CGU Insurance Zimbabwe Ltd v Edward William Kirby

On 3 March 1999, Micah Moyo was driving a Mitsubishi double cab truck from Harare to Masvingo at 110-120 km/h in slightly drizzling conditions. At the 188/5 km peg near Mvuma, as he emerged from a left curve, he encountered the defendant's vehicle traveling in his lane while overtaking three fuel tankers. Moyo initially attempted to swerve left, but the defendant also moved in that direction. Moyo then braked and swung back to center, causing his truck to skid and hit the lead tanker's wheels. His right front wheel came off, the truck spun 90° and came to rest across the tarmac edge. The defendant had brought his vehicle to a safe stop on the gravel shoulder on the wrong side of the road. The plaintiff insurance company, as insurer of Moyo's vehicle, sought damages of $625,506.85 from the defendant.

• Whether the defendant was negligent in his manner of driving
• Whether the defendant's negligence was the proximate cause of the accident
• Whether the plaintiff's insured driver was contributorily negligent by traveling at excessive speed or failing to maintain proper control
• What standard of care applies to a driver on the correct side of the road when confronted by a vehicle on the wrong side

Judgment granted in favor of the plaintiff. The defendant was ordered to pay damages in the amount of $625,506.85 together with interest and costs of suit.

A driver on the proper side of the road has paramount right and is entitled to expect that a vehicle on the wrong side will timeously give way. A driver proceeding at lawful speed on the proper side is entitled to take reasonable avoiding action, including moving to the far left, on the assumption that the oncoming vehicle will return to its correct lane. A driver who undertakes an overtaking maneuver in circumstances where a reasonable person would not proceed (such as near a blind bend with insufficient visibility) acts negligently. Where a driver creates a sudden emergency through his own negligent conduct, he cannot escape liability for the resulting collision by arguing the other party should have taken different avoiding action.

The court observed that the natural reaction for drivers when confronted with danger is to move to the left side of the road, as this accords with the general rule of the road requiring drivers to keep left. The court noted that the extent to which one moves left depends on how safely it is judged vehicles can pass each other in that situation. The court also commented that while the defendant cannot be blamed for going off the road to avoid collision, as the creator of the sudden emergency he cannot escape the finding that he was negligent in failing to realize the danger he created to other road users.

This case reinforces the established principle in South African and Zimbabwean law that drivers using the road on the proper side have paramount right and preference over those on the wrong side. It emphasizes that a driver on the correct side of the road is entitled to expect that another vehicle approaching on the wrong side will timeously give way, and that fast-moving traffic would be impossible if compliance with ordinary rules of the road could not be taken for granted. The case illustrates the application of the reasonable person test in negligence and confirms that a driver who creates a sudden emergency through negligent conduct cannot escape liability by arguing the other party failed to avoid the collision.