Zalbro United Transport Company v Rudnap Zambia Ltd (Appeal 25 of 1986) [1988] ZMSC 80 (25 March 1988)

IN THE SUPREME COURT OF ZAMBIA Appeal No. 25 of 1986 HOLDEN AT LUSAKA .. in the Erection; ■ 1 i ! ■ •/ ur str'/lki?: aeJ rh^efora no. (Civil .^Jurisdiction)'. • c- :y an photographs thw scene , T...ku by the . . ■... ic... </ . ?.?>' as well nd »,n."v gt the ZALBRO UNITED TRANSPORT COMPANY,. Appellan .: • b< inland st-d c-pan cruUr cbservrr.iorts of the ■'nWDIWfZAMBIAbLiM^ • ;. : nther accident features. CORAM: Ngulube, D. C. J. Chomba and Gardner, JJ. S. , • ' ■ ; ■ ■ ’ • i; '■ ■ •" '■I ; h 1 ' I S 31 d bi; OU CGt ' ■ 10 I t 31st March, 1987 and, 25th. March, ,1988 .f,^# A. D. Adam, Messrs Solly Patel Hamiriand: Lawrence/sforuthe appellant . S. S. Kakoma, Messrs Shamwana^ and1 Company,’ for’the Respondent’’ -.j.-,. ?! • - with the cab overhanging the steep J/UiDcG M E;NJW? W35 1:.?- ‘he pontiff Ngulube, D. C. J.:delivered the judgments.the court- been made u-r* b .. ??irg dragged along after the rv-'.cc. There 7W t ih$ wind-screen of the-defendants truck lay on (1) ■ Kenmuir -v- Hattingh (-1974) rZRM62ight hand side door of its (2) ■ fere -v- Shamama‘i Another "* ■ irt-cK. HavuiT? hxkkI • 1. the :?u:‘-i.p<jrapL:;. the •. . • in:.??Jf prrtc-ided to rhe defeudesr. *s versicn. The delay in delivering this judgment lis regretted but was" — occasioned by the departure” from the bench of our brother who was" ' . ; He feued it:?- del 'rdp:? originally assigned the task of preparing the judgment of the court. For convenience, we will refer to the: appellant as the1plaintiff-and the respondent as the defendant, which is what they were in the action. • ■. '■ ■' r"' - I i O ’‘>1,1 ’* ' ■ * • ir’ f' - C is whether b’S uiiolographs support: ccnclusioi'i This was an appeal by the plaintiff against the dismissal of his. claim . < c uck wi’Cii was ne<ivx!y against the defendant for .damages.;for negligence;arising <out ^ofi a'o collision between their two trucks on the Batoka/Maamba road infth^ Choma district on 17th July, 11972.. The defendant's truck registration •V / ® v u • rt • •' number EL 9615 was coming from Maamba while the plaintiff's truck 2/............. registration registration number EF 1547 was proceeding in the opposite direction. There was a fatal collision. There were no survivors and therefore no ' * - • m j * ‘ ■ zb • • C 1 eye witnesses. The case rested:entirely on photographs of the scene and the vehicles after the accident taken by the plaintiff's managing director, and evidence of a police officer as well as that of the defendant's witness as to what they had observed at the scene after * 07 the event. The decision below rested upon ocular observations of the ■'iq < vr- r’ ■ -.-i of rfndin photographs and the inferences to be drawn from the positions of the vehicles, the debris, and other accident features. In & somewhat similar in tM- The accident occured in the hills at a blind corner and it * ,, > was the plaintiff's contention, based on the photographs, that the ■■ -"J 1 "rri'.' ! : • ’7 • 1 ft ’ <1JV5TV defendant's trick and trailer must have left their correct side to collide with the plaintiff's truck and trailer which ended up jammed hard against the railings - with the cab slightly overhanging the,steep edge of the road - all on their correct side. The defendant's contention, accepted by the learned trial judge, was that the plaintiff's ' vehicle must have cut across the white middle line onto its wrong side 'Vf: -H.:, albeit i •. ■: jfrnitF’i-'v -• ' ' •_ tip. ■ ; ■ ■ ■ - -V.'* hinn and that certain scratches observed on the tarmac must have been made ■ , .• • ■ ' ■ ■ the by the defendant's truck being dragged along after the impact. There ■' was evidence also that the wind-screen of the defendant's truck lay on however. the defendant's correct side while the right hand side door of its th* ^nd I’m tn?v. may cab was on the plaintiff's side of the road together with the gears and ■ ri the shafts of the plaintiff's truck. Having looked at the photographs, the •• ■ ■ a- r ‘t. •- : Yfl pr ■ ■■ ■ ; ? ; learned trial judge found himself persuaded to the defendant's version. He was of the opinion that the defendant's trailer ended up on its, . j , ,_______________________ ’tt wrong side only after the impact and that it must have swerved and been and !y«'TV*6 ’ ■'■■■ til " wrom ■ pushed backwards as a result of such impact. He found for the defendant. ! • : .. t । j, tot js, is clear tc us that the , < i •. - o .j--. ।