the matter was taken to the magistrates’ court, the police, acting on the advice of the State prosecutor, made an about turn dropping charges against the plaintiff and  instead preferring changes against the first defendant for contravening s 3 (2) of the Road and Road Traffic Regulations, that is, dangerous parking and contravening s 48 (2) of the Road Traffic (Construction Equipment and Use) Regulations, that is, failure to display a red reflective triangle for a stationary vehicle at night.

The first defendant was convicted by the criminal court in respect of both counts and sentenced to pay a fine on 4 May 2007. The first defendant appealed against that decision.

On his part, the plaintiff instituted proceedings against the first and second defendants for damages in the sum of 3 billion Zimbabwe dollars alleging that the collision was caused solely by the negligence of the first defendant who was acting within the course and scope of his employment by the second defendant. The defendants defended the claim and filed a claim in reconvention for a sum of US$5 000-00 for the damage to the second defendant’s vehicle as a result of the accident.

In September 2011, the plaintiff sought to amend the claim filing a notice of amendment of his claim to US$58 000-00 “being 70% value of a new vehicle.” It is not clear whether the amendment was granted at the pre-trial conference held on 24 October 2011. What is clear though is that the matter was referred to trial on the following agreed issues:

“(a)	Whether or not the first defendant was negligent thereby resulting in the accident which damaged the plaintiff’s vehicle.

(b)	Whether or not the first defendant was acting within the course and scope of his employment.

(c)	Whether or not the plaintiff is entitled to claim damages for the damaged car.

(d)	If so, how much is he entitled to considering the value of the car.

(e)	Whether or not the plaintiff’s actions or omissions contributed at all to the accident.

(f)	Whether or not the second defendant is entitled to the damages as claimed for the damage to the truck.”

Clearly the plaintiff is the one alleging impropriety on the part of the first defendant and also having suffered damages as a result of such impropriety. He therefore bears the onus to prove not only that he suffered those damages but the quantum of those damages.

At the commencement of the trial, Mr Munyuru for the plaintiff applied to amend the plaintiff’s claim he having given prior notice of the intended amendment. He sought to amend the plaintiff’s claim to US$18 000-00 instead of US$58 000-00 or Zimbabwe dollar 3 billion. Ms Hove for the defendants did not oppose the application which was duly granted.

Only the plaintiff gave evidence in support of his claim. He stated that on the night of the accident he was driving at a speed of about 50 km per hour on what he described as a very narrow road when he saw a stationary truck in the middle of the road from a distance of about 10 metres. He had not seen it earlier because there was no red reflective triangle behind it to warn other road users, his lights were on dim and the truck did not have a shevron. According to the plaintiff it was just dark metal, a death trap indeed.

The plaintiff testified that he could not stop or take avoiding action because he saw the stationary truck rather late and he had no time to brake. He further stated that his Defender motor vehicle made of expensive alluminium was forced under the Leyland truck and extensively damaged as a result. It was torn to pieces and he was lucky to be alive. He said the second defendant’s vehicle did not suffer any damage because of its stiffness and the hard metal used to construct it.

On the damages being claimed, the plaintiff testified that his vehicle was an old imported British made vehicle which is sold as a unit. The British manufacturers have not given a franchise to many dealers to sell its parts. In Zimbabwe there is only one dealer, L & R, which refurbishes such vehicles and it is only L & R which can refurbish the vehicle. He produced a quotation from L & R dated 14 May 2012 showing that the cost of a complete refurbished Landrover Defender vehicle is US$18 000-00, which is what he was claiming.

The plaintiff was unable to produce any other quotation for the repairs to his vehicle. Under cross-examination the plaintiff conceded that L & R’s N Mandizvidza did not seen his damaged motor vehicle to assess it and that the quotation he gave had nothing to do with the damage to his own motor vehicle as it related to the purchase price of a refurbished motor vehicle.

He admitted that he could not produce three quotations as is the custom, even to show the extent of the damage to his vehicle and that nobody who saw the vehicle and could describe the damage, was available to shed some light. He confirmed that the defendants had previously requested to be shown the vehicle so that their experts could assess it but that he had been unable to make it available since he was too busy. He insisted that the vehicle was available at his farm in Chegutu although he did not offer to show it to anyone. He was also unable to call any independent witness to testify on the extent of the damage to that vehicle.

The plaintiff could not give the pre-accident value of the Landrover Defender or the value of the salvage although he seemed to suggest that he was willing to keep the salvage which, in his amendment of September 2011, he had valued at 30% of the value of a brand new Landrover Defender. When quizzed further by counsel for the defendant,s the plaintiff shifted ground stating that he was revising his claim further to 70% of the US$18 000-00 he had claimed at the commencement of the trial. He explained this shift by saying “it was only fair.” He however could not explain how the 30% value of the salvage was arrived at considering that he had no expert valuation of it and indeed considering that this time he was pegging the salvage at 30% of the value of a refurbished vehicle as opposed to a new one.

