CHATUKUTA J: At the
conclusion of the trial, I directed that the parties file closing
submissions by close of business on 31 October 2008. The plaintiff
filed his submissions timeously. Despite numerous reminders to the
defendant's counsel, the defendant did not file his submissions. I
have therefore proceeded to prepare my judgment without the benefit
of his submissions.
Background
The following is the background to the matter:
The plaintiff issued summons on 10 July 2007. The summons were
amended on two occasions. The last amendment was by consent at the
commencement of the trial. The plaintiff was claiming damages in the
sum of:
(a) $1 billion for pain and
suffering, disability, bodily disfigurement, shock, discomfort, loss
of amenities of life and shortened life expectancy;
(b) US$8,000 for pecuniary loss
of a motor vehicle, a Nissan Sunny and interest thereon at the
prescribed rate from the date of summons to the date of payment;
(c) $1billion and US$5,000 in
respect of estimated future medical expenses and interest thereon at
the prescribed rate from the date of summons to the date of payment;
(d) $700,576,793.45 and US$4,104
in respect of medical expenses incurred by the plaintiff and interest
thereon at the prescribed rate from 6 May 2008.
(e) $10 trillion (old currency)
being travelling expenses to and from physiotherapy sessions.
The claim arose from the accident which happened at the intersection
of Breach Road and Kingsmead Road, Borrowdale, Harare on 23 July
2006. Both parties were driving. The plaintiff was severely injured.
The plaintiff attributed the cause of the accident to the sole
negligence of the defendant which the defendant in turn totally
denied.
The plaintiff alleged that the defendant drove at an excessive speed,
a vehicle with faulty brakes and without his lights on. He failed to
give way at an intersection controlled by a give way sign and failed
to stop or act reasonably when an accident seemed imminent.
On the other hand, the defendant attributed the accident to a sudden
brake failure.
Issues for determination
Two issues were referred to trial:
(i) The first issue is whether or
not the cause of accident was a sudden brake failure.
(ii) If the court were to find
that it was not, the second issue is whether or not the plaintiff is
entitled the quantum of damages claimed.
As the defendant had pleaded that the accident was as a result of a
sudden brake failure, there was a presumption of negligence.
Although the burden of proving
negligence remains with the plaintiff, the defendant was expected to
give an explanation which negatives the probability of negligence on
his part. As stated in South
African Motor Law,
Cooper and Bamford 1st
Edition, at p 649:
“In
many cases where a mechanical defect is advanced as a defence the
circumstances of the collision raise an inference of negligence –
res
ipsa loquitur-
which calls for an explanation from the defendant.”
The defendant, in addition to
showing that the collision resulted from a mechanical defect in his
vehicle, was required to show that the defect in question was unknown
to him and that through the exercise of reasonable care the defect
would not have been discovered.(See Cooper & Bamford, supra,
at p650).
Defendant's case
Defendant's evidence
The defendant testified first. The following is his evidence:
Prior to the accident he was at home. He lived in the vicinity of the
scene of the accident. At about 2210hours, he got into his vehicle to
go and drop off his cousin, Dexter, near Sam Levy Village,
Borrowdale. He was accompanied by his friend Michael Snape.
The vehicle had been purchased
for him two years before the accident for his 16th
birthday. He however only got it a year later. He had used it for
eight months and it was sent to Fasfit for service. The service
included a new gear box, panel beating and re-spraying. He had used
the vehicle for ten days before the accident and had not noticed any
problems with the brakes. The person who had repaired the vehicle had
relocated to Australia and he could not get a report of the repairs
that had been effected on the vehicle during servicing.
There were a lot of potholes on the road and as a result he was
driving slowly at a speed of 70km/h. He was driving along Kingsmead
Road. The street was not lit. Therefore as he proceeded towards the
intersection with Breach Road he put the gear into neutral and
started freewheeling when he was between 125 and 150m from the
intersection. He was travelling at about 65km/hr.
As he saw the intersection, he knew that he was obliged to give way.
He was about 60 to 50 meters from the intersection when he applied
his brakes. He then realized that he was not slowing down. He stamped
on the brakes. He thought there might be a leak of the brake fluid.
