Ronald McLean v The State

On 16 February 1996, the appellant was driving a pick-up truck from Gweru to Harare. Around mid-day, upon reaching the outskirts of Harare, he saw a commuter omnibus stationary at a bus stop on the left side of the road. As he drove past the bus, he struck and killed a sixteen-year-old boy (the deceased) who had alighted from the bus. The appellant immediately stopped and rendered assistance, but the deceased later died in hospital. The State alleged that the deceased had alighted from the bus and attempted to cross the road via the front of the stationary bus when he was struck. The appellant was charged with culpable homicide in the magistrate's court, convicted, and sentenced to a fine of $800 or three months' imprisonment, plus a three-month driving prohibition. His appeal to the High Court was dismissed. He then appealed to the Supreme Court with leave granted.

• Whether the appellant was negligent in driving past a stationary bus
• What duty of care is owed by a driver when overtaking a stationary vehicle
• Whether a driver must foresee the possibility that a pedestrian concealed behind a stationary vehicle might suddenly appear in the road
• Whether the conviction for culpable homicide was proper on the evidence presented

The appeal was allowed. The conviction for culpable homicide and the sentence (fine of $800 or three months' imprisonment plus three-month driving prohibition) were set aside.

A driver overtaking a stationary vehicle is not negligent if he fails to anticipate that a pedestrian concealed behind the stationary vehicle might suddenly emerge into the roadway without looking. The reasonably careful driver cannot be expected to foresee, without more, that there may be a pedestrian concealed behind the front of every stationary vehicle who could suddenly appear in the road. A driver's duty is not that of an insurer. Where a driver has exercised reasonable caution, slowed down, and observed no pedestrians in the vicinity of a stationary vehicle, he is entitled to assume that any pedestrian intending to cross would first ensure it was safe to do so.

The court observed that what likely happened was that the deceased, after alighting from the bus, walked around the front of the bus intending to cross the road without checking whether it was safe to do so, and collided with the truck which was overtaking the stationary bus. The court also noted with implicit disapproval that the policeman who attended the scene was not called as a witness and no sketch plan of the scene was produced by the State, suggesting these would have been relevant pieces of evidence.

This Zimbabwean Supreme Court judgment is significant in establishing the standard of care required of drivers when overtaking stationary vehicles. It affirms that drivers are not insurers and cannot be expected to anticipate pedestrians emerging unexpectedly from behind stationary vehicles without any prior warning or visible indication of their presence. The case demonstrates the importance of reliable evidence in criminal matters and the application of the reasonable foreseeability test in negligence cases involving road traffic accidents. While this is a Zimbabwean case, it applies South African legal principles and may have persuasive value in South African jurisprudence on similar issues of road traffic negligence.