Theresa Chibota V Guvuriro Investments (Private) Limited AND Emmanuel Tamwa

### Preamble
1
HH 600-18
HC 9254/16
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THERESA CHIBOTA

versus

GUVURIRO INVESTMENTS (PRIVATE) LIMITED

and

EMMANUEL TAMWA

HIGH COURT OF ZIMBABWE

MUZENDA J

HARARE, 30 July 2018, 2 August 2018, 10, 12 and 18 September 2018 & 10 October 2018

Civil Trial

Ms N Y Motsi, for the plaintiff

O. Zimbodza, for the defendants

MUZENDA J: The plaintiff issued summons against the first defendant which is a public vehicle transport operator and her driver the second defendant for the following claim.

Payment in the sum of $653 medical expenses incurred by the plaintiff.

Payment of $1 500 being future medical expenses.

Payment of $25 000.00 being damages for pain and suffering.

Payment of $1 650 being loss of earnings.

Interest at the prescribed rate of 5% on all the sums claimed from the date of summons to date of full and final payment.

Costs  of suit at on an attorney-client scale.”

At the pre-hearing meeting in chambers parties agreed to settle of the following claims.

That the issue of liability is settled, and that second defendant is liable to the accident, and further that first defendant is vicariously liable for second defendant’s acts.

That defendants pay the sum of $653 being special damages as claimed by plaintiff.

That defendant pays in the sum of $1 500 being future medical expenses as claimed by the plaintiff.

That defendants pay the sum of $800 being loss of earnings.

The parties attempted to resolve the outstanding issue of the quantum of general damages. On one occasion the defendants viewed an amount of $8000 as being appropriate but the plaintiff looked at that amount as being low. Ultimately the parties failed to agree and settle on the quantum and they undertook to file heads of argument on the outstanding subject. The issue for determination to this count is therefore what would constitute the appropriate quantum of damages in this matter.

Medical evidence

The plaintiff filed a bundle of documents which were admitted as evidence by consent of all the parties.

The medical report prepared by Dr S.T Chitiyo showed that on 23 October 2015, 3 weeks after the accident, he examined the plaintiff and concluded that the injuries on the plaintiff arose from a road traffic accident, an amputation was done on the right forearm, below the elbow, possibility of permanent injury was likely through loss of a limb, and the injuries sustained were serious.

Dr G.A.N Vera (Mr) rated the injury with 65 % permanent disability.

Mr S. M. Mapira from Jairos Jiri Association quoted the right below elbow prosthesis for an amount of $5 200.00.

Dr G.A.N Vera described the amputation of the plaintiff’s forearm as a traumatic.

It is not clear from the pleadings as to how many days and months the plaintiff was detained in hospital, but from the documents produced it is clear that from 2 October 2015 to November 2015, the plaintiff was undergoing various treatments and operation as well as receiving medication. This information is very essential in computing quantum of damages for pain and suffering. However both counsel did not address the court on this element.

THE LAW

Edwardo Couture put the concept of civil action in perspective, in an article published in (1950) Tulane Law Review, at p 7, he wrote:

“The facts tell us that when a plaintiff wants to instigate a suit, he can do so although the 	defendant does not want him to do so, nor even the judge. This is a fact derived from 	legal 	experience from the law. Those who have been able to see this fact in historical 	perspective and 	have noted its flow but steady growth, have realised that the law has proceeded in this 	direction from necessity not from expediency. Primitive man’s 	reaction to injustice appears in 	the form of vengeance and by “primitive” l mean not 	only primitive in a historical sense but 	also primitive in the formation of moral statements and impulses. The first impulse of 	rudimentary soul is to do justice by his 	own hand. Only at the cost of mighty historical efforts 	has it been possible to supplant in the human soul the idea of self-obtained justice by the 	idea of justice entrusted to authorities.

A civil action in final analysis then is civilisations substitute for vengeance. In its present 	form this civilized substitute for vengeance consists of a legal power to resort to 	the

court praying for something against the defendant. Whether the claim is well founded

or not, is totally different and indifferent fact.”

It was quoted with approval by the Supreme Court in MDC and Anor v Chinamasa and Anor NNO 2001 (1) ZLR 69 (5) at 79 A-C. See also Courta Ali v Gwaradzimba N.O 2013 (1) ZLR 399 (H).

In their submissions, the defendants averred that the amount of $2 500 being damages for pain and suffering is not only unreasonable, but it is punitive, unprecedented and unreasonable. From the above quotation from Edwardo Couture, the plaintiff is trying through pecuniary means to bring vengeance against the actions of the defendants. She is trying to translate that pain and suffering into a financial format to get justice.

Thus the law of damages is that part of the law which prescribes how the existence and extent of damages and the proper amount of damages or satisfaction are to be determined in the case of delict, damages are simply a sum of money given as compensation for loss or harm of any kind as in this case arising from a road accident. The definition of damage is given by the learned Vissr and Potqieter Law of Damages, 3 ed Juta (2016) at p 29 as.

“Damage is the diminution as a result of a damage causing event, in the utility or quality 	of a patrimonial or personality interest in satisfying the legally recognized needs of a person 	involved.”

According to that definition five essentials of damage are espoused namely;

diminution or reduction

causation

interest

normative; and

time

The process of assessment requires the court to determine the general standard or measure of damage to be awarded. In the context of delict damages are awarded to put the claimant into the position as if the delict had not been committed. It is sometimes called “the reliance measure.” Damages relating to bodily injuries are classified: they are either special or general damages. According to the learned authors Corbett & Buchanan The Quantum of Damages, 2 ed, (1964) at p 3.

