HAYNES v MINISTER OF DEFENCE & ANOR 1992 (2) ZLR 262 (H)

Flynote

Costs — apportionment — costs not necessarily to be equally apportioned when court apportions liability in damages claim on equal basis

Delict — motor accident — negligence — robot controlled intersection — motorist turning right in front of oncoming vehicle when light turned to amber — other vehicle accelerating and going through late amber — apportionment of damages

Headnote

The plaintiff had entered a robot controlled intersection when the light was green in her favour. She had stopped in the right hand turning lane while waiting for traffic coming from the opposite direction to clear so she could safely negotiate her turn. When the robot changed to amber she had attempted to turn right but an army truck had come through the lights when they were on late amber and had collided with the plaintiff's vehicle. The court held that the plaintiff had been negligent. Even if the lights had turned to red a motorist is not entitled to assume that the oncoming traffic will come to a stop but must judge from the speed and distance of an oncoming vehicle whether it will be safe to turn across the path of that vehicle. A party turning right across the path of another vehicle when the robot is on late amber must be even more careful than someone turning when the light has already turned red. Although the army vehicle should have stopped, there was no indication that it was going to do so. The plaintiff should therefore not have proceeded to turn, especially as she knew her vehicle was not able to accelerate fast from a stationary position. However, the driver of the army vehicle was also at fault. When approaching the intersection he had failed to drive at a speed which would have allowed him to stop if the lights changed but instead he had accelerated and gone through the lights when they were on late amber.

As regards the appointment of fault between the parties, the court apportioned on the 50/50 basis suggested by counsel for the defendants which the court said was more than fair and generous.

On the issue of costs, the court declined to apportion costs on a 50/50 basis. The court pointed out that, in seeking to have the plaintiff's claim dismissed with costs, the defendants had forced the plaintiff to come to court to obtain an award of damages. The plaintiff had succeeded in obtaining damages. If the defendants had wished to safeguard their position on the issue of costs in the event of an apportionment of damages, they should have made either a payment into court under the former Rules of Court governing such payments or a written offer of payment under the new Rules.