The appellant's husband was knocked down and killed by a motor vehicle driven by the first respondent (Sibanda). The second respondent was the owner of the motor vehicle and Sibanda's employer (Gauntlet Security Company). The third respondent was the insurer of the motor vehicle (AIG Zimbabwe Insurance Company). The accident occurred on Greentrees Road when the deceased was allegedly struck by Sibanda's vehicle. Evidence differed on the point of impact - witness John Zano testified the deceased was struck behind or at the side of his parked vehicle, while Sibanda testified the deceased was crossing the road when the accident occurred. The accident occurred in darkness. Sibanda had finished work for the day and had stopped to drink beer with a friend before the accident. The High Court awarded the appellant 20% of her claim against Sibanda only and found that claims against the second and third respondents were withdrawn as Sibanda was not acting in the course of his employment.
The appeal was dismissed with costs.
1. Where a claim is denied in pleadings and the claimant is put to proof, the claimant must lead evidence at trial to establish the claim. Failure to lead such evidence means the claim is not proved, regardless of whether it was formally withdrawn. 2. An employee who has completed his work and is traveling home, having stopped to drink beer with a friend, is not acting in the course and scope of his employment. Accordingly, the employer and insurer are not vicariously liable for accidents occurring in such circumstances. 3. A pedestrian wishing to cross a road has a primary duty to ensure he chooses a safe and opportune moment to cross. Where a pedestrian fails to avoid an oncoming vehicle traveling with its lights on in dark conditions, the pedestrian bears the greater share of blame for any resulting collision, though the driver may bear some liability if he had opportunity to avoid the collision through skillful driving.
The Court cited with approval the principle from Swanepoel v Parity Insurance Co Ltd 1963 (3) SA 819 that while pedestrians have a primary duty to choose a safe moment to cross busy roads, drivers who have ample opportunity to see pedestrians entering the road and are unskillful in not swerving must bear a share of the blame, albeit a lesser share. The Court noted this principle applies even on roads that are not main roads. The Court also made observations about the credibility of witness John Zano, noting that his evidence contained inconsistencies regarding the point of impact (first behind the vehicle, then at the side) and lighting conditions (first saying there was still some light, then admitting it was pitch dark), which rendered his evidence unreliable compared to Sibanda's more probable version of events.
This case establishes important principles regarding: (1) the burden of proof when claims are denied in pleadings - silence at trial does not constitute admission and claimants must lead evidence to prove disputed claims; (2) the test for vicarious liability in employment contexts - an employee who has finished work and is traveling home after stopping for personal activities (drinking with friends) is not acting in the course of employment; (3) contributory negligence principles for pedestrian accidents - pedestrians have a primary duty to ensure it is safe to cross roads, particularly at night when vehicle lights are visible. The case provides guidance on apportionment of liability in motor vehicle-pedestrian accidents and reinforces the limits of vicarious liability for employers.