The drainage tunnel which the plaintiff was referring to in his summons is actually a catch pit. According to George Munyonga a catch pit is an aperture or hole or opening which is constructed to receive storm water from the road and the water goes into the drainage system which is under ground. The catch pit that the plaintiff says he fell into exists and it is along Simon Mazorodze Road. The catch pit is situated on an island which is between the road and the pedestrian or foot path. At the time of the trial on 28 October 2015, the catch pit in question was not covered. In other words it did not have a lid or a cover which is called a steel grating which is normally used to cover such catch pits. The catch pit that the plaintiff identified as the one that he fell into belongs to the City of Harare. Its dimensions which were given by George Manyonga are 1 m long, 0.5 m wide and 1.6 m deep.{mprestriction ids=″1,2,3,4,5″}
George Munyonga conceded that a catch pit without a lid poses a danger to people. He said that it is the responsibility of the City of Harare to carry out regular maintenance i.e. inspections and repairs every three months. He however, said that this was not being done due to resource or funding constraints. George Munyonga stated that at the time he was testifying in court there were 16 catch pits without lids along Simon Mazorodze Road and the City of Harare was working on the lids to cover them. However, he said that there was nothing which had been put in place like signage to warn people of the hazardous catch pits in the meantime. George Munyonga admitted that the City of Harare has encountered several incidents of people falling into catch pits before and that the plaintiff's case was not out of the ordinary. He also admitted that if an adult person falls into a catch pit they will sustain serious injuries. He further admitted that the City of Harare is responsible for the maintenance of street lights too.
George Munyonga did not dispute that the plaintiff sustained a broken left leg and incurred medical expenses to the tune of US$ 5 796 and that he, as a consequence of the injury, experienced shock, pain and suffering.
What are in dispute are the following issues:
(1) Did the plaintiff suffer the injury that he suffered after falling into the City of Harare's catch pit
(2) If the plaintiff suffered the injury after falling into the City of Harare's catch pit, is the City of Harare liable
(3) Was there contributory negligence by the plaintiff
(4) If the City of Harare is liable, what is the quantum of damages that it should pay to the plaintiff
Did the plaintiff suffer the injury after falling into the City of Harare's catch pit
The plaintiff testified as follows:
He works for Lyons Maid Zimbabwe, along Simon Mazorodze Road, Harare. On 28 March 2014, he finished a meeting at work at around past 6 pm or towards 7 pm. He said that when he got into Simon Mazorodze Road he crossed the road and went to the other side, crossed the island and went to the pedestrian or foot path. From there he waved down a commuter omnibus which stopped for him a distance away.
He said that he started jogging towards the commuter omnibus and in doing so he jogged across the island as he intended to go back to the main road where the omnibus was. He said that whilst still on the island he suddenly fell into the catch pit. He said that he went in with his left leg first and the rest of the body followed. He said that he landed in a standing position. He said that when he tried to get out he realised that he could not move. The left leg had broken. He then shouted for help and the people who were in the commuter omnibus, including the driver thereof, and some pedestrians came to his rescue and pulled him out of the catch pit.
The plaintiff explained that he had not been aware of the existence of catch pits on Simon Mazorodze Road until that day. He said that although he worked across the road, he had never crossed the road before to catch lifts from that side of the road on his way to home. He said that the route that he was taking on that day was not his normal route. He said that on this day he was going via Mbudzi area because there was a person that he wanted to see there. So it was his first time to traverse the island.
The plaintiff also explained that he failed to see the catch pit because it was now dark and he could only see as far as 5 m away. He said that there were no street lights and the grass was unkempt thereby obscuring the catch pit. He said that there was no warning sign highlighting the existence of the uncovered catch pit.
The plaintiff further said that the commuter omnibus driver is the one who took him to hospital that evening, but he was only attended to on the next day, 29 March 2014, by Mr Makoni a medical doctor at Harare Central Hospital. He produced a medical affidavit to confirm that he was attended to on 29 March 2014, by Mr Makoni. The medical affidavit confirms that the plaintiff suffered a broken leg.
