Christopher Chaita v Justice Mupemhema

### Preamble
1
HH 486-18
HC 138/15
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CHRISTOPHER CHAITA

versus

JUSTICE MUPEMHEMA

HIGH COURT OF ZIMBABWE

MUSHORE J

HARARE, 19 February 2018 and 22 August 2018

Civil claim for personal damages

N.L Jani, for the plaintiff

F. Mafunga, for the defendant

MUSHORE J:  The plaintiff is claiming personal damages arising from injuries which he suffered as a result of a road traffic accident which occurred on 9 April 2012. The facts in the matter are common cause. Whilst aboard the commuter omnibus which is owned by the defendant, the driver of the bus lost control of the vehicle when the bus hit a pot-hole which caused the bus to overturn. The driver of the bus died on the spot and twenty people were injured. After the accident, the plaintiff was conveyed to Parirenyatwa hospital where he was admitted and treated for his injuries. The plaintiff was badly injured and sustained a spinal injury which has caused him a 100% permanent disability. He is undergoing rehabilitative care as an outpatient. The plaintiff is wheelchair bound and in continuous pain.

Prior to the accident the plaintiff was employed as a builder earning US$500-00 per month. The accident has cost him his livelihood. The plaintiff is claiming the following damages:

$10,000-00 special damages for medical expenses;

$7,500-00 general damages for pain and suffering;

$2,500-00 for future medical expenses; and

$5,000-00 for loss of amenities to life.

I presided over the pre-trial conference. The parties legal practitioners intimated that they had come to an agreement on (a) and (b) in that the defendant agreed that $7,500-00 general damages for disability and pain and suffering was reasonable. They also agreed that of that amount, the defendant would pay the plaintiff $3,500-00 because plaintiff had already received $4,000-00 from defendant’s insurance. Of the two remaining heads and damages, I formally directed the parties to meet and discuss settlement for (c) and (d) [above], and that if there was no agreement on (c) and (d), the parties were to file Heads of Argument in support of their positions on those heads of damages. The parties failed to reach a consensus, the result of which they filed Heads of Argument as directed.

Through his Heads of Argument, the plaintiff appears to be asking for an increase in his claims for (c) for future medical expenses and (d) for loss of amenities. The plaintiff originally claimed $2,500-00 for future medical expenses and $5,000-00 for loss of amenities in the prayer to his declaration. He has however sought to increase both claims under those headings to $35,000-00 for loss of amenities and $25,000-00 for future medical expenses. This the plaintiff cannot do in terms of the rules of court. The plaintiff ought to have rather filed an application for an amendment for the amounts prayed for in the declaration thus seeking the leave of the court for the increased claim. The defendant would have then been afforded the opportunity to either oppose or agree to the amendment sought. Thereafter it would lie in the discretion of the court to determine whether or not the applicant has made out a case for such an amendment. In the absence of such an application, plaintiff is thus bound to his claim in his prayer to the declaration. Thus my determination is limited to whether or not the plaintiff is entitled to his claim to be awarded the sum of $2,500-00 and $5,000-00 respectively.

Future medical expenses.

Medical expenses must be specifically claimed and proved with full details. See Professor Feltoe’s A Guide to the Zimbabwean Law of Delict Third Edition page 92.

The medical report which has been produced was compiled by the medical doctor who attended to plaintiff in 2012. The court has not been furnished with an updated report. The 2012 report informs that the plaintiff will require for medication for pain and for depression. The cost of the medication has not been availed to the court. The plaintiff’s failure to have furnished this evidence makes it impossible to begin a reasonable assessment of the damages for future medical expenses. The plaintiff has also failed to provide an updated medical report which would have of assistance in understanding the plaintiff’s current medical needs. Further, the plaintiff still has medical insurance for medical expenses and it is not clear or stated by plaintiff how much plaintiff would have to cover on his own. Without those facts, the determination of an amount which the court would award to plaintiff for such costs is difficult to achieve.

