Edward Stanley v Humphrey Mwambi and Charmaine Sibanda and Nestar Ambulance Services

### Preamble
1
HB 209/20
HC 688/20
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EDWARD STANLEY

Versus

HUMPHREY MWAMBI

And

CHARMAINE SIBANDA

And

NESTAR AMBULANCE SERVICES

HIGH COURT OF ZIMBABWE

DUBE-BANDA J

BULAWAYO, 24 SEPTEMBER & 1 OCTOBER 2020

Default judgment for damages

B. Dube, for the plaintiff

Defendants in default

DUBE-BANDA J:	This matter was placed before me on the unopposed Motion Court on the 24th September 2020.  Plaintiff sued out a summons out of this court claiming damages for injuries he sustained in the hands of the 1st and 2nd defendants.  Defendants were served with plaintiff’s summons and did not enter an appearance to defend in terms of rule 48 of the High Court Rules, 1971 (Rules). In consequence of failing to enter an appearance to defend, defendants were barred by operation of rule 50 of the Rules. Plaintiff applied for default judgment.Order 9 rule 60 of the Rules permits the granting of a default judgment if the plaintiff’s claim is for damages and evidence as to quantum has been adduced. In compliance with rule 60, plaintiff filed an affidavit setting out evidence as to quantum. This court may enter judgment relying on evidence in the affidavit.

The plaintiff’s case as derived from his declaration is that on the 27 November 2019, he enlisted the services of the 3rd defendant, which offers ambulance services, to ferry him from his home to United Bulawayo Hospitals, Bulawayo. 3rd defendant sent an ambulance crew consisting of its two employees, i.e. the 1st and 2nd defendants. The two employees put plaintiff on a stretcher and transported him to hospital. Upon arrival at the hospital the two employees took plaintiff out of the ambulance and put him on a stretcher, which stretcher collapsed resulting in plaintiff falling to the ground and fracturing the femur. Plaintiff had to undergo an operation and had metal plates put inside his leg to support his bone. He is now disabled. He suffered 25% permanent disability.

It is alleged that the defendants were negligent in one or more of the following ways: they failed to exercise due care and attention in taking plaintiff out of the ambulance and putting him onto the stretcher; they failed to ensure that plaintiff was properly secured on the stretcher before lifting him up as they did; and they failed to ensure that their stretcher was safe to carry the plaintiff before using it as they did.

In his summons (as amended by a notice of amendment filed on the 7 July 2020), it is pleaded that 1st and 2nd defendants were acting in the course and scope of their employment with 3rd defendant, who in turn is vicariously liable to the plaintiff. In the result, plaintiff is seeking the following:

Payment of special damages being Z$9508, and the equivalent in Zimbabwean dollars, of the following amounts; US$3 250; ZAR 650 and BP 900.

General damages for pain and suffering, loss of amenities and permanent – Z$250 000.

Future medical expenses - Z$57 000.

Damages for loss of amenities of life – Z$400 000.

The plaintiff filed a detailed affidavit and documentary exhibits in support of his claim. The narration of the events, as contained in the affidavit, is no more than a confirmation of his version as summarised in his declaration.

The first issue is, has liability been established?Plaintiff must first show that he has a cause of action, and that defendants are liable. This court must satisfy itself that the plaintiff has a cause of action.Plaintiff has produced evidence in support of his claim. The duty of care doctrine involves two components or elements, namely a duty to take care and a breach of that duty. These two components are usually referred as the ‘duty issue’ and the ‘negligence issue’. See Administrator, Natal v Trust Bank van Afrika Bpk 1979 3 SA 824 (A) 833. The duty of care is not a general duty: it is not necessarily owed to each and every person. The duty of care is particular, relative or directional in the sense that it is owed to a particular person. This implies that a defendant owes a duty of care to persons to whom harm may reasonably be foreseen. In Langley Fox Building Partnership (Pty) Ltd v De Valence 1919 1 SA 1 (A) 12, the court considered the following factors relevant to the creation of a duty: the nature of the danger; the context in which the danger may arise; the degree of expertise available to the parties; and the means available to avert the danger.

Plaintiff will have a cause of action, if he was owed a duty of care by the defendants.  In his affidavit, plaintiff avers that on the date in question he was too fragile to be transported by either public transport or a private one. He had to be transported by 3rd defendant who is in the business of transporting sick people to hospital.

