Nicholas Chindiro v Andrew Moyo and Dennis Mukumba

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HB 257/22
HC 1807/13
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NICHOLAS CHINDIRO

Versus

ANDREW MOYO

And

DENNIS MUKUMBA

IN THE HIGH COURT OF ZIMBABWE

KABASA J

BULAWAYO 14 JULY AND 13 OCTOBER 2022

Civil Trial

B. Ndove, for the plaintiff

No appearance for the 1st and 2nd defendants

KABASA J: 	The plaintiff issued out summons against the defendants for the payment of

“a)	General and special damages in the sum of US$32 500 arising from a road accident caused by the negligence of the 2nd defendant whilst in the course and scope of his employment with 1st defendant.

b)	Interest on the above amount at the prescribed rate of 5% per annum from the date of judgment to the date of full and final payment.

c)	Costs of suit.”

The basis of the claim as elaborated in the declaration is that the 1st defendant was the employer of the 2nd defendant who was so employed as a driver.  On 13th November 2012 at the intersection of Waverly/Walsel Road Bulawayo, the 2nd defendant, in the course of his employment and whilst driving a motor vehicle whose registration number is ABQ 0048, hit the plaintiff.  As a result of the accident the plaintiff suffered a fractured tibia and fibula of the left hand, fracture and dislocation of the left elbow and fractured midline and proximal radius.  He also sustained a deep laceration on the left temporal region.

The collision was caused solely due to the 2nd defendant’s negligence as he failed to keep a proper look out, failed to avoid a collision when, by the exercise of reasonable care he should have and he entered an intersection at a time when it was not safe to do so, colliding with the plaintiff who was a cyclist.

The plaintiff’s claim is for:-

US$5 000 being for pain and suffering

US$2 500 for medical expenses

US$10 000 for solace for loss of amenities of life

US$15 000 for loss of earnings and earning capacity

On 14th December 2020 the plaintiff filed a notice of amendment amending the summons and declaration by inserting the following:

“Its equivalence to Zimbabwean currency at the prevailing bank rate on the date of payment”

The second defendant did not enter an appearance to defend and so never challenged the claim.  The 1st defendant entered an appearance to defend and at the close of pleadings the following issues were referred for trial:-

1.	Whether or not the accident was caused solely by the negligence of the 2nd defendant.

2.	Whether 1st defendant is vicariously liable for damages caused by the 2nd defendant as a result of the said accident.

3.	Whether plaintiff is entitled to the quantum of damages as claimed in the summons.

On the date of trial the 1st defendant defaulted.  His plea was therefore struck out and the issue of liability subsequently fell away.  What remained was for the plaintiff to prove the damages claimed and this he did by filing an affidavit of evidence and heads of argument.

Whilst the plaintiff’s claim relates to damages to compensate for personal injury and not for damages to his property, I find the remarks by POTIGIETER, AR in Erasmus v Davis 1969 (2) SA I at 9 A-B apposite:-

“The principle of assessment of damages in delict is that a plaintiff must by monetary compensation be placed in as good a position financially as he would have been if the delict had not been committed (see De Jager v Grunder 1964 (1) SA 446 (A.D).”

In a case where the damages relate to personal injury, as in casu, the principles enunciated by GUBBAY JA in Minister of Defence and Anor v Jackson 1990 (2) ZLR 1 (SC) provide an important guide.  The learned JA had this to say:-

“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.  This notwithstanding certain broad principles have been laid down which govern the obligation.  These are:-

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

(2)	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.  See Union Government v Warnecke 1911 AD 651 at 665.

(3)	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.  See Sandler v Wholesale Coal Suppliers Ltd 1941 AD 194 at 199.

(4)	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.  See Sigournay v Gillbanks 1960 (2) SA 552 (A) at 555 H.

(5)	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, per SCHREINER JA in Sigourney’s case, supra, at 556 C.  See also Southern Insurance Association Ltd v Bailey NO 1984 (1) SA 98 (A) at 116 B-D, Ngwenya v Mafuka S-18-89.