In disputing that the plaintiff fell into the City of Harare catch pit, George Munyonga said that the plaintiff must have broken his leg elsewhere and found an easy target in the City of Harare. George Munyonga said that what supports his conclusion is the following:
Firstly, the plaintiff's evidence was not corroborated by anyone despite the plaintiff in his summary of evidence having stated that he was going to call Derek Tsiga, the commuter omnibus driver to corroborate his evidence. He said that no explanation was given for Derek Tsiga's failure to come and testify. Mr Kwaramba, for the defendant submitted in his closing submissions that the lack of corroboration where such is necessary creates doubt on the reliability of the plaintiff's testimony.
Secondly, the plaintiff took too long to report this incident or accident to the City of Harare. Whilst the plaintiff alleges that he got injured on 28 March 2014, was admitted in hospital on 29 March 2014, and was discharged on 1 April 2014, and would go back to hospital for reviews and treatment about twice a week, he only reported the matter to the City of Harare on 24 June 2014, which is a delay of three months in reporting the matter from the date of the incident. George Munyonga stated that considering the seriousness of the injury sustained by the plaintiff, if indeed he had fallen into the catch pit, reporting to the City of Harare would have been the first thing on his mind or at least he would have reported the matter to the police. It was submitted that the delay was unreasonable and no good explanation was given for it. It was submitted that the delay in reporting gives credence to the defendant's suspicion that the plaintiff did not fall into the catch pit as he alleges. It was further submitted that the delay in reporting, deprived the defendant of an opportunity to inspect the catch pit at the time the incident is said to have occurred. It was argued that it is possible that as at 28 March 2014, the catch pit had its lid and was covered.
Thirdly, George Munyonga said that the plaintiff's description of how he fell into the catch pit raised more questions than answers in that it is unbelievable that other than breaking his leg, the plaintiff sustained no other injury. He said that the catch pit has an iron bar at the edges where the lid which covers the hole sits, and as such there is no way an adult man like the plaintiff could fall in without getting bruised and lacerated on his body. He said that it is impossible that the plaintiff slid into the pit. He said that the plaintiff must have fallen roughly and since one leg went in first, automatically he must have fallen head long, meaning that the rest of his body should have fallen across or over the catch pit. Furthermore, George Munyonga said that the natural reaction for a person who is falling is to spread their hands out because hands naturally spread out when a person is falling in a bid to break the fall. George Munyonga said that the plaintiff might have fallen, but he did not fall where he alleges to have fallen, but somewhere else, in a pit which is bigger than the defendant's catch pit.
Whilst the plaintiff failed to call Derek Tsiga, the commuter omnibus driver to corroborate his story or confirm that he fell into the defendant's catch pit and whilst the plaintiff also delayed for three months to report the incident of the fall to the City of Harare, I however, believe that he indeed fell into the catch pit of the City of Harare. He gave a detailed and graphic account of the circumstances which caused him to run across the island and how he fell into the catch pit. He gave a credible account and he impressed me as a credible witness. Even under intense cross examination he remained unshaken and stuck to his story. A letter which was written by Mr. Makoni a medical doctor who is an orthopedics and traumatology specialist on 3 March 2015, confirms that he treated the plaintiff who had fallen into a pit. The letter shows consistency on the part of the plaintiff. When he went to seek medical treatment his story to the doctor was that he had fallen into a pit. He never departed from that story. The letter was produced as exh 3. It is therefore admitted that the plaintiff fell into a pit. I do not believe that the plaintiff fell into a pit somewhere else other than the defendant's catch pit along Simon Mazorodze Road. Other than fully describing how he fell into it, he was also able to show it to three City of Harare employees who included Mr. Chikwira when he eventually went to report the incident to the City of Harare. Whilst at the scene, the plaintiff took a picture of the City of Harare employees including a City of Harare motor vehicle. The picture was produced as exh 4. He also took three other pictures of the scene which were marked as exhs 1-3. The pictures show how the catch pit is situated on the island between the main road and the foot path. The pictures show that the plaintiff's description of how he ran towards the commuter omnibus and suddenly falling into the catch pit is consistent with the scene layout. The pictures also depict the plaintiff's work place which is just across the road. The building is quite visible. The pictures render the plaintiff's story quite believable. It is difficult for the court to believe that this is a story that the plaintiff just made up or manufactured. The plaintiff said that these pictures which he produced were taken on the day that he went with the City of Harare employees for an inspection of the scene after having reported the incident to them. This evidence was not disputed.