He therefore pumped the brakes in the hope that they would work. The
car did not slow down.
He saw the plaintiff's vehicle also entering the intersection. They
entered the intersection at the same time. He could not stop as his
brakes were no longer working. He then collided with the plaintiff.
Following the impact, the
plaintiff's vehicle did a 180 degree spin. His vehicle hit a lamp
pole, which was 12 to 15 meters from the intersection and faced where
he was coming from. His headlights were on. He explained that his
vehicle has what are called flat lights. These are lights that fold
in when the engine stops running. When the engine is on, the lights
open up. The defendant testified that his lights were still facing up
after the accident. Both the plaintiff's vehicle and his were
extensively damaged.
He testified that he paid a fine for driving a vehicle without
brakes. This was at the instance of his aunt and father. However,
under cross examination he testified that he did not have a clear
mind at the time when he paid the fine.
I found the defendant did not fare well both in his evidence-in chief
and under cross examination.
He contradicted himself in
material respects. He testified in his evidence that he knew that the
intersection was controlled by a Give Way sign against him and he was
obliged to give way. He said:
“I
tried to put on brakes and I saw that they were not working about 50
to 60m before the intersection. I knew that a state of emergency had
occurred as I had an obligation to give right of way.………
As I came closer to the
intersection, at about 150m, I took my car out of gear and
freewheeled towards the give way as I could not identify where the
intersection was. 60m from the give way, I started applying brakes.
I noticed that they were not working.”
After a lunch break, the defendant came back with a changed story.
He testified that the plaintiff
is the one who was supposed to have given him way. However under
cross examination he reverted to the original testimony that he knew
that there was a Give Way sign. When he was asked under cross
examination whether or not he was familiar with the road signs at the
intersection, he stated that:
“I
knew that there was a give way but there were no road markings and
the road sign was across the road.”
It is clear from the evidence that the new story after the lunch
break was a fabrication intended to evade the truth and mislead the
court. It is my view that the defendant was therefore not a credible
witness.
Michael Mukombami's evidence
The defendant called two witnesses. The first witness was Michael
Mukombami.
At the time of hearing he was the Acting Senior Vehicle Inspector. He
had been in the employment of the Vehicle Inspection Department for
13 years since 1985. One of his duties was to examine vehicles
involved in road accidents.
He examined the defendant's vehicle following the accident and
issued the notice prohibiting use of vehicle in the plaintiff's
bundle of documents marked as Exhibit G.
He examined all the systems and the body of the defendant's vehicle
to assess the damage and the cause of the accident. It was his
finding that the front of the car was extensively damaged. He could
not state whether or not the lights were on prior to the accident
because of the extent of the damage and because the headlights were
crushed. He found that there was no brake fluid in the master
cylinder. The right front brake hose had separated leading to fluid
leaking. He concluded that the hose separated as a result of the
impact of the accident. This conclusion was based on the fact that
the hose was still wet from the leaking oil.
The inspector disputed the assertion by the defendant that the brakes
had failed before the accident.
He testified under cross examination that the nature of the damage to
the defendant's vehicle showed that the vehicle had been travelling
at a very high speed.
The witness gave his evidence well. The plaintiff's counsel did not
need to cross examine the witness to great lengths. He was an
independent and credible witness who corroborated the plaintiff's
case as will appear later in the judgment. I preferred his evidence
to that of the defendant.
I am guided by the decision in
Motor Vehicle Assurance
Fund v Kenny 1984 (4)
SA 432 (E) where it was held that expert evidence can be preferred
where the direct evidence of eyewitness of a collision is not
credible.
Michael Snape's evidence
The second witness was Michael Snape. He was seated in the front
passenger seat when the accident occurred.
He was talking to Dexter who was seated at the back. He had not been
paying attention to what was happening in front as he was leaning
over taking to Dexter. He however at one stage noticed that the
defendant was “stressing and was stamping his foot”. It was
apparent to him that the brakes had failed. By the time he turned his
head from Dexter who was seated in the back, the accident had already
happened.
He assumed that vehicle was in neutral because it was not
accelerating. He could not confirm if the defendant was indeed in
neutral.
