Edmond Richard Hill by Thomas Denny Harcourt Catchpole his next friend Edmond Frank Purnell Hill v Zalbro United Transport Company Limited and Brian Alexander Buckle (1967/H.K. No. 175) [1970] ZMHC 6 (25 March 1970)

EDMOND RICHARD HILL by THOMAS DENNY HARCOURT CATCHPOLE his next friend EDMOND FRANK PURNELL HILL v ZALBRO UNITED TRANSPORT COMPANY LIMITED and BRIAN ALEXANDER BUCKLE (1970) ZR 46 (HC) HIGH COURT 40 MAGNUS J 45 25th MARCH 1970 1967/H. K. No. 175 Flynote Tort - Negligence - Liability for bringing hazard on highway. •• 1970 ZR p47 MAGNUS J Tort - Negligence - Contributory negligence on highway - when negatived. Headnote A lorry belonging to the first defendant which was in a very neglected and poorly maintained condition was crawling on the Great East Road when due to the non-visibility of the vehicle the second defendant's vehicle banged into it. As a result of the accident the first plaintiff was 5 severely injured. He sued for damages. The first defendant denied liability for negligence and also pleaded contributory negligence on the second defendant's part, claiming that the second defendant should have been on his guard. The case came to court for determination of liability only. I Held: 10 I (i) If one brings on the highway a hazard so sited that it was foreseeable that there would be an above average risk of serious accident he is liable for bringing that hazard on the road. (ii) Where there is an unlighted obstruction in the roadway it cannot be said that a careful driver is bound to see it in time 15 to avoid it and must therefore be guilty of negligence if he runs into it. • (iii) Contributory negligence is not proved on the part of the second defendant and the first defendant is wholly to blame for putting this dangerous vehicle on the road in the condition which 20 it was, thereby causing an abnormal hazard for which he was responsible. • Cases cited: (1) Levine v Morris, [1970] 1 All ER 144. I (2) Tidy v Battman, [1934] 1 KB 319; [1933] All ER (Rep.) 259. 25 (3) Stewart v Hancock, [1940] 2 All ER 427; 56 TLR 572; 84 Sol. Jo. 440. JA Hadden, Ellis & Co., for the plaintiffs. JI McLean, Christopher, Russell Cook & Co., for the first defendant. I E Dumbutshena, Shamwana & Co., for the second defendant. 30 Judgment Magnus J: The first plaintiff, who is a person under disability, sues through his next friend, Mr Thomas Denny Harcourt Catchpole. The second plaintiff is the father of the first plaintiff and sues for out of pocket expenses incurred by him in respect of the injury which his son undoubtedly suffered in the accident which has lead to the present 35 action. It is agreed by counsel that I have only to decide the issue of liability, quantum having already been agreed between them and effectively I have to decide whether either the first or the second defendant was negligent and, if both, the proportion of negligence attributable to each of these defendants. The third defendant was sued as the employer 40 of the second defendant and its liability could only be a vicarious liability contingent upon the degree of liability attributable to the second defendant. In the event the third defendant was dismissed from these proceedings on the application of the plaintiff in the course of the hearing • • MAGNUS J 1970 ZR p48 I ■ ■ ■ of the case and I am not therefore called upon to decide whether the second defendant was engaged in his duties with the third defendant at the time of the accident. The facts are relatively simple. On the 5th of May, 1966, the second 5 defendant, together with the first plaintiff, were proceeding from their joint employment with the third defendant at Modern Quarries some ten miles out of Lusaka along the Great East Road in a car driven by the second defendant when some four miles out of Lusaka they ran into the back of a lorry belonging to the first defendant as a result of 10 which the occupants of the second defendant's car, which also included his wife and three children, were all severely injured and one of the children in fact died of her injuries. The first plaintiff, a young man of about twenty years of age, was so severely injured that he has been reduced permanently to a condition virtually of idiocy and will never 15 work again. As I say, however, I do not have to deal with the issue of damages since this has been agreed between the parties. What I do have to decide is who if anyone is responsible for this very grave accident and if both, as I have said, in what proportions. The second defendant has given evidence much of which was 20 concerned with the question of whether or not he was still engaged on his duties with the third defendant for the purpose of establishing the third defendant's liability. This I do not now have to consider so I will concentrate entirely on the evidence relating to the journey up to the time of the