Mugodi and Anor v Musonda (administratrix Kabaso and Ors) (Appeal 175 of 2014) [2017] ZMSC 275 (14 June 2017)

IN THE SUPREME COURT OF ZAMBIA Appeal No. 175/2014 HOLDEN AT NDOLA (Civil Appellate Jurisdiction) BETWEEN: ELIJAH MUGODI C. R. HOLDINGS AND 1st appellant 2nd APPELLANT MARY MUSONDA (As Administratrix of the estate of the late BOYD KABASO) and 13 Others RESPONDENTS CORAM: Mwanamwambwa DC J, Kajimanga, Kabuka, JJS; On 5th June and 14th June, 2017. FOR THE APPELLANTS: Mr. N. Ng’andu, Messrs Shamwana & Company. FOR THE RESPONDENTS: Mr. T. K. Ndhlovu, Messrs Batoka Chambers. JUDGMENT KABUKA, JS delivered the Judgment of the Court. Cases referred to: 1. Eagle Charalambous Transport Limited v Gideon Phiri (1993/1994) Z. R. 180. 2. Anns v London Borough of Merton [1977] 2 ALL E. R. 492. J2 3. Industrial Gases Limited v Waraf Transport Limited and Musa Mogeehaid (1995/1997) Z. R. 183 (SC). 4. Attorney General v Marcus Kampumba Achiume (1983) Z. R. 1 (SC). 5. Wilson Masauso Zulu v Avondale Housing Project Limited (1982) Z. R. 172 (SC). 6. Nkhata and Four Others v Attorney General (1966) Z. R. 124 (C. A..). 7. Blyth v Birmingham Waterworks Co. [1843-60] All E. R. 478. 8. Morris v Mayor, Aiderman and Burgess of the Burough of Luton (1946) 1 All E. R. 1. 9. Duncan Sichula and Muzi Transport Freight and Forwarding Limited v Catherine Mulenga Chirwa (Married Woman) (2000) Z. R. 56 (SC). 10. Felicitas Mwaba, Queen Mwaba (suing by her Father and next friend Leonard Mwaba) and Angela Mwaba (suing by her father and next friend) v Mwababu Machisa and Charalambous Transport (1987) Z. R. 114 (SC). 11. Chanda v The People (1979) Z. R. 174 (SC). 12. Anort Kabwe & Another v James Daka and Others (2006) ZR 12. 13. Mutambo and Five Others v The people (1965) Z. R. 15 (C. A.). 14. Undi Phiri v Bank of Zambia (2007) Z. R. 186 (SC). 15. King v Phillips [1953] 1 ALL ER 617. 16. Pratt v Krause [1948] 2 WWR 298 (CAN). 17. Donoghue v Stevenson [1932] AC 562. Works referred to: 1. Jolowicz et al., Winfield on Tort, 8th Edition, 1967, Sweet & Maxwell, London. 2. Street H, The Law of Torts, 5th Edition, 1972, Butterworths Law Publishers, London. 3. Heuston R. F. V, Salmond on the Law of Torts, 12th Edition, 1957, Sweet & Maxwell, London. 4. Lord Hailsham of St. Marylebone et al., Halsbury’s Laws of England, 4th Edition, Reissue, Volume 46, 1992, Butterworths Law Publishers, London. t » J3 5. Malek, H. M. et al., Phipson on Evidence, 17th Edition, Sweet and Maxwell, 2010, Thomson Reuters, London. 6. Garner, B., Black’s Law Dictionary, 8th Edition, Thomson, West Group 2004, United States of America. On the 7th of August, 2014, the High Court found the appellants liable to the respondents in negligence and accordingly entered interlocutory Judgment in favour of the respondents. This appeal by the appellants is directed at the lower Court’s finding of liability against them. The background facts of the case are that, the 2nd appellant was owner of a public passenger Marcopolo Bus, registration no. ABD 5307. The 1st appellant was employed as driver by the 2nd appellant and was at all material times driving the said bus. On the 9th of October, 2008, the respondents were all part of the 48 passengers who were on this bus which was headed for Johannesburg in South Africa. On their way, they passed through the Kadoma District of Zimbabwe and whilst the bus was being driven along the Harare-Bulawayo highway, it got involved in a road traffic accident. As a result of this accident all the passengers on board the bus suffered various degrees of t J4 injuries, some very serious, while two, Boyd Kapaso and Rachel Mushimpuka, lost their lives. Two years after this accident had occurred, personal representatives of the two deceased passengers commenced an action before the High Court, in Cause No. 2010/HP/0313. They were seeking damages under the Fatal Accident’s Act; refund of funeral expenses; refund of a sum of K50,000,000.00 which was lost at the accident scene; interest; and any other relief. The injured passengers also commenced their own independent action being Cause No. 2010/HP/0451 in which they too, were seeking damages for injuries suffered in the accident; refund of medical expenses incurred; refund of U$20,000 which was lost at the accident scene; loss of business; interest thereon; further or other relief and costs of the action. In their respective statements of claim, the respondents in both actions pleaded that the accident arose from the negligent driving of the 1st appellant, as servant of the 2nd appellant. Particulars of the negligence were given as failure by the driver to observe his duty of care to give other motorist the right of way on the road; breach of the duty owed to other road users especially ! J5 those who had the right of way at the time of the accident; cutting in front of other motor vehicles thus causing panic; uncertainty and fear to other road users (motorists); over speeding, thereby losing control of the motor vehicle and ultimately causing the accident; and failure to