Fatal accident nurse fights High Court ruling

A GWANDA nurse who fatally knocked down a nine-year-old boy has approached the Supreme Court challenging a decision by the High Court ordering her to pay the deceased's parents US$16 525 as compensation for their loss and funeral expenses.

Ms Sithandazile Mpofu (33), who is employed at Gwanda Provincial Hospital and did not have a driver's licence at the time of the offence, was travelling with her husband Mr Melusi Sibanda (33) along the Bulawayo-Gwanda road when she lost control of the car. It veered off the road before fatally hitting Thabo Ncube who was sitting on the edge of the highway.

The boy's mother, Mrs Precious Ncube and her daughter, Nombulelo, were also injured in the accident which occurred on September 8 in 2012 at the 97km peg. Mr Sibanda tried to cover up for his unlicensed wife by telling traffic cops that he was the driver of the car.

Mr Kenneth Ncube, who is the deceased's father, his wife Mrs Precious Ncube and their daughter, Nombulelo, then took the matter to the High Court citing Ms Mpofu and her husband as defendants.

Bulawayo High Court Justice Nokuthula Moyo ordered Ms Mpofu and Mr Sibanda to pay the plaintiffs US$16 525 being general damages for pain and suffering as a result of the loss of their son and bodily harm, medical and funeral expenses incurred.

In their summons, the deceased's parents claimed damages in the sum of $25 000, but the judge reduced the amount to $16 525. The judge concluded that Mpofu was speeding and grossly negligent in causing the accident. He also ordered the defendants to pay the legal costs incurred by the plaintiffs.

Justice Moyo said the family suffered traumatic stress disorder and was emotionally drained following the death of Thabo. Ms Mpofu and Mr Sibanda, through their lawyer Mr Kholwani Ngwenya of TJ Mabhikwa, filed an appeal at the Supreme Court challenging Justice Moyo's decision.

They cited Mr Ncube, his wife and their daughter, Nombulelo as respondents. In their grounds of appeal, the appellants said the lower court erred by awarding the respondents the sum of US$3 690 as funeral and medical expenses for the deceased, arguing that amount was not proved through documentary evidence.

"The award was not supported by evidence placed before the trial court and proved by the respondents. The lower court misdirected itself by awarding the sum of US$12 000 as general damages for pain and suffering without any evidence placed before the court to support same or justifying same. In any event the respondents had also claimed for disfigurement and loss of amenities of life under the same category for general damages which were not proved by respondents," said the appellants.

The appellants are seeking an order setting aside the High Court judgment and substituting it with the one directing them to pay US$4 360 being funeral expenses and damages for pain and suffering with each party paying their legal costs.

In papers before the court, it was stated that on September 8 in 2012 at around 3.30PM, Sibanda unlawfully permitted Mpofu to drive their car. The couple was coming from Gwanda and heading towards Bulawayo.

As she tried to get into a road leading to Mtshabezi Mission School, Mpofu lost control of the car and it went off the road and hit Thabo, his sister and mother. When police arrived at the scene, Sibanda lied that he was the one who was driving the car in a bid to cover up for his unlicensed wife.

Investigations by police revealed that it was Mpofu who was driving the car leading to her arrest. She was slapped with a six months imprisonment term for culpable homicide and fined $200 or 30 days for driving without a licence.