The plaintiff admitted that the sketch diagram prepared by the police detail showing that the Leyland truck was parked partly on the road with most of it being off the road, correctly depicted the position of that vehicle before and after the accident. That diagram also clearly illustrates that, far from being a narrow road, the road where the accident occurred is fairly wide being a two lane road with clear markings including yellow lines. An attentive driver approaching the stationary vehicle would have taken meaningful avoiding action.

One concludes therefore that the plaintiff cannot escape taking responsibility to a certain extent for the accident. Whichever way, there would be an apportionment of damages. The biggest question is what damages?

At the close of the plaintiff’s case, Ms Hove for the defendants made an application for absolution from the instance arguing that the plaintiff had failed to discharge the onus resting upon him to prove the extent of the damages that he sustained as a result of the accident. She argued that the plaintiff had failed to come up with even a figure for damages considering that in September 2011 he was claiming $58 000-00, at the beginning of the trial and in his evidence in chief, $18 000-00 and later during the trial he prevaricated to claiming 70% of $18 000-00 without even giving evidence as to how that 70% was arrived at.

Ms Hove argued that not only was the plaintiff’s testimony patently unreliable, he failed to produce any documentary evidence to sustain his claim. There was also a signal failure to lead expert evidence on both the extent of the damage to his vehicle and the replacement costs.

In response Mr Munyuru for the plaintiff stated that the plaintiff had placed before the court all the evidence he could lay his hands on as his efforts were hampered by the fact that there are only a few dealers dealing in the type of vehicle which was damaged.

What the court has to consider in an application for absolution at the close of the plaintiff’s case was stated by the learned authors Herbstein and Van Winsen, The Civil Practice of the Superior Courts in South Africa, Juta & Co Ltd, 3rd ed., atp  462 as follows:

“The lines along which the court should address itself to the question of whether it will at that stage grant a judgment of absolution have been laid down in the leading case of Gascoyne v Paul & Hunter 1917 TPD 170,  which contains the following formulation:

‘At the close of the case for the plaintiff, therefore the question which arises for the consideration of the court is: Is there evidence upon which a reasonable man might find for the plaintiff? … The question therefore is, at the close of the case for the plaintiff, was there such evidence before the court upon which a reasonable man might but not should give judgment, against Hunter?’

It follows from this that the court is enjoined to bring to bear on the question the judgment of a reasonable man and ‘is bound to speculate on the conclusion at which the reasonable man of (the court’s) conception not should, but might or could arrive. This is the process of reasoning which, however difficult its exercise, the law enjoins upon the judicial officer.’”

It is settled in our law that a person claiming damages arising out of a collision is generally entitled to compensation in the form of the difference between the pre-collision value of the vehicle and the post collision value. Erasmus v Davis 1969 (2) SAI; It is also settled that where the court finds contributory negligence on the part of the person suing for damages, it must apportion the damages having regard to the ratio of contribution between the two drivers.

I am in total agreement with the formulation of BARTLETT J in Ebrahim v Pittman N.O, 1995 (1) ZLR 176 at 187 C-G where the learned judge quoted with approval the judgment of BERMAN J in Aaron’s Whale Rock Trust v Murray & Roberts Ltd & Anor 1992 (1) SA 652 (C) at 655 H-656F:

“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 damages to make an appropriate award in his favour. The court must not be faced with an exercise in guess work; 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. That this is so appears from the well-known passage from the judgment of STRATFORD J in Hersman v Shapiro & Co 1926 TPD at 367 to 379, quoted with approval by DIEMONT JA in Esson Standard SA (Pty) Ltd v Katz 1981 (1) SA 964 (A) at 970 E, viz:

‘Monetary damage 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.’” (The underlining is mine)

In casu, can it be said that at the close of the plaintiff’s case there is evidence before the court upon which a reasonable man might give judgment against the defendant. I think not. There is no evidence whatsoever that was led as to the pre-collision value of the Landrover Defender. None has been led as to the post-collision value of that vehicle or the salvage.

Such evidence, in my view, is clearly available to the plaintiff considering that he insists that he has not sold the salvage which he says is still at his farm. It is within his power to secure some valuation of that salvage from an expert, even if it is L & R, that he says is the only dealer in Zimbabwe. He has contented himself with leading his own evidence unsupported by experts. Such evidence does not come anywhere near equipping the court, even with some difficulty, to quantify his damages.

This is a case in which I am justified in giving absolution. Regarding costs, it is trite that where a defendant is absolved from the instance, the defendant is regarded as the successful party and therefore the costs should follow the result. I am however not persuaded that those costs should be at a punitive scale.

Accordingly, I make the following order, that:

The first and second defendants be and are hereby absolved from the instance.

The plaintiff shall bear the costs at an ordinary scale.

Musunga & Associates, plaintiff’s legal practitioners

Hove & Associates, defendants’ legal practitioners