Teresah Mahanda v Handson Ngadya Mukoki

### Preamble
1
HH 778-18
HC 535/16
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TERESAH MAHANDA

versus

HANDSON NGADYA MUKOKI

HIGH COURT OF ZIMBABWE

DUBE J

HARARE, 1 & 2 October 2018, 17 October 2018 & 21 November 2018

Continuous Roll

K. Gama, for the plaintiff

E. Mukweva, for the defendant

DUBE J: On 3 October 2013 the plaintiff was a fee paying passenger aboard a Toyota Hiace, commuter omnibus, registration number ABQ 3761, belonging to the defendant and being driven by Tawanda Madzimbamuto. The commuter omnibus, [hereinafter referred to as the kombi] was involved in a road traffic accident at the National Sports Stadium in Harare resulting in three people losing their lives. The driver of the kombi died on the spot. The plaintiff sustained injuries as a result of the accident. She claims that the accident was caused by the negligence of the driver in that:

(a)	he was over speeding

(b)	he failed to keep proper control of the vehicle when a tyre burst.

(c)	he failed to avoid an accident when it was imminent.

The plaintiff claims that the driver of the said bus was employed by the defendant as a driver and was involved in the accident whilst in the course and scope of his employment with the defendant rendering the defendant vicariously liable for damages she sustained in the accident. She claims special damages for medical expenses incurred, future medical expenses, loss of future earnings and general damages for shock,  loss of amenities of life and health, pain   and suffering and permanent disability totalling $45 730-00.

The defendant defends the claim. He refutes that the driver of the kombi was employed by him and further that the driver was acting within the course and scope of his employment when he was involved in the accident. He alleges that the deceased stole the vehicle from the garage where it was parked and drove it without his authority. He challenges the quantum of damages claimed.

The court was asked to determine whether the defendant is liable to the plaintiff. Secondly  whether the late driver deceased had permission to drive the motor vehicle as alleged and whether plaintiff is entitled to the damages claimed and  if so, the scope and the quantum of damages.

The plaintiff called three witnesses in support of her case. Her testimony is as follows. She used to work for Delta Beverages as a cleaner.  She was involved in an accident whilst aboard a Toyota Hiace whilst on her way to work from Crowborough. She knew the person who was being driving the kombi as “T 1” but got to know his full name after the accident as Tawanda Madzimbamuto. She had known him from November 2012. He resided in Crowborough. She had boarded this kombi for about 11 months. Whenever she boarded the vehicle, Tawanda Madzimbamuto (Tawanda), would be the one driving it .She was under the impression that he worked for the defendant.

On that fateful day she was a fee paying passenger in the kombi and the deceased drove it. Tawanda had no conductor. As they approached the Heroes Acre in Warren Park, the kombi burst a tyre. Some passengers told him not to increase speed. He panicked, screamed and increased speed as he drove towards the National Sports Stadium. He failed to control the vehicle and hit an electrical pole which fell on top of the kombi.Tawanda died on the spot. She became unconscious and was trapped in the kombi. She sustained fractures on her legs, scratches on her face and a lot of lacerations all over her body. She was in severe pain especially on the legs. She could not walk after the accident. She sustained bilateral fractures. She was taken to Parerinyatwa Hospital where she was treated and seen by a specialist who deals in bones. She was operated on. Her brother paid her medical bills. She will need to pay for future medical treatment. She claims damages for pain and suffering. Her employment was terminated after the accident and she claims loss of future earnings.

Sandra Ngundu was married to the late Tawanda Madzimbamuto. She told the court that Tawanda was a conductor employed by the defendant, whom she knew as Ngadya. She did not know him very well and would see him from afar. They stayed in the same area as him. His house is about 200 m away from where they stay. When she started staying with Tawanda in April 2014 he was already working for the defendant as a conductor. He did not have a licence. Charles Nyazvigo, Charlie is the one who was employed as a driver. Charlie drove the same vehicle. Tawanda used to drive the vehicle most of the time. She does not know if Tawanda had a written contract of employment with the defendant. She insisted that he was employed by the defendant and at some stage when his sister died, Tawanda asked for money from defendant’s wife and was given US$20.00 it is not true that he stole the kombi. On 2 October 2013, he woke up and went to work. He said the kombi had a breakdown and that it needed to go to the garage. He took the kombi to the garage in Kuwadzana 5 for repairs with Charlie his workmate. In the evening, the defendant called him over the phone in her presence   and advised that the kombi was ready to be collected from the garage and gave him instructions to collect the vehicle. He went to take it from the garage to the car park. At around 4 am the next morning he went to take the kombi from the car park in Crowborough Phase 2 and went to work. He had the keys already which he had been given by Charlie.