The pictures show that the catch pit had no lid at the time of the inspection. It had grass in it and on the sides. There was also grass on the island, but it looked withered. The plaintiff explained that at the time they went to visit the scene the grass had withered due to the winter weather, but in March the grass was long, about 20-30 cm tall.
I do not buy the argument by George Munyonga that if the plaintiff had fallen into this catch pit he should have sustained bruises and lacerations on his body and hands. I say this because there is no set method of falling. Whilst it is true that there are some reactions that naturally associate themselves with falling such as the spreading of hands, it does not follow that in each and every fall these natural reactions occur. To hold this would be taking an armchair approach. It must be borne in mind that falling especially if one is running is a thing which happens swiftly, within a flash. How one falls and lands really depends on how one is running and positioned before the fall. In this case the plaintiff said that he was not really running as it were, but was jogging. To jog is to run at a gentle pace or to move at a gait which is between a walk and a run. What this therefore means is that since the plaintiff was jogging his legs were not too spread apart. It is quite possible that when the left leg went into the pit first, the right leg immediately followed and he landed in a standing position as he described. Consequently, I do not doubt the plaintiff's explanation of how he said he fell.
George Munyonga's argument that the plaintiff must have fallen in a pit different from the defendant's catch pit is without substance because he did not explain in what kind of pit the plaintiff ought to have fallen in in order to sustain the kind of injury that he sustained. What is pertinent though is that George Munyonga admits that the plaintiff fell into a pit. George Munyonga said that the City of Harare's insurance company refused to pay compensation for the plaintiff's fall because it queried the injuries sustained by the plaintiff. However, he did not adduce any proof to that effect, it was just his word. I am therefore not convinced by George Munyonga's argument.
George Munyonga made an issue out of the plaintiff's delay in reporting the matter to the City of Harare. He said that that made the defendant suspicious that the plaintiff could have been injured elsewhere and later found it convenient to lie that he was injured in the defendant's catch pit. The plaintiff's explanation was that, since he had broken his leg and was unable to walk, his concentration was on being treated and recovering. He said that, at that time he did not think of reporting the matter. He also said that he did not even think of sending someone to go and report on his behalf. Considering the severity of the injury that the plaintiff had suffered I find his explanation plausible. I have no reason to disbelieve it. The plaintiff sounded sincere about what he was saying.
I therefore conclude that the plaintiff suffered a broken leg as a result of falling into the City of Harare's catch pit.
Is the City of Harare liable for the plaintiff's injury
The case of Kruger v Coetzee 1966 (2) SA 428 (A) at 430E-G lays down the standard test for negligence which is:
(i) Whether the harm was reasonably foreseeable;
(ii) Whether the diligens paterfamilias would have taken reasonable steps to guard against such occurrence; and
(iii) Whether the diligens paterfamilias failed to take those steps.
With the evidence that I have already dealt with above, I will hold the City of Harare liable for the plaintiff's injury. I have already believed the plaintiff's story that the catch pit was not closed or covered at the material time. There was no warning sign of the hazardous catch pit. There were no street lights to illuminate the area. The grass was unkempt. This is a clear sign of dereliction of duty by the City of Harare. Whilst it is true that the catch pit lids are often stolen by thieves and destroyed by vandals there is no reason why the City of Harare fails to mow the grass, to provide street lighting and to put warning signs of hazardous places like uncovered catch pits. The excuse that the City of Harare is facing financial challenges is a lame one. A person is liable if, in terms of the law, he has a legal obligation to take preventive action or positive action to prevent harm from occurring – see G Feltoe A Guide to the Zimbabwean Law of Delict (3rd edn, Legal Resources Foundation, Harare, 2006) at p 48. Uncovered catch pits are deadly hazards to people and Council has a legal duty to ensure that they are regularly inspected to ensure that they are properly covered and that they do not pose a danger to the public. George Munyonga said that the City of Harare has not been able to do regular inspections after every three months as it ought to due to budgetary constraints. The City of Harare cannot be allowed to get away with this kind of dereliction of duty because other than failing to carry out regular inspections to see if catch pits have lids, the City of Harare failed to mow grass, provide street lighting and to put warning signs where lids have been stolen.
