Jackson Chamunorwa v Nompumelelo Moyo

### Preamble
1
HB 288/20
HC 341/12
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JACKSON CHAMUNORWA

Versus

NOMPUMELELO MOYO

IN THE HIGH COURT OF ZIMBABWE

MABHIKWA J

BULAWAYO 9 JULY 2019 & 26 NOVEMBER 2020

Civil Trial

Miss M. Busayi for the plaintiff

E. Mlalazi for the defendant

MABHIKWA J:	The parties in this matter happen to be workmates and neighbours at a vending market place.

According to the pre-trial conference minute as well as the opening addresses by counsel, there is one issue to be decided.

Ms Busayi for the plaintiff addressed the court that plaintiff would lead evidence regarding the damages that he suffered as a result of an accident negligently caused by the defendant.  She said these included future medical expenses as well as damages for pain and suffering loss of earning capacity and loss of amenities of life

Mr Mlalazi for the defendant stated that defendant will lead evidence to show that she is remorseful of the accident and plaintiff injuries.  She however did not agree with the quantum of damages claimed by the plaintiff. She did not agree with the allegation that defendant is no longer in a position to come close to or an equivalent of what he used to earn before the accident.  As a result she would want the plaintiff to “marry his claim with the existing authorities in our jurisdiction on similar circumstances”.

The issue is therefore one and simple.  It was agreed that the issue of whether the defendant was responsible for causing the accident or being negligent was common cause and off the table.  This argument will therefore touch only little on liability and negligence.  In short however, it was the plaintiff’s evidence that on the day he got injured, he got to the workplace on 31 May 2012 at around 100 hours.  This was at the Royal Hotel.  He found people gathered there.  He parked his push cart (scania) and went to the pavement.  He leaned against some metal bars as usual.  He asked a certain man at the scene what was happening.  The man explained that the defendant had been quarrelling with her husband over his infidelity.  At the time, the defendant was reversing her vehicle as if intending to leave.  Plaintiff then turned around concentrating on the discussion he was having with this other guy.  Suddenly, he found himself pressed against the wall by the same vehicle that had been reversing,  He had sustained injuries especially on his right leg.  A Dr Swane prescribed two choices, one of which was amputation of the leg.  Eventually the leg was amputated.  Exhibit 1(a) and 1(b) respectively were provided in evidence.  These were a letter of confirmation and an affidavit statement in terms of section 278 (3) of the Criminal Law and Evidence Act, Chapter 9:07, commonly referred to as the Medical Report.  They were both done by Dr B. Swane.  In short, the doctor confirmed the injuries suffered.  He also confirmed that the patient (plaintiff) required urgent amputation as the right lower limb “was dead”.  He also confirmed that the patient was admitted at the Bulawayo United Hospitals (UBH) from 31 May 2012 to 12 June 2012.  The doctor also confirmed that the patient would suffer permanent disability as the right limb had been severely damaged and could not be saved.  The patient had therefore undergone an emergency above knee amputation of the right leg.

At the time of the accident, the plaintiff was 36 years.  At the time he testified, he was 43.  His wife then passed away on 27 April 2019 some seven years after the accident.  He remained with 4 children who were then 19, 16, 14 and 12 years old respectively.  He obviously has to cater for them and pay their fees.  Mr Chamunorwa said currently, he is a vendor selling fruits and vegetable.  However, that has not always been his trade.  He had been a push cart operator.  The question was whether he earned much or much more as a push cart operator then than now as a vegetable vendor.  It also emerged, especially during defendant’s evidence which was not disputed that he encouraged him to do vending and gave him the seed capital to start vending business.  Initially, the impression given was that the defendant had been employed full time by the Bulawayo Seed Centre.  It became more clearer and common as the trial progressed that he used to be called on a part-time or piece job basis with his push cart to off load trucks at the Bulawayo Seed Centre company premises.  He would literally be hired and be paid for that job.  During the farming or rainy season, from around October, he would be hired at that place delivering seed and fertilizers.  He said he would unusually work there from around October to February (5 months) earning about $200 per month.  This would translate to about $1 000,00 in five (5) months.

He said besides the hiring at Bulawayo Seed Centre, he would wake up early to operate his push cart business from 04:00 to 0750 hours every day before going to the Seed Centre.  He said he earned US$15 to US$30 daily for that carting morning work.  He said he would work 22 days a months and earn a total of US$660 per month and US$4 620 in seven (7) months.  He of course was cross-examined vigorously on this aspect by Mr Mlalazi for the defendant.

The plaintiff also said that after discharge, he used to go to the hospital daily for the dressing of the wound, the pain was excruciating.  He eventually bought an artificial limp for a cost of US$410,00.  Unfortunately the limb works for 2 to 5 years and thereafter needs to be clamped.  One artificial limb would therefore not be sufficient for his whole life.  He did not know the total number that he would need ultimately.

However, at that stage, the plaintiff and both counsel confirmed that the issue of artificial limbs had been agreed and resolved at the pre-trial conference stage before MATHONSI J (as he then was).  The agreement was specifically that:

The quotation for the artificial limb to be used was the one for the United Bulawayo Hospital (UBH).  This cost $410,00.