She insisted under cross examination that the deceased was employed by the defendant as a conductor and would drive the kombi. Further, that the defendant stayed near the road used by the kombis and could see the deceased driving past his house. The defendant knew that the deceased using to drive the vehicle.

Kildine Kudzai Makwara was friend of Tawanda. He testified that he knew that the vehicle belonged to the defendant because it was endorsed soothe knew the kombi well.  The kombi was initially driven by Ritchie. After it was involved in a mishap, its windscreen fell and that is when Charlie took over as a driver. Charlie drove the vehicle regularly. Charles would be driving whilst Tawanda would be collecting fares as a conductor. Tawanda would also drive the vehicle. Tawanda would double as a driver and conductor. He would drive the vehicle very early in the morning and Charles would take over around 6 am. He used to be ferried by Tawanda in the kombi who would drive the vehicle to and from Crowborough to town. He does not know if he had a driver’s licence.

The defendant testified in his own case His evidence is as follows. He stays in Crowborough 2. Tawanda was not his employee. He used to see the deceased as he resided in the same area. He resided about 300-350m away from where he resided. He just used to greet him. He does not know if the deceased had a relationship with his driver, Charles. Prior to the accident, the vehicle was parked at the car park by Charles who is his driver. He left the keys with him when the car was due to go for an inspection at the V.I.D and had been parked. Tawanda stole the vehicle from the car park on the 2nd of October and drove it. He never gave him permission to take the vehicle. He only learnt after the accident that he had taken the vehicle. He never gave him the keys. He had the original keys so he must have used duplicate keys. He did not recover any keys after the accident. He gave assistance to the injured and the deceased’s wife. He paid hospital bills for the plaintiff totalling about $350, 00 for the operation and check-ups. He has no proof of payment but he has the receipts at home. The insurance also paid out some money to the plaintiff. He does not know how much. The defendant maintained his story that the vehicle was stolen from the garage and that the deceased was not his employee. She testified well and maintained her version.

It is common cause that the plaintiff was involved in a road accident whilst she was aboard a commuter omnibus driven by Tawanda and owned by the defendant. Tawanda was ferrying passengers for a fee. The defendant did not dispute that the plaintiff sustained injuries as a result of the accident or that the plaintiff lost her employment after the accident.

Whether or not an employer -employee relationship existed between Tawanda remains to be resolve and the defendant is a question of fact.   The plaintiff’s evidence that the plaintiff and Tawanda had known each other from November 2012 was not refuted. She testified that Tawanda used to drive the defendant’s kombi plying the kombi’s usual route and she used to board the same vehicle driven him. The defendant suggested that the only driver he had was Charlie. He did not seriously refute that he used to drive the vehicle. The defendant failed to call the usual driver of the kombi who would have either confirmed the plaintiff’s story or rebutted it. The evidence that Tawanda used to drive the vehicle and ferry passengers was corroborated by Tawanda’s wife and his friend. Kudzai seemed to know the kombi well and its usual driver Nyazvigo.He even knew that the kombi’s windscreen had broken at some stage and knew the defendant’s previous driver, Ritchie. This evidence was not disputed. He did not appear to be making up his story.  Kudzai testified generally well. I found him to be a truthful witness. He was not meaningfully cross examined and his evidence was not discredited... The plaintiff gave clear evidence of how she got to know Tawanda and his involvement with the kombi. Her evidence on this point was not rebutted and is accepted. The court found her a credible witness.

