Frank Shanguro a minor (by his Curator ad litem Rose Mhasho) v Zimbabwe Electricity Transmission & Distribution Company

### Preamble
1
HH 726-18
HC 14528/12
---------


FRANK SHANGURO a minor alb Curator Mhasho Curator ad litem

versus

ZIMBABWE ELECTRICITY TRANSIMISSION & DISTRUBUTION COMPANY

HIGH COURT OF ZIMBABWE

FOROMA J

HARARE, 17 January 2018 & 7 November 2018

Civil Trial

P. Samuriwo, for the plaintiff

K. Zvinoera, for the defendant

FOROMA J: Plaintiff is a minor assisted by his Curator Ad Litem Ms Rose Mhasho. On 8 September 2012 plaintiff in the morning whilst playing with other children suffered a high electric voltage shock as a result of coming in contact with a live high voltage cable. As a consequence of the high voltage shock plaintiff sustained extensive and severe burns and other very serious injuries described as gangrenous left upper limb and numerous deep burns to the scalp, face, right lower limb and the back of the chest. Plaintiff was hospitalised for 2 months at Chitungwiza Central Hospital. While in hospital plaintiff was transfused and as a result of his left upper arm developing gangrene had the left arm amputated and debrided from the shoulder. He also underwent several investigations. Despite being discharged from the hospital plaintiff continued to attend the local clinic for daily dressing and physical rehabilitation.

Plaintiff was assessed as having suffered a 75% disability as a result of loss of the left upper limb and emotional disturbance resulting from the trauma.

As a direct result of the electrocution plaintiff will not be able to participate in activities that require bi-manual manipulation and normal physical sporting activities. The medical assessment shows that the plaintiff’s life expectancy was compromised by the extensive injuries he sustained.

Plaintiff sued the defendant for damages arising from the bodily injuries aforesaid. Specifically plaintiff sued defendant for the following damages

US$200 000 for severe pain and suffering permanent disability and disfigurement.

US$1000 000 for loss of amenities of life

US$100 000 for loss of future earning capacity

US$100 000 for loss of expectation of life and

Cost of suit.

Defendant was sued as the authority responsible for the installation and maintenance of

infrastructure for the supply of high voltage electricity in the Chitungwiza area which is plaintiff’s residential neighbourhood it being plaintiff’s contention that defendant created a potentially dangerous situation and did not take appropriate steps to protect people from contacting a live high voltage cable at the place where plaintiff was electrocuted.

Although defendant initially denied liability for the damages suffered by the plaintiff it eventually conceded liability but disputed quantum of the damages claimed.

The admission of liability was made just before trial with the result that the parties agreed to file heads of argument to assist the court in assessing quantum of damages.

In Minister of Defence and Another v Jonathan 1990 (2) ZLR SC at p 7 GUBBAY JA (as he then was)  outlined 8 broad principles that should guide the court in assessing damages arising from bodily injuries such as the one plaintiff suffered. The said principles are the following:

general damages are not a penalty but compensation – this means that the award of damages is designed to compensate the plaintiff and not to punish the wrong doer.

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 and hence the loss had not been committed – see Union Government v Warncole 1911 AD 665.

no scales exist by which pain and suffering can be measured. Accordingly the quantum of compensation to be awarded can only be determined by the broadest general considerations – Sandler v Wholesale Coal Suppliers Ltd 1941 AD 194 at 199.

the court is obliged  and has a duty to heed the effect its decision may have upon the course of awards in future. See Sigourney v Gill Banks (2) SA 552 (A) at 555 (N).

the fall in value of money is a factor which the court should take into account in terms of the purchasing power but not with such an adherence to mathematical precision as may lead to an unreasonable result – Sigourney v Gill Banks (supra) at 556 C.

in assessing damages for pain and suffering the court should not pay any regard to the subjective value of money to the injured person. Nothing should turn on whether the injured person is a rich man or a pauper see Radebe v Hough 1949 (1) SA380 at 386. By the same token I would add that no regard should be had to the ability of the wrong doer to afford what is otherwise a reasonable or fair compensation.

awards must reflect the state of the economic development and current economic conditions of the country. See Sadomba v Unity Insurance Co Ltd & Another 1978 RLR 262 at 270 F or 1978 (30 SA 1094 (R) at 1097 (C).

for the reason in (vii) above English and South African Awards may not provide appropriate guide as the economic conditions in those jurisdictions are quite different.

It is important to note that as a result of the demonetisation of the Zimbabwe dollar as

a currency most of the cases which may have provided useful guide are totally unhelpful in Zimbabwe to date where the economy is based on a multi-currency basket.

While the assessment of quantum of damages is an attempt by the law to repair a wrong done to or suffered by the person who has suffered personal injuries the none existence of scales by which the said damages are measured necessarily means that there is no likelihood of uniformity in the awards made. Future awards will necessarily remain uncertain depending as they will upon the judge’s view of what is fair in all the circumstances of the case even as the court remains mindful of the effect of the court’s decision upon the course of awards in future. Clearly consistency in awards will generally be difficult to achieve and yet in principle the variances should be within range considering that the principles to be taken into account provide uniformity in approach.

