Shone v People (Appeal 33 of 1991) [1991] ZMSC 33 (12 March 1991)

IN THE SUPREME COURT OF ZAMBIA Appeal no. 33 of 1991 HOLDEN AT NDOLA . “ ------------------------- . : (Criminal jurisdiction) MICHAEL SHONE Appellant -Y- THE PEOPLE J Respondent CORAM: Ngulube, D. C. J., Gardner, AJ. S. and Sakala, J. S* On 10th September, and 3rd December, 1991 For the appellant: E. Silwamba of Silwamba and Company with A. M. Shilimi of Lloyd Jones and Collins; For the Respondent: K. Lwali Assistant Senior State Advocate; JUDGMENT Ngulube, D. C. J. delivered the judgment of the court Cases referred to:- . .. 1) Kapembwa -v- Maimbolwa and Attorney-General (1981) ZR 127 2) 3) 4) 5) 6) R -v- Gosney (1971) 3 ALL ER 220 Chanda -v- The People (1975) ZR 131 DPP -v- Chilombo (1975) ZR 248 R. -v- Hennigan (1971) 3 ALL ER 133 * ... ■' - • . 1 ■ ■ Nance -v- British Columbia Electric Railway Company (1951) AC 601 7) The People -v- Zulu (1982) ZR 159 The appellant was convicted of causing death by dangerous driving. The deceased, a school boy aged about 10 years, died in a collision between himself and a vanette driven by the appellant. The accident happened on 11th September, 1987 around 11.00 hours along the Kasama/Mbala road. At the time, the appellant had just crossed with a truck travelling in the opposite direction; ahead he had seen the deceased walking just off the tarmac in company of three or four other school children; he had hooted and reduced speed from about 100 KPH to about 60 KPH; when he was in the process of driving past the children he heard a bang on the left 2/....side 2 - side of his vanette; he braked, made a 'U1 turn, saw that a child had been injured and drove away to make a report. Since the learned trial judge rejected the prosecution's allegations, through PWs 1 and 3, that the appellant went to knock down the child on the gravel verge off the tarmac, he accepted the appellant's contention that the deceased must have suddenly stepped onto the tarmac. There was a dispute whether the deceased did so in front or at the side of the vehicle as alleged by the appellant which the learned trial judge resolved against the appellant. In the view that we take, the important point was the finding that the deceased suddenly stepped into the road. The learned trial judge conyicted the appellant on the basis that he was driving "at quite a high speed, in complete disregard of the fact that he was passing through a built-up area and that there were children nearby." In coming to this conclusion, the learned trial judge relied partly on PW3's evidence of a sketch plan showing that there were skid marks (about 10 metres long) which he found to be indicative of the fact that the appellant had not reduced speed to a level where he could stop safely in the event of one of the children straying onto the road. The learned trial judge after finding that the deceased had strayed onto the extreme edge of the tarmac when he was struck concluded by saying:- ’ ,«■ i. . 'St ■ *■’ "If the driver had exercised due care by reducing his speed and by observing that the boy was well off the reach of the vehicle, the boy’s life would have been saved." He then went on to find that the appellant's driving had fallen short of the objective standard required of prudent drivers as discussed in the authorities. On behalf of the appellant, counsel criticised the finding of excessive speed based on skid marks caused by braking after the impact, more especially that this was evidence from a discredited witness, PW3, whose allegation on the point of impact having been off 3/.......... the road 3/.. 3 - the road was disbelieved. It is correct to say that Kapembwa -v- Maimbolwa and Attorney-General (1) is one of the authorities on the need for care to be taken before accepting evidence on a point from a witness who was not truthful or not credible on another point. It was also a valid criticism to say that skid marks do not necessarily indicate excessive speed. However, the further criticism that the learned trial . judge failed to make a finding on the point of impact was not borne out by the judgment on record where he did find to the effect that the child had at the critical moment walked onto the extreme edge of the tarmac where the appellant's "vehicle hooked or scooped him and flung I him off the road". From the record, it is clear that there was no suggestion that the accident was caused by skidding. The so-called skid marks were in fact brake marks after the event and the only reliable evidence of speed was that given by the appellant himself. However, we should also mention that any speed, even of 60 KPH, is not necessarily : of its own to be regarded as dangerous nor can we accept that drivers must be able to stop everytime a pedestrian does the unexpected. All the circumstances must be examined. • ■ ■ ' - . .. - • ■ ■ ? ‘ -•/. > £ .■ ■ :: • The true issue is whether the appellant drove in a dangerous manner thereby causing the death of the deceased. The question is ’ whether the finding can be supported that the appellant did not exercise due care by reducing speed and by observing that the deceased was well off the reach of his vehicle, as held by the learned trial judge. In effect, the learned trial judge found that the appellant failed in the face of a foreseeable risk to adopt a suitable speed and to maintain a safe distance between his vehicle and the children in case one of them strayed onto the tarmac. Counsellor the appellant.argued that the conduct of the appellant was that of a prudent driver: He had reduced speed to 60 KPH; he had hooted and there was nothing more for him to do. The whole unfortunate accident was caused by the child and not the appellant when the former suddenly stepped onto the tarmac. Counsel for the state supported the learned trial judge's conclusions. W 4/............ #We have - - We have considered the arguments and the submissions. It is obvious that the offence under discussion is not one of strict liability so that it is always necessary that there should be fault on the part of the driver before he can be liable: see, R. -v- Gosney (2). In addition, as discussed in cases such as Chanda -v- The People (3) and DPP -v- Chilombo (4), liability also depends on whether, from an objective point of view, the actual or potential danger of injury to other persons was reasonably foreseeable in the ordinary course. DPP -v- Chilombo further confirmed the principle that the offence of causng death by dangerous driving is committed even though the deceased by his own conduct contributed to his death so long as the accused's manner of driving was a substantial cause of the accident, that is, something more than de minimis. As to fault, the court observed in Gosney at page 224:- : "We would state briefly what in our judgment the law was and is on this question of fault in the offence of driving in a dangerous manner. It is not an absolute offence. In order to justify a conviction there must be, not only a situation which, viewed objectively, was dangerous, but there must also have been some fault on the part of the driver, causing that situation. •Fault* certainly does not necessarily involve deliberate misconduct or recklessness or intention to drive in a manner inconsistent with proper standards of driving. Nor does fault necessarily involve moral blame. Thus there is fault if an inexperienced or a naturally poor driver, while straining every nerve to do the right thing, falls below the standard of a competent and careful driver. Fault involves a failure; a falling below the care or skill of a competent and experienced driver, in relation to the manner of the driving and to the relevant circumstances of the case. A fault In that sense, even though it might be slight, even though it be a ' % 5/.....a momentary a momentary lapse, even though normally no danger would have arisen from it, is sufficient. The fault need not be the sole cause of the dangerous situation. It is enough if it is, looked at sensibly, a cause. Such a fault will often be sufficiently proved as an inference from the very facts of the situation. But if the driver seeks to avoid that inference by proving some special fact, relevant to the question of fault in this sense, he may not be precluded from seeking so to do." With regard to the question of possible contributory negligence even to a major degree on the part of the deceased, such contributory negligence would be relevant to sentence or mitigation but would not relieve the accused if he was in fact also at fault unless his contribute was so insignificant as to be de minimis. This was the principle confirmed in Chilombo (4) which' followed R. -v- Hennigan (5). We cite all these authorities not only because they deal with the; objective test to be adopted but also because the contention here was that the deceased was wholly to blame and the appellant wholly in the clear. The question arises whether there was any duty on the part of the appellant not only as regards his speed but also to anticipate that one of the children might stray onto the tarmac, as experience shows young pedestrians frequently do in this country, so that he should have maintained a safe distance from the edge of the road where the children were walking, as suggested by the learned trial judge. The Highway Code published under the authority of Section 257 of the Roads and Road Traffic Act, Cap. 766 is instructive in its many rules. In the Section dealing with the safety of pedestrians \ rules 46, 53 and 54 may be cited as examples and these read:- "46. The young and the elderly may not judge speeds very well, and may step into the road when you do not 6/........ Expect -Ar ■* * ■ '■ -Ju' - 6 expect them. Give them, and the infirm, or blind, or disabled people plenty of time to cross the road. 53. Be careful when there are pedestrians, processions or other marching groups in the road, particularly where there is no footpath. Give them plenty of room. Be especially careful on a left-hand bend and keep your speed down. 54. On country roads watch out for pedestrians and animals, give theaT'plenty of room, especially on left-hand bends, and sound your horn in good time." The motorist is advised, among other things, to give pedestrians, especially the young and the old,plenty of time and plenty of room. In the case at hand, the learned trial judge’s finding on the facts amounted z to one that the appellant did not give the young pedestrians.plenty of room when he drove past them at "quite a high speed." It seems to be clear also that, contrary to the submissions, the learned trial judge did not base his conviction on speed alone but on the failure to allow a reasonable margin of distance so that the deceased "was well off the reach of the vehicle." We are aware, of course, that all road users owe each other a duty of care so that even the pedestrian who steps from the kerb into the roadway owes a duty to traffic which is approaching him with risk of collision to exercise due care: see for instance Nance -v- British Columbia Electric Railway Company (6). The authorities, including those cited in The People -v- Zulu (7) also indicate that the motorist has a duty to anticipate certain common types of folly in others and failure to do so may result in driving which is below the acceptable standard. It is certainly not uncommon for children to stray onto the tarmac and it is not all right to drive past them only a small step c away and at 60 KPH. 7/.......... // It is It is apparent from the foregoing that we consider that, despite 7 - the few mistakes which we have noted, the learned trial judge was not • * •'". S'; in error when he convicted the appellant. The appeal against conviction is dismissed. With regard to the sentence, the appellant was fined K800.00; sentenced to two years imprisonment with hard labour, suspended, and . had his licence suspended for two years. It was argued in the heads of argument that the appellant did not drive recklessly or in wilful ;; •• • "F; disregard for the safety of others. We also take into account that, onV * • * the facts, there was a very high degree of contributory negligence on the part of the deceased. -We agree, therefore, that the sentence was excessive and unduly severe. We allow the appeal against the sentence and vary the sentence by upholding the fine while quashing the suspended term of imprisonment and reducing the,period of suspension of the driving licence to twelve months. M. M. S. W. Ngulube DEPUTY CHIEF JUSTICE .■SW s < B. T. Gardner 4; ACTING SUPREME COURT JUDGE ■ ■ ' E. L. Sakala SUPREME COURT JUDGE