The deceased’s wife told the court that Tawanda was employed by the defendant as a conductor but that he used to drive the vehicle. The defendant in his own testimony told the court that he knew Tawanda and that he lived in the neighbourhood. They used to exchange greetings. Sandra‘s evidence confirms a relationship between the two. The fact that Tawanda once got financial assistance from the defendant’s wife confirms the relationship. The suggestion is that the defendant and Tawanda knew each other and that Tawanda was employed by the defendant as a conductor who was allowed to drive the kombi vehicle. The fact that Tawanda did not actually have a written contract does not assist the defendant. The evidence reveals that although he was a conductor, he would drive the vehicle and the plaintiff was aware of this and he approved. The plaintiff proved that the deceased was given instructions by the defendant to drive the vehicle. Nothing turns on the fact that Tawanda’s wife never went to the defendant’s house. It appears that there was an arrangement where the usual driver would give Tawanda the keys because he stayed near the car park and let him collect the vehicle and do some trips. Tawanda’s wife impressed as a good and truthful witness. She was calm, simple and fair. She was willing to concede where she had no knowledge of what she was asked. I found her to be a fair witness. She was clear that she knew him only as Ngadya. If she had been lying, she would have said she knew his full names or even lied that Tawanda was employed as a driver when he was a conductor. She did not appear like someone with a motive to lie. She testified well and maintained her story under cross examination. She gains nothing by falsifying information I believed Tawanda’s wife’s evidence when she said that Tawanda was employed by the defendant was employed by the defendant as a conductor and    that the defendant was aware that he used to drive the vehicle.

Evidence led is that Tawanda would do trips to and from town and Mbare. If the deceased used to drive the vehicle often and the road he used to drive goes past defendant’s house, it is unlikely that the defendant would be unaware of this fact.  I find therefore the version that Tawanda used to drive the defendant’s vehicle for a fare more probable.  The evidence that the defendant had telephoned him in her presence and asked him to collect the vehicle is not hearsay because she heard the conversation and she can testify to what she heard. Although the defendant denied talking to Tawanda that evening and that he given him instructions to collect the vehicle from the garage, it is her word against that of the defendant. I believed the plaintiff’s witness on this point and find that he spoke to Tawanda and gave him instructions to collect the vehicle. The defendant did not controvert this evidence. I find therefore that Tawanda took the vehicle with defendant’s authority and on his instructions.

When the accident occurred, Tawanda was doing what he was authorised to do and always did. If he used to drive the vehicle so often, I see no reason why he would steal it on this particular occasion. The defendant failed to explain where the deceased got the keys from. The wife to Tawanda told the court that Tawanda had taken the vehicle to the car park the previous day on instructions and had the keys. The defendant failed to prove that the deceased stole the vehicle. The court believed the plaintiff’s witness that he was given the keys and that the deceased was not driving the vehicle for his own purposes and was as he was carrying fee paying passengers with the authority of the defendant.  The defendant failed to rebut the plaintiff’s case. He failed to call his driver Charles to refute assertions by the plaintiff’s witnesses that although Tawanda was a conductor he always drove the vehicle and with the defendant’s authority. He would have told the court whether the deceased was employed by the defendant and the nature of his duties.  Being the regular driver he could have assisted the court with evidence on the state of the vehicle on that day and whether he had given Tawanda the car keys or had duplicate keys. He would have dealt with allegations that he used to give him the vehicle to go and park. He failed to call the car park guard to substantiate allegations of theft. The car park guard could also have assisted the court by telling it if Tawanda used to collect the vehicle from the car park the vehicle and the circumstances under which he collected the vehicle on the fateful day. The failure to fail to call Charles and the security guard is fatal to the defendant case.

The deceased’s manner of driving shows that he failed to control the vehicle when the tyre burst. Having realised his predicament, he panicked, increased his speed and failed to control the vehicle when an accident was imminent resulting in him hitting a pole. He acted unreasonably in the circumstances. The defendant did not refute the evidence on the manner of driving. The deceased driver’s failed to control the vehicle when an accident seemed imminent and failed to avoid an accident. The defendant did not dispute the injuries sustained by the plaintiff choosing to only highlight that he paid some of the medical expenses of the plaintiff.

The concept of vicarious liability originated under English law and has influenced our law. It is based on the close connection and relationship between an employer and his employee. Neethling, Potgieter and Knobel, Law of Delict, 6th Ed, at p 365 state the following of vicarious liability,

“Where an employee (servant) acting within the scope of his employment, commits a delict, his employer (master) is fully liable for the damage.”

The approach of the English courts is the same as that of our courts save that the English law seems to be developing more. In Mohamud v WM Morrison Supermarkets Plc [2016] UKSC 11 the court set out why an employer is held accountable for delicts committed by his employee as follows,

Culpa in eligendo (fault in the choice of an employee)

Interest or profit theory(the employer who earns a profit from the employee’s services must also bear the loss arising therefrom)

The identification theory(the employee is in a better position financially than the employee) and

The risk or danger theory (the work entrusted to the employee creates risks of harm for which the employer must be held liable on the grounds of fairness and justice,

The following must be established for a finding of vicarious liability,

existence of an employer employee relationship between the wrongdoer and the employer

that a delict was committed

that the wrongdoer was acting within the scope of his employment at the time when the delict was committed,  see K v  Ministry of Safety and Security (2005) All SA 519 (SCA), 2005 (3) SA 179 (SC A.