(6)	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 pauper.  See Radebe v Hough 1949 (1) SA 380 (A) at 386 E.

(7)	Awards must reflect the state of economic development and current economic conditions of the country.  See Mair’s case, supra, at 29 H, Sadomba v Unity Insurance Co Ltd & Anor 1978 RLR 262 (G) at 270 F.  They should tend towards conservation lest some injustice be done to the defendant.  See Bay Passenger Transport Ltd v Franzen 1975 (1) SA 269 (A) at 274 H.”

Turning to the facts in casu, the plaintiff suffered a 23% disability and was hospitalised for 10 days.  He was employed as a security guard earning US$200 per month but had to leave employment due to the nature of his injuries which militated against his ability to discharge his duties.  He has developed osteoarthritis and requires pain medication to manage this condition.

In Christopher Gwiriri v Star Africa Corporation (Pvt) Ltd t/a Highfield Bag (Pvt) Ltd HH 20-10 the plaintiff who suffered a 65% disability and was hospitalized for 5 months and was also discharged from employment on medical grounds received US$3 000 for pain and suffering and US$10 000 for permanent disability.

In Chingamira v Tshabora HH 15-17 US$3 000 was considered as appropriate for pain and suffering as a result of an assault.

Given the circumstances of this case I am of the considered view that an amount of US$3 500 for pain and suffering is justified.

As regards medical expenses, an itemised hospital medical bill filed of record showed a total amount of US$1 550, 80.  The plaintiff will require pain medication due to the arthritis he has now developed.  The cost of the indomethacin medication which he has to take three times a day is US$4.  It was however not made clear as to whether this is the cost for a month’s supply or a day’s supply.  Due to the uncertainty and since this amount is meant to cover a real cost incurred in buying medication, I am of the view that an amount of US$2 000 will be appropriate as an award for medical expenses.

The plaintiff has lost the capacity to carry or lift objects.  His arm is deformed and so he cannot lift up his children in seeking to play with them as a father and experiences difficulty when bathing.  He used to enjoy cycling but he is not able to cycle anymore.  He cannot fend for his family as he used to.  Whilst the plaintiff claimed sexual impotence as a result of the accident, no medical evidence was adduced to support such a claim.  The claim that he lost a child who died of chest pains due to an inability to buy medication is one I am unable to accede to in assessing loss of social amenities.

I am of the considered view that an award of US$8 000 suffices as damages for loss of amenities.

The plaintiff was a security guard and his job opportunities are limited due to his lack of professional qualifications.  He however is now unable to do menial jobs or to get a job as a security guard.  The accident therefore militated against his ability to earn an income.

He is now 42 years old and was 32 at the time of the accident.  He could have worked until attaining the age of 60 but for the injuries he sustained.

In Koroka v ZETDC HH 217-16 the plaintiff was awarded US$20 000 for loss of earnings.  She suffered a disability as a result of an accident and had been employed as an infant teacher.  She was 36 years old at the time of the accident and the court found that she could have a life expectancy of 56.

In casu the plaintiff was 32 years old and has not been able to work for 10 years now.  Given the life expectancy and retirement age which is normally at 55-60, I consider US$15 000 as reasonable compensation for loss of earnings.

As regards costs, the summons did not seek punitive costs.  I therefore find it untenable to seek such costs at judgment stage.

The fact that the 1st defendant had sought to defend the matter but eventually decided not to appear at trial is no reason to mulct him with punitive costs.

In the result, I make the following order:-

Judgment be and is hereby granted for the plaintiff in the  sum of US$28 500, payable at the equivalent Zimbabwean currency as per the prevailing bank rate on date of payment. The US$28 500 is broken down as follows:

US$3500 for pain and suffering

US$2000 for medical expenses

US$8000 for loss of amenities

US$15000 for loss of earnings

Interest at the rate of 5% per annum calculated from date of judgment to date of payment.

3.	Defendant to pay costs of suit at the ordinary scale.

Ndove and Associates, plaintiff’s legal practitioners