COMMERCIAL UNION FIRE MARINE AND GENERAL INSURANCE CO LTD & ORS v CHINGWARU & ANOR 2004 (2) ZLR 106 (S)

Flynote

Delict ” negligence ” defence of sudden emergency ” limits to ” needfor proximate connection between act taken to avoid danger and the damage caused by that act ” where no such connection, actor cannot rely on sudden emergency

Headnote

The third appellant drove a vehicle which collided with another, killing both people in it. The High Court found him guilty of negligent driving, rejected his plea of sudden emergency, and awarded damages against him, his employer and the latter's insurer. On appeal against liability only:

Held, that where a person is placed in danger by the wrongful act of another, that person is not negligent if, in the agony of the moment, he exercises such care as may be reasonably expected of him in the reasonableapprehension of the danger in which he is so placed. He is not to blame if he does not do quite the right thing in the circumstances. However, this principle cannot be taken too far. Not every act taken in a situation of sudden emergency excuses the actor from the duty to take reasonable care and use reasonable skill to avoid foreseeable harm to others. In each F case in which the defence of sudden emergency is raised the question whether or not the act which caused the actionable damage is evidence of what a reasonable person would have done in the circumstances will depend on the particular facts. There must be a proximate connection in time and space between the act undertaken in the spur of the moment to avoid a dangerous situation created by some one else and damage G caused by that act. The question is how much allowance should be made in each case for the suddenness of the thing when determining whether there was a want of reasonable care and reasonable skill.

Held, further, that the third appellant coped with the critical situation which confronted him when a bus suddenly and unexpectedly stopped in front of his motor vehicle by swerving to the right. This was a thing any reasonable driver faced with the same situation would have done. However, when he subsequently collided with an oncoming vehicle, the sudden emergency which had occurred was no longer dictating the manner in which he drove his motor vehicle. The sudden emergency did not have a proximate connection with his failure to act reasonably to B avoid the subsequent collision. He had failed in his duty of care to the deceased and had correctly been found liable.