George Munyonga said that the City of Harare has had numerous cases of plaintiff's nature reported to it. He also said that after plaintiff's case had been reported to the City of Harare, an inspection of the area was made and it was discovered that 16 catch pits along Simon Mazorodze Road alone did not have lids. At the time George Munyonga testified in this matter in October 2015, the City of Harare was still in the process of making or purchasing the lids. So from the time the plaintiff's incident happened in March 2014, the catch pits had not been covered. Over and above that, no warning signs had been put in place to alert members of the public of the open catch pits. This clearly shows that the City of Harare is negligent and is not quick to take reasonable steps to prevent occurrences such as what happened to the plaintiff. In Butise v City of Johannesburg and Others 2011 (6) SA 196 (GSJ) a case whose facts fall on all fours with the present case, Mr Butise who was jogging fell into an uncovered valve chamber situated on the pavement at night and broke his leg. In his particulars of claim Mr Butise argued that the City of Johannesburg was negligent in that a legal duty rested on it to install or ensure the installation of a cover of the valve chamber or to warn the public of its absence; and the danger it posed. In response the City of Johannesburg argued that it could not have been aware of the absence of the cover and that these covers are prone to theft and vandalism. It also argued that the plaintiff was negligent as he was jogging in the dark and failed to keep a proper look out. It is also argued that due to financial constraints it could not conduct regular inspections and replace the covers of the valve chambers in order to prevent people from falling into uncovered valve chambers.
The court held that an uncovered valve chamber concealed in the darkness operated as a trap. The court further said at 202 para [24]:
″[24] There is a positive legal duty on the first defendant to ensure that uncovered valve chambers did not constitute a danger to the public, and because of the endemic massive scale theft of inspection valve chamber covers, a greater duty rested on the first defendant to ensure the public's safety through the regular, consistent inspection of valve chambers, more particularly because the endemic theft was a continuous phenomenon.″
In the present case George Munyonga said that the City of Harare is failing to do regular inspections. He did not even tell the court when last it had checked the catch pits along Simon Mazorodze Road. His argument that it is possible that as at 28 March 2014, the catch pit the plaintiff alleges to have fallen into had a lid is not supported by any evidence. It is just a supposition without anything to back it. The plaintiff's evidence that there was no lid when he fell into it remains uncontroverted. It is the duty of the City of Harare to do maintenance work on the catch pits. If the lids thereof are stolen, it has a duty to replace them in order to prevent harm to the public.
In casu, I will conclude by saying that it was reasonably foreseeable that an uncovered catch pit could pose a danger to the public. George Munyonga said that such cases were not out of the ordinary, several cases of such a nature had been reported to the City of Harare before. So in light of this and the rampant thefts of catch pit lids that it is aware of, the City of Harare should have been doing regular inspections of the catch pits; replacing the missing lids, mowing the grass around the catch pits to ensure visibility; maintain adequate street lighting to ensure visibility at night; erect danger warning signs to warn members of the public of the existence of open catch pits and erect barriers to block public access to the catch pits. The City of Harare failed to take any of the above steps yet it has a duty to maintain its infrastructure and preserve it in a manner that does not pose danger to members of the public. Any failure in this duty which leads to injury attracts liability. For the City of Harare to argue that it was ignorant of the existence of the uncovered catch pit when it has not been carrying out regular inspections as it ought to be doing will not absolve it from liability. I thus find the City of Harare liable.
Was there contributory negligence on the part of the plaintiff
It is not in dispute that when the plaintiff fell into the catch pit he was rushing to board a commuter omnibus which he had waived down at a place which is not a bus stop. Bus stops have been put in place by Council to stop members of the public from boarding transport at places which pose danger to them and to prevent commuters from having to run after vehicles as the plaintiff did on the fateful day. As correctly submitted by the defendant, Council put in place bus stops to minimise road accidents. From the pictures which were produced by the plaintiff it is clear that there is no bus stop near the catch pit he fell into. He had therefore stopped the commuter omnibus at an undesignated pick up point. This prompted him to run across the island where the catch pit was instead of walking along the pedestrian path provided after the island. The catch pit is strategically positioned on the side of the road to drain storm water. George Munyonga explained that as a safeguard measure catch pits are deliberately located on the island because people are not supposed to walk on the island but on the pedestrian path. He said that the island is not a walk way or run way. It is admitted that if the plaintiff had not walked on the island in the dark he would not have fallen into the catch pit. Pedestrians do not walk or board transport wherever they deem. Vehicles also do not stop to pick up passengers wherever they feel like. They should do so at designated pick up points. The plaintiff was running in the dark when he could not properly see where he was stepping. He could also see that the grass was unkempt and it was long. The motor vehicle had stopped for him. So there was no need for him to run especially considering that he could not see properly. The risk of tripping and falling even in the absence of a catch pit could not be ruled out in such circumstances.