accident. The second defendant's wife, Mrs Rosemary 25 Edith Olive Buckle, had called at Modern Quarries at about 6 p.m. when it was about to become dark and owing to no transport having turned up to convey the first plaintiff and the second defendant back to Lusaka the second defendant took over his car from his wife and offered the first plaintiff a lift. They stayed for about twenty minutes 30 at the house of the manager of Modern Quarries, a Mr Gillespie, during which time the second defendant consumed one cup of tea. Mrs Buckle and the three children together with the first plaintiff then got into the car with the second defendant and they drove off. The three children were in the back of the car, Mrs Buckle sat next to her husband, who 35 was in the driver's seat, and the first plaintiff sat in the front seat on the extreme left. By now it was about 6.30 p.m. and it had already become dark. The second defendant drove with his headlights on bright and he says that the two passengers beside him did not obstruct his driving. He dimmed his lights as vehicles approached, but there were 40 comparatively few such vehicles. The road was comparatively new at the time and had a 60 m.p.h. limit imposed on it. As they were nearing the Mobil petrol station near Munali Secondary School and were travelling at about 55 m.p.h. the second defendant noticed smoke in the road ahead of him as a result of which he decreased his speed to about 50 m.p.h. 45 and continued reducing his speed. The smoke was a sort of bluish to dark grey, almost black, and from his knowledge as a diesel fitter and mechanic he would say that this was caused by excessive oil burning in an engine that was not in the best of condition. However, after he decelerated, he seemed to have passed through the smoke because ■ ■ ■ ■ ■ 1970 ZR p49 I MAGNUS J visibility was improving and he noticed two vehicles coming along towards him from the opposite direction and he dimmed his headlights. The approaching vehicles did the same. The next instant he saw a dirty grey shape of a tailboard about ten feet ahead of him in front of his car. There were no visible lights, no chevron plate and no reflectors. He 5 swerved hard right trying to avoid a collision but he could not do so and collided with the right rear portion of the truck. He remained conscious and his car came to an almost immediate standstill but the collision was very violent. One of the cars approaching towards him then collided with the front of his car. After the second impact he staggered around 10 and saw that all his passengers were unconscious. He went on to the truck which had stopped 100 - 150 yards ahead. He could not find the driver. He examined the rear of the lorry and found no visible chevron no reflector and no lights. The left light fitting had no glass and was not switched on, nor were any lights on in the front. He then returned 15 to his own vehicle to see if he could give assistance to the injured who were all unconscious, but he was prevented, wisely I should think, by bystanders since the injured should await proper medical care before being moved. At ■ ■ ■ ■ any rate, some twenty to thirty minutes later he went back to the truck and he now noticed that the left hand rear tail light was 20 burning faintly as was also the left hand front headlight. He still could not find anyone who would admit being the driver in charge and he went back to the injured by which time a doctor had arrived, ambulances and police came soon after and they were all taken to Lusaka Central Hospital. In cross - examination by Mr Shamwana on behalf of the first 25 defendant, he said that when he first saw the smoke he could not say at that instant that it was exhaust smoke. At the time he thought it was smoke from a fire. He said that shortly after seeing the smoke he saw the cars approaching him from the opposite direction and his attention was therefore directed to them and that by the time he got out of the 30 smoke he had reduced his speed to about 45 m.p.h. and was still decreasing it. He did not see the truck nor anything to indicate that a truck was ahead of him and when he first sighted the rear of the vehicle he had no time to think of anything except to try and avoid a collision. Asked about a branch on the road, he said that he had a slight recollection of 35 seeing a branch on the side of the road some distance from the service station but this was some considerable distance away from the accident and, therefore, although the presence of a branch may be a recognised sign of a stationary vehicle, as this branch was on the side of the road and some distance away he saw no reason to believe that a stationary 40 vehicle was still there. In any case he did slow down because of the smoke. At the point of impact he said there was a gentle gradient. He did not try to overtake the