He confirmed under cross examination that he could not conclusively
say that the brakes failed.
This witness's evidence was full of assumptions.
He had not been paying attention to the defendant's manner of
driving as his attention was directed at Dexter who was seated in the
back. He could not conclusively state that the brakes had failed.
He testified that he noticed that the defendant was having problems
with his brakes when they were 200m from the intersection. The
defendant put it at 60m. It was not clear how he would have estimated
the distance when he was concentrating on Dexter.
Not much credence can therefore be given to most of his evidence.
However, he was conclusive that the plaintiff was already in the
intersection when the accident occurred. This contradicted the
defendant's evidence that the parties entered the intersection at
the same time.
Plaintiff's case
The plaintiff's version of the accident was as follows:
He testified that he had lived in the neighbourhood of the scene of
accident for 12 years. He was familiar with the intersection where
the accident occurred. He had been travelling along Breach Road in an
easterly direction. The road had not been repaired for over five
years and was full of potholes. He was therefore driving slowly.
When he got into the intersection with Kingsmead Road, he was
suddenly hit on the right driver's side by the defendant's
vehicle. The defendant had been driving along Kingsmead in a
northerly direction. The impact caused the front wheels of his
vehicle to get off the ground. His vehicle rolled twice. He was
thrown out of the window. He hit against a durawall. His vehicle hit
a ZESA pole some distance away and across Kingsmead Road.
The accident happened so suddenly that he could not react.
The defendant did not have his
lights on otherwise he would have noticed him and taken corrective
measures. There was a Give Way sign against the defendant.
It was his evidence that the defendant must have been moving very
fast to cause his vehicle to roll over as it did and for him to be
thrown out of the vehicle. He testified that even if the defendant's
vehicle had working brakes, he could still not have stopped the
vehicle from hitting into him because of the high speed he was
travelling at.
The plaintiff sustained severe injuries.
He was taken to Parirenyatwa Hospital. He was in a coma for a week.
Thereafter he was in the High Dependency Unit for another seventeen
days. He spent seven and a half months in St Giles Rehabilitation
Centre. The total period of hospitalization was about one and a half
years.
He was placed under Professor Kalangu's care. He produced a report
by the Professor on the extent of his injuries. The following is the
full text of the report by the Professor dated 12 November 2007:
“This
is to certify that the above named is under my care since 24-07-06.
Patient was apparently involved in a Road Traffic Accident on
06/05/2006 in which he sustained complete paralysis of the left and
complete paralysis both lower limbs. This motor impairment to upper
limb due to major destruction of the brachial plexus (Brachial plexus
is a structure made by the nerves which supplies power and sensation
to the upper limb) and by compression of the spinal cord for the
lower limbs. Patient's conscious level was normal (15/15).
Radiological investigations revealed: fracture of the left clavicle,
fracture of the spine in C5 and C6 and MRI revealed a dislocation of
the vertebra in C5-6 associated to spinal cord compression.
Patient
was taken to the operating theatre on 29/07/2006 and spinal cord
decompression + fusion were carried out. Post operatively, patient
made slow but significant recovery.
Currently, he still has
weakness of the forearm and arm on the left side. Moreover, patient
suffers now from pain which we call in neurosurgery phantom pain and
is typical of this type of lesion.
This patient will
unfortunately have pain for a long time and another operation for
this purpose is not excluded. In the meantime, patient requires a lot
of physiotherapy. Mr. Mbundire is walking now on his own.
His percentage of disability
is 60%.
If you require any further
information please do not hesitate to contact me.
Yours truly,
Prof. K. K. N. KALANGU
Neurosurgeon.”
(The plaintiff produced a report dated 20 June 2008 whose contents
are identical to the above except that it was signed by someone else
on behalf of the Professor.)
The plaintiff produced another report by Professor Mielke of the
Clinical Neurophysiology Laboratory, Parirenyatwa Hospital, Harare,
dated 11 December 2006. The report reads:
“Clinically
he has weakness of all the muscle groups in the left arm, with no
movement in shoulder and elbow muscles.
There is no sensory loss.
