IN
THE HIGH COURT OF SWAZILAND
CIV.
CASE NO.870/86
In
the matter between:
DEREK
NKUTHA PLAINTIFF
vs
SWAZILAND
ROYAL INSURANCE DEFENDANT
CORAM:
DUNN
J.
FOR
THE PLAINTIFF: MR.
NXUMALO
FOR
THE DEFENDANT: MR.
CURRIE
JUDGMENT
(26.5.1989)
E11,028.00
In this action, the plaintiff claims/as damages arising from injuries
he received when he was knocked down by a motor vehicle of which the
defendant was the insurer. When the matter was called before me I was
only asked to decide the question of the alleged negligence of the
driver of the insured motor vehicle.
The
plaintiff gave evidence to the effect that he was walking towards
Sidwashini on the left handside of the Mbabane by-pass road. He was
walking on the gravel verge, approximately 1 m. from the edge of the
tarmac. The time was approximately 6.30 a.m. on a clear day. The side
of the road on which he was walking had recently been graded. The
plaintiff stated that he was suddenly hit by a motor vehicle which
was also travelling in the Sidwashini direction.
The
plaintiff's co-worker Sam Kaunda who was walking some 40 yards behind
the plaintiff at the time of the accident, confirmed that the
plaintiff was approximately 1 m. from the edge of the tarmac when he
was knocked down. According to Kaunda the insured motor
2
vehicle
which was travelling on its correct lane suddenly veered to the left
as it got to where the plaintiff was and struck him down. The vehicle
reversed and some people that were seated at the back of the vehicle
placed the plaintiff in the vehicle and he was
taken
to hospital .
It
was put to the plaintiff and his witness that the plaintiff had
suddenly moved onto the tarmac in the path of the insured vehicle.
This was denied. It was further denied that the gravel verge on which
the plaintiff had been walking had muddy patches and that it was in
an attempt to avoid one such muddy patch that the plaintiff suddenly
moved onto the tarmac.
An
inspection was held at the scene of the accident, at the conclusion
of the plaintiff's evidence. The plaintiff was asked to indicate the
point of impact. The plaintiff indicated a spot 50 paces from the
turn off to Sandla Township, on the left hand side of the road as one
faces Sidwashini. The spot was about 1 m. from from the edge of the
tarmac. The gravel verge at that point extends some 1½
m. from the edge of the tarmac. Raphael Gamedze, the driver of the
insured vehicle was also asked to indicate the point of impact and he
indicated a spot 47 paces ahead of that pointed out by the plaintiff.
Gamedze confirmed the position of the plaintiff as having been
approximately 1 m. from the edge of the tarmac. Gamedze did not
indicate any spot on the tarmac. I am satisfied that he was fully
aware at the time that he was being asked to indicate the point of
impact.
In
Court, Gamedze stated that the plaintiff suddenly moved onto the
tarmac and he (Gamedze) was forced to swerve to the right but could
not do so sufficiently to avoid colliding with the plaintiff because
of a vehicle that was approaching from the opposite direction.
3
The
plaintiff has in my view clearly established that he was off the
tarmac when he was knocked down. His evidence is confirmed by that of
Kaunda who had a clear view of both the plaintiff and the insured
vehicle, shortly before the collision. The evidence of Gamedze is not
supported by any other evidence. The plaintiff and his witness
maintain that the gravel verge was dry and that there is therefore no
substance in Gamedze's suggestion that the plaintiff moved onto the
tarmac in order to avoid a muddy patch on the gravel verge.
It
is common cause that Gamedze had some passengers in the insured
vehicle and that at least one Police Officer was taken to the scene
of the accident. I find it surprising that none of these witnesses
were called to give evidence on behalf of the defendant, particularly
in the light of the clear and strong denial by the plaintiff and his
witness of Gamedze's version of how the accident occurred. I find
that the cause of the collision was the negligence of the driver of
the insured motor vehicle.
B.
DUNN
JUDGE