“… as regards bodily injury all patrimonial loss actually incurred by the plaintiff, such as for example, medical and hospital expenses and past loss of damages is treated as special  damage, while all non-patrimonial loss such as pain and suffering loss of amenities, disfigurement and loss of expectation of life, and patrimonial loss, which up to the time of the hearing has not yet crystallized in actual loss or disbursement but is still prospective such as future medical expenses and future loss of earnings, are classified as general damages.”

In a delictual action, the measure of damages which an injured person is entitled to claim

is the difference between the value of the plaintiff’s estate (patrimony) after the commission of the wrong and the value that it would have had if the wrong had not been committed.

GENERAL DAMAGES

Both counsel for plaintiff and defendant cited case law authority which dealt with previous awards. However these previous awards are only useful as general guides as cases must be considered on their own peculiar merits.

In the matter of Minister of Defence & Another v Jackson 1990 (2) ZLR 1 (S) GUBBAY JA (as he then was) stated:

“I have considered these cases but do not think much assistance can be obtained from them, apart from some guidance in a general way, for they are not on all fours with the present one. It has frequently been pointed out that each case is in a sense without parallel and that recent awards concerned with injuries and other sequelae not entirely similar to those under consideration, seldom provide a useful standard of comparison. As Van Blerk JA remarked in Marine and Trade Insurance Co. Ltd v Goliath 1968 (4) SA 329 (A) at 334 B.

(To) ascertain whether particular cases are similar in material respects, the facts in regard to the degree of pain suffered by the claimant in each particular case and the amenities of life of which he was deprived must be known before a comparison is justified. This would entail at least a study of the full judgment in each case. Mere knowledge of the nature of the injuries would not be sufficient.”

What is essential is for a trial court to draw on its own experience in making an assessment of damages – an exercise which is necessarily dependent upon some degree of surmise, conjecture and imagination, for general damages are not capable of exact  arithmetical calculation .

The Minister of Defence and Another case (supra) sets out a number of guidelines and principles to be followed when assessing damages namely that:

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

Compensation must be assessed as to place the injured party, as far as possible, in the position he or she would have occupied if the wrongful act causing the injury had not been committed.

Since no scales exist by which pain and suffering can be measured, the quantum of compensation can only be determined by the broadest of general considerations.

The court is entitled and it has a duty to heed the effect its decision may have upon the course of awards in the future

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 adherence to mathematics as may lead to unreasonable result.”

No regard is to be 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 or she be a millionaire or a pauper.

Awards must reflect the state of economic development and current economic conditions of the country.

For that reason, reference to awards made by the English and South African courts may be an inappropriate guide, since conditions in those jurisdictions, both political and economic are different.

In the matter of Parish v King 1992 (1) ZLR 216 (S) at 225 D-G, at 227 A, MCNALLY JA citing General Insurance v Summers/Nhlumeyo 1987 (3) SA 577 (A) said:

“It has often been emphasized in decisions of our courts that a court, in awarding damages, should try to assess an amount which is fair to the plaintiff and to the defendant, and further that in the assessment of the amount in question, a court is not obliged to follow one or another method of calculation. There is no authority stating that compensation for loss of earnings should always be or necessarily be assessed as on the date of delict.”

Hence in assessing damages the court should assess a sum which is fair to both parties and is therefore not obliged to follow one method or the other.

The plaintiff contend that this court should follow the matter of Abel Mkahananzi v Tirivapi Totamirepi HB 118/18 where plaintiff suffered 37% permanent disability and an award of $5000 for loss of amenities of life, $2500 for disfigurement, and $2500 for pain and suffering were awarded. The total award was $10 000.00. In Judith Nyoka v Zimnat Insurance HH 148/15 where plaintiff was awarded $2500 for pain and suffering and $8000 for permanent disability. A total of $10 500 was therefore awarded. In the Nyoka case, MUSAKWA J cited the case of   Christopher Gwitiri v Star Africa Corporation (Pvt) Ltd t/a Highfield Bag (Pvt) Ltd HH 20/10, a work related accident where plaintiff suffered a disability which was assessed at 65% the plaintiff in that case was awarded $3000 for pain and suffering and $10 000 for permanent disability.

On the other hand the defendants cited almost identical cases with those cited by the plaintiff in her submissions and added Tambudzai Mafusire v Greylink, HH 173/10 where the plaintiff was awarded $3600 for pain and suffering, in that case plaintiff had suffered a 100% disability and had been reduced to a vegetable life.

As can be deemed from the authorities valuably presented by the parties the damages for pain and suffering range from $2500 to $3 600 and for permanent disability the damages vary from $5 000 to $10 000. The plaintiff in this case is claiming $25 000 and did not cite any case law authority to justify that claim. On the other hand the defendant proposed that the plaintiff be awarded $1000 for pain and suffering and does not explain why it initially agreed on the $8 000 for pain and suffering. Defendant does not address the court on the aspect of disability and purchase of prothesis.

The cases cited by the plaintiff are closer to the matter before me. In Chinembiri & Ors v Ncube & Ors HC 55/14 plaintiff\s arm was amputated, the court awarded US$6 000 for pain and suffering and awarded plaintiff the amount of US$8 000 for permanent disfigurement and loss of amenities of life. Plaintiff’s claim will succeed and for pain and suffering I will grant the amount of $6 000; and for permanent disfigurement and loss of amenities of life I will award $8 000.00.

Accordingly judgment is entered for the plaintiff as follows:

Defendants are ordered to pay the plaintiff an amount of $6 000 for pain and suffering.

Defendants are ordered to pay the plaintiff an amount of $8 000 general damages for permanent disability and loss of amenities of life.

Defendants to pay the costs of suit.

Mugiya & Macharaga Law Chambers, plaintiff’s legal practitioners

Zimbodza & Associates, defendants legal practitioners