HIGH Court judge Justice Pisirai Kwenda has ordered the City of Harare to pay $35 000 plus R138 256 to a Harare pedestrian, who was knocked down by a commuter omnibus whose driver was attempting to evade spikes thrown by municipal police officers.
The incident happened on March 22, 2013.
In a judgment delivered on February 14, 2019, Justice Kwenda found the council and the owner of the commuter omnibus, Nyasha Mavhimira, also liable for causing the accident which resulted in the amputation of Phinias Mashoko’s right leg.
Mashoko was knocked down by the commuter omnibus at the intersection of Nelson Mandela Avenue and Chinhoyi Street on his way to Harare Polytechnic College to sit for an examination.
Justice Kwenda said the high-speed chase between the commuter omnibus driver, Casper Sabau, and the municipal police officers was not necessary and both parties should have foreseen the danger to both the passengers in the commuter omnibus and unsuspecting pedestrians walking in the busy streets of Harare.
“The third defendants [City of Harare] officers, under the charge of Michael Bota, were grossly negligent in engaging in a speed chase with a commuter omnibus driver [Sabau], who was determined to escape. They were negligent in throwing a spike,” Justice Kwenda said.
In castigating Sabau, the judge said he created a menace to public safety when he took off at a high speed while trying to evade arrest.
“A reasonable driver would have submitted to arrest. A reasonable driver would have foreseen the danger posed to pedestrians and people on the pavements by taking off at high speed and swerving to evade a spike,” the judge said.
The judge further said, at the same time, the municipal officers should have foreseen the dangers inherent with a high-speed chase and worse throwing a spike in a crowded area, adding that they could have simply recorded the registration number of the fleeing vehicle rather than throwing spikes.
Justice Kwenda said the actions by both parties were interlinked, hence, he found them jointly liable to pay for the victim’s pain and suffering, incurred and future medical expenses.
“The chain of events and casual effect of the defendants’ conduct are so interlinked with each other that it is futile to try and disentangle them. They can
only be jointly and severally liable,” he said.