Sporrow Hauliers (Private) Limited t/a J&J Transport v Rodrigo Investments (Private) Limited t/a Rodrigo Haulage and Radius Busha

### Preamble
1
HH 782-18
HC 6707/17
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SPORROW HAULIERS (PRIVATTE) LIMITED

t/a J&J TRANSPORT

versus

RODRIG INVESTMENTS (PRIVATE) LIMITED

t/a RODRIG HAULAGE

and

RADIUS BUSHA

HIGH COURT OF ZIMBABWE

ZHOU J

HARARE, 14, 15 & 16 November 2018

Civil Trial

Miss S. Mangwengwende, for the plaintiff

C.M. Jakachira, for the defendant

ZHOU J: This is a claim for damages suffered by the plaintiff as a result of the loss of its motor vehicle and trailer in a road traffic accident. The accident occurred at the 312 kilometre peg along the Harare-Chirundu road on 25 July 2014. The accident happened when the plaintiff’s Freightliner Horse and trailer bearing registration numbers ACQ 4768 and ACQ 9441 respectively, collided with the first defendant’s Volvo truck with registration number ABQ 5008. The first defendant’s motor vehicle was being driven by the second defendant who was acting in the course and scope of his employment with the first defendant. The plaintiff’s driver died in the accident. The plaintiff’s Freightliner horse and trailer were completely destroyed by being burnt having caught fire during the collision.

Although the first and second defendants had contested the entire claim in their pleas filed of record, at the pre-trial conference the defendants admitted that the accident was caused by the fault of the second defendant for which the first defendant became vicariously liable. Consequently, only one issue was referred to trial- namely- the quantum of damages suffered by the plaintiff as a result of the loss of the motor vehicle and trailer.

The position of the law regarding assessment of delictual damages arising from destruction of property is settled. If property is destroyed, a plaintiff’s damage and damages are assessed as the market value of the property at the time and place of the loss. See Visser et al, Law of Damages 2nd ed, pp 371-372. In the case of Phillip Robinson Motors v Dada 1975 (2) SA 420 (A) at 428 this principle was stated thus:

“The time at which to measure the delictual damages is ordinarily the date of the delict, because that is when the owner’s patrimony is reduced ….”.

Thus in casu the measure of damages is the value of the motor vehicle at the time of

the accident, see Mafusire v Greying & Anor 2010 (2) ZLR 198 (H) at 207H-208A and the cases cited thereat.

The plaintiff led evidence from Vikram Singh who is its General Manager and Thomas Albert Holloway who was its Workshop and Transport Logistics Manager at the relevant time. The essence of the evidence of these two witnesses is that the plaintiff maintained its fleet of motor vehicles well. The motor vehicles and trailers were obtained from reputable dealers. They produced invoices and quotations of what they considered to be vehicles and trailers of comparable standard as provided by their known reputable dealers. In relation to the specific truck and trailer which was involved in the accident no evidence of its condition or mileage at the time of the accident was led. In relation to the horse a pro-forma invoice obtained on 7 August 2014 was produced. The pro-forma invoice shows that a Freightliner Columbia 120-2007-14 Ltr Detroit Engine HP 455-10 Speed – Rockwell Tandem Diff – LH Drive would cost US$46 000 as at that date. That quotation was obtained a few days after the accident. The other quotations were obtained in 2018 and are of very little or no help.

The defendants produced documents obtained via the internet showing prices such as US$9000 for a 2007 Freightliner Columbia horse with a mileage of 894 455 miles, $9 950 for a 2007 Freightliner Century Class horse, $10 500 for a 2007 Freightliner Columbia 120 truck, $11 995 for a 2007 Freightliner Columbia CL 12064 St Truck and $13 000 for a 2007 Freightliner Century 120 truck. The defendants’ documents appear to have been only recently obtained. They cannot be a fair measure of the pre-accident value of the plaintiff’s truck at the time of the accident. While they relate to 2007 trucks, the value is as it would be in 2018, not in 2014 when the delict was committed. For this reason, the best evidence available in this case for the truck, is as given by the plaintiff in the pro-forma invoice at p 2 of exh 1. That is the value which is comparable to the destroyed truck in that it relates to a 2007 truck as at 7 August 2014. The quotation also pertains to a truck of the same make and model as the one that was destroyed in the accident. Evidence led showed that the plaintiff had used its trailer for just about a year when it was destroyed. Accordingly, I find that the reasonable value of the plaintiff’s Freightliner, Columbia truck at the time of the accident was US$46 000-00.

