Intermarket Stock Brokers Limited v AL Freeman and Norsk Hydro Zimbabwe (Private) Limited

On 11 October 2002 at approximately 4pm, a collision occurred between the plaintiff's Peugeot 406 motor vehicle driven by April Boniswa Mhlanga and the 2nd defendant's Discovery 4x4 driven by the 1st defendant (Al Freeman). The collision occurred at the intersection of Harare Drive, Addington Drive and Gaydon Road. April was traveling along Harare Drive when Freeman, who was at a stop sign in Addington Drive, failed to yield and entered the intersection, striking the Peugeot on the driver's side. The impact caused extensive damage and pushed the Peugeot off the road into a ditch. Both airbags deployed. April suffered minor injuries (scratches, whiplash, soreback). Freeman paid an admission of guilt fine. The Peugeot 406 was brand new, purchased in March/April 2002 for $5 million. The plaintiff initially took the vehicle to Jock Smith Spraypainters for repairs, but the vehicle remained there for over 2 years without full repair. The plaintiff eventually retrieved it and took it to Supreme Panel Beaters. The plaintiff claimed damages initially of $23,939,201.00, later amended to claim $100,417,261.70 for repair costs.

• Whether the plaintiff's driver (April) contributed to the collision through negligent driving
• Whether the 2nd defendant was vicariously liable for the 1st defendant's negligence
• The proper measure of damages recoverable for vehicle repairs
• Whether delay in effecting repairs disentitled the plaintiff from claiming inflated repair costs

The 2nd defendant was ordered to pay the plaintiff the sum of $13,862.15 (revalued) together with interest from 11 October 2002 to the date of full payment and costs of suit.

1. A driver proceeding on a main road through an intersection controlled by a stop sign for vehicles entering from a side road is entitled to assume that such vehicles will obey the stop sign and only proceed when safe to do so. Traffic on a main road need not be ready for any emergency created by people or vehicles who enter the road unexpectedly from the sides. 2. The onus to prove contributory negligence lies on the defendant claiming it, and must be established on a balance of probabilities. 3. While a plaintiff is under no duty to mitigate loss and is free to act as he judges to be in his best interests, a defendant is not liable for all loss suffered by the plaintiff. A defendant is only liable for such part of the plaintiff's loss as is properly caused by the defendant's breach of duty. 4. A plaintiff cannot recover damages attributable to unreasonable delay in effecting repairs where evidence shows repairs could have been completed earlier at a lower cost. The onus is on the defendant to establish such delay and that the plaintiff has not justified it.

The court noted that the suggestion that April should have stopped in the middle of the intersection to allow Freeman free passage was absurd. The court also observed that there was no need for April to sound her horn as Freeman was still in Addington Drive and had not encroached into the lane when she entered the intersection. The court expressed dissatisfaction with Geoffrey Mhlanga's evidence regarding the delay in repairs, noting he had misled the court about when the vehicle was removed from Jock Smith. The court noted as a matter of policy that damages suffered by an innocent party should be met by the wrongdoer (citing Smit v Abrahams 1994(4) SA 1).

This case provides important guidance on the assessment of damages in motor vehicle collision cases in Zimbabwe, particularly regarding the principle that a plaintiff cannot recover damages attributable to unreasonable delay in effecting repairs. It reinforces that while a plaintiff is under no duty to mitigate loss, they cannot aggravate their own damages through wanton or careless conduct. The case also demonstrates the application of vicarious liability principles and the onus on defendants to prove contributory negligence. The judgment applies and follows the Supreme Court decision in Cargo Carriers (Pvt) Ltd v Nettlefold regarding delay in repairs.