On the papers before court, I find that the duty of care has been established, the next question is whether it has been breached by the defendants. The breach of the duty involves the ‘negligence issue’ of the doctrine of the duty of care. Whether a breach has occurred depends on the extent and scope of the duty in the particular case and the nature of the defendant’s actual conduct. The defendant’s conduct must be examined to determine whether he or she has complied with the duty of care. If not, the conduct is negligent since the duty of care would have been breached.

In his affidavit plaintiff says, as medics who were well experienced with their job, 1st and 2nd defendants had an unnegotiable obligation to check that the stretcher bed was balanced enough to carry him. He avers that it was their duty together with 3rd defendant to ensure that the stretcher bed was strong enough to sustain his weight and to ensure that he was rightly positioned on the bed. On the papers before court, I am satisfied that plaintiff has a cause of action and that 1st and 2nd defendants are liable on the basis of their negligence.

The liability of the 3rd defendant is anchored on the doctrine of vicarious liability. The doctrine of vicarious liability is well established in our law. In A Guide to Zimbabwean Law of Delict, G. Feltoe at page 97 states that the doctrine is justified on the basisthat:

(i) By instructing employees to engage in activities, he creates the risk that the employees may cause harm to others …

(ii) the employer is usually in a far better financial position to compensate the injured party than the employee who will often not have the financial resources to pay compensation and as between employer and the employee, it is therefore, unfair to expect the employee to pay for compensation for a delict arising out of performing work on behalf of the employer …

In the case of Mungofav Muderere &OrsHH-129-03, the court held that the doctrine of vicarious liability of employers for the delicts of employees is based on social policy. The doctrine of vicarious liability applies in the instant case. The plaintiff who was being transported to a hospital, and carried on a stretcher fell and sustained a serious injury. The 1st and 2nd defendants are employees of the 3rd defendant. The ambulance belongs to the 3rd defendant. The stretcher from which the plaintiff fell belongs to the 3rd defendant. At the material time the employees were performing their duties in the service of the 3rd defendant. I take the view that on the facts of this case, the vicarious liability of the 3rd defendant is established. What I must now determine is the quantum of damages that should be awarded to the plaintiff.

I now turn to consider the quantum of damages suffered by the plaintiff. The plaintiff clearly suffered serious injuries. In brief, he fell from the stretcher bed to the ground unsupported, and fractured his femur. He underwent an operation, metal plates were put on his leg to support his femur. For the purposes of assessing the quantum of damages, I will have to rely to a large extent on the medical report by Dr T H Tokwe. The full report is set out in the following terms:-

Re: Mr Edward Stanely: male 82 years

May I refer to the above patient who presented to us with an intertrochanteric fracture post trauma. The patient was said to have fallen whist being transported by an ambulance and sustained the above injury. He underwent proximal plating of the fracture and is currently doing physiotherapy. The patient has a disability of 25% and will continue to require rehabilitation and analgesia.

Special damages

Special damagesshould be specifically pleaded, particularized and proved. It must be proved that the damages were in actual fact foreseen. These damages relate to damages that have already been incurred and are capable of precise mathematical calculation. These are the damages associated with costs of medical bills that should be proved by placing before the courts, the amounts incurred by the plaintiff in seeking and obtaining medical treatment. They are expenses a party incurred up to the date of hearing. They flow directly from the unlawful act.Plaintiff was hospitalized and underwent surgical procedures; namely: - proximal plating of the fracture. Metal plates were put in his leg to support his femur. He paid the following amounts:

ZW$400 for hip X-ray;

ZW$594 for hip review;

ZW$40 643.75 for operation;

ZW$2000 paid at casualty section of the hospital;

ZW$7000.00 for theatre services;

ZW$420 for blood tests;

ZW$1600 Ambulance services;

ZW$1648 + ZW$675 for Nurse Aids;

ZW$5490 injections and pills;

ZW$720 Food.

