Cleopas Matenga v Amanda Zietsman

On 10 September 2023 at around 1300 hours, the 82-year-old plaintiff attempted to cross the Harare-Chirundu highway near the Magunje turn-off to meet his brother at a bus stop. He was struck by a motor vehicle driven by the defendant while crossing the highway. The plaintiff sustained injuries requiring medical treatment. The plaintiff sued for damages totaling USD 108,766.27, comprising approximately USD 43,766 in past medical expenses (paid by his brother), USD 5,000 in future medical costs, and USD 55,000 in general damages (USD 30,000 for loss of earnings and USD 25,000 for loss of amenities). The plaintiff pleaded that the defendant's sole negligence caused the accident. The defendant denied liability, averring she exercised reasonable care by keeping a proper lookout, hooting a warning, and braking immediately upon perceiving the plaintiff, who she claimed suddenly dashed into the roadway creating an unavoidable emergency.

• Whether the plaintiff established a prima facie case of negligence against the defendant sufficient to survive an application for absolution from the instance
• Whether the plaintiff's evidence proved the defendant's sole negligence as pleaded
• Whether a plaintiff can succeed on a claim for sole negligence when the evidence establishes contributory negligence by the plaintiff without such contributory negligence being pleaded
• Whether the plaintiff proved quantum of damages including special damages and general damages
• Whether absolution from the instance should be granted where the plaintiff's own evidence contradicts the pleaded case and proves a defense

1. The defendant's application for absolution from the instance is granted. 2. The plaintiff's claim is dismissed in its entirety. 3. The plaintiff shall pay the costs of suit on the ordinary scale.

A plaintiff who pleads sole negligence by the defendant but whose own evidence establishes contributory negligence on the plaintiff's part without pleading such contributory negligence has failed to establish a prima facie case and absolution from the instance must be granted. A party cannot succeed on a cause of action that is not pleaded, and contributory negligence must be specifically pleaded to be relied upon. Where a plaintiff's own evidence contradicts the pleaded case and proves facts supporting the defense rather than the claim, the case is "self-destructive" and no reasonable court could find for the plaintiff. In negligence claims, the plaintiff must prove specific negligent acts or omissions by the defendant; the mere occurrence of an accident does not establish negligence. Damages must be proven with credible evidence; a plaintiff cannot recover expenses not personally incurred or speculative damages unsupported by evidence.

The court observed that absolution from the instance should be granted sparingly, but when a plaintiff's case is fundamentally defective, granting absolution serves the interests of justice by avoiding unnecessary trials and protecting defendants from defending claims that cannot succeed. The court noted that there is no principle requiring a defendant to always take the stand, particularly where critical facts are not peculiarly within the defendant's knowledge and the plaintiff had ample opportunity to present evidence. The court commented that the plaintiff's explanation of a "depression" in the road (offered for the first time under cross-examination) appeared to be an afterthought not corroborated by other evidence. MAMBARA J also noted that the expert witness's "desk study" approach without site inspection and without scientific calculations significantly diminished the probative value of his testimony, and the expert himself conceded there was "nothing expert about his evidence" beyond general documentary analysis.

This case reinforces several important principles in Zimbabwean civil procedure and delict law: (1) It illustrates the application of the Gascoyne v Paul & Hunter test for absolution from the instance; (2) It emphasizes that parties are bound by their pleadings and cannot succeed on an unpleaded cause of action; (3) It confirms that contributory negligence must be specifically pleaded if a party seeks apportionment of liability; (4) It demonstrates that absolution will be granted where a plaintiff's own evidence disproves the pleaded case or is "self-destructive"; (5) It reiterates that in negligence claims, plaintiffs must plead and prove specific negligent acts or omissions, not merely rely on the occurrence of an accident; (6) It confirms that damages must be proven with credible evidence and cannot be speculative; (7) It clarifies that a plaintiff cannot recover damages for expenses not personally incurred (paid by third parties without obligation of reimbursement). The case serves as a cautionary tale about the importance of proper pleading, ensuring evidence aligns with pleadings, and providing adequate proof of both liability and quantum.