vehicle. He noticed that the cab of the lorry was maroon and very dirty, the back was silver or grey and encrusted with dirt. It was so dirty that he could not say what the general colour 45 of the vehicle was. In reply to Mr Shamwana's suggestion that he was rushing to get back to the Lusaka Office, he pointed out that he had his family and other people with him. He said he was a careful driver and there was no reason for him to rush. Moreover, as his travelling time was paid time, there was even less reason for him I to rush back. 50 ■ ■ ■ ■ 1970 ZR p50 ■ ■ MAGNUS J It was a dark evening and there was no moon. When he went to examine the truck he did not have a torch, there was no luminous paint on the truck and the only reason why he could see it was because the headlights of cars which had stopped illuminated the scene. I In 5 cross - examination by Mr Jagger, he said that he saw the green branch on the side of the road. His lights were on full beam and his range of vision was then about 150 yards. He did not notice other cars coming towards him and he had no occasion to dim his lights. He did not see anything to indicate that a broken down vehicle was in the 10 vicinity and the branch was not across the road. He agreed that the presence of the branch indicated that there had been a broken down vehicle in the area and was therefore a warning of a potential danger but he did not reduce his speed because the road was clear and he could see for quite a distance with his headlights on bright. When he dimmed 15 his headlights, he reduced his speed and he reduced his speed on seeing the smoke because it reduced his vision. He could then see about fifty yards or slightly more ahead. With his lights on dim and when the smoke had lightened a little he could see about 150 feet ahead but he first saw the lorry about ten to twelve feet in front of his car. The reason 20 for this was because the other two cars were approaching from the right and there was a certain amount of glare. There was no illumination or reflection on the truck and there was still the slight puff of smoke from the earlier emission. Mrs Buckle gave evidence which coincided on relevant points with 25 the evidence of her husband, although she said she was very seriously injured in the subsequent accident and this had affected her memory of what happened. She did remember sitting in the middle of the front seat next to her husband with Mr Hill on the other side and the three children at the back. Her husband's lights were on bright but he dipped 30 them when another car approached. She saw smoke as they were driving but did not remember anything after that except that she warned her husband to slow down. This was the last thing she remembered and could not say whether he did or he did not slow down. She could not remember seeing a green branch and this was about as far as her memory ■ ■ ■ ■ was 35 able to assist us. This was the evidence adduced on behalf of the second defendant, whom I had called upon to open his case since it seemed to me that, as it was his car which had collided with the lorry belonging to the first defendant, I the onus was on him to show that it was not his fault. 40 The first defendant then called Dickson Mwalunyunji, the driver of the lorry at the time of the accident. He was working at the time for the first defendant on the construction of the new airport and was driving a Leyland Octopus which he described by a Tonga word which the interpreter said could mean either "red" or "brown". On the day 45 in question, he was coming from the airport towards town having left the airport at 5.45 p.m. He remembered going past Munali Secondary School and coming to a white line in the centre of the road. He put the time then at about 6.20 p.m. Passing the petrol station opposite ■ 1970 ZR p51 I ■ ■ ■ MAGNUS J Munali School, as he was going down the slope he felt a bang behind his lorry. He said that the speed he was doing at the time was 35 m.p.h. He said he checked it on his speedometer which he always did and saw that it was 35 m.p.h. At 6.20 p.m. he looked at the speedometer and saw that it was 35 m.p.h. This was when he was going down the slope. 