Total     ZW$61190. 00

I have no difficulty at all in accepting the claim for special damages, except for the amounts of ZAR 650 and BP 900 which do not appear in the affidavit of evidence, and no proof of such payments is before court. Otherwise, in respect of the rest of the payments, sufficient evidence has been placed before the court detailing the exact nature of treatment rendered to the plaintiff as well as the precise costs thereof. Plaintiff attached copies of receipts to show the various amounts he paid to the medical service providers. What I do not accept, is that some of the payments he made were converted into United States currency on the exchange rate prevailing on the date of payment. Plaintiff is in Zimbabwe, paying medical institutions in Zimbabwe, paying in Zimbabwean currency, there is no basis at law to start converting these payments to United States Currency. See Breastplate  Service  (Private)      Limited V Cambria Africa PlcSC 66/20. Therefore, plaintiff’s damages shall be assessed, evaluated and paid in the Zimbabwean currency of the day.

Future medical expenses

According to the plaintiff he was recommended to continue on rehabilitation and on physiotherapy for his wellbeing. He was also advised to continue taking analgesia and doing physiotherapy in the future. He says for all these processes to be undertaken, he is now compelled to spend about ZW$850 per month for the next five years, coming up to ZW$57 000. I have no difficulty at all in accepting the claim for future medical treatment as sufficient evidence has been placed before the court detailing the exact nature of treatment to be rendered to the plaintiff as well as the precise costs thereof.

General Damages

The plaintiff has claimed general damages for pain and suffering; future medical expenses as well as loss of amenities of life. The leading case on assessment of damages in this jurisdiction is Minister of Defence& Anor v Jackson1990 (2) ZLR 1 (SC), wherethe court said it must be recognised that translating personal injuries into money is equating the incommensurable; money cannot replace a physical frame that has been permanently injured. The task therefore of assessing damages for personal injury is one of the most perplexing a court has to discharge. Notwithstanding this, certain broad principles have been laid down which govern the obligation, these are:

General damages are not a penalty but compensation. The award is designed to compensate the victim and not to punish the wrongdoer.

Compensation must be so assessed as to place the injured party, as far as possible, in the position he would have occupied if the wrongful act causing him the injury had not been committed.

Since no scales exist by which pain and suffering can be measured, the quantum of compensation to be awarded can only be determined by the broadest general considerations.

The court is entitled, and it has the duty, to heed the effect its decision may have upon the course of awards in the future.

The fall in the value of money is a factor which should be taken into account in terms of purchasing power, "but not with such an adherence to mathematics as may lead to an unreasonable result.

No regard is to be had to the subjective value of money to the injured person, for the award of damages for pain and suffering cannot depend upon, or vary, according to whether he be a millionaire or a pauper.

Awards must reflect the state of economic development and current economic conditions of the country. They should tend towards conservatism lest some injustice be done to the defendant.

For that reason, reference to awards made by the English and South African Courts may be an inappropriate guide, since conditions in those jurisdictions, both political and economic, are so different.

Theformulation of further principles in the assessment of damages for personal injury is no easy matter. Overall what is to be sought is a compensation which is fair in the eyes of society.

Plaintiff must place before the court sufficient evidence to enable it to carry out an assessment. - Cranswick v Happyson Bonyongwe HH184 /15. Previous awards are useful as general guidelines, however, each case must be considered on its own circumstances.

The compensatory principle states that the plaintiff must, by way of compensatory damages, be put into as good a position as he would have been had the injury or loss not occurred, see Versfeldv South African Citrus Farms Ltd 1930 AD 452. It is known as the principle of restitutio in intergram and applies to both delict and contract .The purpose of damages is not to punish the wrongdoer, but to compensate for loss.A balance should be struck between the need to compensate the plaintiff and the wrong done.The injured party should not be over compensated nor should he be under compensated. The damages awarded must be fair and reasonable.

General damages are awarded to compensate plaintiff for the direct effects of the damage to the injured party or for loss. The objective of general damages is to enable a plaintiff to overcome the effects of his injuries, compensate the plaintiff and not to penalize the defendant. See Biti v Minister of Security 1999(1) ZLR 165(SC); Mungate v City of Harare &Ors HH 328/16.  Plaintiff must be put in a position he would have been had the injury not occurred. General damages cannot be quantified with precision and are measured by the broadest general considerations, no arithmetic calculation or precision.