Regarding the trailer, the pro-forma invoice dated 7 August 2014 which was tendered by the plaintiff gives the value of a new trailer of the same standard described as Standard Flat Deck 30 ton Hendred Trailer- as US$31 000-00. While the plaintiff’s trailer was new at the time that it was purchased in 2013, evidence showed that it had been in use for about one year when it was destroyed. The actual commercial invoice for the destroyed trailed shows that it was purchased in South Africa for ZAR 213 200-00 on 30 May 2013. These two document are not quite helpful in the absence of evidence vis-a-vis the level of depreciation consequent upon its use for the about 14 or so months that it was in use. The prices indicated in the documents produced by the defendant for the trailer are rejected for the same reasons that I rejected those tendered in respect of the horse. These are prices as at 2018. In the letter dated 5 February 2017 the defendants made a calculation based on their own investigations and came up with a value of US$21 458-33 for the trailer. Although the letter was written on a without prejudice basis the defendants themselves produced it at pp 15-16 of exh 2. That figure also forms the basis of the defendants’ unconditional tender of payment which was filed on behalf of the defendants on 6 November 2018. Although the plaintiff had rejected the tender, in the absence of other evidence, the court can hold the defendant liable based on that figure.

Adding the figure of US$46 000 for the horse and US$21 458-33 for the trailer, the court comes to the conclusion that the plaintiff is entitled to a sum of US$67 458-33. From this figure must be subtracted the sum of US$10 000 which was paid by the third defendant in terms of its contract of insurance with the first defendant. This leaves a sum of US$57 458-33.

The only other issue is whether this court should order that the above sum of money be deposited into the plaintiff’s Foreign Currency Account as urged by the plaintiff. The defendants, on the other hand, argued that such order would unduly burden them. This debate arises from recent economic developments in the country which resulted in the separation of what is referred to as a Real Time Cross Settlement (RTGS) System Account from a Foreign Currency Account. This debate should not really detain the court for two reasons. Firstly, the claim and the amounts found to be due are in the currency of the United States, not in the RTGS currency. Secondly, the economy remains a multi-currency economy in which the United States dollar is accepted as legal tender. The loss having been established in that currency, it would be prejudicial to the plaintiff for damages to be awarded in a currency that was not in existence at the time of the loss and did not underpin the claim as submitted. For these reasons, the damages must sound in United States dollars.

On the question of costs, the defendants through Mr Jakachira submitted that the plaintiff must be deprived of its costs or a portion thereof. This submission is predicated upon the plaintiff’s refused to accept the unconditional tender of settlement as well as the fact that there was duplication of the claim in respect of the trailer in the plaintiff’s summons and declaration. This is because in the summons the sum of US$88 550-00 included amounts for both the horse and the trailer, yet there was a separate additional claim for the trailer in the sum of ZAR213 200-00. This mistake was only realised by the plaintiff during the cross-examination of its witnesses. However, the plaintiff has significantly succeeded in its claim. As shown above, the tender was not the only basis of the award. Also, the defendants’ counsel seems to have realised that anomaly during the trial as well because he did not raise it earlier than that. For these reasons, I see no reason to depart from the general principle that costs should follow the result.

In the result, it is ordered that:

Judgment be and is hereby granted in favour of the plaintiff against the first and second defendants jointly and severally the one paying the other to be absolved for payment of:

The sum of US$57 458-33

Interest on the sum of US$57 458-33 at the prescribed rate from the date of service of the summons to the date of payment in full; and

Costs of suit.

Phillips Law, plaintiff’s legal practitioners

Jakachira & Company, 1st & 2nd defendants