Loss of amenities of amenities of life

A claim for loss of amenities of life is directly correlated to the degree percentage of the disability. It is a claim for general damages which cannot be calculated with mathematical precision. It is a compensatory claim. The medical report which was done some 6 years ago describes the future pain and suffering which plaintiff will experience as follows:-

“He (plaintiff) will have neurogenic pain and will continue to suffer the loss of his bodily functions. He may not be able to perform his functions as a husband”

On the plaintiff’s future prospects of future employment, the Doctor stated that:-

“Patient may not be employable with future education he may only be able to use his head and mouth to speak”

In Mungate v City of Harare, 2016 (1) ZLR 182 Muremba J expounded on criteria used to guide a determination of damages under this Head of damages, when she referred to comments made by Professor G Feltoe  in his  book on delict {supra}when she stated at page 192 [C-D] of her judgment.

“These are damages for loss of ability to engage in sport, recreation, social commitments or other normal activities. These includes sexual impotence, sterility, impotence, loss of marriage opportunities, loss of general health, change of personality, nervous insomnia and the general handicap of a disability”

Muremba J also provided an expanded criteria which is found in the South African case of Administrator-General, South West Africa and Ors v Kriel 1988 (3) SA 275 (A) at p 288E-F where amenities of life were described as being:

“….all those satisfactions in one’s every day existence which flow from the benefits of an unclouded mind, a healthy body and sound limbs. The amenities of life derive from simple but vital functions and faculties as the ability to walk and run, the ability to sit or stand unaided; the ability to sit a write; the ability to bathe feed and dress oneself unaided; and the ability to exercise control; over one’s bladder and bowels etc.”

In the Mungate case the plaintiff fell into an unprotected and uncovered pit and as a result was hospitalised for four days during which time he underwent surgery and had to have plates inserted into his legs. The surgery performed on Mungate, resulted in Mungate walking with a limp and with the aid of crutches. Mungate remained employed but was put on light duty with his income being unaffected. He was awarded 1,000-00.

I have also considered the criteria given in Minister of Defence and Anor v Jackson 1990 ZLR 1 (SC) to quantify a reasonable award of damages for plaintiff. Also see Sigournay v Gilbanks 1960 (2) SA 552.

The defendant has also cited more recent cases which have assisted me in deliberating the quantum of damages to be awarded to plaintiff. These are:

Christopher Gwiriri v Star Africa Corporation (Pvt) Ltd t/a Highfield Bag (Pvt) Ltd HH 20/10, in which plaintiff suffered a 65% disability in a work related accident and was hospitalised for five months. The court awarded him $3000-00 for pain and suffering and $10,000-00 or permanent disability.

Abel Mkhwananzi v Tirivapi Totameripi and Ministry of Social Welfare HB 11/16 where the plaintiff was awarded $5,000-00 for loss of amenities and $2,500-00 for loss of amenities of life for a 37% disability.

In Muzenga v Marais and Anor HH 80/2004 an 8 year old girl with a 100% disability whose future prospects were limited was awarded $1,500-00 for pain and suffering and loss of amenities.

In Prince Chinembiri & Ors v ZETDC HH 55/14 the plaintiff had his arm amputated after an electrocution accident and suffered a 65% disability and was awarded $6,000-00 for pain and suffering and $8,000-00 for loss of amenities to life.

In the present matter, the repercussions on plaintiff’s life and future have been seriously and tragically altered. Plaintiff’s amenities of life are hardly existent. He has suffered a 100% disability and will live a life of dependency for his care. He is no longer able to work. He can never read or write, stand or speak. He has lost joy in his life and is now chronically depressed and suffers pain. It is my view that in the present matter the maximum figure claimed by the plaintiff under that Head of Damages being $5,000-00 is warranted for the plaintiff’s loss of amenities of life. The plaintiff’s injuries have completely changed his life for the worse.

Accordingly I order as follows:

“Defendant be and is hereby to pay plaintiff the sum of $5,000-00 for plaintiff’s loss of amenities to life, together with interest at the prescribed rate to be calculated form the date of this judgment, to the day of payment in full”.

Legal Aid Directorate, plaintiff’s legal practitioners

Mafunga. Muzembe & Shambamuto Law Chambers, defendant’s legal practitioner