5 When the bang occurred he felt as though the lorry was lifted. He moved for about fifty yards and then stopped to see what had happened and saw that a motor vehicle had run into the back of the lorry and had stopped on the right hand side. This was the only lorry that he drove for the first defendant and he was the only driver and the person 10 responsible for the vehicle. Before leaving, he put on the ignition, switched on the rear lights, the number plate lights and the front lights and they were all in working condition. He got out of the cab to see that the lights were working and he then set off. He was travelling between the airport and town every day and knew this stretch of road well. After 15 the accident he left his vehicle and went to the nearest house to report or, as it transpired, to ask them to telephone the police and report an accident. In cross - examination by Mr Ryan, he said he had been using the lorry before the accident for eight months. It was being used for carrying sand from Kafue to the airport. It was in use every day. It 20 was serviced during this time and was repaired by mechanics of the company, that is if it was damaged. Otherwise it was in use. He said it had been damaged twice, the first was a punctured tyre and the second was a broken spring. It had not been painted, it was still its original red colour, the sand had not scratched it. Although at Kafue they had 25 to drive off the tarred roads, there was no dust because the sand was damp. The lorry was licensed and had a certificate of fitness and he was surprised to hear that it had been pronounced unfit by a vehicle inspector and that his employers were fined for allowing the lorry to be on the road in a dangerous condition. He always checked the vehicle 30 before leaving. Both the left and right rear lights were red. There were also red reflectors and he did not see any dirt or black smoke from the exhaust. There was nothing at all wrong with the vehicle, although he said that the vehicle inspector would be speaking the truth because he would know what he was talking about. As regards the speed at which 35 he was travelling, he thought that the accident occurred about eight miles from the airport and he did not stop from the time he left the airport until the accident happened. It took thirty - five minutes to travel the eight miles. It always took him thirty - five minutes to cover the eight miles from the airport although he still maintained that he was travelling 40 at 35 m.p.h. When he was asked to estimate a distance in court, he grossly over - estimated the distance and I therefore find it difficult to give credence to this witness on any estimate by him of distance or speed. He said that he did not see the occupants of the crashed car, although he saw people were injured. He saw the second defendant and told him 45 that he was the driver of the lorry. This was immediately after he got out of the lorry and before he notified the police. He said that the second defendant did not complain that he had no lights, he just said "Look, ■ ■ ■ ■ ■ MAGNUS J 1970 ZR p52 I ■ ■ I have hit your vehicle and people have been injured." After the crash he saw that the tail light was damaged and that the only light that remained was the number plate light and the reflectors. With regard to time, he told Mr Care in cross - examination that he did not have a 5 watch but he thought that the accident happened about 6.20 p m. With regard to speed, he said he looked once at the speedometer but if one was travelling one usually knew at what speed one was travelling. The time when he looked at the speedometer was when he was coming from the airport and he therefore assumed that he was travelling at the same 10 speed the whole way. He was emphatic that the lights were in working order before he left the airport, although he admitted that the lorry had no chevrons. There were no other lights in the vehicle and he had no torch. He had no light in the cab because he had broken the clip and he said that he saw the speedometer before it had become dark. 15 The accident happened after dark but when he checked the speedometer it was still light. At the time of the accident he did not look at the speedometer. After the accident he did not continue to drive the lorry which was with the road inspector and he did not see anybody driving it afterwards. In answer to Mr Jagger I he said he made three return trips between 20the airport and Kafue each day. He did not know how the number plate was attached although it was not attached with a piece of wire. There were two rear view mirrors both outside the vehicle and if the traffic inspector said that one was missing that was untrue. He also said that after the collision he applied the footbrake. He did not know that his 25 employers had pleaded guilty to allowing the vehicle to be used when the footbrake and handbrake were defective and he insisted that the brakes were in working order. He did not know how old the vehicle was. He checked his lights every day although he had never had any trouble before. He also checked them in the morning. He had never had any 30 trouble with the lights, they had never had any attention in the workshops. He had not seen a join in the wires or any insulating tape. He did not see a green branch while he was travelling, he had his headlights on dim because of vehicles coming towards him yet he says that he only met one vehicle. He repeated that he only saw one vehicle although 35 he said that the statement made to the police that he saw two was correct. He washed the vehicle by hosing it down every morning. There was no grease or oil on the body or any black marks from exhaust smoke. If the traffic inspector said that the left rear lamp was partially hidden by a black mark from the exhaust smoke he would be telling lies as 40 he ■ would also be telling lies if he said that heavy black smoke issued from the exhaust. He insisted that the vehicle was licensed although a blue book, when produced, showed that the vehicle was licensed on the 6th May, 1966, the day after the accident. He did not know if there was a certificate of fitness. The road traffic inspector may have been right. 