S v THOMPSON 2010 (2) ZLR 535 (H)

Flynote

Negligence - motoring case - sudden emergency - driver's prior negligence making it impossible for him to avoid accident - defence of sudden emergency not applicable

Headnote

The appellant, who was driving a car towing a trailer, was involved in an accident in which a child was killed. The appellant's vehicle was at the tail end of a convoy of four cars. He was not familiar with the road or how to get to their destination. He failed to notice the sign indicating a primary school ahead, the school itself and the crossing ahead sign for school children. These were all on his left hand side. The latter sign was 600 m before the scene of the accident. The appellant was driving at a speed below the maximum allowed speed. There was fairly high grass along the side of the road and the child suddenly emerged from the grass and ran into the road without checking whether it was safe for her to do so. The appellant took avoiding action but was unable to avoidhitting the child, who died instantly. The appellant raised the defence of sudden emergency.

Held, that in these cases, the court does not only look at the actions of the driver when the crisis occurred, but also beforehand. Here, when the crisis occurred, there was nothing that the appellant could do to avoid the accident. However, before this he had driven negligently, in that he failed to see the school, its sign post and the danger warning sign when he ought to have done so. The appellant's focus must have been on keeping pace with the vehicles that were in front of him and he thereby incapacitated himself from keeping a proper look out of his surroundings. Had he done so, he would have taken adequate preventive measures toavoid the collision. Having made it impossible for himself to deal with what was then no doubt a sudden emergency, he could not call in aidthe doctrine of sudden emergency.