Flanders v Trans Zambezi Express (Pty) Ltd

On 12 April 2001, during the early hours, a passenger bus owned by the first respondent and driven by the second respondent (Sibeni) collided with a stationary, unlighted Puma army vehicle belonging to the Zimbabwean Defence Force on a road south of Masvingo, Zimbabwe. The collision occurred on a straight section of road approximately 8.5 km south of Masvingo. The Puma was broken down, parked at an angle on the side of the road with its right rear protruding over the yellow line into the lane in which the bus was travelling. The vehicle was unlighted and unattended. At the time it was dark with no artificial lights. An oncoming vehicle with bright headlights was approaching from the opposite direction, which impaired Sibeni's vision. Sibeni had dipped his own headlights but continued driving at approximately 80 km/h without slowing down or braking. The collision resulted in eight passengers being killed and many injured, including the two appellants. Sibeni testified he became aware of the Puma obstruction at the last moment when he could not take effective action to avoid collision. He did not brake or swerve before impact.

• Whether the driver (second respondent) was negligent in failing to take reasonable steps to avoid collision with an unlighted obstruction at night
• Whether the appellants discharged the onus of proving negligence and causation
• What standard of care is required of a driver travelling at night when facing impaired visibility due to oncoming vehicle headlights and the reasonable foreseeability of unlighted obstructions
• Whether a driver must regulate speed to stop within the limits of his field of vision in circumstances of impaired visibility

1. The appeals are upheld with costs of both appellants, including the costs of two counsel where employed. 2. The order of the court a quo in each case is set aside and replaced with: 'The appeals are dismissed with the costs of both appellants.' (Note: The second appellant's costs exclude the costs of the application for leave to intervene.)

A driver who continues to drive at the same speed while his vision is impaired by the bright headlights of an oncoming vehicle, in circumstances where unlighted obstructions on the road are reasonably foreseeable, is negligent if he fails to brake immediately to reduce his speed sufficiently to be able to stop within the range of his vision or to stop completely. The duty is particularly stringent for professional drivers responsible for passengers' lives. While there is no generally valid rule that a driver must regulate speed to stop within the limits of his field of vision, where a driver should have foreseen the possibility of unlighted obstructions and realizes he might be blinded by oncoming vehicle lights, failure to brake and slow down may be a crucial factor in establishing negligence. If the driver had stopped or slowed down sufficiently in such circumstances and the collision would thereby have been avoided, both negligence and causation are established.

The Court cited with approval the principle from S v Bernardus that it is the general possibility of resultant injury which must be reasonably foreseeable and not the specific manner and nature thereof, applying this to distinguish between obstructions being stationary vehicles versus pedestrians (finding no difference in principle). The Court also observed that the duty imposed on Sibeni to stop or reduce speed was not unduly onerous especially given his position as a professional driver literally holding the lives of more than 40 people in his hands. The Court noted that the full court's finding that Sibeni should have slowed down once he dipped his headlights 'does not go far enough' in the circumstances. The Court affirmed that there is an obvious relationship between speed and visibility, endorsing the approach in earlier authorities.

This case clarifies and reinforces the standard of care required of drivers at night when facing impaired visibility. It establishes important principles regarding the duty to slow down or stop when vision is impaired, particularly in circumstances where unlighted obstructions are reasonably foreseeable. The judgment emphasizes that while there is no general rule requiring drivers to keep speed within limits of vision, this may be a crucial factor in determining negligence depending on circumstances. The case is significant for professional drivers and clarifies when the 'driver's dilemma' argument will not succeed. It reinforces that the foreseeability requirement relates to the general possibility of injury, not the specific manner thereof. The judgment also demonstrates the application of well-established negligence principles from cases like Manderson, Van Deventer, and Seemane to modern motor vehicle accident scenarios.