Whilst it may not be known or ascertained as to how many more years plaintiff would live, it had been agreed that in addition to the current artificial limb, he be compensated for two (2) more artificial limbs he may need in future costing a total of $820,00.

At some stage during the trial and evidence of the plaintiff, Ms Busayi sought the amendment to the claim for delictual damages which was not opposed foreseeable as it was not at prejudicial to the defendant.

I must say also that plaintiff told the court that because of the accident, he lost his piece jobs at the Bulawayo Seed Centre.  He was unable to carry heavy loads as he used to do.  He could no longer operate a push cart because his body in general and his limb in particular could not sustain heavy loads.  e thus had resorted to selling fruits and vegetables as stated ab

He averrd also that before the accident he used to play football for recreational purposes.  He would go to the ground but his artificial shin could not manage the same.

The 2nd witness in the plaintiff’s case, John Anderson simply confirmed the employment of the plaintiff on a part time basis from around October to December during the rainy season.  He would earn about US$200,00 per month.  Other than that, time was making more to his evidence.  Of course initially Anderson said the plaintiff’s job was guaranteed but he eventually agreed that it was not in cross examination.

The defendant admitted negligence and liability.  She struck the court as a very remorseful party who was deeply sorry about the consequences of her actions.  She was a fruit and vegetable vendor herself.  When she realised plaintiff’s challenges after the accident, she advised him to start vending and even provided the said money to start up the business.  She said even before the accident vendors and push cat operators conducted their respective business at the same place.  She therefore knew what push cart operating earned and what vendors earned.  This evidence was not controverted.  She said she earned about RTGS$20 per day which was almost the amount earned by a push cat operator.

Having admitted liability and having considered what she had so far done for the plaintiff, she offered the plaintiff RTGS$2 000,00.  This did not include the claim for medical expenses.  This offer apparently was for pain and suffering that the plaintiff endured.  She was not disputing the pain and suffering but the quantum claimed.	As for the loss of amenities of life it was submitted by defendant and her counsel inclosing submissions that plaintiff could still engage in other hobbies instead of sticking to soccer and …………………………… and seek to be paid for their loss.  She stuck to her evidence that the plaintiff’s earning financially remains almost the same, before and after the accident.

The defendant was aware that the plaintiff had finally withdrawn his initial claim of US$200 000,00.  She was adamant though that figure was still inflated, she was aware also that plaintiff was claiming US$1 900 for loss of amenities this court must state that it has always been difficult to compensate a party for what he would do for social enjoyment not for monetary gain, in any event, where a party make such a claim for compensation, he or she must in my view give a plausible reason why she should also in my view also show that he cannot in the circumstances divert to any other social hobby.

Finally, a party who claims damages for loss of social amenities should not in my view claim damages and compensation as if he had been making a living out of the social amenity.  Defendant disputes that she had done nothing for the plaintiff.  She said it should be remembered that she bought the crutches for him as well as gave him the seed money to start the vegetable vending business.

Mr Francis Simango, aged 45 testified that he is self employed as a push cart operator himself since the year 2000.  He hires push cart realising a daily income of almost $15 bond.  From the average $15 bond, he deducts the hire charge of $4,00.  He said his wife, who is a vendor brings money at home than him.

In Delta Beverages vs Pukito 2013 (2) ZLR 298

The respondent (plaintiff in the court a quo) had issued summons claiming payment of damages and costs of suit.  The court held that a claim for damages in respect of pain and suffering strictly constitutes more than a head in a general Aquillian action.  If aims at compensating the victim of all pain, suffering, shock and discomfort suffered by him as a result of the wrongful act.  It was held that this would include both physical and natural pain, suffering and both past and future pain and suffering.  Moreover, it was stated that account must also be taken, not only of the pain and suffering suffered as a direct consequence of the inflicting of injuries, but also of pain and suffering associated with surgical operations and other curative treatment reasonably undergone by the plaintiff in respect of such injuries.

Broadly speaking, the Aquillian action provides a remedy fir patrimonial loss and the actio injuria compensates for sentimental loss.  It is possible however, under the modern Aquillian action to recover damages for pain and suffering, disfigurement, loss of amenities of life and loss of expectation in life.  The courts will obviously take into account levels of awards in previous cases of a comperative nature to ensure that there are not more discrepancies in the levels of awards especially for non-patrimential loss.

When comparing with previous cases, the courts quite often take into account the decrease in monetary value that would have occurred over the years.

In Nyandoro vs Min of Home Affairs & Anor 2010 (2) ZLR 332 (H)

The plaintiff had been involved in a peaceful demonstration organised by a non-governmental organisation.  The police broke up the demonstration most of the crowd ran away.  However, the accused was caught and was associated by about 10 to 12 policemen.  The plaintiff claimed damages for the assault from the members of the police force.