take reasonable care not to harm or injure passengers on board the bus. In their joint defence to the respondents’ claims the appellants denied any negligence on their part and placed blame on the driver of the truck which was involved in the accident. The two actions were subsequently consolidated and heard as one matter. At the hearing, the respondents called seven witnesses who were all passengers on the bus. These witnesses gave a similar account of the events that led to the accident. In their testimonies the witnesses stated that, after paying for their bus fares, they boarded the appellants’ bus that was bound for South Africa, from Lusaka, at around 13:00 hours. The bus went through the Chirundu border post and after being cleared by immigration officers, it proceeded on its journey. The 1st appellant decided to use a short cut through Kadoma in J6 Zimbabwe, instead of going through Harare, as usual. After a stop-over for refreshments, the 1st appellant is said to have driven at a high speed, exceeding the limit of 80 km/hour, to which the passengers protested but their concerns went unheeded. The witnesses’ further testimony was to the effect that, when they came to a curve on the road, the 1st appellant attempted to overtake a small vehicle which was ahead of their bus. Immediately thereafter, he appeared to have noticed that there was a truck approaching from the opposite direction which was in the other lane. As the distance between the bus and this truck was very short, the 1st appellant swerved to the right side of the road, in an apparent effort to avoid a head-on collision but this resulted in the bus going off the road and into the bush, where it finally overturned. Passengers on the bus, amongst whom were the witnesses called by the respondents, suffered various degrees of injuries from the accident, some so serious that their right arms had to be amputated, while two passengers died from their injuries. In addition, some of the accident victims were robbed of their belongings and monies meant for business, by villagers living close to the accident scene. J7 There were two Police reports of the accident that were prepared by the Zimbabwe Traffic Police, Kadoma Central Traffic, which were referred to in evidence before the trial Court. The first police report which is dated 9th October, 2008 is hand written and was authored by a police officer who first came to the scene of the accident shortly after it happened. The gist of this report is that the author therein states that, the driver of a Bedford Truck which was coming from the opposite direction caused the accident, as he was travelling in the wrong lane. The report went further to state that, the 1st appellant could still have avoided the accident if he had not been driving the bus at an excessive speed. The second police report which was prepared six months after the accident, is typed and dated 28th April, 2009. It states that, the driver of the Scania Marcopolo bus (1st appellant) had embarked on overtaking a vehicle ahead of him whilst there was an oncoming Bedford truck from the opposite direction. That in the process of trying to avoid a head on collision with the truck, the 1st appellant swerved the bus to the right, veered off the road, overturned and the bus finally landed on its right side. J8 In defence of the respondents’ claims, the appellants’ evidence as given by the 1st appellant, confirmed that at the material time of the accident he was driving the bus in the course and scope of his employment with the 2nd appellant. The 1st appellant however denied having consumed any alcohol whilst driving, as alleged by one of the respondents’ witnesses. His version of the events immediately preceding the accident was that, after reaching a point where the road curved to the left, he saw a light truck parked off the road with its lights off. As he was about to drive past it, the lights went on and the truck began to move onto the main road. Due to the short distance between the truck and the bus, the 1st appellant was unable to break in time to stop a head on collision. He was thus forced to swerve to the right side of the road but the truck continued coming forward until it hit the rear wheels of the bus, causing it to flip over into a ditch where it landed on its side. When he got out of the bus and went on the road to check what had happened, the 1st appellant noted that the truck had crossed the white line and he marked the spot. The 1st appellant denied the allegation that he was over speeding, asserting that, the bus had a speed limiter which prevented it from going over ( J J9 100 km per hour. He claimed that he was driving at 75 km per hour when the accident happened. He denied any negligent driving on his part or that he was attempting to overtake any motor vehicle when the accident happened. He placed the blame on the driver of the truck who was subsequently, charged with culpable homicide. He also said he was only aware of one typed police report, which he availed to the 2nd appellant. Upon