Francis Motsi t/a Chabvuta Holdings v Farm and City Holdings (Pvt) Ltd and Others

On 2 February 2011, the plaintiff's bus (registration number ABB 4781) was involved in an accident with the first defendant's lorry (registration number AAD 8515) at Mbare street near Mutare rank, Harare. The lorry was being driven by the second defendant, who was an employee of the first defendant acting within the course and scope of his employment. The plaintiff's bus was damaged and was off the road for 57 days while being repaired. The first defendant's insurer (third defendant) repaired the bus but did not pay for loss of business. The plaintiff claimed US$21,033.00 for loss of income during the 57-day repair period, calculated at an average daily income of US$369.00. The third defendant (Nicoz Diamond Insurance Limited) was added to the proceedings via a notice of amendment filed on 14 August 2014, though this was procedurally improper as no formal joinder application was made.

• Whether the first defendant's insurance contract with the third defendant covered indemnity for loss of business for third parties
• What is the quantum of damages payable to the plaintiff for loss of income
• Whether the third defendant insurer could be held liable for business loss under the insurance policy
• Whether the plaintiff properly mitigated his damages

1. The 1st and 2nd defendants shall jointly and severally, the one paying the other to be absolved, pay the plaintiff: (a) US$21,033.00 plus interest at the prescribed rate from 2 February 2011 to the date of full payment; (b) Costs of suit. 2. The plaintiff's claim against the 3rd defendant is dismissed with costs.

The binding legal principles established are: (1) A standard third party motor vehicle insurance policy that covers property damage and personal injury does not extend to cover consequential business losses suffered by third parties, unless expressly stated in the policy; (2) In computing delictual damages for loss of business income, the plaintiff is entitled only to net loss (gross income minus operational expenses and contingencies), not gross income, to avoid over-compensation; (3) A party cannot be joined to litigation merely by filing a notice of amendment to pleadings; proper joinder requires either a formal application or court order; (4) The burden is on the plaintiff to prove quantum with sufficient evidence to enable the court to assess damages; (5) Where vicarious liability is established, the employer and employee are jointly and severally liable for damages caused by the employee's negligence within the course and scope of employment; (6) A party who sues another party without any legal basis as acknowledged in their own pleadings will be liable for that party's costs.

The court made several non-binding observations: (1) The claim against the third defendant had clearly prescribed by the time it was served (24 November 2014) as the cause of action arose on 2 February 2011, though the court did not decide on this basis as prescription was not pleaded; (2) The third defendant could have avoided unnecessary costs by excepting to the claim, raising the special plea of prescription, or making an oral application for absolution from the instance at the close of the plaintiff's case; (3) The court declined to award costs on a higher scale against the plaintiff in favour of the third defendant because the third defendant only requested ordinary scale costs in its plea and only sought higher scale costs for the first time in closing submissions without amendment or warning; (4) Under the insurance policy, the third defendant could have legally rejected the claim as it was submitted outside the 31-day contractual period; (5) The court expressed bemusement as to why the third defendant was sued at all when the plaintiff's own pleadings exonerated it from liability.

This case is significant in Zimbabwean jurisprudence for several reasons: (1) It clarifies the scope of third party motor vehicle insurance policies, confirming that standard policies cover property damage and personal injury but not consequential business losses; (2) It demonstrates the application of delictual damages principles requiring compensation for net loss only, not gross loss; (3) It illustrates proper procedure for joinder of parties, emphasizing that parties cannot be joined merely by amendment of pleadings without a formal application; (4) It provides guidance on quantum assessment for loss of business income claims arising from motor vehicle accidents, including the need to account for operational costs and contingencies; (5) It addresses the duty to mitigate damages in the context of accident claims; and (6) It demonstrates cost consequences where a party is improperly sued based on the plaintiff's own pleadings that negate liability.