Madlenya Irrigation Cooperative v Game Discount World Ltd and Another ((63/08)) [2010] SZHC 110 (21 July 2010);

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IN THE HIGH COURT OF SWAZILAND

 

CASE NO. 443/2004

HELD AT MBABANE

 

BETWEEN

                                                                       

MADLENYA IRRIGATION CO-OP...                                PLAINTIFF

 

GAME DISCOUNT WORLD LIMITED…                      FIRST DEFENDANT

ANDERSON HLOPHE...                                              SECOND DEFENDANT

 

 

CORAM                                                                                         AGYEMANG J

FOR THE PLAINTIFF:                                                                     S. DLAMINI ESQ.        

                              

FOR THE DEFENDANT:                                                                  S. ZIKALALA ESQ.

 

DATED THE 21ST DAY OF JULY 2010

 

 

 

 

 

JUDGMENT

In this action the plaintiff seeks the following reliefs against the defendants:

1. The payment of the sum of E25,000;
2. Interest on the above amount at 9% per annum a tempore morae to date of final payment;
3. Costs of suit;
4. Further and/or alternative relief.

The plaintiff is an association of persons with corporate personality, registered in accordance with the laws of Swaziland. The first defendant is also a company incorporated and registered in accordance with the laws of Swaziland, the employer of the second defendant, cited in this action as such, and sued for its vicarious liability of the alleged delict of the second defendant.

The matters giving rise to the present action are the following:

In or about November 2003, one David Mamba, chairman of the plaintiff organisation was travelling along the Siphofaneni - Big Bend road towards Ndobandoba. He was accompanied by another member of the plaintiff who travelled as a passenger on a motor vehicle with registration number SD 103AG. After passing Big Bend, the plaintiff’s vehicle collided with a truck with registration number SD 668H at an intersection where the main road on which the plaintiff was travelling, was joined by a minor road.

It was the case of the plaintiff that the accident was caused by the negligence of the second defendant while driving a truck in the course of the first defendant’s business and within the scope of his authority. The particulars of the second defendant’s alleged negligence were pleaded to be one, more than one, or all of the following:

1. That the second defendant failed to keep a proper look-out;
2. That he failed to apply the brakes of the said motor vehicle timeously or at all;
3. That he failed to avoid a collision when by the exercise of reasonable care and skill, he could and should have done so;
4. That he drove the said motor vehicle at a speed which was excessive in the circumstances;
5. That he disregarded a stop sign at an intersection;
6. That he entered the said intersection at the time when it was unsafe to do so.

The said David Mamba, his passenger Phuyane Gamedze and a mechanic testified in support of the plaintiff’s case.

It was the evidence of the eyewitnesses to the incident who gave evidence on behalf of the plaintiff, that while on this journey from Siphotaneni towards Ndobandoba where they were to attend a meeting at the Farmers’ Co-operative, the plaintiff’s vehicle driven by David Mamba passed the Big Bend and entered a gravelled road which was the main road. The vehicle’s speed on the road (which was described as somewhat steep), was alleged to be sixty kilometres per hour. Not long thereafter, they saw a motor vehicle (described alternately as a truck or lorry) emerging from a side road having come out of the premises of a company on the left hand side. The said truck proceeded on the side road to join the main road at an intersection. It was the evidence of both witnesses for the plaintiff that there was a traffic sign on the side road that the truck emerged from; but whereas the driver David Mamba alleged it to be a yield sign, the passenger Phuyane Gamedze stated that the said traffic sign was the stop sign pleaded by the plaintiff. Both witnesses were however consistent in their testimony that the truck that emerged from the side road and intended to travel in the opposite direction to the plaintiff’s route, failed to stop and that it collided with the plaintiff’s vehicle travelling on the main road and having the right of way. The collision caused the plaintiff’s vehicle to be pushed off the road. It was the evidence of David Mamba (PW1) that when he saw that the truck was not about to stop at the intersection, he tried to prevent a collision by applying his brakes but was not successful. Thereafter the driver of the truck: the second defendant herein allegedly apologised to the driver of the plaintiff’s vehicle for causing the accident.  It was the evidence of David Mamba that the collision resulted in extensive damage to the plaintiff’s vehicle, a one-ton Nissan van mostly on its front left hand side, being: damage to the left front light, left door, and windscreen.

