M (In his personal capacity as well as guardian of minor child OM) & ANOR v NYABANGA & ANOR

HIGH COURT, HARARE

[Civil Trial HH 511-16]

May 12 and 13 and August 31, 2016

MUREMBA J

Delict – Damages arising from injuries sustained in an accident – Quantum of damages.

The plaintiffs’ claim was for damages arising from the injuries they sustained in a road traffic accident. The only issue that was referred to trial was the issue of the quantum of damages that the plaintiffs were entitled to.

Held, that general damages are not a penalty but compensation meant to compensate the victim by trying to place him in a position he would have been had the wrongful act causing the injury not been committed.

Held, further, that in deciding upon liability, the financial means of the defendant is not considered. The fact that the defendant is poor does not affect his liability or serve to reduce the amount of damages to be awarded.

Cases cited:

Administrator-General SWA and Others v Kriel 1988 (3) SA 275 (A), referred to

Biti v The Minister of State Security 1999 (1) ZLR 165 (S), referred to

Gwiriri v Highfield Bag (Pvt) Ltd 2010 (1) ZLR 160 (H), referred to

Minister of Defence & Anor v Jackson 1990 (2) ZLR 1 (S), referred to

Sadomba v Unity Insurance Co Ltd & Anor 1978 RLR 262 (G);
1978 (3) SA 1094 (R), referred to

Sandler v Wholesale Coal Suppliers Ltd 1941 AD 194, referred to

Sigournay v Gillbanks 1960 (2) SA 552 (A), referred to

Union Government v Warnecke 1911 AD 651, referred to

Book cited:

Feltoe G A Guide to the Zimbabwean Law of Delict (3rd edn, Legal Resources Foundation, Harare, 2010)

S Simango, for the plaintiffs

S Mugadza, for the defendants

MUREMBA J:

The plaintiffs are married and have a minor child by the name of OM who was aged four years on 3 November 2009 when all three of them were involved in a road traffic accident along Simon Mazorodze and Hobbs Road in Harare. They were passengers in a commuter omnibus, namely a Toyota Hiace which was being driven by the first defendant who was employed by the second defendant as a driver.

The plaintiffs are claiming damages arising from the injuries they sustained in the accident. The defendants have not disputed that the accident happened as a result of the first defendant’s negligence. They have also admitted that the second defendant is vicariously liable as the accident happened whilst the first defendant was driving the commuter omnibus during the course and scope of his employment. The only issue that was referred to trial is the issue of the quantum of damages the plaintiffs are entitled to.

In their summons the plaintiffs are claiming US$ 29 420 which they broke down in the declaration as follows:

PM (first plaintiff)

Hospital expenses

US$ 1 028

General damages inclusive of pain and suffering, loss of amenities of life and 20 per cent permanent disability

US$ 12 000

JG (second plaintiff)

Hospital expenses

US$ 2 392

Future medical expenses

US$ 1 500

General damages 20 per cent permanent disability

US$ 12 000

OM

General damages for pain, shock and suffering

US$ 500

The evidence of the plaintiffs

When JG, the second plaintiff testified she said that in the accident she suffered a fractured left leg (tibia) and fractured right forearm. She went on to produce a medical report which was compiled by Dr ZT on 6 August 2010 at Harare Central Hospital. The report is consistent with the injuries that she said she suffered. It says severe force was used to inflict the injuries and that there was a possibility of permanent injuries. By consent, she also produced a letter which was written by Mr GV an orthopaedic surgeon on 9 September 2010 at West End Clinic. It is addressed “to whom it may concern”. The letter also describes the injuries that the second plaintiff sustained in the accident. It states that she was admitted to hospital suffering from severe pain and shock. She was given painkillers, anti-biotics and anti-tetanus toxoid. The forearm and leg were surgically fixed with metal plates and pins. The wounds were said to have healed but she was said to be having moderate pain in the leg and arm after usage. It was further stated that she could not lift heavy objects, run or play sport. It was said that she would need to have the metal plates removed after one year at a cost of US$ 1 500. It was further said that she may remain with pain after the removal of the plates. It was said that she has 20 per cent permanent disability.

