MASENDEKE v KUKURA KURERWA BUS SERVICES (PVT) LTD 2017 (1) ZLR 169 (H)

Flynote

Delict — liability — vicarious liability — liability of employer for action taken by employee — claim based on vicarious liability — when plaintiff must show — need for plaintiff to name specific employee and cite such employee as party

Headnote

The plaintiff got onto the defendant's bus at KweKwe in order to go to Harare. At Kadoma he was manhandled off the bus. He claimed damages as compensation for the violation of his freedom from discrimination on the basis of disability and that he was denied transportation by the conductor on the bus on account of his disability. The issue was whether the plaintiff was denied transportation from KweKwe to Harare on account of his disability.

Held, that the law of vicarious liability is easy to state but difficult to apply. An employer is liable for harm caused to a third party by the wrongful act of an employee if the act has been done in the exercise of the functions to which the employee has been appointed. The onus lies on the claimant to prove, on a balance of probabilities, that the employee acted in the course of his employment in inflicting the injury and that all the time when the injury was inflicted the employee was on duty.

Held, further, that the defendant would be liable for the actions of its conductor, which it had not authorized, if they were so connected to the acts which it authorised that those actions might be regarded as modes, although improper modes, of doing them.

Held, further, that the plaintiff's summons gave the cause of action as being assault suffered by the plaintiff as a result of being denied transport services. However, the evidence showed that that was not true. He admitted that he refused to pay the bus fare and the evidence showed that he was forcibly evicted from the bus, not because he was disabled, but because he refused to pay the bus fare.

Held, further, that the plaintiff's claim was premised on vicarious liability but he failed to prove the essential elements of such a claim. His claim failed for failure to lead evidence as to the employee of the defendant who committed the alleged offence and as to the registration number of the vehicle of the bus belonging to the defendant which the claimant boarded and his failure to have the employee as a party to the proceedings.