Two tests are used to determine if the wrongdoer was acting in the course of his employment. The subjective test seeks to establish the wrongdoer’s intention at the time of commission of the delict. The objective test otherwise known as the close connection test. It  seeks to ascertain if  the act complained of was done  by the employee for his own interests and purposes , in which case the employer may not be liable, See Minister of Police v Rabie 1986 (1) SA 117 (A), where the court held as follows:

“It seems to me that an act done by a servant solely for his own interests and purposes, although occasioned by his employment, may fall outside the course or scope of his employment, and that in deciding whether an act by the servant does so fall, some reference is to be made to the servant’s intention……the test in this regard is subjective. On the other hand,  if there is nevertheless a sufficiently close link between the servants acts for his own interests and purposes and the business of the master, the master my yet be liable. This is an objective test. And it may be useful to add that …. A master is …liable even for acts which he has not authorised provided that they may rightly be regarded as modes –though improper modes –of doing them…’’. In the case of Lister v Hesley Hall Ltd [2001[UK HL 22; [2001] 1 AC 215 the court formulated the close connection test as follows,

‘…whether the warden’s tort was so closely connected with his employment that it would be just to hold the employer liable.’’ See also Central Motors (Glasgow) Ltd v Cessnock Garage and Motor Co 1925 SC 796.’”

The second test is the close connection test and is an objective test. With this test, if it is shown that there is a closely sufficient link between the act of the employee and for his own interests and purposes of the business of the master, the master is liable. The fact that the particular act done by the employee was forbidden may not be of assistance to the employer. The fact that the act is within the scope of his employment even in a case where he does the opposite of what he was permitted to do or does it for his own purposes does not absolve the employer.

The plaintiff discharged the onus on her to prove that Tawanda was an employee of the defendant, and committed the delict in the scope and course of his employment with the defendant. An employee –employer relationship was established from the evidence led.

When the accident occurred, Tawanda was doing a wrongful act though authorised by his employer. He always drove the vehicle and was authorised to do so by the defendant. He drove the vehicle in pursuance of his employer’s business. He did not do it well that’s all. Tawanda may not have had a driver’s licence but he drove the vehicle with the authority of the defendant. On the fateful day, his employer gave him permission to drive the vehicle and he was involved in a wrongful act which was authorised by his employer. When Tawanda was involved in an accident he was doing what was closely connected with his employment. The defendant is responsible for the consequences. The deceased was involved in an accident whilst in the scope and course of his employment.

The allegations of negligence not having been rebutted, it follows that Tawanda committed a delict. Tawanda had no drivers licence. In Ndava v Takaruwa and Anor SC 56/13, the court remarked as follows with respect to the manner of driving of a driver without a driver’s licence who gets involved in a road traffic accident,

“Where a person has no driver’s licence for the vehicle in question, there is a presumption that his manner of driving which forms part of the particulars of negligence was as a result of lack of the requisite skill and experience expected of a reasonable driver in possession of an appropriate driver’s licence.”

It can be presumed that because Tawanda had no licence and failed to control the accident when an accident was imminent because he lacked the requisite skills to refute this position. The defendant is liable for damages arising out of the accident.

General damages are damages awarded for non- pecuniary loss to compensate the victim for all the losses which are not easily quantifiable. The principles that  guide a  court in assessing damages were laid down in Minister of Defence & Anor v Jackson 1990 (2) ZLR 1( S) where the court  held that  general damages are not a penalty but compensation and that they are designed to compensate the victim and not to punish the wrongdoer. Compensation must be assessed so as to place the injured party as far as possible in the position he would have been had the injury not occurred and  enable a plaintiff to overcome the effects of his injuries and  provide satisfaction for the injustice done to him by compensating him. Courts try to repair the harm done by making a compensatory order in money, see Gwiriri v Highfield Bag 2010(1) ZLR 160 (H), Union Government v Warnecke 1911 AD 657, Mugadzaweta v Co ministers of Home Affairs HH 439/12,