The assault was held to be unlawful.  It was said in that case that the broad purpose for an award for non-patrimonial loss is to enable the plaintiff to overcome the effects of his injuries and to provide psychological satisfaction for the injustice done to him.  However, since pain and suffering cannot be accurately measured, the quantum of compensation to be awarded can only be measure by the broadest general considerations.  The compensation awarded should be assessed so as to place he injured party as far as is possible in the he would have been in if the of the wrongful act causing injury had not been committed.

At the same time it must be stressed however that parties and legal practitioners alike should always bear in mind that the damages and awards are not a payment, neither are they a penalty or punishment for the wrongdoing.  They are primarily compensation.  This was the reason in various cases including the case of Mungate vs City of Harare & Ors HH-338-16.

In Chinembiri & Ors vs Ncube HH-74-12 the guidelines highlighted in assessing damages were tabulated as follows:

That damages are not a penalty but compensation.  The award is to compensate the victim not to punish the wrongdoers.

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

That 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 consider the effect its decision may have upon the course of awards in the future.

The fall in the monetary value as a factor to be taken into account in terms of purchasing power.  This of course should not be with such an adherence to precise mathematics as may lead to a measurable result.

That awards must reflect the state of economic development and current economic conditions.  They should lean towards conservation lest some injustice be done to the defendant.

Compensation for loss of earnings and of earning capacity

In assessing damages for loss of earning and for future earning capacity, the court will consider the claimant’s respective earnin capacity before and after the accident.  The court will then compensate the victim for the difference between the two earning capacities, having regards to inflation life expectancy and so on, largely informed by the evidence led in court during the trial.

Compensation for loss of amenities of life

These refer to limitations of amenities of life that were caused permanent or temporary disabilities including impediment or loss of ability or desire to engage in sport, recreation, social commitments and other.  These may also include such things as sexual impotence, sterility, loss of marriage opportunities, loss of general health, change of personality nervous insomnia and the general handicap of disability.

I must say though that in my view, care should be taken in making claims under this heading.  Not all fanciful claim or claim made simply because she has got injured in a wrongful conduct by another will succeed.  For example a proven footballer, though not necessarily professional footballer or athlete is more likely to succeed in his claim for such damages for loss of ability or desire to engage in sport and recreation.

Finally in Mafusire vs  Greyling and Anor HH-173-10

The issue of the assessment of damages the pain and suffering, disfigurement and loss of amenities was discussed.  The plaintiff issued summons claiming damages arising from a motor vehicle accident which occurred on 18 May 2007.  The claim was founded on allegations that the accident was solely due to the negligence of the 1st defendant.

After trial, the court concluded that the plaintiff was entitled to damages for pain and suffering in the sum of US$1 000,00 and US$5 000, for future medical expenses.  The total damages was US$6 000.  However, due to contributory negligence, plaintiff was entitled to only 60% of the damages which translated to US$3 600,00.  The 1st defendant in his counter claim was entitled to a trial of US$2 500,00.  He had contributed to 60% of the negligence causing the accident and entitled to only 40% of the total damages.  This translated to US$1 000,00.

The issue of assessment of delictual damages was also discussed even more at length in Mugadzaweta vs Co-Ministers of Home Affairs & Ors 2012 (2) ZLR 423 (H) per ZHOU J were the learned judge pointed out that:

In assessing damages arising out of bodily injury, it

“… must be recognized 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.”

The judge went on to point out that the damages would cover all pain, physical and mental suffering and discomfort caused by the bodily injury.  The part that is relevant is that actually suffered by the plaintiff and not hat which would have been suffered by a reasonable person.  He went to state that;

“loss of amenities has also been described as “a diminution in the full pleasure of living; a loss of 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 functions and facilities as the ability to walk and run; the ability to sit and stand unaided; the ability to read and write unaided; the ability to bath , dress and feed oneself unaided … highly independent.

Even damages for and the meaning of disfigurement were discussed at length.

From the above and similarly decided authorities, I am not convinced that even after the amputation of a whole leg, the applicant can be said to have no loss of amenities at all.

It is true however as submitted by Mr Mlalazi that plaintiff unfortunately did not amend the currency.  It is asking the court to grant damages in foreign currency.  But the court also cannot grant damages in the form of a figure and currency not asked for.  But in my view the court can grant the damages in the United States dollar currency or the alternative the equivalent ZWL$ or RTGS at the prescribed market rate as at the time of payment.

I must say also that at point 11 of her closing submissions, Ms Busayi for the plaintiff submits that plaintiff claims “”US$5 000 for pain and suffering; US$6 000 for loss of earning capacity and US$1 984 for loss of amenities of life; all totaling US$12 984 plus the admitted medical expenses.  She stares at the end of her address that the total compensation should be in the sum of US$15 000,00 or its equivalent thereof at the prevailing bank rate.

In the circumstances, I will make the following order for damages.

Plaintiff is awarded general damages pain and suffering, loss of earning capacity and loss of amenities of life in the total sum of US$15 000,00.

Costs of suit.

Legal Resources Foundation, plaintiff’s legal practitioners

Dube-Banda, Nzarayapenga & Partners, defendant’s legal practitioners