Original Haulage (Private) Limited v Delta Beverages (Private) Limited and Stanmore Masisimani and Old Mutual Insurance Company (Private) Limited

On 21 September 2018, a head-on collision occurred at Mucheke Bridge, 166 km peg along Chivhu-Nyazura Road between the plaintiff's haulage truck (Reg No. ADC 3361 and trailer no. ABB 0227) and a Mercedes Benz Haulage Truck (Registration No. ADS 3723 and trailer no. AEG 7177) owned by the first defendant and driven by the second defendant. The plaintiff alleged that the second defendant drove recklessly in the right lane and failed to avoid collision. The accident resulted in the death of one passenger, injury to the plaintiff's driver, and damage to the plaintiff's truck and trailer. The plaintiff's Managing Director attended the scene and arranged for crane removal of the vehicles. The second defendant was subsequently convicted at Rusape Magistrates Court and fined $500.00. Expert panel beaters assessed the plaintiff's truck as damaged beyond repair/a write-off. The plaintiff claimed US$24,345.00 as replacement value including importation costs, plus US$10,000.00 compensation paid to a client for container damage. The third defendant was the insurer providing third party cover for the first defendant's vehicle.

• Whether the plaintiff adduced sufficient evidence to establish a prima facie case against the defendants to resist absolution from the instance
• Whether the plaintiff proved all essential elements of a delictual claim (wrongful conduct, causation, and patrimonial loss)
• Whether evidence of pre-accident and post-accident vehicle values was sufficiently established
• The extent of the third defendant's liability as insurer under third party cover in terms of the Road Traffic Act

Both the first defendant's and third defendant's applications for absolution from the instance were dismissed. Costs were ordered to be in the cause, rather than on the higher legal practitioner-client scale requested by the plaintiff, given the ongoing nature of the trial.

At the absolution stage, a plaintiff must adduce some evidence on each and every essential element of the cause of action to survive an application for absolution from the instance. In delictual claims arising from motor vehicle accidents, the essential elements are: (1) wrongful conduct by the defendant; (2) causation; and (3) patrimonial loss. Evidence of vehicle damage and replacement value can be established through expert testimony from qualified and experienced panel beaters that a vehicle was damaged beyond repair, evidence of purchase price or pre-accident value, and quotations for comparable replacement vehicles. The test is not whether the evidence establishes what would finally be required for judgment, but whether there is evidence upon which a reasonable court, applying its mind reasonably, might or could find for the plaintiff.

The court observed that the proper procedure for filing supplementary submissions requires leave of the court, and parties should adhere to court directions and timelines. A letter to the Registrar is not the proper form for objecting to the other party's submissions; formal submissions should be filed instead. The court noted that more extensive ventilation of issues regarding the third defendant's liability under third party insurance cover could be done at the conclusion of the trial, and would involve interpretation of the Road Traffic Act and ancillary statutes. The court indicated that while the plaintiff requested costs on the higher legal practitioner-client scale, costs in the cause was the most appropriate order given the ongoing nature of the trial.

This judgment reinforces the established principles governing applications for absolution from the instance in Zimbabwean civil procedure, particularly in delictual claims arising from motor vehicle accidents. It clarifies that at the close of the plaintiff's case, a prima facie case requires some evidence on all essential averments, not proof to the standard required for final judgment. The case demonstrates the acceptable types of evidence for establishing vehicle damage and replacement value in road traffic accident claims, including expert panel beater testimony that a vehicle is 'damaged beyond repair' or a 'write-off', purchase price evidence, and quotations for comparable replacement vehicles. It also addresses procedural matters regarding the filing of supplementary submissions without leave of court. The judgment has significance for insurance claims under third party cover mandated by the Road Traffic Act, indicating that questions of the extent of insurer liability may require statutory interpretation.