considering this evidence that was before it and submissions filed by Counsel, the trial Court noted that, there was no dispute as between the parties on who the passengers on this bus were at the material time, nor that, the 1st appellant was the driver of this bus, as an employee of the 2nd appellant. The trial Court found that the issue to be determined was, who should be held responsible and liable for the accident. The trial Court considered whether or not the 1st appellant was over speeding or attempted to overtake another motor vehicle at a curve, as contended by the respondents and observed that, for liability for negligence to arise, the question posed would have to be answered in the affirmative. The court noted that the rule of evidence, res ipsa loquitur sought to be relied upon by Counsel for the respondents in their submissions, had no place in the J10 matter, as the conditions for invoking this rule had not been satisfied. The case of Eagle Charalambous Transport Limited v Gideon Phiri’1’ was referred to, where this Court held that, a plaintiff who alleges negligence or knows the cause of the negligence, cannot at the same time plead res ipsa loquitur. The trial Court went on to consider the two police reports dated 9th October, 2008 and 28th April, 2009. It noted that, in terms of these reports, both the 1st appellant and the driver of the truck were equally blameworthy for the accident. This was so notwithstanding that the decision to charge the 1st appellant was arrived at, only one year after the date of the accident. The Court however, found that the contents of the first police report alone could not form a basis for attributing liability to the appellants as it merely reflected the opinion of the Zimbabwean police; and that it had to be satisfied, on the totality of the evidence put forward by the parties, that the 1st appellant was indeed over speeding or acted negligently. In the premises, it was the trial Court’s finding that the two police reports only went to confirm the veracity of the respondents’ witnesses’ oral evidence, that the 1st appellant was over speeding when the accident happened. The Court observed Jll that, the 1st appellant’s evidence that he was driving at 75 km per hour as well as the question of whether or not the bus had a speed limiter of up to 100 km per hour were both immaterial, in view of the evidence that the accident happened on a curve. The trial Court found that a careful driver is expected to reduce speed way below 100 km per hour when driving along a curved road. It further observed, that the 1st appellant had also failed to show that the respondents’ witnesses had lied when they testified that he was over speeding or that the two police reports which were prepared by non-interested parties contained falsehoods. The trial Court pointed out that, Counsel for the appellants had blown hot and cold air in relation to the 1st police report by firstly relying on the report to argue that the 1st appellant was not responsible for the accident and in the same breath, sought to discredit the same report, suggesting that it is the appellant’s over speeding which caused the accident. The trial Court accordingly came to the conclusion that, the only reasonable inference that one could draw from the 1st appellant’s evidence, that he could not brake when he saw the truck driving towards the bus is that, he failed to do so because he was over speeding. J12 Regarding the question whether the 1st appellant attempted to overtake another motor vehicle immediately prior to the accident, the trial Court considered the second police report dated 28th April 2009, which states that the 1st appellant overtook a vehicle which was ahead of the bus whilst there was an on-coming truck and it was in the process of trying to avoid a head on collision that the 1st appellant swerved to the right and veered off the road. The court found that this report ‘corroborated’ the oral testimonies of the respondents’ witnesses who said that, the 1st appellant was overtaking another vehicle at a curve and caused the accident as he tried to avoid colliding with a truck that was approaching from the opposite direction. On the basis of that oral evidence, the court rejected the appellants’ contention that because the first police report of 9th October, 2008 did not mention another vehicle, he could not have been attempting to overtake any motor vehicle, at the material time. On the law relating to the tort of negligence, the trial Court noted the matters that are to be considered as set out in Anns v London Borough of Merton,*21 firstly, that one must determine whether there is a sufficient relationship of proximity or J13 neighbourhood between the wrong doer and the person who has suffered damage such that in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter, if so, whether there are any considerations which would limit or reduce the scope of this duty or the class of persons to whom it is owed or the damages. The trial Court accordingly determined, that