Whilst I accept that the plaintiff can be said to have been negligent as I have described above, it is my considered view that his negligence was not the proximate cause of the fall. The proximate cause of the fall into the catch pit was the absence of the catch pit lid or cover. If the catch pit had been covered, even if the plaintiff had walked on the island where he was not supposed to walk or even if he had run in the dark when he could not see properly, he would not have fallen into the catch pit. The proximate cause of the plaintiff's fall was the uncovered catch pit. For this reason I will say that there was no contributory negligence on the part of the plaintiff.
Quantum of damages
(1) Special damages
These are damages that have already occurred and can be precisely calculated at the date of trial – Feltoe (op cit) at p 129. These include loss of wages, property damage, and medical expenses. In casu the plaintiff proved that he incurred medical expenses to the tune of US$ 5 796. The defendants do not dispute that amount. I will therefore award them to the plaintiff.
(2) General damages
These are damages naturally flowing from the wrong that are of a non-pecuniary nature. They include damages for pain and suffering, loss of limbs, and loss of amenities of life. These do not have a precise value, but the court will decide upon an appropriate award with reference to comparable previous cases – Feltoe (op cit) at p 129. In Minister of Defence & Anor v Jackson 1990 (2) ZLR 1 (S), Gubbay JA laid down eight broad principles that should guide the court in assessing such damages. Amongst them are that general damages are not a penalty, but compensation. The award is meant to compensate the victim so as to place him as far as possible in the position he would have been if the wrongful act causing him the injury had not been committed. The intention is not to punish the wrong doer.
Shock, pain and suffering
The plaintiff is claiming US$ 50 000. For such damages account is taken of pain and suffering which occurred as a direct consequence of the infliction of injuries, pain associated with surgical operations and other treatment undergone by the plaintiff in respect of such operations – Feltoe (op cit) at p 130. To decide on the quantum, the prime considerations are the duration and intensity of the pain in light of the nature of the injuries, the medical evidence and the general circumstances of the case – Feltoe (op cit) at p 130. The test is subjective.
In casu the plaintiff is aged 48 years old. He landed in the pit with his left leg first and the rest of the body followed. The left leg broke. He could not move. He had to wait in that position until people came to pull him out of the pit. He was taken to hospital that night but he was not treated that night. He was only treated on the next day. He was admitted in hospital for four days whilst being operated. The medical report states that the injury was caused by severe force and the injury itself was severe. Plates had to be inserted into his leg. All this shows that the plaintiff endured a lot of pain. However, no evidence was led stating for how long the plaintiff is going to be in pain in future. Looking at the cases which both counsels referred to me I am of the considered view that a sum of US$ 2 000 will be adequate compensation.
Loss of amenities of life
These are damages for loss of ability to engage in sport, recreation, social commitments or other normal activities. These include sexual impotence, sterility, loss of marriage opportunities, loss of general health, change of personality, nervous insomnia and the general handicap of a disability – Feltoe (op cit) at p 131. In Administrator-General, South West Africa, and Others v Kriel 1988 (3) SA 275 (A) at 288E-F amenities of life were described:
″...as those satisfactions in one's everyday existence which flow from the blessings of an unclouded mind, a healthy body, and sound limbs. The amenities of life derive from such simple but vital functions and faculties as the ability to walk and run; the ability to sit or stand unaided; the ability to read and write unaided; the ability to bath, dress and feed oneself unaided; and the ability to exercise control over one's bladder and bowels. Upon all such powers individual human self-sufficiency, happiness and dignity are undoubtedly highly dependent.″
In Gwiriri v Star Africa Corporation (Pvt) Ltd t/a Highfield Bag (Pvt) Ltd HH 20-10 (unreported) at 15 CHITAKUNYE J said:
″Factors that may influence the amount to be awarded include the age and sex, of the injured person. Also the disfigurement and its influence on the plaintiff's personal and professional life. For instance how many of the activities he was able to do or participate in is he still able to or has been incapacitated and what did those activities mean in his life″.
