Isaac Madungwe and Others v King Lion Motorways (Pvt) Ltd t/a King Lion Coaches

Tendai Madungwe (deceased) died from injuries sustained in a bus accident on 7 June 2017 at the 257 kilometer peg along Harare Chirundu Road. She was 30 years old, employed as a nurse, and married to the first plaintiff. She died from a cervical spine fracture caused by a road traffic accident. The first plaintiff was her husband, and the second to sixth plaintiffs were their children. The deceased had boarded a King Lion bus at Roadport in Harare, bound for Zambia. The bus was initially not full but gained many passengers along the journey. A witness, Boniface Chishiku, testified that he was on the bus seated two seats behind the driver, the bus was speeding, passengers complained about the speed, he heard a loud noise, and the bus veered into the bush. Both the deceased and the bus driver died in the accident. Plaintiffs claimed $1000 for funeral expenses, $2050 for lost valuables, $543,924 for loss of support, interest and costs.

• Whether the defendant's driver negligently caused the accident
• Whether the plaintiffs suffered the damages claimed in the summons
• Whether the plaintiffs established a prima facie case of negligence to survive an application for absolution from the instance

The application for absolution from the instance was granted. No order as to costs was made as the defendant did not apply for costs.

In a delictual claim for damages arising from a road traffic accident, the plaintiff bears the burden of establishing a prima facie case of negligence before the defendant is called upon to answer. To survive an application for absolution from the instance, there must be sufficient evidence upon which a reasonable court might make a reasonable mistake and give judgment for the plaintiff. Speculative evidence from a lay witness, without corroboration from expert evidence such as police accident reports, accident evaluation reports, or sketch plans, is insufficient to establish prima facie negligence. The mere fact that an accident occurred and resulted in death does not, without more, establish negligence on the part of the driver or vehicle owner.

The court observed that in cases where persons die in road traffic accidents, it is standard practice for police to compile accident reports and accident evaluation reports. These reports typically contain detailed observations about the scene, the terrain where the accident occurred, observations about the vehicles involved, and usually include an opinion on the cause of the accident by an accident evaluator. The court noted that such reports would have been illuminating in this case and their absence was fatal to the plaintiffs' case. The court also commented that the first plaintiff's evidence concentrated on quantum of damages but did not address the events that caused the accident, as he had last seen the deceased when he accompanied her to get transportation and was not present at the accident scene.

This case illustrates the strict evidential burden on plaintiffs in negligence claims arising from road traffic accidents in Zimbabwe. It demonstrates that mere occurrence of an accident, even with fatalities, is insufficient to establish negligence. The judgment emphasizes the importance of comprehensive evidence including police reports, accident evaluation reports, and expert evidence to prove negligence. The case serves as a cautionary example of the consequences of inadequate case preparation and the failure to adduce proper expert and documentary evidence in support of a delictual claim. It reinforces the principle that speculation and subjective impressions by lay witnesses, without corroborating expert or documentary evidence, will not satisfy the prima facie case threshold required to survive absolution from the instance.