KUDYA
J: Liability in this matter is admitted.
The dispute concerns the measure of damages that is due to the plaintiff. On 1
June 2010 the parties filed a stated case, which reads:
- It is common cause between the parties that on 15
November 2006 at No. 17 418
Flanagan Road Hillside Harare, the first defendant who was
driving in the course and scope of his employment drove a Mazda B2500
registration number R58PY onto the plaintiff's property.
- It is common cause that the plaintiff's husband was
standing just outside the gate of his property when the first defendant
veered off the road and rammed into him causing his death instantaneously.
- It is common cause that as a result of the accident
the electric gate, the intercom device and the adjacent wall was
extensively damaged.
- It is common cause that the first and second
defendants are admitting liability with regards to negligently causing the
death of the plaintiff's husband who was the bread winner for his family.
- The issue which the parties have failed to agree on
is with regards to the computation of damages due to the plaintiff.
- In the premises, the Honourable Court is requested to
adjudicate on the question of the amount of damages due and payable to the
plaintiff as against the defendants and to make such order as to costs as
seems just under the circumstances.
In
her summons issued on 5 November 2009, the plaintiff sought damages in the sum
of US$19 102-00 for the cost of repairing the electric gate, intercom and wall;
US$144 000-00 for her personal loss of support; US$66 000-00 for the loss of
support of her three minor children with the deceased; interest on these
amounts at the rate of 30% per annum from the date of judgment to the date of
payment and costs of suit. At the commencement of trial the plaintiff applied
to amend her summons by the substitution of US$2 970-00 for US$19 102-00 for
the cost of repairing the electric gate, intercom and wall and 5% for 30% for
the interest sought. The amendments were granted by consent.
In her declaration she placed the
retirement age of the deceased had he lived at 65. As he died at 50, her claim
traverses a period of 15 years. She further averred that the deceased spent
US$800-00 per month in maintaining her and US$500-00 per month in maintaining
each child. She them multiplied these amounts by the number of months it would
take him to support each child to its majority year and for 15 years for her to
arrive at the totals she sought.
The evidence
The plaintiff gave evidence. She was
the sole witness in her case. She produced eight documentary exhibits. The
defendants opened and closed their case without calling any evidence. The
measure of damages will thus be determined on the basis of the testimony of the
plaintiff that survived cross examination.
The plaintiff was married to the
deceased by civil rites. The marriage was blessed with four children that is,
Tsitsi, who at the time that she testified, was in her final year at the
Midlands State University, Rumbidzai born 29 August 1991 who was in Form IV at a boarding school in Harare and
the twins Faith and Anesu born 7 April 1995 who were in Form III at a boarding
school in Chiweshe. The deceased was born on 6 September 1956 and was 50 years
old when he met his death. He was a businessman who ran his own construction
company and was a farmer growing tobacco and paprika and rearing poultry and
cattle. She is a school teacher at a primary school in Harare. She produced her pay slip as exh 8.
Loss of support for the children
She testified that the tuition for the form
four child was US$1 090-00 per term. She produced exh 1, the school fees
invoice for Rumbidzai, a boarder at Hillside
High School. The invoice
indicates that tuition and boarding fees are in the sum of US$950-00 while
uniforms cost US$150-00. The invoice for
the twins, exh 2 shows that the school fees for each child was pegged in the
sum of US$295-00 a term. She produced exh 3, a quotation from a Harare based school
uniform stockist dated 11 June 2010 indicating the cost of the school
requirements of each girl of US$569-00 and for the boy of US$617-00. She
indicated that she spends US$400-00 per month on her food and tuck for the
school children; she spends US$40-00 every term on fuel in visiting the children
at school once a term. Her other expenses are US$80-00 a month on the maid,
US$200-00 a month on fuel, US$70-00 a month for the telephone, and US$400-00 a
month on rentals inclusive of water and electricity. Her children used to go on
holiday twice a year during the April and December school holidays. She would
need US$3 000-00 a year for the local holidays in Kariba, Nyanga and Victoria Falls for the children.