The mechanic to whom the vehicle was taken for repair works, corroborating the evidence led by the plaintiff on the damage, alleged more particularly that there was damage to the plaintiff’s motor vehicle’s chassis, windscreen, bonnets and lights. He testified also that the damaged parts were replaced by him at a total cost of E20,000.

In spite of rigorous cross-examination, the evidence material to a finding on the pertinent issues herein, were not controverted in any significant manner.

The defendant declined to give evidence.

At the close of the pleadings the following stood out as issues to be determined:

1. Whether or not the second defendant drove his vehicle negligently;
2. Whether or not the second defendant’s negligence (if any) was the cause of the accident;
3. Whether or not there was contributory negligence on the part of the second defendant;
4. Whether or not the first defendant is vicariously liable for the damage caused to the plaintiff’s motor vehicle.

As aforesaid, the plaintiff pleaded particulars of the negligence, one or more of which he relied on to assert that the second defendant drove his motor vehicle negligently and thereby caused the accident.

The uncontroverted evidence led by the plaintiff’s witnesses was that the second defendant who was travelling on a minor road, intending to enter the main road at an intersection and thereafter, to travel in a direction opposite to the plaintiff’s vehicle, failed to have due regard to the plaintiff’s vehicle which was travelling on a main road from Big Bend towards Ndobandoba.

The collision that occurred between the plaintiff’s vehicle driven by PW1 and the first defendant’s truck driven by the second defendant was alleged to have resulted from the failure of the second defendant to observe a traffic sign to stop at an intersection.   

Much ado was made by learned counsel for the defendants during cross-examination of the plaintiff’s witnesses regarding the discrepancy in the description of the said traffic sign by the eye witnesses who testifying on behalf of the plaintiff, alleged that it was a yield sign (PW1) or a stop sign (PW2). But whether a stop sign or a yield sign, it is trite learning that the requirement to keep a proper look-out and exercise reasonable control over his vehicle, observing the traffic on the main road, remained the same on the second defendant who was travelling on a minor road to join a main road. In these circumstances, he had to assure himself that it was safe to enter the main road having regard to vehicular traffic on that road, before he did so, see: Sullivan v. Economic Insurance Co. 1955 (4) SA 447. This is because the driver of the vehicle travelling on the main road and having the right of way was entitled to assume that the vehicle now seeking to entire the main road from a minor road would not do so until it was safe to do so, see: Martindale v. Wolfaardt 1940 AD 235

The collision which occurred at the intersection raised a presumption of negligence on the part of the vehicle that travelled on the minor road and intended to enter the main road at an intersection. This is because he was required to proceed to the intersection with great caution and to observe traffic first to the right and then to the left, see:  Victoria Falls and Transvaal Power Company Ltd v. Thornton’s Cartage Co. Ltd 1931 TPD 516.

The presumption arose because the very circumstance of a collision at an intersection where a driver approached it from a minor road to join the main road, indicated that the driver of the vehicle intending to join the main road failed to keep a proper look-out, for had he done so as spelt out in the Victoria Falls’ case (supra): observing traffic to the right, then to the left, and controlling his speed accordingly - he would not have entered the main road at the intersection where another vehicle was travelling without apparent regard to it. Furthermore the said circumstances indicated that the second defendant failed to exercise reasonable care and skill in his driving, or failed to exercise control over his vehicle by applying his brakes timeously or at all in the circumstances to avoid the collision that occurred at the intersection. The presumption of negligence on the part of the second defendant was made stronger by the presence of a traffic sign commanding the vehicle on the minor road to stop or wait, the former, if it were a stop sign, and the latter if a yield sign). The direction given by the traffic sign whether it was a stop sign or yield sign (the evidence of the two eyewitnesses differed as to the nature of the sign) did not matter. The duty of the second defendant at the intersection where he was to enter the main road, was to have regard to the plaintiff’s vehicle travelling on the main road; in the case of a stop sign, to stop whether or not there was traffic, and in the case of a yield sign, to stop   where, as in the instant case, there was immediate danger having regard to traffic on the main road. The duty of the second defendant to stop and observe traffic on the main road was made heavier as (by the unchallenged evidence of PW2 the passenger on the plaintiff’s vehicle), the second defendant had indicated his intention upon entering the main road, to travel in a direction opposite to the plaintiff’s vehicle, see: Marfuggi v. Queensland Insurance and Anor. 1959 (3) SA 888.