EMG today shows active
denervation as low at T1, which is much more consistent with a
brachial plexus lesion than a spinal injury: the upper plexus is
seriously injured with no sign of recovery at present, but the lower
plexus should show good improvement.
I would recommend repeat
studies in six months.”
Before the accident, he was in charge of sport and discipline at St
Johns College, Borrowdale. He used to jog a lot. He used to referee
rugby matches. He was responsible for rugby, swimming, hockey and
athletics and all these activities required that he be fit at all
times. He could play social soccer, rugby, and cricket.
He cannot participate in all these activities anymore.
Of particular concern was the adverse effect of his injuries on his
relationship with his daughter who does not understand why her father
can no longer do the activities he used to do before the accident.
The plaintiff gave his evidence in a clear manner. He withstood cross
examination well. He was a credible witness.
LIABILITY
Faulty brakes
The Acting Chief Vehicle Inspector contradicted the defendant's
assertion that the accident was as a result of a sudden brake
failure.
The defendant had testified that at about 150m from the intersection,
he began freewheeling by putting his vehicle into neutral so as to
slow it down to a gradual halt. He denied under cross examination
that he adopted this manner of driving because he knew that his
brakes were defective. The defendant did not proffer any other
explanation as to why he was freewheeling in order to slow down his
vehicle instead of using his brakes.
Had his brakes been working, there would not have been any need for
him to slow down or bring his vehicle to a halt by freewheeling.
It appears to me that the only reasonable explanation that can be
inferred from his conduct is that he was aware that his brakes were
defective and therefore had to find other ways of slowing down his
vehicle. In any event, it appears that the evidence that he was
freewheeling cannot be sustained as, rather than reduce speed,
freewheeling is generally engaged in order to maintain speed. Speed
would have been reduced with engaging in lower gears.
This is supported by his admission of guilt to driving a vehicle with
faulty brakes.
The admission of guilty, duly signed by him, raises the presumption
that the defendant was aware at the time of accident that his brakes
were defective.
The defendant contradicted himself on why he signed the admission of
guilt form.
In his evidence-in-chief he testified that he signed because he was
advised to do so by his father and aunt. However, under cross
examination, he testified that he was fully aware of his actions when
he appended his signature. However, he changed his story and stated
that he thought that he was signing to acknowledge that the brakes
had failed at the time of accident. He, however, turned round and
testified that he did not have a clear mind of what he was doing.
He signed the admission of guilt seven days after the accident.
Had he signed immediately after the accident, then his explanation
could have been reasonable. Further, he had counsel from two adults
with his interest at heart, his father and aunt.
It was the defendant's evidence that his vehicle had undergone
repairs in mid July, just before the accident happened. The vehicle
was repaired by Fasfit.
The defendant did not produce any evidence of the repairs that were
undertaken.
This would have assisted him in showing that he would not have been
aware that the brakes were defective.
The defendant did not give any explanation why he did not have any
documents from the garage. He did not indicate that the garage had
closed down when the person who repaired his vehicle relocated to
Australia such that he could no longer have access to the records of
the garage on the repairs that had been effected.
It is my view that the defendant failed to show to the court that his
brakes suddenly failed and that he was not aware of the faulty breaks
before the accident happened. In fact, the evidence of the Acting
Chief Vehicle Inspector and his own evidence appear to show that the
accident was not caused by a sudden brake failure. It appears that
the defendant was aware of the defective brakes and proceeded to
drive the vehicle in that state. He was negligent to have done so.
Failure to Give Way
The defendant did not impress me as being truthful when he testified
that the plaintiff was supposed to give way to him.
As appears from the analysis of
the defendant's evidence above, the defendant was aware that there
was a Give Way sign at the intersection. He was well familiar with
the intersection as the intersection was in the vicinity of his home
and he had passed the intersection frequently.
It appears to me that the “after lunch” story was clearly an
afterthought.
This is supported by the fact that the issue had not been pleaded.
The issue was not even raised during the Pre-trial Conference.
As alluded to earlier, only two issues were referred to trial;
(i) Whether or not there was a
sudden brake failure; and
(ii) The quantum of damages.
The defendant conceded that he had not raised the issue earlier but
recalled it as he testified.
