Calisto Mujera v Javelin Trading (Pvt) Ltd and Casten Suwedi

On 26 April 2020 at around 1900 hours, the plaintiff was driving his son to Gwebi College along a gravel road passing through the first defendant's farm when he noticed a loaded tractor with maize cobs. He went to alert Jabulani Mhlanga who worked for the first defendant. While returning due to his vehicle overheating, he stopped by the roadside (about 2 metres from the first defendant's field) to investigate suspicious movements and to refill his overheating vehicle. As he was disembarking, he saw a torch light from the maize crop and was immediately shot by the second defendant, a security guard employed by the first defendant. The plaintiff was shot in the back without any warning shot. He fell unconscious, bleeding profusely. He was eventually taken to Gwebi Clinic, then Parirenyatwa Hospital (2 weeks), and Chikurubi Police Hospital (2 months). The shooting caused shrapnel to lodge in his lumbar vertebrae, resulting in spinal injury and paraplegia. The plaintiff and his son were charged with theft in a criminal court in Norton but were acquitted. The plaintiff claimed damages of US$331,590 (as amended) for medical expenses, loss of earnings, farm income loss, and general damages including pain, suffering, loss of amenities, and future medical expenses.

• Whether the plaintiff was negligently injured by the second defendant
• Whether the plaintiff was shot in the act of carrying out a theft from the first defendant
• Whether the defendants are jointly and severally liable for the injuries suffered by the plaintiff
• Whether the defendants are jointly and severally liable to pay both special and general damages to the plaintiff and the quantum thereof
• Whether the first defendant is vicariously liable for the actions of the second defendant

The court awarded the plaintiff total damages of US$48,920.66, comprising: Special damages of US$33,920.66 (medical expenses US$1,534.00, transport US$1,200.00, loss of salary earnings US$4,334.00, farm earnings US$26,943.66); and General damages of US$15,000.00 (pain and suffering US$10,000.00, loss of amenities US$5,000.00). The defendants are to pay jointly and severally, one paying the other to be absolved. Claims for future medical expenses, future salary earnings, and future transport expenses were dismissed for lack of proof.

An employer is vicariously liable for the negligent acts of an employee committed within the course and scope of employment, including where the employer supplies a dangerous instrumentality (firearm) to an employee without proper professional training and the employee uses it negligently while on duty. Negligence is established where a reasonable person (diligens paterfamilias) would foresee the reasonable possibility of conduct causing injury and would take reasonable steps to guard against it, and the defendant failed to take such steps. A person who aims and fires a gun at a motor vehicle without ascertaining whether persons are present or in the line of fire, and without proper warning, acts negligently. General damages are compensatory not punitive, and must be assessed to place the injured party as far as possible in the position they would have occupied had the wrongful act not been committed. Claims for future losses must be properly substantiated with evidence; mere assertions without supporting documentation are insufficient.

The court observed that the acquittal in the criminal theft case does not bind the civil court, as it merely means the state failed to prove its case beyond reasonable doubt. The court noted that the second defendant gave three different versions of events and his testimony was internally inconsistent and differed from evidence given in the Magistrates Court. The court commented that second defendant's claim that he fired a warning shot was not credible, particularly as he left the scene after shooting when the plaintiff was calling for help. The court noted that while plaintiff claimed damages based on living to a certain age "because of my genes," this was not sufficient proof for future loss claims. The court also observed that the first defendant's choice not to lead any evidence was taken as not contesting the claims, though the court still required proper proof of damages.

This case is significant in Zimbabwean law for its application of vicarious liability principles where an employer provides a firearm to an inadequately trained employee who then uses it negligently in the course of employment. It reinforces the principle that employers bear responsibility for the negligent acts of employees performed within the scope of their employment, particularly where the employer has enabled the employee to commit the wrongful act by providing dangerous instrumentalities (firearms) without adequate training. The case also demonstrates the court's approach to assessing damages in cases of serious permanent injury (paraplegia), emphasizing the compensatory rather than punitive nature of damages, while requiring proper proof for claims of future losses.