the respondents in this case needed to prove that the appellants owed them a duty of care; that such duty was breached by the appellants; that the respondents suffered damage; and the damage was caused by the appellants’ said breach of duty. The trial Court found that all the elements of negligence were established by the evidence led. It concluded that the 1st appellant breached the duty to drive with care by over speeding and attempting to overtake another vehicle at a curve, without seeing oncoming vehicles at a safe distance. That it is this breach of duty to drive with care which caused the accident from which the two deceased suffered death and caused other passengers damages in the form of personal injuries, loss of property, medical expenses as well as loss of business. The Court further found, that there were no considerations that would negative, J14 reduce or limit the scope of the 1st appellant’s duty of care, as no such considerations were brought to the Court’s attention. Accordingly, the trial Court was satisfied, that a case of negligence had been made out against both appellants. That the 2nd appellant was vicariously liable for the negligent acts of the 1st appellant, who was its employee at the time of the accident, and entered interlocutory Judgment in favour of the respondents. The case of Industrial Gases Limited v Waraf Transport Limited and Musa Mogeehaid|3) was cited to emphasise the principle of vicarious liability. The matter was thereafter referred to the Deputy Registrar for assessment of damages, to determine the amounts to which each of the respondents was entitled. Dissatisfied with the Judgment, the appellants have appealed on three grounds, which are couched in the following terms: 1. That the learned judge in the court below erred in law and fact in holding that the police report dated 28th April 2009 confirmed that the Plaintiffs’ (respondents) corroboratory testimonies that the 1st Defendant (1st appellant) was attempting to overtake another motor vehicle at a curve; J15 2. The learned judge in the court below erred in law and fact in holding that a case of negligence had been proved against the 1st Defendant and that he breached a duty of care; 3. The learned judge in the court below erred in law and fact by relying on the police reports in holding that the 1st Defendant was driving at an excessive speed. The appellants filed written heads of argument in support of their grounds of appeal. The arguments on ground one were that, the trial Court misdirected itself when it found as a fact, that the 1st appellant had attempted to overtake another motor vehicle on the road and thereby caused the accident in issue. Counsel cited the cases of Attorney General v Marcus Kampumba Achiume’4’; Wilson Masauso Zulu v Avondale Housing Project Limited ,5); Nkhata and Four Others v Attorney General’6*; to outline circumstances in which an appeal Court will reverse findings of fact made by a trial Court. His argument was that, the allegation that the 1st appellant attempted to overtake a motor vehicle at a curve was not pleaded by the respondents in either of their statements of claim. Regarding the second police report dated 28th April 2009, which the respondents sought to rely on and which the learned J16 trial judge was said to have considered in coming to his conclusions, Counsel for the appellants argued that, whilst the first police report which was an incident report, had made no mention of the 1st appellant overtaking another motor vehicle, the second report did, thus raising doubt as to the latter report’s veracity. It was Counsel’s further argument that, if the second report as aforesaid, corroborated the respondents’ testimony that the 1st appellant overtook another vehicle, as found by the trial Court, then, the 1st police report of 9th October, 2008 equally corroborated the 1st appellant, when he testified that, he did not overtake any vehicle. Counsel argued that, it would be absurd to hold that because seven witnesses gave the same testimony relying on one document, therefore their testimony outweighs the contrary testimony of a single opposing witness relying on another document. The submission was that, if the respondents’ account of the accident were to be considered as accurate, then a third vehicle at the scene, in Counsel’s view, would not have escaped the accident and would have been part of the carnage. J17 Counsel also observed that, no witness was called to testify or speak on the second police report and it was uncertain where the facts were gleaned from and how the conclusions premised on this report, were arrived at by the trial Court. The submission was that, the trial Court erroneously found as a fact, that there was a vehicle which the 1st appellant attempted to overtake and consequently, collided with the oncoming truck. On ground 2, Counsel quoted from learned authors: Winfield on Tort, 8th Edition, Streets Law on Torts, 5th Edition; Salmond on the Law of Torts, Twelfth Edition; Halsbury’s Laws of England, 4th