It is astonishing that the defendant could not recall immediately
after the accident, during the period pleadings were filed and when
the PTC was held what had happened in July 2006.
The defendant's recollection was sharper fifteen months after the
accident.
The change in the defendant's story gives the impression that the
defendant was fabricating his defence as the trial progressed.
The defendant had in fact stated
in his statement to the police contained in the Plaintiff's Bundle
of Documents that he was aware that there was a Give Way sign. He
stated that:
“I was on my way to drop my
friend off down the road and when I was approaching the Give Way,
(unable to see it because it was dark) I tried to apply brakes to
slow down for the Give Way and noticed they were not working so I
slammed on brakes and swerved to the right to try and avoid the car.”
This statement was made nine days after the accident when his
recollection of the events should have been fresh. The new evidence
that the plaintiff did not give way is clearly a fabrication.
It is my view that the defendant failed to give way to the plaintiff
as he was required to do.
In S
v Nyamandi 1998 (2)
ZLR 205 at 208 D-E, SANDURA JA confirmed the finding of the trial
magistrate that the appellant in that case was grossly negligent for
failing to give way at a 'T' Junction controlled by a Give Way
sign. He cited with approval the words of McNALLY J (as he then was)
in S v Dzvatu
1984 (1) ZLR 136 (H) at 138F that:
“To my mind, anyone
who drives straight through a 'Give Way' sign at a T-junction and
hits a lighted vehicle travelling in the main road, killing two
people, is prima
facie
grossly negligent.”
The fact that the plaintiff in the present case did not die was
fortuitous.
The Give Way sign is a regulatory
sign which controlled the defendant and obliged him to only proceed
when it was safe to do so. He did not obey the sign resulting in the
accident.
Speeding
The evidence of the Acting Chief Vehicle Inspector contradicted the
defendant's evidence on the speed the defendant was travelling at
when the accident occurred.
It was his evidence that the damage to the defendant's vehicle was
consistent with the defendant having been travelling at a very high
speed. This tallies with the plaintiff's evidence, more
particularly the positioning of the vehicles after the accident.
The impact of the accident was such that the plaintiff was thrown out
of the vehicle and hit a durawall well off the road. The plaintiff's
vehicle rolled twice and uprooted a ZESA pole.
It is not in issue that both the plaintiff and defendant's vehicles
were extensively damages. This proves that the impact of the
collision was heavy indicating that high speed was involved.
Further, it appears to me that one cannot be said to be driving at a
slow speed when driving at 70km/h, in a built up area, at night, on
an unlit road full of potholes. 70km/h can only be said to have been
excess speed given those conditions.
It is therefore my view that the defendant was at a very high speed
under the circumstances.
Driving without lights on
The evidence of the Acting Senior Vehicle Inspector was also
inconsistent with the defendant's evidence that his lights were
still on immediately after the accident.
The Acting Senior Vehicle Inspector testified that the headlights
were crushed as a result of the accident and as a result he could not
determine their state before the accident.
The defendant could not have seen that his lights were on soon after
the accident when they had been so crushed that the Inspector could
not establish their condition before the accident.
The impression given is that the defendant was not being candid with
the court.
I therefore find that the defendant failed to dispel the inference of
negligence that the defendant's headlights were not on when the
accident occurred.
Conclusion on liability
In the result, it is my view that the plaintiff established on a
balance of probability that the defendant was not only negligent, but
grossly negligent. He is therefore liable for the damages that the
plaintiff suffered.
QUANTUM OF DAMAGES
There is no denying that the accident was a major tragedy for the
plaintiff and his family which was also costly for them.
The defendant sought to dispute the nature of the injuries suffered
by the plaintiff by putting into issue the report by Professor
Kalangu. The defendant contended that the report states that the
plaintiff had been under the care of the Professor since 24 July 2006
as a result of injuries suffered from an accident which happened on 6
May 2006. This gave the impression that the plaintiff was suffering
from pre-existing injuries on 23 July 2006 when the accident
occurred.