45 He may have been right about other things in his report. The traffic inspector's report was produced and there was some argument as to its admissibility but I decided that under O. 24 r. 12 of the Rules of the Supreme Court it was admissible as well as under the right of a defendant to call for a document disclosed in the plaintiff's ■ ■ ■ ■ 1970 ZR p53 MAGNUS J list of documents. I find that this report, dated the 12th May, 1966, listed twelve serious defects in this vehicle of which I am concerned only with defects relating to the visibility of the vehicle after dark and this he reports on as follows: "The left or near rear lamp was fitted with one bulb which whilst 5 operative was partially obliterated by layers I of smoke residue adhering to the glass. The right or off rear lamp was also fitted with one bulb which was not operative at the time of examination, the glass was intact but the filament was broken which could have been in this condition 10 before the accident or caused by the accident impact. ■ On the left or near rear lamp bracket there was fitted a three inch round red reflector which had been rendered completely useless by layers of dirt and smoke residue adhering to it. This reflector was taken from the vehicle and is to be submitted as an exhibit. 15 Red rear light covers were missing at the time of examination. A three core electric cable leading to the right or off rear lamp was completely severed, presumably in the ■ accident; on stripping old insulation tape from the cable I found that the leads had been broken previously and joined. I tested the cable with a spare bulb 20 and found that no contact was made. I then stripped the cable down to beyond the join and eventually managed to get a good contact. It is therefore doubtful as to whether the right or off rear light was in an operable condition at the time of the accident. ■ The regulation rear yellow and red chevron pattern reflector was 25 not fitted to the rear elevation of the ■ vehicle. The exhaust tail pipe was broken off. The exhaust pipe joint in front of the silencer was loose and leaking exhaust gases. The engine was started and heavy black smoke issued from the exhaust, this condition persisted throughout the ■ road test and 30 it is safe to assume that this was the condition of the vehicle at the time of the accident." and he finished off that in his opinion the vehicle was in a most neglected and poorly maintained condition especially as regards the lack of rear reflectors and the possibility of heavy black smoke issuing from the rear of 35 the vehicle whilst it was in motion at night. It is therefore obvious to me that the second defendant's evidence of the condition of the vehicle was far more to be relied upon than the evidence of the first defendant's driver whose purported meticulous attention to detail before starting off each morning and before going on each journey was just too good to be 40 true, even if it had been shown that the lorry was in perfect condition at all times. I find it hard to believe that every time this witness set off on a journey he meticulously inspected all the lights of the vehicle to make sure that they were working and the immaculate condition of the lorry before the accident is certainly not consistent with that in which 45 the vehicle inspector found it after the accident. I therefore find it ■ ■ ■ 1970 ZR p54 I ■ ■ MAGNUS J difficult to accept this witness on any of his evidence as a witness of truth and I find as a fact that the accident occurred as described to me by the second defendant, whose evidence on all points I accept. I have now to decide whether, on the evidence of this defendant, 5 the fault for this accident was that of the first defendant's driver. It is obvious that a lorry in the condition in which I find this one to have been would not have been travelling at a speed of 35 m.p.h. with any degree of safety whatsoever, especially when one bears in mind the fact that the handbrake was not working at all and the footbrake was only partially 10 working. Furthermore, the driver of the lorry himself said that it regularly took him thirty - five minutes to traverse the eight miles