Repair to gate, intercom and wall
The repairs were done in 2006 by a
sole contractor. She did not keep the invoices of the cost of repairs. She
failed to lead his evidence because she could not locate him. She bought a new
gate. She sourced for quotations from suppliers and fitters who are in the
business of manufacturing gates, selling intercoms and repairing walls similar
to her own. She produced these quotations as exh 4. Raymond Alarms and Gates quoted an amount of
US$2 505-00 on 14 June 2010; Aderan Enterprises (Pvt) Ltd quoted an amount of US$2
280-00 on 15 June 2010 while Fencerite Services (Pvt) Ltd provided her a
quotation of US$2 970-00 on 16 June 2010.
Construction business
She stated that her late husband was
a builder by profession. He would buy undeveloped stands and build and then
dispose of the developed property. She produced three agreements of sale of the
properties that he developed and sold as exh 5. These were the property in Ruwa
that was sold for a cash sum of ZW$66 000-00 on 17 November 2000; the property
in Katanga in Norton that was sold for the cash sum of ZW$700 000-00 in March
2001 and the property in Good Hope, Marlborough, Harare that was sold for ZW$4
200 000-00, revalued, on 24 August 2006. She estimated, with great difficulty,
the profit margin from the construction business at 25 per centum.
Farming
He was a commercial farmer. He
commenced to grow tobacco in 2003 at the family farm in Chivhu. He grew tobacco
on 3 hectares, had three permanent workers but would hire seasonal labour on a
needs basis. She produced the fourteen paged Zimbabwe Industry Tobacco Auction
Centre (Zitac) sales statements of the tobacco deliveries made by the deceased
as exh 6. The long and shot of exh 6 was that in the 2005 selling season the
deceased delivered a total of 23 bales weighing 1 430 kgs sold at average of
US$0.7152 per kg. It also shows that in the 2006 selling season the deceased
sold a total of 10 bales with a mass of 543 kgs at an average of US$0.98 per
kg. The farm was, however, repossessed by her mother-in-law after her husband's
death
He was also a poultry farmer. He would
order 500 chicks every month. He reared 300 chicks at the farm and 200 at his Harare home. He would sell
the grown broilers after 7 weeks to outlets in Harare. He sold an average of 400 birds a
month. She produced three purchase orders from three customers who purchased
the broilers from the deceased as exh 7. These were a Farm and City cash
receipt dated 1 June 2006 for the purchase of 300 broilers; a purchase order by
Metro Café dated 24 July 2006 for 91 kilograms of chicken and another purchase
order from Four Girls Enterprises of 1 August 2006 for 28 birds.
After her husband's death she
carried on with the poultry project, but at a reduced rate. She rears both
layers and broilers. She multitasks as a cross border trader and conducts extra
lessons and organizes round tables with other women to augment her salary. She
moved out of the matrimonial house in January 2010 and rented a smaller one in
order to benefit from the rental differentials between the two properties. She
rents out the matrimonial property for US$1 000-00 and rents a much smaller
property for US$400-00.
She was cross examined. She revealed
that the construction company was a registered private company. Her husband was
the driving force behind it. She was a co-director and secretary of the
company. It folded on his demise. She did not have any documentation to show
the levels of income and expenditure of the company. She averred that her
in-laws forcibly dispossessed her of the company documents on the demise of her
husband. Her husband earned a salary from the company but she could not recall
the amount. During his life time, he only sold the three houses whose
agreements she produced. The proceeds were used to support the family and to
purchase farming equipment. These were reposed by her mother-in-law. She did
not have documents to indicate the viability of the farming activities. She
believed her standard of living testified to the high net worth of her late husband.
The
poultry venture was viable as he used to sell 400 birds every month. She
indicated that the present cost of rearing a bird was US$2.50 and she sold each
bird at US$5-00. She has continued to rear 200 birds at her new home. She sells
about 150 birds every month and earns a profit of US$375-00 every month. She
had a car which was fueled and serviced by the construction company. The daily
home expenses were all charged to the company. She needed US$500-00 every year
to maintain the matrimonial home. She acknowledged her failure to produce
evidence on the full extent of her husband's annual income during his life
time.
