MBULAWA v MUTANDIRO 1989 (3) ZLR 83 (S)

Flynote

Delict — negligence — causation — novus actus interveniens — driver getting car into dangerous situation — passenger attempting to control steering and accident resulting — whether driver liable.

Headnote

As a general rule, intervention by means of intentional or negligent conduct, whether it be that of the plaintiff or a third party, interrupts the chain of causation. However, if a reasonable man in the position of the defendant would have foreseen the possibility of such intervention and guarded against it, the defendant is negligent if he fails to do likewise. He cannot rely on the intervention of a novus actus interveniens. Similarly, the negligent act of the plaintiff or a third party, which was itself an inherent risk created by the negligent conduct of the defendant and which was reasonably foreseeable by him, can never amount to a novus actus relieving him of liability. In order for the intervention factor to break the chain of causation between the defendant's unlawful conduct and the damage, it must be new and independent and not a risk inherent in the situation arising out of the defendant's own unlawful conduct.

The defendant driver, who had been drinking, drove dangerously by overtaking another vehicle at an excessive speed on a narrow bridge. He started to return to his side of the road before he had fully passed the vehicle being overtaken. The passenger in the front seat, thinking that a collision was about to take place, grabbed the steering wheel and moved it to the right. As a result, the defendant lost control of the car, which went off the road and overturned. The passenger was killed and the plaintiff, who was in the back seat, was severely injured. It was held, both in the court a quo and on appeal, that the action of the deceased arose out of the exigencies of the situation created by the defendant's own conduct and was one which, together with the resultant accident, a reasonably prudent man would have foreseen.