These cases express the difficult task a court has in translating personal injuries into money. There is no scale to measure general damages. It is difficult to compensate fully and to the exact value of the loss. An award for general damages is always in the discretion of the court. The award made will depend on a number of aspects which include the age, sex, lifestyle of the injured party and the nature and severity of the injury sustained. The court must consider whether a plaintiff still suffers any pain and the degree of the pain. The court should not only concern itself with the actual injuries suffered. It has to consider whether the injuries are continuing and how long they will last. If the plaintiff has to depend on others, the court ought to consider the degree of dependence on others.  It is important to consider how the injuries have affected one’s day to day living. If there are any psychological effects caused by the injuries, such deserve to be taken into account. The court should also consider if the injuries have affected one’s life expectancy. The injured party must be compensated for inability to work. A court considering an award for general damages ought to have regard to precedent and consider the effect the award will have on future awards. Awards should take into account economic conditions of the country, the value of money awarded and the effect of inflation on the award.

Damages for pain and suffering can only be determined by the broadest terms. In the case of Nyoka v Nyamweda Bus Service and Anor HH 148-15 an award of $10 500.00 was made for pain and suffering in a case involving fractured bones, see also Mkwananzi v Tirivavi and Anor HB 118/16. In Judith Nyoka v Nyamweda Bus Service and Anor HB 148/15 an award of $10 500.00 was made for pain and suffering, permanent disability and loss of amenities for fractured bones and $ 10 000.00 was awarded in Mkwanazi v Tirivavi Totamirepi HH 118 /16. In the case of Gwiriri v High Field Bag the court made an award of $3000.00 for pain and suffering and $6000.00 for permanent disfigurement with a percentage disability of 65%.In a more recent case of Dziva v Magaisa and Anor HH 93/17, the court awarded $ 4000.00 for permanent disability and $2500.00 for loss of amenities of life.  In this case the plaintiff claims $8000.00 for shock, pain and suffering and permanent disability and has a percentage disability of 50%. When one considers her percentage disability and the ordeal she went through, an award in the sum of $8000.00 seems appropriate in the circumstances of the case. The court has considered that the purchasing power of money has decreased since she made her claim. Prices of goods and services have increased since the awards referred to were made.

The defendant did not dispute that the plaintiff incurred medical bills. She claimed $ 2612, 00 in her summons although she claims to have paid $2388.00 in medical expenses. She will be awarded what she claimed. The defendant says that he contributed paid $350, 00 for medical bills. He has no proof of such payment.  He was not able to produce proof of the bills he paid. He also says that an insurance company paid out something out to her. That figure was not proved. The claim for future medical bills was not challenged.

The plaintiff earned $205 per month and was 32 years old. She claims loss of future earnings. She had a fixed term contract of six months which was subject to renewal upon termination. The plaintiff did not address the court on the effect of the fact that she was a contract worker. The report from her employer states that she was involved in an accident upon serving her contract and was deemed unfit to fulfil her duties and her contract was terminated. The period when she had been with her employer is not known. It appears from the confirmation of employment letter from her employer that they were going to renew her contract but had terminated her contract because she was unable to fulfil her duties. The contract had expired and was not renewed. Contracts are not renewed in perpetuity.  The position at law is that an employer has discretion to renew a fixed contract of work. The court accepts that the direct cause of the failure to renew the contract is the accident.

The court has considered that no matter how many times a contract of employment is renewed, a fixed term contract of employment does not mutate into a contract of permanent employment. It is unlikely that had she not been involved in the accident, her employer would have continued to renew her contract for the next 28 years as suggested. The court was not addressed on whether the plaintiff had any reasonable expectation of renewal of her contract. The court accepts that had the accident not occurred she would have continued working and probably been awarded another contract. The rationale behind an award of loss of future earnings is the recognition that a plaintiff had potential to earn. The award of damages recognises potential earning capacity. The plaintiff was employed as a cleaner and as such that is her earning capacity. Her prospects of finding future employment have been curtailed. The plaintiff is young and would have been able to get alternative employment after termination of her contract. It  appears that she may not be able to do any manual work in the future due to the injuries she sustained .I have decided in the exercise of my discretion to  award  her equivalent of  10 years’ salary.

In the result it is ordered as follows.

The defendant shall pay to the plaintiff the following damages,

(a) $ 24 600.00 for loss of future earnings

(b) $8000.00   for shock, pain and suffering and permanent disability

(c) $ 2612, 00 for medical expenses

(d) $1193.00 future medical expenses

(e) Interest at the prescribed rate from the date of the accident to date of payment in

full.

Costs follow the event

Gama and Partners, plaintiff’s legal practitioners

Mukweva Law Chambers, defendant’s legal practitioners