CHAPTER 12 - STRICT LIABILITY UNDER STATUTE

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Earlier we have seen how under the common law the law of delict has adopted strict liability for various delicts.These include actions such as the Pauperien, the Quasi-Pauperien, the Edictum de feris, the action de pastu, the actio de effusis vel dejectis and the actio de positu vel suspense. It will be seen later that the principle of vicarious liability is a form of strict liability in which the employer is strictly liable for the delicts of his or her employees committed in the course if their employment.

 

Strict liability has also been adopted in various statutory provisions in Zimbabwe. These include strict liability for certain types of harm caused by civil aviation aircraft and harm caused by public passenger transport operators.

 

Section 70(2) of Civil Aviation Act [Chapter 13:11] provides for the recovery of damages from the owner of an aircraft without proof of negligence where material loss or damages is caused to any person or property on land or water:

(a) by an aircraft while in flight, taking off or landing; or

(b) by a person in or an article or person falling from an aircraft while in flight, taking off or landing.

 

Unless the person suffering the loss or damage has caused or contributed to the loss or damage by his or her negligence, damages are recoverable without proof of intention or negligence or other cause of action, as if the loss or damage has been caused by the wilful act, neglect or default of the owner of the aircraft.

 

However, the owner of the aircraft is entitled to be indemnified against a claim for damages by another person if:

 

(a) damages are recoverable in respect of the loss or damage by virtue only of this subsection; and

(b) a legal liability is created in some person other than the owner to pay damages in respect of the said loss ordamage.

 

Section 38B of the Road Traffic Act [Chapter 13:11] provides for compulsory no-fault liability insurance to cover death or injuries to passengers in public service vehicles. The provision reads as follows:

 

(1) Subject to this Part, no person shall drive a passenger public service vehicle carrying passengers on any road unless there is in force a policy of insurance, issued by a person who is approved by the Minister as an insurer for the purposes of this Part, which provides a benefit in accordance with a scale approved by the Minister, irrespective of fault on the part of the owner or any of his employees or agents, to every person who suffers loss or injury, up to an amount of:

(a) two thousand dollars (USD 2 000), in respect of the death of or permanent disability suffered by any such passenger; and

(b) three hundred and fifty dollars (USD 350), in respect of medical or funeral expenses incurred by or in respect of any such passenger who suffers bodily injury or dies;

where such death, permanent disability or bodily injury is caused by or arises out of the use of the passenger public service vehicle on any road.

(2) Any person who contravenes subsection (1) shall be guilty of an offence and liable to a fine not exceeding level six or to imprisonment for a period not exceeding one year or to both such fine and such imprisonment.

 

A public service vehicle is defined in section 2:

“public service vehicle” means a motor vehicle in respect of whose operation an operator’s licence is requiredin terms of the Road Motor Transportation Act [Chapter 13:15];