The Law
The law on the computation of
damages is set out in a plethora of cases and in both ancient and modern text
books. I was referred to some of the cases and text book writers by both
counsel. Mr Diza, for the plaintiff,
referred to the cases of Lebona v President Versekeringsmaatskappy Bpk
1991 (3) SA 395 (W); Nichols v Pearl General Ins Co & Anor 1994
(1) ZLR 193 (H); Hulley v Cox 1923 AD 234; Ebrahim v Pittman NO 1995
(1) ZLR 176 (H); Cattle Breeders Farm
(Pvt) Ltd v Veldman 1974 (1) SA
169 (RAD). Ms Kundai, for the
defendants, referred to The Quantum of
Damages in Bodily and Fatal Injury Cases by Corbett, Buchanan and Gauntlett
3rd ed; Jameson's Minors' v
Central South African Railways 1908
TS 575 and Hulley v Cox, supra.
It is well to remember that damages
for loss of support constitute general damages, and as such, are calculated as
at the date of judgment. See Biti v Minister of State Security 1999 (1) ZLR
165 (SC) at 173A, Graaff v Speedy Transport 1944 WLD 236 at 238-9
and Corbett et al, supra at pp 96 and
97. The locus classicus case on the
point is Jameson's Minors' v Central South African Railways, supra. At p 602 INNES CJ stated that:
“There only
remains the question of damages, and it is one of the most difficult points in
this case. The general principles which should guide us are plain. I need only
refer to Voet, who lays down the rule very clearly. He says (9, 2, 11 ):
'According to the modern practice the scope of this action' - that is, an
action by the widow or children of a man who has been killed through the
default of another- 'has been extended, in as far as an action is now allowed
to the wife and children of any husband or father killed through another's
default, for such damages as the equity of the judge will determine, account
being taken of the maintenance which the deceased would have been able to
supply, and had usually supplied, out of his labour, to the wife and children,
or to other near relatives'. I do not think Voet intended to restrict, or that
we should restrict, the word 'maintenance'- victus
- to the supply of mere necessaries of life. It must include all the
material advantages, conveniences, comfort and support, which the father would
have afforded the claimants, but for his death. The language used shows that
the court must pay regard to what the deceased had been used to supply in the
past-that is, to the station in life of the parties, and the comforts,
conveniences and advantages to which they had been accustomed. Only actual
material loss can be taken into account in an action of this kind. The court is
not justified in awarding compensation for a shock to the feelings, or in
granting relief on any sentimental ground. But clearly the plaintiffs are
entitled to compensation for the pecuniary loss involved in a reduced income,
and a restricted provision for the supply of what they have been accustomed to,
and could reasonably have anticipated that the deceased man would continue to
supply. Our law lays down no hard and fast rule for such a calculation. It
leaves a large discretion to the judge to award what under the circumstances he
considers right.”
Again, in Hulley v Cox, supra at pp 243-4 the LEARNED CHIEF JUSTICE affirmed these
views when he stated that:
“Some authorities consider that the
calculation should be based upon the principle of an annuity (see Grotius 3 33
2; Mattheus, De Criminibus, 48 5 11). Voet, on the other hand, favours a
more general estimate. Such damages, he thinks, should be awarded as the sense
of equity of the judge may determine, account being taken of the maintenance
which the deceased would have been able to afford and had usually afforded to
his wife and children (Ad Pand 9 2 11). That would seem the preferable view
as giving a greater latitude to deal with varying circumstances. It is at any
rate desirable to test the result of an actuarial calculation by consideration
of the general equities of the case.”