Edition, Volume 46 and the English cases of Blyth v Birmingham Waterworks Co.’7’ and Morris v Mayor, Aiderman and Burgess of the Burough of Luton’8’ on what factors constitute a breach of duty of care and how negligence is determined in a particular case. His submissions were that, it is incumbent on a plaintiff to prove that his loss or injury is attributable to the defendant’s breach of a duty of care owed to him. Counsel argued that, a driver cannot be said to be negligent or assumed to have been over speeding simply because he failed to apply his brakes on time. Counsel argued that the question to be determined in ground two, is J18 whether the 1st appellant, did in fact breach the duty of care owed to the respondents and caused harm to them as a result. He relied on the case of Duncan Sichula and Muzi Transport Freight and Forwarding Limited v Catherine Mulenga Chirwa (Married Woman)(9), which was also cited by the respondents in the Court below which held that, a plaintiff can recover from one of two or more possible joint tortfeasors and it would then, be up to the wrongdoers to take steps to recover contributions from each other. Counsel quoted from the testimonies of the respondents’ witnesses who testified as PW1, PW3 and PW5 and who were said to have admitted that the truck driver was responsible for the accident. Counsel then referred to the contents of the first police report which is to the same effect and argued that, the respondents were aware that a third party had caused the accident and only sued the appellants as a matter of convenience. It was Counsel’s contention that, the 1st appellant had probably saved more lives by swerving the bus in a bid to avoid a head on collision with the Bedford truck and that it was therefore a misdirection for the trial Court to conclude that the 1st J19 appellant was driving at an excessive speed without knowledge of why this observation was made in the police report, when the author did not testify to clarify the point. Counsel concluded the 1st appellant did not breach any duty of care nor was he negligent and the trial court misdirected itself in concluding that he was. Finally, on ground 3, Counsel for the appellants referred to the police reports and the evidence of the respondents’ witnesses which was considered by the trial Court to come to the conclusion that the 1st appellant was over speeding. He cited the case of Felicitas Mwaba, Queen Mwaba (suing by her Father and next friend Leonard Mwaba) and Angela Mwaba (suing by her father and next friend) v Mwababu Machisa and Charalambous Transport110’ to support the submission that, this Court must set aside the finding of fact that the 1st appellant was driving too fast or inattentively, as it was not supported by the evidence. Counsel further submitted that, in past decisions, this Court has placed emphasis on the need for trial Courts to fully examine the evidence presented by both parties and not arriving at conclusions based on pre-conceived notions. That there was also a danger in focusing on the evidence of one party over the J20 other, without giving reasons for doing so. He further cited the criminal case of Chanda v The People’111 in which this Court placed emphasis on the need for drawing proper inferences in motor vehicle accident cases from real evidence, rather than the evidence of the parties and their witnesses which will invariably conflict. Counsel’s submission in this respect was that, although such evidence appears more crucial in criminal cases, its value is apparent in civil cases where negligence is alleged. Counsel argued that, the question of whether the 1st appellant was driving at an excessive speed can only be determined by ascertaining, what in the circumstances, would have been a reasonable speed for him to drive at and if that could be determined, it must be shown that he drove above that speed, thus breaching his duty of care to the respondents. Counsel referred us to the case of Morris v Mayor, Aiderman and Burgess of the Burough of Luton and reiterated that, a trial Court must examine the evidence before it carefully before drawing conclusions. He contended that three of the respondents’ witnesses, PW1, PW3 and PW5 could not hazard a guess as to what speed the 1st appellant was doing and it would thus be J21 difficult to decide solely on their testimony that he was over speeding. Counsel argued that, although the police reports mention that the driver was driving at an excessive speed and could have avoided the accident, it remained unclear how such conclusion was arrived at, as the person who authored the report was not called upon to testify. The further argument advanced by Counsel was that, there was no evidence that challenged the 1st appellant, that he was driving at 75 km per hour in a speed zone of 80 km per hour, and further, that there was no evidence that he exceeded the speed limit. Counsel in conclusion submitted that, the assertion that the 1st appellant drove at excessive speed was at best an opinion as opposed to a