In casu the plaintiff said that he now walks with a limp and with the aid of crutches. At work he has now been assigned to do light duties although his salary has not changed. He said that outside work he used to go fishing to supplement his income but he cannot do that anymore. He said that he used to play social soccer as a 48 year old, but he has now been reduced to a spectator. He is claiming an award of US$ 100 000, but I will award to him US$ 1 000.
Disability
Disability may be temporary or permanent and it is up to the plaintiff to prove it. If he alleges permanent disability he must show that there is no reasonable prospect of recovering. If he alleges temporary disability he must show that there is no reasonable prospect of recovering before the date upon which he alleges the disability will cease – Feltoe (op cit) at p 131. In casu the plaintiff tendered a letter from Mr. Makoni a specialist doctor who treated him which says that the plaintiff suffered permanent disability of 15 per cent after sustaining a pilon fracture of the left tibia. The letter further states that after being treated the plaintiff developed severe post traumatic osteoarthritis of the left ankle joint which is almost like ankylosis of the joint. The plaintiff testified that he now walks with the aid of crutches and now walks with a limp. From a claim of US$ 100 000 an award of US$ 1 000 will meet the justice of the case.
Contumelia
The plaintiff is claiming US$ 50 000 for the embarrassment that he suffered as a result of falling into the catch pit in view of other commuters and pedestrians and being unable to come out of the pit by himself and having to be helped out. He said that the experience was humiliating to him. I will not award any damages to the plaintiff because contumelia is not based on negligence, but on intention. For such a claim to succeed it must be shown that there was an intention on the part of the defendant to cause humiliation or embarrassment to the plaintiff. Such a claim would arise in cases where the delict complained of involves an element of intention to cause embarrassment on the part of the defendant, for example in assault cases. To illustrate this I make reference to the case of Robinson v Fitzgerald 1980 ZLR 508 (GD) wherein the plaintiff who was assaulted by the defendant in the presence of his newly wedded wife was awarded damages for contumelia. In casu the plaintiff's claim against the City of Harare is based on negligence and not on intention. Consequently, the plaintiff cannot succeed in this claim.
Costs
Since the plaintiff has succeeded in his claim I will award him costs. However, I need to express my displeasure at the plaintiff's claim which was ridiculously high from the onset. There was no basis for him to claim amounts as high as US$ 50 000 for shock, pain and suffering; US$ 100 000 for loss of amenities of life; US$ 100 000 for disability and US$ 50 000 for contumelia. These figures are just too high and unrealistic. Honestly the plaintiff did not believe that this court was going to award him such unrealistic amounts. Even his legal representative did not believe so. Legal practitioners know very well that general damages are not a penalty, but compensation. They are meant to compensate the victim and not to punish the wrong doer. Awards that are granted by the courts apart from compensating the victim should also reflect the state of economic development and the current economic conditions of the country. Bearing in mind the current economic hardships that we are facing as a country, which court in its right senses would award such ridiculous amounts In making claims for general damages litigants should claim reasonable and realistic amounts. In making the claims they should be guided by previously decided cases because in awarding such damages the courts are guided by these cases. If litigants and their lawyers adopt this approach chances of such matters being resolved and settled at the pre-trial conference stage will be increased. The major reason why such cases fail to settle without proceeding to trial is because of the ridiculous and unrealistic figures that are claimed by the plaintiffs. In future if I am going to come across such a claim I will seriously consider not awarding costs in favour of the plaintiff even if they succeed in their claim. Legal practitioners should take heed and advise their clients accordingly.
Conclusion
It be and is hereby ordered that the City of Harare pays to the plaintiff the following:
1. US$ 2 000 being damages for shock, pain and suffering.
2. US$ 1 000 being damages for loss of amenities of life.
3. US$ 1 000 being damages for disability.
4. US$ 5 796 being damages for medical expenses.
5. Interest on the total sum at the prescribed rate from date of summons to date of full payment.
6. Costs of suit.
Zimbabwe Human Rights NGO Forum, plaintiff's legal practitioners
Mbidzo Muchadehama & Makoni, defendants' legal practitioners
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