Fanuel Mbirimi v Chester Dhliwayo and Mukumba Brothers (Pvt) Ltd and Insurance Company of Zimbabwe

On 14 August 2016, the plaintiff boarded a bus operated by the second defendant and driven by the first defendant. The plaintiff was a standing passenger. While the bus was in motion, a tyre burst occurred, causing the bus to overturn. The plaintiff sustained severe injuries, resulting in the amputation of his arm. The plaintiff claimed the accident was caused by the first defendant's negligent driving, specifically excessive speed, which he alleged was evidenced by the fact that standing passengers were shaking and had to balance themselves. The plaintiff sued for damages including pain and suffering ($50,000), medical expenses ($2,465), future medical expenses ($3,000), and loss of amenities ($10,000). The plaintiff was the only witness who testified for his case.

• Whether the plaintiff established a prima facie case of negligence against the defendants
• Whether absolution from the instance should be granted at the close of the plaintiff's case
• Whether the evidence of passengers shaking in a moving bus was sufficient to prove excessive speed
• Whether the tyre burst negated the claim of negligent driving in the absence of expert evidence linking the driver's conduct to the tyre burst
• What test should be applied in determining whether to grant absolution from the instance in a damages claim

The application for absolution from the instance was granted with costs in favour of the defendants.

In a delictual claim based on negligence, a plaintiff must prove all essential elements of the claim on a prima facie basis to survive an application for absolution from the instance. Bare assertions without substantiation are insufficient to establish negligence. Where the cause of an accident is attributed to a mechanical failure (such as a tyre burst), expert evidence is required to link such failure to the defendant's negligent conduct; in the absence of such evidence, the plaintiff fails to establish the causal link necessary for liability. The test for absolution from the instance is whether there is evidence upon which a court, applying its mind reasonably, could or might find for the plaintiff - not whether it should or ought to do so.

The court observed that while some authorities suggest courts should be conservative in granting absolution in damages claims, the more relevant authority is Delta Beverages v Onisimo Rutsito SC 42/13, which demonstrates that absolution can and should be granted in damages claims where essential elements of proof are lacking. The court also noted that the question of at what speed a standing passenger in a moving bus needs to balance, and whether there is any stage where a passenger can stand without balancing, highlights the inadequacy of using such observations as sole evidence of excessive speed.

This case reinforces the principle that in delictual claims based on negligence, a plaintiff must adduce sufficient evidence to prove all essential elements of the claim, including a causal link between the defendant's conduct and the damages suffered. The case demonstrates that courts will grant absolution from the instance in damages claims where the plaintiff fails to establish a prima facie case, contrary to the notion that courts are always conservative in granting absolution in such matters. The judgment emphasizes the importance of expert evidence in cases involving technical aspects such as the cause of vehicular accidents, particularly where the physical cause (like a tyre burst) may break the chain of causation from alleged negligent conduct.