There is no dispute that plaintiff was involved in the accident with
the defendant on 23 July 2006. The report by Professor Kalangu
demonstrated that the plaintiff sustained complete paralysis of the
left and both lower limbs, fracture of the left clavicle, fracture of
the spine and C5 and C6 and a dislocation of the vertebra in C5 to C6
associated with the spinal compression. The nature of the injuries
described by the Professor is such that the plaintiff would not have
been driving any vehicle, at all on 23 July 2006 if he had sustained
those injuries on 6 May 2006.
To imply that the applicant sustained the above injuries from an
accident prior to 23 July 2006 and be able to still drive on 23 July
2006 borders on absurdity and in my view an insult to the plaintiff.
The injuries to the plaintiff were apparent when he testified. He had
difficulties walking to the witness stand. He could not stand for a
long time and had to request to sit down during the hearing. Both the
defendant and his counsel had to assist the plaintiff by flipping the
pages of the plaintiff's bundle of documents as he was testifying.
It appears to me that the date is a genuine error. The doctor does
not make any reference to the accident of 23 July 2006 at all. In my
view it was not even necessary for the doctor to be called to clarify
the apparent error.
General damages
It was not seriously disputed
that the plaintiff will
for the rest of his life require medical attention, including
operations, regular physiotherapy and medication.
He has a
weakness of the forearm and arm on the left side and suffers from
pain for a very long time. The
upper plexus is seriously injured with no sign of recovery at the
time the plaintiff was examined.
The term “plexus” is defined
in Butterworths Medical Dictionary to mean an interwoven network of
nerves or blood vessels.
His disability is estimated at 60%.
The plaintiff was a sportsperson. This was confirmed by the
defendant. Therefore the injuries from the accident have resulted in
a greatly reduced quality of life. The injuries have affected his
relationship with his daughter which was previously very close.
The plaintiff claimed the sum of $1 billion dollars for the pain and
suffering, disfigurement, loss of amenities of life and short life
expectancy.
The plaintiff would ordinarily be entitled to the damages had his
disability been final and stationary at 60%.
It should be noted that except for the dates and the signatures, the
two reports from Professor Kalangu, dated 12 November 2007 and 20
June 2008 are identical. This is despite the fact that a period of
seven months had lapsed after the first report.
One would have expected the later report to have indicated any
changes that may have occurred during that period. It appears that
whoever signed on the later report merely printed the report of 12
November 2007.
The report by Professor Mielke dated 23 July 2006 stated that there
“lower plexus should show good improvement.” It is not clear to
what extent the improvement will affect the rate of disability as
assessed by Professor Kalangu.
The report further states that there should be a repeat study in six
months time from the 23 July 2006. The plaintiff did not advise the
court whether or not he had gone for the repeat study and if so the
results thereof.
However the impression given by both Professor Kalangu and Mielke is
that the plaintiff may improve with rehabilitation and treatment. The
disability is therefore debatable.
The debate could have been resolved had the plaintiff led evidence
from any of the two doctors.
In the case of Ebrahim
v Pittman NO 1995 (1)
ZLR 176 (H) at 187H-188A BARTLET J commented on the approach in
assessing damages and at p187G-H to 188D said:-
“It
is not competent for a court to embark upon conjecture in assessing
damages where there is no factual basis in evidence, or inadequate
factual basis, for an assessment, and it is not competent to award an
arbitrary approximation of damages to a plaintiff who has failed to
produce available evidence upon which a proper assessment of loss
could have been made.”
It is my view that the plaintiff has not placed before the court
adequate evidence to enable it to assess the degree of disability and
hence the general damages that the plaintiff is likely to suffer.
In the result the defendant should be absolved from the instance.
Past Expenses
The plaintiff claimed the medical and allied expenses that he
incurred. These included the shortfall from CIMAS in relation to his
hospitalization, physiotherapy and fees for nursing aides. The claim
amounted to a total of $704,576,798.45.
The defendant queried a number of duplication that appeared on the
statement from CIMAS.
