Mbundaya Annah v Chitoyo Tinashe and Mutambisi Edmore

### Preamble
1
HB 227/20
HC 1349/16
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MBUNDAYA ANNAH

Versus

CHITOYO TINASHE

And

MUTAMBISI EDMORE

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 22 OCTOBER 2020

Ms P Mudisi for the plaintiff

No appearance for the defendants

Unopposed Application

MAKONESE J: 	 Where a party institutes legal action for delictual damages arising out of a road traffic accident the pleadings must set out the particulars of negligence.  It is imperative for the plaintiff to allege wrongfulness and unlawfulness of the defendant’s conduct in the pleadings.  In this matter, the court has had to extract these particulars from the plaintiff, a scenario which should never occur.  All the material aspects of the alleged negligence must be specifically pleaded and must appear ex facie, the declaration.

On 30th July 2013 plaintiff was a passenger in a commuter omnibus, Sprinter, registration number ABQ 5527 travelling from Musina, South Africa to Gweru in Zimbabwe.  Plaintiff was amongst a group of shoppers travelling from the border town of Musina.  1st defendant was the driver of the commuter omnibus.  Passengers on board the vehicle cautioned 1st defendant against continuing with the journey as he appeared to be falling asleep.  1st defendant refused to take advice and continued driving.   2nd defendant is the owner of the commuter omnibus.  At all material times the defendant was employed by 2nd defendant and was performing his acts in furtherance of 2nd defendant’s business interests.   1st defendant was acting in the course of his employment at the relevant time.

At around 0445 hours and along the Chachacha – Mandamabwe road, 1st defendant fell asleep and lost control of the vehicle.  The vehicle veered off the road into a stream.  Plaintiff sustained serious injuries as a result of the accident.  She could not narrate the details of the accident as she only woke up in hospital.  At the time of the accident the police who attended at the scene compiled a report at Gweru Traffic showing that the 1st defendant could not be located and had fled the scene.  The sole cause of the accident was 1st defendant’s negligence who drove the motor vehicle negligently and without due care and attention.  1st defendant was reckless in continuing to drive the vehicle when he was falling asleep.  2nd defendant is vicariously liable in this matter as 1st defendant was acting in furtherance of his employer’s interests.  1st defendant acted wrongfully and unlawfully in causing the accident and is liable to the plaintiff for damages arising from this accident.  In assessing damages for bodily injuries, the court shall examine the circumstances of the plaintiff and relate this to damages awarded in similar cases.

Damages for bodily injuries

At the time of accident plaintiff was a married woman aged 43 years.  She had one minor child.  She was a cross-border trader employed in the informal sector.  She suffered multiple injuries, trauma, chest trauma, right open tibia fracture, right posterior hip dislocation, acetabular   fracture. She remained on traction for 6 weeks.  She was examined and received treatment under the observation of an orthopaedic surgeon Mr. C. Msasanure.

General damages

Plaintiff was admitted at Mater Dei Hospital from 30th July 2013 to 20th August 2013.  She was transferred to United Bulawayo Hospitals (UBH) where she was detained from 28th August 2013 to 5th October 2013.  Plaintiff underwent physiotherapy for two weeks.  The trauma, pain and suffering she endured was severe. A fair and reasonable award of general damages, for pain and suffering is in the sum of US$5 000 or its equivalent at the prevailing bank rate of exchange. See; Simbanegavi v Officer Jacha HH 40/13 and Mkiza v Gumede HB 110/91

Permanent disability and disfigurement

When the injuries had reached their permanent stage of healing, the plaintiff visited Dr Tsododo.  Plaintiff was advised that an artificial hip replacement was an option to reduce pain in her right hip.  Plaintiff has no financial capacity to secure an artificial hip.  The medical report indicates that:

“As a result of the injuries sustained to the pelvis and hip, she has been advised against having more children.”

The plaintiff’s life has been severely impacted as she only had one minor child at the time of the accident.  The court takes judicial notice of the fact that there is popular belief that in most African marriages, having more than one child strengthens the marital union.  Undoubtedly, plaintiff’s life and prospects of bearing children have been severely affected by the injuries sustained in the accident.  Besides, plaintiff no longer enjoys a normal life as she has incessant pain in the hip.

The fair and reasonable award for damages for disfigurement and disability and loss of social amenities is assessed at US$5 000 or its equivalent at the prevailing bank exchange rate.

See; Garikai v Kwenda & Anor HH194/91

Future medical expenses

Dr Tsododo’s full medical report dated 11th March 2016 is in the following terms:

“I attended to the abovementioned lady on 29th July 2013 with multiple injuries after she was involved in a road traffic accident.

Chest injury with blood in both plural cavities

Multiple fracture pelvis;

Right acetabulum fracture to left ischio – pubic rami

Multiple fractures to right lower limb

Fracture to right tibia and fibula

She had operations to drain blood in chest, screws inserted in right hip and metal plating done to right tibia

The injuries have reached the final stage of healing, but she still needs to undergo an operation to remove plates inserted in the right leg.

She also complains of pain in right hip and was advised that an artificial hip replacement could be an option to reduce pain.  As a result of injuries sustained to the pelvis and hip she has been advised against having more children.

She requires medication in the form of pain killers.

Regards

Dr G. C. Tsododo”

A fair and reasonable assessment of damages for future medical expenses is in the sum of US$5 000 or its equivalent at the inter-bank rate of exchange.

Special damages

The medical expenses as set out in the receipts attached to the plaintiff’s claims are in the sum of US$35 758,22.  The plaintiff is awarded this amount or its equivalent at the inter-bank rate of exchange.

Loss of future earnings

At the time of the accident the plaintiff was self employed as a cross-border trader.  The medical report does not indicate whether plaintiff will not in the future be able to resume her work.  The narration in the declaration is not supported by the medical evidence.  The accident occurred on 30th June 2013.  The summons and declaration was filed on 30th May 2016.  In the absence of cogent evidence of plaintiff’s inability to make future earnings from any other activity, this court shall make an assessment based on her loss of earning from 30th June 2013 to date of this judgment.  Her monthly income was estimated at US$400 per month.  For the 7 years since the accident plaintiff would have earned a sum of US$400 x 84 months totaling US$33 600.  It is to be noted that no further evidence has been placed before the court to indicate plaintiff’s current medical condition or earning capacity. I shall therefore make an award based on information placed before me. I hasten to add that damages are awarded not to penalize the defendant, but to enable the plaintiff to recover amounts that would, to an extent compensate for loses forced upon her by the wrongful conduct of the defendant.

In the result, and accordingly the following order in respect of damages is made:

1st and 2nd defendants are ordered to pay the following amounts or the equivalent at the prevailing interbank exchange rate, jointly and severally, the one paying the other to be absolved;

General damages

Pain and suffering 			-	 US$5 000

Disfigurement and disability 		-	 US$5 000

Future medical expenses 			-	 US$5 000

Special damages

Actual medical expenses 			-	US$35 758

Loss of earnings				-	US$33 600

Total award					US$84 358

Interest at the prescribed rate from 30th July 2013 to date of final payment.

Costs of suit.

Mutendi, Mudisi & Shumba, plaintiff’s legal practitioners