between the airport and the scene of the accident, which indicates an average speed of some 15 m.p.h. In other words, this vehicle was crawling along the road at a speed which, in relation to the speed of normally moving traffic 15 made it tantamount to a stationary vehicle with the significant difference that had it been stationary, there would have been no black smoke issuing from its exhaust. The absence of chevrons, the obscuring of the reflector and the obvious inefficiency of the rear lights coupled with the black smoke that was coming from the exhaust leave no doubt my 20 mind that this vehicle was a dangerous hazard on the road at the time. Mr Shamwana cited to me the case of Levine v Morris (1) as authority for the proposition that the putting of a hazard on highway does not absolve a person colliding with it from liability for negligence. I quite agree that this is so but of course, the case I have just mentioned is also authority 25 for the proposition that if one brings on the highway hazard so sited that it was foreseeable that there would be an above average risk of serious accident he is liable for bringing that hazard on the road. I therefore find that the first defendant through its servant or agent, the driver of the vehicle was negligent in having this lorry on this road at 30 this time in this condition. The question arises however, whether there was any contributory negligence on the part of the second defendant. It has been suggested to me that the second defendant ought to have been on his guard (a) when he saw a green branch on the roadside and (b) when he saw the smoke. As far as the green branch is concerned, it 35 was not lying across the middle of the road, but was on the side. It was not noticed at all by the driver of the first defendant's vehicle and in any case the second defendant's evidence was that he saw the smoke about the same time and did reduce speed. I do not therefore think that there is any evidence of negligence on the part of the second defendant with 40 regard to the presence of the green branch on the road. With regard to the smoke, again this defendant's evidence, which I accept, is that, as soon as he saw it, he reduced his speed and continued to reduce his speed until it seemed to him that it was clearing away. His evidence then was that he met two vehicles coming towards him on the opposite side of the 45 road and his attention was partially occupied in dimming his lights and keeping ■ ■ ■ ■ ■ ■ half an eye on them and that was one of the reasons he said that he did not see the first defendant's lorry until it was too late. Mr Ryan cited to me two cases. The first was Tidy v Battman (2) where the defendant s motor lorry was drawn across the main road after dark in such 1970 ZR p55 I ■ MAGNUS J a position as to be an unlighted obstruction and a motor car had stopped behind a lorry about ten yards away on the nearside when the plaintiff's son who had been following the car on his motor cycle, drew out from behind him dashed into the lorry and was killed. It was held that the defendant was negligent and the deceased could not, by the exercise of 5 ordinary care, have avoided the consequences of that negligence. The other case he cited to me was Stewart v Hancock (3) where a motor cyclist driving along a main highway came into collision with an unlighted stationary motor car which was standing at the side of the road facing in the same direction as that in which the motor cyclist was travelling. 10 On the opposite side of the road, some thirty yards away, was another stationary car facing in the opposite direction and showing lights. The cyclist reduced his speed from about 35 to 25 m.p.h., when approaching this motor car and did not see the other car until he had passed out of the beam of the highlights. He then braked and swerved but came into 15 collision with the car's nearside rear mudguard and sustained injuries. It was also held here that where there is an unlighted obstruction in the roadway it cannot be said that a careful driver is bound to see it in time to avoid it and must therefore be guilty of negligence if he runs into it. I must say in the present case this principle seems to apply. I can see no 20 evidence of negligence on the part of the second defendant and therefore must hold that this accident was wholly due to the fault of the first defendant having this dangerous vehicle on the road in the condition which it was, thereby causing an abnormal hazard for which that defendant was responsible. I therefore find against the first defendant on the 25 issue of liability and there must therefore be judgment for the second defendant with costs and judgment for the plaintiffs also with costs, the costs of both the successful parties to be paid by the first defendant. Judgment for the plaintiffs against first defendant ■ ■ ■