S v NDANGA 1995 (2) ZLR 258 (S)

Flynote

Roads and road traffic — negligent driving — test — negligence unrelated to other persons or property — driver overcorrecting and losing control of vehicle — "negligence in the air" — whether relevant to criminal cases

Headnote

The appellant, while driving a motor car on a main road in the country, came behind a bus. He moved to the right to see if the road was clear for him to overtake, but, as it was not, moved back to the left behind the bus. In so doing he over corrected and lost control. His vehicle left the road and struck a tree. In so doing, he was negligent, in that he lost control in a situation where a reasonably skilful motorist would not have done so. It was argued that, as no other person was involved, his negligence was "negligence in the air".

Held, that it is doubtful whether the phrase "negligence in the air" has a useful place in the criminal law. Generally speaking, negligence by a driver on a public road will almost always have the potential to injure other persons on or adjacent to the road, or might be reasonably expected to be there, even if they are not. In this case, the negligence of the driver caused damage to a vehicle owned by a third party, so for that reason, too, it was not a case of "negligence in the air".

Appeal dismissed.