The second plaintiff said that she used up to US$ 2 392 for the insertion of metal plates in both the arm and the leg, all the treatment that she received and the other expenses that she incurred less transport expenses. She gave a detailed breakdown of that money and produced receipts as proof. She said that when she was discharged from hospital she left a balance of US$ 437 which has not yet been paid. She said that she had since received a letter from the debt collectors demanding this money. However, she did not produce any proof of the said debt. She said that she was admitted at Harare Central Hospital for a month from 3 November 2009 to 4 December 2009. She said that the metal plates that were inserted should have been removed after one year on 17 February 2011 at Parirenyatwa Hospital but to date that has not been done because she failed to raise the US$ 1 500 that Mr GV initially charged for their removal. She said that on 7 December 2015 she went back to Mr GV and was advised that it now costs US$ 5 000 to remove the metal plates. The defendants objected to the production of the quotation of US$ 5 000 by Mr GV on the ground that they wanted it produced through Mr GV who would explain the huge increase of the cost from US$ 1 500.

The second plaintiff said that she will therefore need US$ 5 500 for future medical expenses including costs for transport and fees for check-up. On the 20 per cent permanent disability she suffered she said the following; she can no longer do most activities that she used to do before the accident. She can no longer carry heavy things, for instance a 20 litre bucket of water. She can no longer wash blankets, walk for a long distance, kneel, crouch, and run. She now needs the services of a maid to do the household chores that she used to do by herself since she had always been a housewife. She said that she used to grow vegetables and sell them at Mbare Musika but she cannot do that anymore. She said that they have one child and with her new condition she cannot have more children. Her leg and hand are always swelling so she will not be able to carry the pregnancy through. She said that she cannot be seated for the whole duration of the pregnancy as she needs to walk around. She said that assuming that she gives birth, she will not be able to look after the baby like a mother is expected to, e.g. washing the diapers and carrying the child on the back. She said that she cannot bank on a maid because a maid can quit anytime. She said that it is on the basis of the 20 per cent permanent disability that she is claiming general damages in the sum of US$ 12 000.

The second plaintiff said that the child, OM was injured on the jaws and four of her milk teeth shook. At hospital the teeth were secured with a wire but that did not work. In January of 2010 the teeth fell off. The medical report which was produced shows that she sustained injuries on the mandible (jaw) and was bleeding from the mouth. The medical report states that a moderate amount of force was used to inflict those injuries. The second plaintiff said that since the child was below five years old she was treated for free at hospital and as such no medical expenses were incurred. She further said that there is no future medical treatment that the child needs as her permanent teeth have grown. However, she said that the accident left the child very shocked. For sometime she was afraid of boarding commuter omnibuses. Psychologically, the child was traumatised, she appeared unsettled as reflected in her behaviour which can be termed ‘aftershock’. Out of nowhere, she would act as if something had rattled her. For the pain, shock and suffering the child endured, the plaintiffs said that they are claiming US$ 500.

During cross examination the second plaintiff said that she was admitted to hospital for the second time at Parirenyatwa Hospital and was discharged on 19 February 2010. She did not say when she was admitted. As she testified she was in her sixth year with the metal plates which should have been removed after only one year. She said the whole of this year she never went for a medical check-up because they do not have money. She said that she can no longer use the blair toilet because she can no longer squat. If she is in the rural areas she now uses the bush to relieve herself.

The evidence of PM, the first plaintiff was as follows: He suffered a fractured right leg and a laceration on the scalp in the accident. The medical report that he produced states that severe force was used to inflict the injury. A plaster which was later removed in February of 2010 was put on the leg. A letter which was written by Mr GV who also treated him states that after the plaster had been removed the first plaintiff underwent physiotherapy. The letter states that the wound had since healed but the first plaintiff was suffering from effort pains and was taking painkillers. The letter further stated that the first plaintiff could not run or play sport. He has a permanent 20 per cent disability.

