Shamiso Kasvosve v Bekithemba Masuku and Pathfinder Luxury Coaches (Pvt) Ltd and CBZ Insurance Company (Pvt) Ltd

On 7 December 2013, a road traffic accident occurred along the Harare-Bulawayo highway at night involving a head-on collision between a bus belonging to the second defendant (Pathfinder Luxury Coaches) and a haulage truck. The first defendant (Bekithemba Masuku) was driving the bus in the course and scope of his employment. The plaintiff's husband was a passenger on the bus and died as a result of injuries sustained in the accident. Prior to the collision, the bus had hit a cow on the road and then swerved into the lane of oncoming traffic where it collided with the truck. The first defendant claimed he was travelling at 50-60 km/h, saw oncoming lights on full beam, then saw a cow less than two metres away, hit it, and the steering became stiff causing him to lose control and swerve right. The plaintiff instituted a claim on her own behalf and on behalf of her three minor children for funeral expenses, loss of support, and other damages.

• Whether the first defendant was negligent in causing the road traffic accident
• Whether the accident was caused solely by the negligence of the cow owners and/or the driver of the haulage truck as alleged by the defendants
• Whether the defendants are liable for damages arising from the death of the plaintiff's husband
• Application of the test for negligence: reasonable foreseeability, reasonable preventability, and failure to take reasonable steps
• Whether vicarious liability applies to impute the first defendant's conduct to the second defendant

1. Judgment granted in favour of the plaintiff against the defendants jointly and severally, the one paying the others to be absolved, for payment of US$60,000.00 together with interest at the prescribed rate from the date of summons to the date of payment. 2. Defendants to pay costs of suit jointly and severally, the one paying the others to be absolved.

A driver is negligent when he fails to keep proper lookout, fails to foresee reasonably foreseeable hazards (including animals on unfenced roads near villages at night), and fails to take reasonable preventative measures available to him to avoid an accident. When confronted with an obstacle on the road, a reasonable driver must choose the safest available option - swerving into oncoming traffic is negligent when safer alternatives exist such as swerving to the left or braking to a stop. The test for negligence requires: (a) that a reasonable person in the defendant's circumstances would have foreseen the possibility of harm; (b) that a reasonable person would have taken steps to guard against that possibility; and (c) that the defendant failed to take the steps which he should reasonably have taken. If all three receive affirmative answers, the defendant is negligent. An employer is vicariously liable for the negligent acts of an employee committed in the course and scope of employment.

The court observed that certain heads of damages claimed in the declaration, including loss of companionship, loss of paternal care, and children's shock and emotional trauma, are "startling and unprecedented" in the law of delict and would clearly be unfounded at law. However, the court did not need to make a definitive ruling on these issues because the parties agreed on a global quantum of damages. The court also noted that a defendant cannot lead evidence on material facts that constitute a new defence fundamentally inconsistent with the pleaded case - the mechanical failure defence raised in evidence was a complete abandonment of the pleaded defence (that the accident was caused by cow owners and the speeding truck driver) and should not have been entertained. The court observed that even without cattle crossing signs, a driver familiar with a road near villages with no fencing should foresee the possibility of livestock on the road.

This case provides important guidance on the application of the negligence test in Zimbabwe (which follows South African delictual principles) in road traffic accident cases. It clarifies the duty of care owed by bus drivers to passengers and other road users, particularly in circumstances involving animals on unfenced roads at night. The judgment emphasizes that drivers must maintain proper lookout, adapt their driving to road conditions and hazards (including the presence of villages near unfenced roads), and make reasonable decisions when confronted with emergencies. The case also illustrates the principle that defendants cannot introduce material facts in evidence that fundamentally depart from their pleaded case (the mechanical failure defence). It reinforces the doctrine of vicarious liability whereby employers are liable for negligent acts of employees committed in the course and scope of employment. The case also addresses (albeit briefly) certain heads of damages that are not recognized in delictual claims, such as loss of companionship and emotional trauma claims by surviving family members.