And yet again
HOLMES JA crystallized these overall principles in Legal Ins Co Ltd v Botes 1963
(1) SA 608 (A) at 614E-F thus:
"The remedy
has continued its evolution in South
Africa - particularly during the course of
this century - through judicial pronouncements, including judgments of this
Court, and it has kept abreast of the times in regard to such matters as
benefits from insurance policies. The remedy relates to material loss 'caused
to the dependants of the deceased man by his death'. It aims at placing them in
as good a position, as regards maintenance, as they would have been in if the
deceased had not been killed. To this end, material losses as well as benefits
and prospects must be considered. The remedy has been described as anomalous,
peculiar, and sui generis - but it is
effective. In assessing the compensation the trial Judge has a large discretion
to award what under the circumstances he considers right. He may be guided but
is certainly not tied down by inexorable actuarial calculations. In its present
form, robust and practical, the remedy illustrates the growth and flexibility
of the system of law, basically Roman-Dutch."
These views have been followed and
applied in a number of decisions in both Zimbabwe
and South Africa. In fact, the practical steps in
estimating the damages for loss of support that are set out by Corbett et al, supra, at pp 84 to 96 affirm and are largely based
on these sentiments. In all the decided cases on loss of support that I have consulted,
the plaintiffs either relied on medical or actuarial evidence; or on the
general evidence of the deceased's earning capacity prior to his or her death
or on both. In this jurisdiction actuarial evidence was adduced in Minister of Defence & Anor v Jackson 1990 (2) ZLR 1 (S) at 12E. In Rusike v Tenda Transport (Pvt) Ltd & Anor 1997 (1) ZLR 495 (HC)
BARTLETT J referred to the actuarial method and the future earning capacity
with contingencies discounted method as some of the ways that may be used to establish
damages for loss of support.
It is clear that where there is
proof of loss of support even in the face of inadequate evidence the court is
enjoined “to pluck a figure from the air”. See FIELDSEND CJ in Santam Ins Co Ltd v Paget (1) 1981 ZLR 73
(A) referred to in Rusike's case, supra, at 500B-C. In Jackson's case GUBBAY JA, as he then
was, confirmed at 11H-12A that there are cases “where it was incumbent upon the
trial court to “pluck a figure out of the air” or “plunge blindly into the
unknown.”” The LEARNED JUDGE OF APPEAL proceeded at 13G and 15B to make
“arbitrary” assessments. However, as was stated by BARTLETT J in Ebrahim v Pittman N O at 187F and 188C and by GILLESPIE J in Mavheya v Mutangiri & Ors 1997 (2) ZLR 462 (HC) at 469F and Venture Capital Co of Zimbabwe Ltd v Chirovero Investments (Pvt)
Ltd 2000 (2) ZLR 30 (HC) at 40A-C judgment will be denied to a plaintiff
who through lack of diligence fails to produce evidence that would have been
available to him or her.
The total amount of loss of support
that is arrived at may be subjected to two discounts. The first of these
discounts caters for the capitalization rate of the award. This is often
equivalent to the rate of interest that the plaintiff would earn on investing
the award. In Jackson's case, supra, it was
pegged at 8%. At the moment the rate of interest, in Zimbabwe, differs from one
financial institution to the other. Real interest on savings is in negative
territory as it is often swallowed up by bank charges. In the present matter no
purpose would be served in discounting the judgment debt by the rate of
interest that the plaintiff would earn were she to invest it. The second
discount caters for contingencies. The basis was set out in Jackson's case at 17F. The point is however made
in that case that the fortunes of life are not always adverse but may turn out
to be favourable. In Jackson's case
the contingency allowance was set at 20%. This cater for errors in
calculations, taxation and other unforeseen events such as weather disparities,
the absence of inputs, the shortage of chicks, the outbreak of diseases that
may have adversely impacted on the deceased's ability to farm and rear chicken
had he lived.