The first plaintiff stated that he incurred medical expenses to the tune of
US$ 1 080. He produced receipts to prove this amount. He said that he still owes Harare Central Hospital US$ 650. He said that he had even received a letter from the debt collectors for the payment of this amount. However, he said that he had not brought any proof of this amount. He said that this amount only came to his attention when the debt collectors wrote demanding payment. He said that he does not anticipate any future medical expenses.

The first plaintiff said that he is a qualified motor mechanic by profession and at the time the accident occurred he was employed by Surrey Abattoir, a meat delivery company in Marondera. He said that after the accident, because of the injury, the company made him work on light vehicles as he could no longer work on the heavy vehicles yet the bulk of its vehicles are heavy vehicles. He said that he can no longer lift heavy things like gearboxes and engines by himself as he used to do before the accident. He said that after the accident each time he was working on these, he would ask for assistance from another person. He said that because of this he realised that he could not continue working as a motor mechanic and ended up quitting his job on 9 November 2015. He has now ventured into the timber industry whereby he assigns somebody to go and buy timber for him and he then sells it. The first plaintiff said that for the 20 per cent disability he suffered he wants to be paid US$ 12 000. He said that he can no longer walk long distances or run.

The first plaintiff said that because of the injuries his wife suffered he feels that carrying a pregnancy will be too burdensome on her as her leg and arm constantly swell. He said that she is now totally reliant on the maid. He said that he cannot be with her all the time as he has to fend for the family.

The plaintiffs were unable to call the doctor, Mr GV because he was totally evasive. They ended up closing their case without leading evidence from him.

The evidence of the defendants

The second defendant, TM testified as follows: He said that the amounts that are being claimed by the plaintiffs are exorbitant and too high for his affordability. He said that currently he is not formally employed. He said that after the accident his business suffered a lot because all those that had been injured in the accident had to be taken care of including the plaintiffs and the first defendant, the driver. He said that he personally paid US$ 45 towards the first plaintiff’s Harare Central Hospital bill. However, he could not produce the receipt thereof as the plaintiffs’ counsel objected to its production on the grounds that it had not been discovered. Of interest also is the fact that this payment was never mentioned to the plaintiffs and the receipt which is the proof thereof was never shown to them when they were being cross examined. The second defendant said that the court should award to all the plaintiffs a total of US$ 2 000 in damages. He said that the US$ 5 000 which is being claimed for the removal of the metal plates is too much as there are other institutions like Karanda Mission Hospital in Mount Darwin which can render the service for far less than that amount. He said that he once made enquiries and learnt that it costs approximately US$ 160 to remove the plates at this hospital. However, he did not produce any quotation to substantiate this, it was just his word.

The second defendant said that when the second plaintiff was admitted in hospital she once asked for money for a scan and his wife gave her
US$ 50. He further said that he once met the first plaintiff in town and gave him US$ 120 to cushion them in their expenses. The problem is that all this was never put to the plaintiffs during their cross examination by the defendants’ counsel. So, the veracity of these averments was not tested. This is in light of the fact that the plaintiffs said that they never received any financial assistance from the defendants. I cannot therefore accept that the second defendant made these payments to the plaintiffs.

The second defendant further said that his driver, the first defendant who was initially hospitalised at Harare Central Hospital and two other accident victims received very cheap treatment at Karanda Mission Hospital in Mount Darwin. He said that after the accident his commuter omnibus business closed shop.

The first defendant, Onismo Tawanda Nyabanga testified as follows: He said that he now runs a car wash and earns US$ 200 – US$ 250 per month. He said that the court should give an award of US$ 1 500 to each plaintiff, minus the child. He said that this should be enough because of all the people who were injured he was the most injured, but he only used up to US$ 2 500 for his treatment. He now walks with the aid of crutches. He said that each of the plaintiffs must have used less than that. When asked about his offer to the child, he said that he did not understand why he was being asked to pay these monies. The first defendant could not have been sincere in his statement given that he is the one who negligently caused the accident which caused the injuries upon the child.

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