The presumption of negligence applies in casu although the second defendant may not have been charged by the Police (a matter in respect of which PW1 was cross-examined at length). This is because the burden of proof in a criminal charge being heavier on the prosecution required to prove its allegation beyond a reasonable doubt than on a plaintiff whose burden is discharged by proof by a preponderant probability, the decision of the Crown not to institute criminal proceedings against a perpetrator may not affect the plaintiff’s case against the tortfeasor in a civil action.

But beyond the presumption, the eyewitnesses to the accident who gave evidence for the plaintiff narrated the circumstances leading to the collision. In a nutshell, the cause of the collision was alleged to be the failure of the second defendant to stop at the intersection having regard to the presence of the plaintiff’s vehicle on the main road. According to David Mamba, driver of the plaintiff’s vehicle, when he noticed that the vehicle driven by the second defendant was not going to stop in spite of the traffic sign (which he said was a yield sign), he tried to avoid a collision by applying his brakes but was unsuccessful. Being the driver on the main road he was required to act reasonably to avoid colliding with the vehicle on the minor road that he had spotted. His testimony that he in fact tried to avoid the collision would suffice for this purpose. It is my view that he was not required to do more than what he alleged in his unchallenged testimony, that he did, see again: Martindale’s case (supra) and per Solomon CJ inRobinson Brothers v. Henderson 1928 AD138 at 141. In the absence of contrary evidence by the defendants, the said evidence unassailed by cross-examination, buttressed the presumption of negligence on the part of the second defendant and made out a prima facie case of negligence against the second defendant.

This placed a burden on the defendants to lead evidence to rebut same, see:per Corbett JA in South Cape Corporation (Pty) Ltd v. Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A) at 548.

 Such evidence would include evidence that the driver of the plaintiff’s vehicle acted unreasonably by not having regard to the vehicle on the side street  and acting appropriately to avoid the collision, or that the second defendant’s view was obscured so that he did not see the plaintiff’s vehicle until it was too late (this defence would have been pertinent if the traffic sign was a yield sign and not a stop sign).

As aforesaid the defendants declined to lead evidence in support of their own case (which included an allegation of contributory negligence), or in rebuttal of the plaintiff’s prima facie case of negligence against the second defendant. In the circumstance I find that the second defendant drove his vehicle negligently, not having kept a proper look-out or exercised reasonable care and skill requisite in the circumstances to avoid the collision. I hold the same to be a fact.

I hold furthermore from the evidence led without successful challenge, that the negligent driving of the second defendant was the cause of the collision at the intersection.

The defendants having failed to lead evidence with regard to the matters they alleged in pleading as contributing to the accident, I make no finding of contributory negligence against the driver of the plaintiff’s vehicle.

The plaintiff pleaded that the second defendant was an employee of the first defendant and was at the time of the accident engaged in the course of the first defendant’s business and within the scope of his duties. This was admitted by the defendant in pleading.

The plaintiff was thereby relieved of his duty to prove the existence of a master/servant relationship or that the second defendant drove his vehicle that day on the first defendant’s business and within the scope of his authority, see:Gordon v. Tarnow 1947 (3) SA 525 at 531.

In the circumstances, the first defendant as employer must be held vicariously liable for the wrongful act (delict) of the second defendant, see: Minister of Law and Order v. Ngobo 1992 (4) SA 822 (A) at 827 (B); also, Minister of Police v. Rabie 1986 (1) SA 117 (A) at 132.

The plaintiff led evidence by a mechanic to whom the vehicle damaged in the accident was sent for repairs. By the uncontroverted testimony of the said witness, the damaged vehicle was repaired at the cost of E20,000 which sum included the cost of replacing damaged parts.

The damage to the plaintiff’s vehicle for which the first defendant is vicariously liable having thus been proven, same is awarded to the plaintiff as proven special damages.

The plaintiff’s claim must succeed.

Judgment is therefore entered for the plaintiff for the sum of E20,000 with interest at 9% a tempora morae and costs of suit

 

MABEL AGYEMANG

HIGH COURT JUDGE