Quantum of damages
Mr
Diza urged me to award damages for
loss of support based solely on the proven expenses of the plaintiff. He relied
on Lebona v President Versekeringsmaatskappy Bpk 1991 (3) SA 395 (W). The
facts in that case were that the plaintiff, the widow of a man who had been her
partner in a customary union, claimed damages for loss of support after her
husband's death, which had been caused by the negligence of a driver insured by
the respondent. The dispute involved inter
alia the question of whether the deceased had been under a legal duty to maintain
the plaintiff. It appeared from the evidence that the deceased had been a
hawker who had practised his trade without the necessary licence. FLEMMING J
held that in resolving the above dispute, two questions had to be answered: (a)
whether a maintenance court would have held that the deceased had a duty to
maintain the plaintiff and (b) whether the said court would in the
circumstances have made an order for maintenance. He further held that as the
deceased had earned his income in an unlawful manner; (a) had to be answered
not with reference to the deceased's earning capacity but with reference to his
actual income. It seems to me that that case does not support the submission
made by Mr Diza for FLEMMING J went
further to determine the earning capacity of the deceased in a bid to estimate
the loss of support. In my view, while the level of maintenance that the
deceased used to give to his widow and children is important, the court cannot
use the expenses incurred by the plaintiff to calculate the loss of support
without reference to the deceased's earning capacity. This is because it is a
basic fact of life that expenses may often be much higher than a breadwinner's
earning capacity. Thus to use the expenses to calculate the estimated loss of
support may distort the award for loss of support to the prejudice of the
defendant and in, my view, would amount to an improper exercise of the court's
discretion.
Mr Diza conceded on the authority of Ebrahim v Pittman N O
1995 (1) ZLR 176 (H) at 187B-188C that the failure by the plaintiff to adduce
tax returns and substantial proof of earnings of the deceased was a material
flaw in the plaintiff's claim. He, however, submitted that the plaintiff had
led sufficient evidence upon which the court could assess her damages.
Ms Kundai, for the defendants, conceded that sufficient evidence had
been led by the plaintiff to establish the loss of support to the children for
their educational requirements and upkeep (school fees, uniforms and food). The
educational requirements for the children are set out in exh 4. She contended
that the plaintiff had failed to prove that the cost of taking the children on
holiday twice a year to the country's resorts in Kariba, Nyanga and Victoria
Falls would be approximately US$3 000-00 a year. I did not hear her challenge
the plaintiff's assertion that the children used to go on such holidays when
their father was alive. The plaintiff indicated that they would drive to and
from and spend three nights at these resorts. She did not produce any
quotations from the service providers from these resorts to assist the court in
computing an estimate of such expenses. This was evidence that she could have
produced with a little diligence on her part.
It is apparent that the plaintiff
was supported by her husband. Her salary as a teacher would have been
inadequate to cater for the high standard of living she was accustomed to. She
lived in an up market accommodation which had a 3 bedroom guest wing and which
property she is renting out for US$1 000-00. She lives in a smaller property
for which she pays US$400-00 inclusive of water and electricity. She makes a
profit of approximately US$600-00 on her rental account. This profit in my view
would be adequate to cater for the insurance and maintenance costs of the
matrimonial property and the municipal rates and taxes that are borne by the
owner. I will not discount from the final award that I will grant her any gain
she makes on the rental account because her decision to move to a cheaper
accommodation was triggered by her failure to meet the expenses of maintaining
the matrimonial home such as the municipal and electricity charges that were
levied in foreign currency. She lost the prestige, conveniences and comfort
associated with residing in her large house. The gain she makes compensates for
the fall in her standard of living occasioned by the death of her husband.
Her evidence that she used to derive
benefit from the sale of 400 chickens but presently benefits from the sale of
150 chickens after the repossession of the farm by her mother-in-law was not
challenged. Her loss of income from the loss of 350 chickens at a profit margin
of US$2.50 a bird amounts to US$875.00 a month. I would have to discount
availability of chicks and other vicissitudes that could possibly affect the
rearing of chicken and would reduce the expected profit to approximately
US$600-00 a month. The material loss over a 15 year period would be
approximately US$108 000-00.
