MAFUSIRE v GREYLING & ANOR 2010 (2) ZLR 198 (H)

Flynote

Damages - assessment - pain and suffering, disfigurement and loss of amenities - how to assess damages

Delict - negligence - proof of - res ipsa loquitur - applicability of - driver moving onto wrong side of road - whether proof of negligence D

Road traffic - negligence - duty of driver - driver moving onto wrong side of road - whether proof of negligence

Headnote

There is no obligation on a person who is driving along a road to ride through all the ruts and other rough patches on the left of the road. He is at liberty to avoid such obstacles. If he can find a better part of the road,he is entitled to ride on that part of the road, especially when driving in the country, but then he must use more care than when he is on his own side of the road. If there is a vehicle in the way, and he wishes to pass it, then whether the road on his left is rough or not he must keep to his left. If he does drive on the incorrect side of the road, he must exercise greater care and take every precaution to avoid colliding with vehicles approaching him: persons travelling on the correct side of the road have a paramount right and are entitled to preference in the use of the road. If any danger of collision arises, it is his duty first to give way. He must swing to his left as far, and as quickly, as possible in the face of approaching vehicles. Failure to do so may be negligence. If a collision occurs between two vehicles travelling in opposite directions along the same road when the defendant's vehicle is on the incorrect side of the road, the fact that it is on the incorrect side of the road is, as a general rule, prima facie evidence of negligence. When a plaintiff proves that the defendant's vehicle for no apparent reason suddenly swerved on to its incorrect side of the road, an inference of negligence could, in the

A absence of an explanation, be drawn against the defendant: res ipsa loquitur. The defendant is then required to produce evidence sufficient to displace the inference of negligence which arises from the fact that he was on the wrong side of the road. If he fails to do so, the prima facie evidence becomes sufficient to discharge the onus which rests on the plaintiff. But if the defendant gives an explanation, the plaintiff cansucceed only if, at the conclusion of the case and on the evidence as a whole, there is a balance of probabilities in his favour that the defendant was negligent.

General damages for personal injuries are not a penalty. They are compensation intended to place the injured party in the position he would have occupied had the wrongful act causing his injury not occurred. Where a litigant is seeking damages for pain, suffering, disablement and disfigurement, comparable cases, if there are such should be used to afford some guidance to assist the court in arriving at an award which is not substantially out of accord with previous awards. Regard must be had to all factors which are considered relevant in the assessment of general damages.