Radius Nakwere v Abrec Enterprises (Pvt) Ltd

The plaintiff's 18-year-old son, Leon Nakwere, died in a workplace accident on 1 October 2013 while employed by the defendant as a general hand earning $292 per month. He was working approximately 9.2 meters off the ground as an assistant to a rigger, erecting a middle truss on the defendant's boiler house shed. His task was to assist in securing the truss by tying it to a girder purlin with a rope. Due to multiple errors in the crane operation and safety procedures, the truss fell, pulling the purlin and causing the roof sheet on which the deceased and his colleague were lying to collapse. Both fell approximately 10 meters to the concrete floor. While the colleague survived, the deceased died from his injuries. The plaintiff, the deceased's father, sued for $100,000 in damages comprising: pain, shock and suffering ($40,000), future pain, shock and suffering ($35,000), and loss of support ($25,000).

• Whether the deceased's death was caused by the defendant's negligence
• Whether there was contributory negligence on the part of the deceased
• Whether the plaintiff established a legal duty of support owed by the deceased
• Whether the plaintiff proved his damages on a balance of probabilities
• The quantum of damages justified in the circumstances

1. The plaintiff's claim for damages for pain, shock and suffering, future pain, shock and suffering, and loss of support was dismissed. 2. Each party shall bear its own costs.

1. In a delictual claim, the plaintiff must prove both that damages were suffered and the quantum thereof on a balance of probabilities. Where no evidence is led on quantum, the claim must be dismissed. 2. For a parent to succeed in a claim for loss of support from a deceased adult child, the plaintiff must establish: (a) that the deceased owed a legal duty of support to the parent during the deceased's lifetime; (b) that the parent was indigent or unable to support themselves; (c) that the parent could not obtain support from other sources (spouse or other children); and (d) that the deceased would have been in a position to provide such support and under a legal obligation to do so. 3. In assessing contributory negligence, a person is guilty of contributory negligence if they ought reasonably to have foreseen that if they did not act as a reasonably prudent person, they might hurt themselves, taking into account the possibility of others being careless. 4. An employer is negligent where a reasonable person (diligent paterfamilias) would have foreseen danger from failures such as: operating equipment without safety devices, inadequate training of operators, positioning equipment unsafely, and moving equipment improperly while loaded.

The court observed that the defendant should have applied for absolution from the instance at the conclusion of the plaintiff's case, particularly regarding the claims for pain, shock and suffering for which no evidence was led, which would have curtailed the trial. This influenced the costs order. The court also noted it was unnecessary to consider the effect of the Damages (Apportionment and Assessment) Act [Chapter 8:06] or the National Social Security (Accident Prevention and Workers Compensation Scheme) SI 68/1990 given the finding that no legal duty of support existed. The court commented that the plaintiff appeared to exaggerate the level of support the deceased rendered and was not candid about his income sources.

This case is significant in Zimbabwean law for clarifying the requirements for establishing a claim for loss of support by a parent following the death of an adult child. It emphasizes that: (1) the plaintiff must prove not only that damages were suffered but also the quantum thereof; (2) a legal duty of support must have existed during the deceased's lifetime; (3) the parent must prove indigence and inability to support themselves from other sources; (4) it is insufficient that a deceased child merely provided assistance - there must be a legal obligation to support. The case also demonstrates the strict application of evidentiary requirements in delictual claims, particularly that abandoning claims through failure to lead evidence will result in dismissal. The judgment reinforces workplace safety obligations while also recognizing employee responsibilities for their own safety through proper use of safety equipment.