Matthew Mbundire v Tyrone Sim Buttress

On 23 July 2006, the plaintiff and defendant were involved in a motor vehicle collision at the intersection of Breach Road and Kingsmead Road, Borrowdale, Harare. The plaintiff was driving along Breach Road when he was struck on the right driver's side by the defendant's vehicle, which was traveling along Kingsmead Road. The intersection was controlled by a give-way sign against the defendant. The plaintiff's vehicle rolled twice, throwing him out of the window. He sustained severe injuries including complete paralysis of the left arm and both lower limbs, fractures of the left clavicle, spine (C5-C6), and spinal cord compression. The plaintiff was hospitalized for approximately one and a half years, including a week in a coma and seventeen days in the High Dependency Unit, followed by seven and a half months at St Giles Rehabilitation Centre. The defendant claimed the accident was caused by sudden brake failure. The plaintiff claimed damages totaling billions of Zimbabwe dollars and thousands of US dollars for pain and suffering, medical expenses, future medical costs, and vehicle replacement.

• Whether the accident was caused by sudden brake failure or by the defendant's negligence
• Whether the defendant was negligent in: (a) driving with faulty brakes, (b) failing to obey a give-way sign, (c) driving at excessive speed, and (d) driving without headlights
• The quantum of damages the plaintiff was entitled to for: (a) general damages (pain and suffering, disability, loss of amenities), (b) past medical expenses, (c) future medical expenses, (d) replacement value of the motor vehicle
• Whether damages should be awarded in foreign currency (US dollars)
• The appropriate rate of interest on damages awarded in foreign currency

1. The defendant was ordered to pay: (a) $704,429,905.95 (Zimbabwe dollars) for past medical expenses plus interest at the prescribed rate from 6 May 2008 to date of payment; (b) US$4,104 for past medical expenses plus interest at the prescribed rate prevailing in the United States of America. 2. The defendant was granted absolution from the instance with respect to claims for general damages, future expenses, and vehicle replacement value. 3. The defendant was ordered to pay the plaintiff's costs.

1. Where a defendant pleads sudden mechanical failure as a defense in a motor vehicle accident case, the defendant bears the burden of proving not only that the collision resulted from a mechanical defect, but also that the defect was unknown and could not have been discovered through reasonable care. 2. Driving through a give-way sign at an intersection and colliding with another vehicle constitutes negligence, and may constitute gross negligence depending on the circumstances. 3. Courts may award damages in foreign currency in delictual claims where the plaintiff proves that the actual loss was suffered in that currency. 4. Interest on damages awarded in foreign currency should accrue at the rate appropriate to that currency, not the domestic prescribed rate. 5. Delictual damages are to be calculated as at the time of the delict in accordance with the principle of nominalism; inflation cannot be used as a justification for updating damage claims obtained long after the delict. 6. A plaintiff must provide adequate evidence to enable the court to properly assess quantum of damages. Where evidence is insufficient (particularly expert evidence regarding degree of permanent disability or future losses), the court will absolve the defendant from the instance on those claims. 7. Where a defendant is partially successful (absolved from the instance on some claims), but the plaintiff succeeds on liability and certain heads of damage, the plaintiff may still be considered the overall successful party for purposes of costs.

The court observed that the claim for damages denominated in Zimbabwe dollars (over $704 million) was "academic" and "meaningless in real terms" due to currency devaluation and the removal of zeros by the Reserve Bank of Zimbabwe between the date of amendment of summons and the date of judgment. The court noted the amount was "insignificant and serves no purpose in compensating the plaintiff" but granted the order "in principle" as requested by the plaintiff. The court commented that freewheeling is "generally engaged in order to maintain speed" rather than reduce it, and that speed reduction would be achieved by engaging lower gears. The court noted that the defendant's explanation for signing an admission of guilt seven days after the accident (that he did not have a clear mind) was unreasonable, observing that "had he signed immediately after the accident, then his explanation could have been reasonable." The court observed that driving at 70 km/h "can only be said to have been excess speed" when done "in a built up area, at night, on an unlit road full of potholes."

This case is significant in Zimbabwean delictual law for several reasons: (1) It confirms the application of res ipsa loquitur in motor vehicle accident cases involving mechanical defects, placing the burden on the defendant to explain that the defect was unknown and could not have been discovered through reasonable care. (2) It reaffirms that failure to obey a give-way sign at an intersection can constitute gross negligence. (3) It establishes that courts may award damages in foreign currency where the plaintiff proves actual loss in that currency, even in delictual claims. (4) It demonstrates the strict evidentiary requirements for proving quantum of damages - the plaintiff must provide adequate evidence (including expert testimony where appropriate) to enable proper assessment, otherwise the court will absolve the defendant from the instance on those claims. (5) It applies the principle that delictual damages are calculated as at the time of the delict (principle of nominalism), rejecting inflation as a basis for updating damage claims. (6) It confirms that interest on foreign currency awards should be at the rate appropriate to that currency, not the domestic prescribed rate.