finding of fact. In augmenting his written submissions orally, at the hearing, Counsel for the appellants stressed the point that, the trial Court was wrong to have relied on the first police report in coming to the conclusion that the accident was caused by over speeding on the part of the 1st appellant, when the witness who prepared it was not called to testify on the document and be cross-examined on it. The case of Anort Kabwe and Another v Janies Daka and Others*121 was cited in support of the J22 submission that, failure to call the witness renders the document mere hearsay. In response, Counsel for the respondents who did not file any heads of arguments indicated he was relying on his submissions filed in the Court below. In substance, the said submissions supported the findings of the trial Court, that the evidence led, had established that the appellants were liable to the respondents in negligence. We have considered the arguments, submissions from learned Counsel on both sides, together with the case law and other authorities on which they relied to support their clients’ respective cases. Having considered the grounds of appeal we propose to start with grounds one and three, as we are satisfied that the issue raised is the same. Both grounds attack the trial Court for having placed reliance on the two police reports, which it found, ‘corroborated’ evidence given by the respondents’ witnesses to the effect that, the accident was caused by the 1st appellant as he was speeding at a curve; and as he tried to overtake a vehicle which was in front, without paying attention to an oncoming Bedford Truck. That the 1st appellant was thus compelled to swerve to the right side of the road in order to avoid J23 a head on collision with this truck. In the process, he lost control of the vehicle which ultimately, resulted in the accident in issue. Although a lot has been said about the two police reports, the first question which in our view begs an answer is with regard to the evidential value of these reports. We have in this respect noted that the authors of both reports expressed personal opinions but were however, not called as witnesses to shed light on what basis they came to the conclusions conveyed in the said opinions. In the first police report, the opinion expressed is that the accident could have been avoided by the 1st appellant if he had not been 'driving at an excessive speed.’ The second police report speaks to the opinion that, 'the accident was caused by the 1st appellant’s unsuccessful attempt to overtake at a curve,’ a vehicle that was in front of the bus he was driving. There is also nothing on record to show how the same reports were produced in evidence. This being a civil matter, there similarly, is no indication in the notes of proceedings, that the Bundles of Documents were agreed upon by the parties. All there is, is reference to the first police report by Counsel and the witnesses. J24 While the 1st appellant in his testimony said when he received the second police report, he handed it over to the 2nd appellant. What is clear however, is that the purpose of seeking to introduce the two police reports in evidence by referring to them was to rely on the opinions expressed therein by the authors, to prove that the 1st appellant was over speeding at a curve and that he was also in the process of overtaking another vehicle. Such evidence clearly falls in the category of hearsay. As stated by the learned authors of Phipson on Evidence, 17th Edition, paragraph 28-02 at page 856: “ The word (hearsay) implies that a witness is prevented from reporting a communication heard outside the Courtroom but this is not the case. Hearsay is not defined by the nature of the evidence (an out of Court statement) but by the use to which it is put. To be excluded as hearsay the out of Court statement, must be relied upon to prove the matter stated.” (emphasis in bold supplied) In the case of Mutambo and Five Others v The People*131, hearsay was explained as: ‘Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.” J25 In the premises, we are satisfied that the two reports were not properly produced in evidence at the trial and at the most, constituted hearsay evidence which is inadmissible. We now proceed to consider the issue raised in grounds one and three of the appeal. Starting with ground one, the grievance raised in this ground of appeal is that the Court below ought not to have found that, the second police report ‘corroborated’ the respondents’ testimonies when it states that, the 1st appellant was attempting to overtake another vehicle at a curve when the same was not pleaded by the respondents in their statements of claim. Our careful perusal of the record on this argument by the appellants has disclosed that both of the respondents’ statements of claim show that, although the exact wording as proposed by the appellants was not used yet, the particulars of negligence are given in paragraph (c) as ‘cutting in front of other motor vehicles.... over speeding, thereby losing control of the motor vehicle and ultimately causing the accident; and failure to take reasonable care not to harm or injure passengers on board the bus, and eventually causing the accident.’ In our view, these particulars are wide enough to cover overtaking. J26 Further, and in any event, the appellants did not object to the evidence of 'overtaking’ when it was led by the respondents’ at the trial and the trial Court was thus, not precluded from considering it. We re-iterated this position in the case of Undi Phiri v Bank of Zambia’14’ when we held that: “...........matters that a party wishes to rely upon in proving or resisting a claim must be pleaded. However, as we said in the case of Mazoka & Mwanawasa 85 Others (2005) ZR 138, where a party does not object to the evidence on unpleaded matter immediately it is adduced, the court is not precluded from considering that evidence.” (emphasis by underlining supplied). The second argument under ground one is that the trial Court ought not to have found that the second police report ‘corroborated’ the respondents, testimonies as states that, the 1st appellant was attempting to overtake another vehicle at a curve. Our perusal of the record of appeal has further disclosed that before reaching the said conclusion, the trial Court actually took the trouble of looking at the whole of the evidence that was before it, as appears in paragraph 2 at page JI5 of its Judgment, where the Judge demonstrates that the evidence he relied on were the oral testimonies: “......... which were given at the trial by the plaintiffs’ (respondents in this appeal) seven witnesses to the effect that the 1st defendant (1st appellant in this appeal) tried to overtake another motor vehicle at a J27 curve and that the accident happened in the process of so doing as he was attempting to avoid a head-on collision with an oncoming Bedford Truck. It is for this reason that I am left with no doubt in my mind that the 1st defendant did attempt to overtake another vehicle at a curve which attempt ultimately resulted in the accident. ” I cannot therefore agree with the Defendants’ (appellants in this appeal) contention that the fact that there is no mention of any motor vehicle other than the Bedford Truck in the first police report is evidence of the 1st defendant’s assertion that he never attempted to overtake another motor vehicle. ” The above paragraph shows that the primary evidence on which the trial court relied to resolve the facts in dispute was oral evidence given by the witnesses on both sides and not the opinions expressed on the impugned police reports. To buttress its findings in this regard, the trial Court also observed that: ‘any careful driver is expected to reduce speed...... when driving along a curved road. ’ The Court went on to consider the 1st appellant’s evidence that he was not driving at excessive speed and dismissed his version of the event, in preference to that of the respondents whose credibility he found was not in any way discredited, in the following words: “Apart from his assertion that he was driving at 75 Km per hour, the 1st defendant (1st appellant) failed to show that the plaintiff’s (respondents’) witnesses gave false testimony that he was over speeding........”(at pp J13 - J 14).” J28 The trial court then concluded thus: "......... in the circumstances of this case, the only reasonable inference that one may draw from the 1st defendant’s assertion that he could not brake when he saw the truck driving towards the bus is that he could not do so because he was over speeding....... when the accident happened. I accordingly make a finding of fact to that effect. ” The reasoning of the trial Court, as revealed in the various quotes, in our view, clearly demonstrates that the evidence relied upon by the trial court to draw the inferences that the 1st appellant was over speeding, was the oral evidence of the respondents’ witnesses which the trial court found was more credible over that of the 1st appellant. We are satisfied that these findings of fact assailed by the appellants in this appeal are supported by the oral evidence on record. In the premises, they did not need any other ‘supportive’ or ‘corroborative’ evidence, as erroneously assumed and stated by the trial Court. In one of its most basic definition as given by Black’s Law Dictionary, 8th Edition ‘corroboration’ means to support by additional evidence or authority.’ And ‘corroborate’ means to strengthen or confirm or to make more certain.’ This brings out the trite legal position of such evidence, that it does not seek to prove the evidence it seeks to corroborate, which is credible on J29 its own, but merely to support or confirm it. Further, in civil matters, such as the present one, whose standard of proof is generally, on a mere balance of probabilities, the oral credible evidence of the respondents’ witnesses which was preferred over that of the 1st appellant was sufficient for the trial Court, to wholly resolve the facts that were in dispute. We are thus satisfied, that even excluding the police reports from the evidence on record, the trial Court could still have properly come to the same conclusions reached, that the 1st appellant did indeed attempt to overtake another vehicle at a curve; that he only saw the Bedford truck belatedly; and failed to stop the bus he was driving because he was over speeding. As the appellants have failed to demonstrate on what other justifiable basis the findings of fact made by the trial court, which had the advantage of seeing and assessing the credibility of the witnesses, can be reversed in line with the numerous decisions of this court on the subject, such as Nkhata and Four Others v The Attorney General; Eagle Charalambous Transport Limited v Gideon Phiri; and Wilson Masauso Zulu v Avondale Housing Project Ltd, we find that the reference to hearsay evidence in the form of police reports, had no bearing on J30 the stand-alone credible oral evidence on which the conclusions of the trial court were grounded. Grounds one and three of the appeal assailing the findings of fact made by the trial Court for having been allegedly anchored on the police reports, accordingly fail. Coming to ground two in which Counsel for the appellant argues that the trial Court erred when it found that a case of negligence had been proved against the 1st appellant and that he breached a duty of care. The finding of the trial Court was that, the 1st appellant was in breach of his duty of care to the respondents, when he failed to drive the bus on which the respondents were passengers, with care. This finding was premised on the trial Court’s specific finding of fact, that the 1st appellant was over speeding and attempting to overtake another vehicle at a curve without first ensuring that it was safe to do so. By implication, the 2nd appellant as employer of the 1st appellant breached the duty of care through the principle of vicarious liability. Although agreeing that the appellants owed the respondents a duty of care, Counsel for the appellants denied that such duty ' " J31 was breached in the circumstances of the present appeal and relied on the case of Morris v Mayor, Aiderman and Burgess as held that, a driver cannot be said to be negligent or assumed to have been over speeding, simply because he failed to avoid a collision. In King v Phillips*15’ Lord Denning L J, summed up negligence in relation to a driver in the following observation: “The true principle, as I see it, is this. Every driver can and should foresee that, if he drives negligently, he may injure somebody in the vicinity in some way or other, and he must be responsible for all the injuries which he does in fact cause by his negligence to anyone in the vicinity, whether they are wounds or shocks, unless they are too remote in law to be recovered. If he does by his negligence in fact cause injury by shock then he should be liable for it unless he is exempted on the ground of remoteness. This principle is the same as that stated by Sir Frederick Pollock in Pollock On Torts, 15th ed, p 334: “....everyone is bound to exercise due care towards his neighbours in his acts and conduct, or rather omits or falls short of it at his peril; the peril, namely, of being liable to make good whatever harm may be proved a consequence of the default.” And in the Canadian case of Pratt v Krause*16’, the court found the defendant negligent for overtaking a truck that was proceeding up a slope when approaching a curve. The defendant was found negligent for failing to keep a proper lookout and not J32 keeping to his side of the road when he could not see far ahead because of the sharpness of the curve. Further, in Donoghue v Stevenson(17) the leading old English case on the subject, Lord Atkin L J, defined ‘negligence’ and ‘duty of care’, to mean that: “....you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is your neighbour? The answer seems to be persons who are closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected, when I am directing my mind to the acts or omissions that are called in question.” This passage, in this classic case, in simple language, settles who is owed a duty of care and it is clear that the 1st appellant in the present appeal owed a duty of care to all the passengers who were on his bus, to take them safely to their destination; while the 2nd appellant as his employer, is vicariously liable for his negligent acts performed in the course of this duty. For the reasons given above, the contentions in ground 2 of the appeal, that the appellants were not negligent and did not owe the respondents any duty of care, must equally fail. J33 All the three grounds of appeal having failed, this appeal is dismissed for being devoid of any merit and the matter is remitted back to the High Court for the Deputy Registrar to proceed with assessment of damages, as ordered by the trial Court. Costs of the appeal will follow the event and are to be taxed in default of agreement. ChKAJH/lANGA SUPREME COURT JUDGE J. K. KABUKA SUPREME COURT JUDGE