The loss of the farm affected the
tobacco income. The average kilograms sold were approximately 1 000 a year. The
price would depend on the quality. It could rise to as much as US$4-00 per kg
in the market. It would be fair to estimate that he would have produced tobacco
worth a dollar per kilogram. He would have earned a gross income equivalent to
US$1 000 a year from the sale of tobacco. The plaintif did not lead any
evidence on the cost of producing this amount of tobacco. I have decided, as I
am permitted to do, to pluck a figure out of the air of the cost of producing
the tobacco of 50 per centum. Over 15 years she would have lost US$7 500 from
growing tobacco.
She lost income from the cessation
of the development of immovable property. It does not appear that he operated a
company, so the principle enunciated in Cattle
Breeders Farm (Pvt) Ltd v Veldman 1974 (1) SA 169 (RAD) that should be regarded as its alter ego would not apply. The
properties were not sold in the name of a company. One was sold in the
deceased's name and the other two in both the deceased and the plaintiff's
names. The plaintiff did not adduce evidence on the costs incurred in
developing the properties. She plucked from the air a profit margin of 25 per centum.
I am prepared to accept it. The first property that he developed and disposed
of was the Ruwa property. The agreement of sale indicates that it was sold on
17 November 2000 for a cash sum of ZW$66 000 in local currency. At the time the
official exchange rate of US$1-00 was ZW$38-00. The deceased grossed in Zimbabwe
dollars the equivalent of US$1 736-84. The second property, the Katanga
property, was sold in March 2001 for ZW$700 000. At that time the official
exchange rate of the Zimbabwe
dollar to the United States
dollar was 55:1. The amount was equivalent to US$12 727-27. The last property
to be sold was the Marlborough
property. It was sold on 25 August 2006 for the sum of ZW$4 200 000, revalued.
The sale took place after the first revaluation of the local currency of 1
August 2006 which saw the removal of the three zeroes from the Zimbabwe
dollar. After the revaluation, in August 2006 the Zimbabwe
dollar was pegged to the United
States dollar at the rate of $250-00
revalued to US$1-00. The deceased received the equivalent of US$16 800-00.
These calculations reveal that over
a period of six years the deceased received a gross sum equivalent to US$31
265-00. I have accepted that he made a profit of at least 25 per centum from
the gross receipts; which was equivalent to US$7 816.25. His average profit
over the six year period would have been equivalent to US$1 302.71. This would
translate to the sum of US$19 540.65 over the fifteen years of active life that
still awaited him. I would add the prospective proceeds from the tobacco crop
of US$7 500-00 and the loss of the chicken sold of US$108 000-00 to this figure
and arrive at a total of US$ 135 040.65. I would round it off to approximately
US$135 000-00. In my view this would have been the amount which would have been
equivalent to material loss suffered by the plaintiff from the pre-mature death
of her husband at the hands of the defendants.
I do not in the exercise of my
discretion, for reasons already advanced above intend to discount for any
capitalization of this amount. I would, however, in the light of the sentiments
expressed in the Jackson case, discount for contingencies
at the rate of 20 per centum. This would leave an amount for loss of support
for the plaintiff and her children of US$108 000-00.
The claim for the cost of repairs for
the gate, intercom and wall was reduced to US$2 970-00. The lowest quotation
that was supplied was in the sum of US$2 280-00. By the time the plaintiff
issued summons the gate, intercom and wall had long been repaired in Zimbabwean
dollars. She did not produce the cost of such repairs. It is not possible in
the absence of that evidence to determine the value of the repairs at the time
in United States
dollars. The plaintiff has failed to prove the measure of her damages for these
repairs. I would grant the defendants absolution from the instance on this
claim.
Costs are always in the discretion
of the court. The plaintiff has succeeded in receiving an award of damages for
loss of support. She is entitled to her costs of suit.
Disposition
Accordingly,
it is ordered that the defendants shall pay to the plaintiff, jointly and
severally, the one paying the other to be absolved:
a)
The sum of US$108 000-00 together with interest thereon
at the rate of 5 % per annum from the date of judgment to the date of payment
in full.
b)
Costs of suit.
Musunga & Associates, plaintiff's legal practitioners
Civil Division of the
Attorney General's Office, defendants' legal
practitioners
