Elizabeth Ndava v Tendai Chivizhe Takaruwa and Elizabeth Artzinger

On 12 February 2010 at about midnight, the appellant was a passenger in a 25-seater minibus belonging to the second respondent and driven by the first respondent within the scope and course of his employment, traveling from Beitbridge to Harare. At the 45km peg, the minibus collided with the rear right side of a trailer being pulled by a Malawian registered horse truck. The minibus overturned and lay on its right side in the lane for oncoming traffic. The appellant, who had fallen asleep, woke up trapped under the back seat and sustained severe injuries to her right forearm requiring debridement and skin grafting. The appellant sued for damages of US$36,475.00, alleging negligence by the first respondent. The High Court dismissed the claim with costs, prompting this appeal.

• Whether the first respondent was negligent in his driving of the minibus
• Whether the particulars of negligence pleaded by the appellant were established on a balance of probabilities
• Whether the High Court properly assessed the credibility of witnesses
• Whether driving without an appropriate class of driver's licence constitutes evidence of negligence
• Whether the second respondent was vicariously liable for the first respondent's negligence
• Whether damages should be awarded to the appellant

The appeal was allowed with costs. The judgment of the High Court was set aside and substituted with an order that: (1) The claim is granted with costs; (2) The defendants shall pay the plaintiff the sum of US$36,475.00 with interest thereon at the prescribed rate from 12 February 2010, the one paying the other to be absolved.

The binding legal principles established are: (1) An employer is vicariously liable when a servant commits a wrong in the course and scope of his employment; (2) Where a person drives without the requisite driver's licence for the class of vehicle, there is a presumption that negligent driving particularized in the claim was a result of lack of the requisite skill and experience expected of a reasonable driver in possession of an appropriate driver's licence; (3) This presumption applies when driving without an appropriate licence is considered in light of all the circumstances of the case and other established particulars of negligence; (4) To establish negligence in motor vehicle accident cases, a plaintiff must prove on a balance of probabilities that the damages suffered resulted from the defendant's negligent driving.

The Supreme Court noted a clear procedural irregularity where the respondent's legal practitioner called a witness to give evidence in support of the respondent's case before any of the respondents gave evidence. The Court observed that it was unclear from the record why the learned judge allowed this to happen notwithstanding objections by the appellant's legal practitioner. The Court also observed that the first respondent's payment of US$1,500.00 to the driver of the motor vehicle pulling the trailer as compensation for damage to the trailer was indicative that he did not genuinely believe the trailer was the cause of the accident, as he would not have paid compensation if he truly believed the trailer caused the collision.

This case is significant in Zimbabwean jurisprudence for: (1) Clarifying the principles of vicarious liability for employers in motor vehicle accident cases; (2) Establishing that driving without an appropriate class of driver's licence, while not conclusive evidence of negligence on its own, creates a presumption that negligent driving resulted from lack of requisite skill and experience when considered with other circumstances; (3) Demonstrating the appellate court's approach to reviewing findings of credibility where the trial court has materially misdirected itself on the evidence; (4) Affirming the principle that fabricated defenses and inconsistent pleadings can undermine a party's credibility; (5) Illustrating proper application of the balance of probabilities standard in civil negligence cases.