Pain and suffering

Pain and suffering is a form of non-patrimonial loss closely associated with plaintiff’s personal bodily injuries. It is an umbrella concept which incorporates not only physical pain which is experienced, but also shock, disfigurement, discomfort, inconvenience, loss of amenities of life and loss of expectation of life.  It is a very subjective and personal concept. The plaintiff must have experienced the pain, either at the time when the delict was committed, or subsequently, or will experience in the future. See Edouard v Administrator, Natal 1989 2 SA 368 (D) 385 – 394; Sigoumay v Gllbanks 1960 2 SA 522 (A).  Plaintiff has claimed an amount of ZW$250 000 for pain and suffering. In assessing damages for pain and suffering, the prime considerations are the duration and intensity of the pain. See Abel Mkhwananzi Versus Tirivavi Totamirepi And Ministry Of Social Welfare HB 118/16.

In Witham V Minister of Home Affairs 1987 (2) ZLR 143 (HC), the court said awards in this category are notoriously difficult to assess, for the simple reason that it is virtually impossible, with any degree of accuracy, to translate feelings into money value. Nonetheless such assessments have to be made, and to be made in accordance, as far as possible, with similar cases decided in the jurisdiction, bearing in mind the value of money. In approaching this problem, courts in this jurisdiction have traditionally followed WATERMEYER JA's injunction that:

it must be recognised that though the law attempts to repair the wrong done to a sufferer who has received personal injuries in an accident by compensating him in money, yet there are no scales by which pain and suffering can be measured and there is no relationship between pain and money which makes it possible to express the one in terms of the other with any approach to certainty. The amount awarded as compensation can only be determined by the broadest general considerations and the figure arrived at must necessarily be certain, depending upon the judge's view of what is fair, in all the circumstances of the case.

The court said undoubtedly among the "general considerations" to which the learned judge referred were comparisons with awards made in previous cases of a similar nature.  The courts must be careful not to set a precedent for extravagant awards, and that in a small and far from opulent country the scale should generally be smaller than in a large and rich one. If, in assessing awards for pain and suffering, the courts ignore the social and economic realities obtaining in the country, they may very easily find themselves giving awards which are either shocking or laughable. Courts in this country tend to be conservative, but not over-conservative, in granting awards.

In his affidavit of evidence, plaintiff avers that he endured great pain as a result of the broken thigh bone. He says he endured a lot of unbearable pain because of the operation, wounds and physiotherapy activities, and such pain can be quantified to ZW$250 000. He had to be injected now and again to ease the pain. In addition, he was recommended to take analgesia; medication specifically designed to relieve pain.  I observe that the plaintiff was aged 82 years at the time of the accident. He has suffered loss of amenities of life and ordinary pleasures of life have been diminished. He neither can walk with his wife nor dress himself up. Plaintiff’s injuries have resulted in a disability rated at 25%.  Plaintiff can no longer do the ordinary chores without the need for assistance.I accept that plaintiff suffered excruciating pain. However, the figure of ZW$250 000 was just “plugged from the air” as it were, there is no authority placed before court to support such an amount. I would, taking into account the circumstances of this case estimate the damages for pain and suffering at ZW$100 000.

Loss of amenities of life

Plaintiff claimed ZW$400 000 in respect of loss of amenities of life. I have indicted above, on the authority of Edouard v Administrator, Natal 1989 2 SA 368 (D) 385 – 394 that pain and suffering is an umbrella concept which incorporates not only physical pain which is experienced, but also shock, disfigurement, discomfort, inconvenience, loss of amenities of life and loss of expectation of life.  The loss of amenities is incorporated in the concept of pain and suffering. In Minister of Defence& Anor v Jackson (supra), the court said common sense and justice dictate that a court must be vigilant to ensure that it does not duplicate or overlap damages awarded under one head with that awarded under another. To do so would amount to award doublecompensation. It said an overlap of heads may also occur between awards for pain and suffering and loss of amenities of life, and awards for patrimonial loss.

I have no difficulties in rejecting the claim for loss of amenities. I take the view that awarding plaintiff damages for pain and suffering and loss of amenities would amount to double compensation.

Disposition

In the result, it is ordered as follows:-

1. Default judgment be and is hereby entered in favour of the plaintiff in the sum of

ZW$ 218 190.00 broken down as follows:

Special Damages being medical expenses in the sum of ZW$61 190.00;

Future medical expenses ZW$57 000;

General damages being: pain and suffering in the sum of ZW$100 000.

2. Interest at the prescribed rate from date of service of summons to date of full

payment.

3. Costs of suit.

Moyo and Nyoni, plaintiff’s legal practitioners