v a i ■/ on correct and The issue in this case is whether the learned trial judge was correct in drawing the inferences referred to. The major question which . in (‘U' H.ierc<i falls to be answered is whether the photographs support the conclusion . h/i Jy ;■ reached that the defendant's truck which was heavily laden with coal- was pushed onto its wrong side after the collision. There are no , • •"" '!”.i’r'’-T ainno tn vtner ’ ch ■ v. t ■ , > । i,n< ■■ 5 > ■;■■■ c-’i hy the IcarneG t? judge. 3/-................ iv,.. issues : J3 : - issues of credibility involvedJn this case., v.0urrpos^ <■' that ‘s truck and treilfer were case was aptly summarised in Kenmuir -v- Hattingh ..(1^where we $aid, reading from the first headnote, that an.appeal from,:a. decision,of,,a . judge sitting alone is by way of rehearing on/the,repord pnd, theic., * appellate court can make the. necessary findings .of..facts, if..the..findings were conclusions based on facts which were common cause.or real evidence, when the appellate court is in.as good a’position.as , the trial court. As a matter of fact, our approach in,this.case,will follow that which we adopted in a somewhat similar situation in. the, ,,, case of Jere -v- Shamayuwa and Another (2) where the question was, on the real evidence, namely the photographic evidence and the unco.ntroverted positions of the vehicles after,the. accident,.which(pf Jwp, opposing^, versions of the accident was to be believed, u,.. f,r ■ “t: for the plaintiff for damans to be Mr. Adam relied on the photographs for his argument that the ■ -.r • learned trial judge was wrong and should have seen the reverse of what he considered to have been the position. Mr. Kakoma conceded, albeit somewhat reluctantly, that the photographs did not depict anything ... other than that the plaintiff's truck and trailer were wholly on the plaintiff's correct side and that it was the defendant's truck which was on the defendant's incorrect side.;. He/argued, however, that the vehicles must have swerved after the impact and that they may > .-prfV not necessarily have collided where they appear to have done so in the photographs. We have examined the_photographs andiwe^areuguitejsatisfied F. M. Chomba ■ r that the learned trial judge misread them and theeefore came to a wrong conclusion. From such photographs, it is quite clear to us that the plaintiff's truck and trailer were wholly on their correct side-and .... could not conceivably have been pushed there'.after an Impact on the wrong side of the road. It was also most improbable, in our considered opinion, that the defendant's truck and trailer-which were heavily laden with coal-could have been either pushed or dragged-along to the other side of the road in the manner suggested by the learned trial judge. 4/............... On On the contrary, the fact that the plaintiff's truck and trailer were janwed hard against the railings and near the brink, on their own side; and the fact that the defendant's trailer was wholly on its wrong side together with the defendant's door and parts from the plaintiff's truck, clearly supported,Vin our view, the plaintiff's contention and il version of the accident. The typothesis advanced by the defendant, and accepted by the learned trial judge, was, on the real evidence, , most unlikely and accordingly .the plaintiff's version more probable and.more in conformity with the facts depicted by the photographs. We are satisfied that the learned trial judge had.misdirected himself on the real evidence which was before him. ‘ — i'Ph, V-'-/ <:iid t&rch, It follows from the foregoing discussion that this appeal is u allowed, with costs both here and below to be.taxed in default of agreement. We enter judgment for the plaintiff for damages to be ' * ** ’ I’ f ; *C< I' ■ ’ assessed by the Deputy Registrar. —- ----- -—1----------------------------- ,------------------ . ;■ r >> * . ' ■ “ - ‘ U - - . - . __ . „ __ ....___ , \ ' t it- judg-pcnt of tihe c&ul*t j ...... « ... aM. S. Ngulube • -DEPUTY CHIEF JUSTICE — - • ---------- --------.------ , {1S7&) ZR 204 ;<■<, vVtf ■: n . this hqt — ■ rron wnch of Qur brother was SUPREME COURT JUDGE ; ■tpsk of,. the judgment of thv court. > r ■. t ■... ; ■, ;' .,r;t • • y • . - ■ . -t • ,c ^SUPREME COURT JUDGE iti tf;f: i s Li/ty ........... .registrar iop