Plaintiff’s first head of damages is a claim for the sum of $200 000 for severe pain and suffering permanent disability and disfigurement. It is accepted that plaintiff then a 9 year old sustained high voltage multiple deep burns to left arm head scalp and face right arm and limb had a gangrenous left hand whose arm which was eventually amputated from the shoulder level. Plaintiff spent 2 months in hospital recovering from the said injuries. At the time of being discharged from hospital plaintiff had not completely recovered as he continued to attend a local clinic for dressing. On examination by Dr K Kahoba the 5 October 2017 plaintiff was found to have permanent scars to the face and back of chest and permanent left upper limb amputation which is a permanent loss of upper limb. The doctor considered that plaintiff had fully recovered even though with the permanent injuries and he did not think that plaintiff might require further surgical interventions. Plaintiff suffered serious deep high voltage electric burns which necessitated 2 months of hospitalization. As a result of his disfigurement amputated left arm and permanent scars to the scalp and he has found himself being frowned upon by children of his age forcing him to lead a life of solitude. Even though the principal of L & F Study Centre is not a medical expert he considered that the accident affected plaintiff psychologically and resulted in his poor performance which forced him to drop out. Plaintiff must have experienced severe pain and suffering from the time of the accident and for the duration of his stay in hospital. The pain and suffering must have been exacerbated by the computation of his left arm.

The court is not satisfied neither has any authority been cited as a guide to suggest that the appropriate quantum of damages for pain and suffering permanent disability and disfigurement would be in the region of US$200 000.

Considering that damages for personal injuries are compensatory and not punitive the court is satisfied that a claim of US$200 000 is unduly excessive. Accepting that apart from the shock pain and suffering during electrocution and that plaintiff also suffered pain during and post amputation including the period of recovery it is considered that an award of $20 000 under this head of damages would provide adequate compensation.

The court is alive to Matanda-Moyo J’s view that the sum of US$20 000 was “rather high” as compensation for pain and suffering in the case of Prince Chinembiri and Others v ZETDC & 2 others HH 55-14. Those remarks should be understood in the context of compensation for pain and suffering only. In casu the head of damages addresses not only pain and suffering but permanent disability and disfigurement. Under plaintiff’s second head of damages plaintiff claimed $100 000 as damages for loss of amenities of life. It is clear that as a result of amputation of the left arm plaintiff is severely disabled and cannot participate in normal sporting activity and such activities as require bimanual manipulation. It has not been suggested that plaintiff is totally disabled from all kinds of sport. For instance he can with practice participate in tennis squash and soccer to a limited extent as among others these require a participant to be mobile and to use at least one hand. In light of the partial loss of amenities an award of $10 000 is considered adequate compensation under this head.

Under the third head of damages plaintiff claimed damages in the sum of $100 000 for loss of future earning capacity. There is no doubt that the lack of the left arm will impede plaintiff’s ability to undertake work which require bi manual manipulation. Plaintiff’s educational career has been adversely affected by the injuries he sustained as a result of the electrocution. He consequently cannot compete in employment which entails bimanual application or exertion. He would have to adjust and learn white collar jobs such as office work. If the compensation awarded is properly used it can go a long way towards achieving appropriate training which can earn plaintiff a reasonable income. The claim of $100 000 is certainly too high considering that the whole purpose of awards for damages for personal injuries is compensation and not punishment of the wrong doer. Plaintiff will have to learn to live with his disabilities and accept that disability does not mean inability considering plaintiff’s age. Plaintiff will have to be encouraged to undertake relevant training in order to be relevant in the job market. In the circumstances an award of $5000 is considered adequate compensation. Finally plaintiff claimed the sum of US$100 000 as damages for loss of life expectancy. Defendant totally resisted this claim on the basis that no medical expert assessment was done on the plaintiff to support this head of damages. In its heads of argument the defendant argues that no evidence has been attached to the plaintiff’s papers to prove future “alterations in emotional personality and behavioural functioning which may lead to anti-social behaviour. It is significant that medical opinion as recently as 2017 shows that the plaintiff’s injuries have recovered to the extent that there will be no need for surgical intervention. When considering a claim for loss of life expectancy the court is requested to undertake an exercise akin to guess-work. Ordinarily it is easier to understand that a disability may increase risk or exposure when one faces life threatening situations. For instance an amputation to the arm reduces one’s defensive capacities thus exposing one to injury because one may not be able to use the hand to defend oneself effectively. The lack of an arm can cause one to easily lose balance thus exposing one to risky fall causing otherwise avoidable injuries on the disabled side thus exposing one to greater risk to life.

It is the court’s view that some provision should be made under this head of damages more so because of the amputation of the hand at shoulder level. In the circumstances while US$100 000 is certainly more than exorbitant an award of US$5000.00 would in the court’s view be fair compensation under this head.

It is accordingly ordered that the defendant pay the plaintiff:

The sum of $20 000.00 being damages for pain and suffering and permanent disability and disfigurement.

$10 000.00 being damages for loss of amenities of life.

$5 000.00 as damages for loss of future earning capacity.

$5 000.00 being damages for loss of expectation of life.

Costs of suit.

Hogwe, Dzimirai & Partners, plaintiff’s legal practitioners

Muza & Nyapadi & Partners, defendant’s legal practitioners