Fungai Kambalame v Zimbabwe United Passenger Company and Atanasio Tapera

On 14 February 2009, the plaintiff was travelling to Tsholotsho in the first defendant's motor vehicle (a Mazda BT 50, registration number ABD 2064) during the course of her duties as an employee. The vehicle was being driven by the second defendant, also acting within the scope of his employment with the first defendant. At the 3km peg, an accident occurred which resulted in the plaintiff suffering extensive injuries. The accident was caused by the second defendant's negligence, for which he pleaded guilty to negligent driving at Lupane Magistrates Court and paid an admission of guilt fine. The plaintiff claimed damages of $15,000 for pain and suffering and $25,000 for disfigurement against both defendants. A claim had also been made with the National Social Security Authority (NSSA) under the National Social Security Act [Chapter 17:04].

• Whether an employee injured in a workplace accident can sue their employer at common law for damages based on negligence where the National Social Security Act [Chapter 17:04] and its scheme (SI 68/90) apply
• Whether the plaintiff's claim complied with the mandatory requirements of sections 8, 9 and 10 of the NSSA (Accident Prevention and Workers Compensation Scheme) Notice (SI 68/90)
• Whether the plaintiff could claim additional compensation against the employer based on vicarious liability for the second defendant's negligence
• Whether the General Manager of NSSA needed to be notified and/or cited as required by the statutory scheme

The plaintiff's claim was dismissed with costs.

Where a worker suffers injuries arising out of and in the course of employment, the National Social Security Act [Chapter 17:04] and the NSSA (Accident Prevention and Workers Compensation Scheme) Notice (SI 68/90) provide the exclusive remedy and displace any common law action against the employer. Section 8 of the scheme prohibits common law actions by workers against their employers for workplace injuries. Any claim for additional compensation must comply with the mandatory requirements of sections 8, 9 and 10 of the scheme. An employer can only be held liable for additional compensation where: (a) the negligence was that of a managerial employee entrusted with management or in charge of the employer's business; or (b) the employer is individually (personally) liable - not on the basis of vicarious liability for an ordinary employee's negligence. Where a third party's negligence is alleged, the General Manager of NSSA must be notified in writing before proceedings can be instituted. Failure to comply with these statutory requirements renders the claim fatally defective.

The court expressed sympathy for the plaintiff's situation and noted that it was "a sad state of affairs" that the plaintiff's former legal practitioners did not properly read and apply the provisions of SI 68/90 to bring the claim within the ambit of the statutory scheme. The court also observed that even if the claim had been properly formulated against a third party with NSSA cited, the statutory instrument provides that NSSA itself can be ordered to pay additional compensation rather than necessarily the third party being sued. The court noted that the plaintiff failed to disclose what she was paid under the scheme and how that fell short of generally accepted amounts in such cases, suggesting this would have been relevant information had the claim been properly formulated.

This case reinforces the principle established in Sibanda v Independence Gold Mining Pvt Ltd that the National Social Security Act [Chapter 17:04] and its implementing scheme (SI 68/90) have displaced the common law right of employees to sue their employers for workplace injuries. It emphasizes that the statutory scheme provides the exclusive remedy for workplace injuries occurring in the course of employment, and that compliance with the mandatory procedural and substantive requirements of sections 8, 9 and 10 of SI 68/90 is essential for any claim to succeed. The case highlights the limited circumstances in which additional compensation can be claimed (managerial negligence or individual employer liability, not vicarious liability) and the requirement to notify/cite the NSSA General Manager. It serves as a cautionary tale about the importance of legal practitioners understanding the statutory framework governing workplace injury claims in Zimbabwe.