SWAZILAND
HIGH COURT
Glory
D. Nsibandze
Plaintiff
v
The
Motor Vehicle Accident Fund
Defendant
Civ.
Trial No. 2933/1996
Coram SAPIRE,
CJ
For
Plaintiff Mr. Zwane
For
Defendant Mr. Currie
JUDGMENT
(14/02/2002)
This
is a motor car accident case in which the plaintiff is the widow of
the deceased who died in the collision. She claims damages for the
loss of her husband By agreement only the question of liability is to
be determined at this stage. The plaintiff and her husband were
driving towards work one morning on the Bhunya road towards Manzini.
She was a passenger and she was the only witness in her own behalf.
Her
case is this. She says that the deceased was driving with herself as
passenger. "Suddenly" an SEB bakkie driven by one Zubuko
came out of the gateway onto the main road and in order to take
evasive action the deceased swung his car to his right,
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into
the path of the motor vehicle driven by one Madzarevic which was
coming in the opposite direction. Her claim against the third party
insurers was based on the negligence of both drivers of the other
vehicles involved or either one of them.
According
to the witnesses the point of impact was 50 to 60 metres beyond the
point where the path from the SEB gateway enters the main road.
The
SEB property does not abut immediately on the road and there is an
untarred road leading from the SEB gateway for approximately 50
metres, to the point it reaches the main road.
The
witness, Madzarevic, whose alleged negligence was relied on by the
Plaintiff in making her claim, called by the Defendant testified that
the plaintiff's vehicle appeared was behaving in a peculiar way,
bouncing or shuddering while behind the SEB vehicle. Suggesting a
sharp and sudden application of its brakes.
The
deceased immediately thereafter swung his vehicle from behind the SEB
vehicle onto the right hand side of the road into the path of the on
coming vehicle and collided with Madzarevic's vehicle. It was not
seriously or convincingly argued that on this evidence negligence on
the part of Madzarevic was proved. He was a victim of a very
unfortunate accident for which he was not to blame and in which he
himself was seriously hurt.
The
question remains whether the negligence of the driver of the SEB
vehicle was the sole or a contributory cause of the accident
When
one bears in mind that the point of impact was some 50 or 60 metres
away from the point where the SEB road enters the main road, one
wonders why the deceased had not seen the vehicle travelling along
the untarred road before it entered the main road. He should have had
ample opportunity to observe its movements.
I
was taken to an inspection in loco in order to demonstrate to me that
this was impossible by reason of grass and trees hiding the SEB path
to the main road Photographs were taken of the scene. The point was
not made. It was quite possible for an observant and cautious driver
approaching the point as did the deceased to have
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seen
the vehicle emerging for some considerable distance before that
vehicle reached the road.
Furthermore
the driver of the SEB vehicle, one Zubuko, denied that he entered the
road suddenly and without stopping. He testified that he took care
before entering the road and that the deceased vehicle was not in
sight at the time. He says he travelled some distance on the road
before he noticed a vehicle approaching from the rear. The point of
impact would tend to confirm this.
It
is not possible to accept one version or the other on the quality of
the witnesses alone.
Circumstances
however point strongly to the deceased having travelled at a high
speed, and having decided to overtake the slower moving SEB vehicle
when it was unsafe to do so. This scenario is at least as probable as
the plaintiff's account.
The
onus was on the Plaintiff to establish negligence on the part of one
or other of the drivers of the insured vehicles on a balance of
probabilities. That she has failed to do. The question of the amount
of damages does not arise. There must be absolution from the instance
with costs.
SAPIRE,
CJ