The following claims were alleged to have been duplicated:
CLAIM No. DATE OF TREATMENT SHORTFALL $
(a) 0014751577 27/07/06 60,282.60
(b) 0014271878 23/07/06 56,126.70
(c) 14271956 25/07/06 19,483.20
(d) 0028277109 09/01/07 11,000.00
(e) 0028277154 11/01/07 11,000.00
(f) 28277154 17/01/07 2,292.00
(g) 0028277131 09/01/07 11,000.00
(h) 28277131 10/01/2007 2,292.00
From an analysis of the statement, it is clear that only the first
four were duplicated. The last four were not. The claim numbers are
different. A removal of the first two zeros in (e) and (g) would give
one the same numbers in (f) and (h) respectively. However, the dates
for treatment are different. The shortfall being claimed is also
different.
The plaintiff properly conceded in the closing submissions that there
some duplications. The disputed amount is $146,892.50. It is my view
that the amount should be deducted from the total being claimed.
The plaintiff is therefore entitled to judgment in the sum of
$704,429,905.95.
The plaintiff further claimed an amount of US$4,104 as past expenses.
That amount consists of payment in the sum of US$1,187 to Professor
Chinyange on 28 May 2008. US$2,802 was paid to Professor Kalangu on
the same date. A total of US$115 was paid to one Jacquie Simpson
Bowen for rehabilitation therapy for the period between 22 June 2007
and 29 May 2008.
The defendant sought to challenge this claim on the basis that the
fees were illegal in that the medical practitioners did not have the
foreign exchange authority to levy fees in foreign currency.
However the facts still stands that the plaintiff suffered loss in
foreign currency.
There is authority to the effect
that a court can grant a judgment in a foreign currency even where
the claim arises in delict. (See Makwindi
Oil Procurement (Pvt) Ltd v National Oil Co. of Zimbabwe 1988
(2) ZLR 482 (SC) and Standard
Chartered Bank of Canada v Nedperm Bank Ltd 1994
(4) SA 747 at 774F-H)).
The plaintiff suffered the loss in foreign currency as a result of
the defendant's negligence. It is my view that the plaintiff has
laid a basis for payment in foreign currency and it is only proper
that the plaintiff be compensated in the same currency.
Future Medical Expenses and Transport Costs
The claim for future expenses was $1 billion and US$5,000. The
expenses are for physiotherapy which the plaintiff has to attend once
a week and for drugs that he is required to take. The plaintiff also
claimed transportation expenses in the sum of $10 trillion dollars in
respect of the physiotherapy sessions.
The expenses must be proved to the satisfaction of the court.
The plaintiff relied on the a quotation from Helensvale Pharmacy to
prove that he will be required to spend at least US$55 per month for
medication for the pain and to help him sleep. He also appears to
have relied on the report from Jacquie Simpson that he still requires
rehabilitation therapy at the rate of US$5 per session.
It is not in issue that the plaintiff will require transport to
attend physiotherapy and rehabilitation. However, the plaintiff did
not indicate how he arrived at the amounts claimed. It is not clear
how many sessions he will be required to undertake.
It should be noted that the report from Professor Mielke, however,
does not detract from the fact the plaintiff will require future
attention and therefore incur expenses. The documents that he has
produced give a fair idea of the expenses that the plaintiff is
likely to incur.
It is my view again, that the plaintiff has not placed before the
court adequate evidence to enable it to assess the future expenses
that he is likely to suffer.
In the result defendant again should be absolved from the instance.
Replacement Value of Motor vehicle
The last claim is for the replacement value of his vehicle in the sum
of US$8,000.
The claim was supported by two quotations from Borrowdale Auto and
Tandem Motors Pvt Ltd. Both are dated 24 September 2008.
The defendant put into issue these damages.
The defendant contended during the cross examination of the plaintiff
that the claim for US$8,000 was incompetent because the quotations
were only obtained over two years after the accident.
It is trite that delictual
damages are calculated as at the time of the delict. (See Muzeya
NO v Marais
& Anor HH-80-04;
Monica
Komichi v David Edwin
Tanner & Anor
HH104/05; Edward Marume
& Anor v Todd Muranganwa HH27/07;
and SA Eagle Insurance
Co Ltd v Hartley 1990 (4) SA 833 (A)).
One of the exceptions is where
the plaintiff can justify the delay in coming up with the damages at
the time of or soon after the accident. (See Cargo
Carriers (Pvt) Ltd & Anor v Nettleford & Anor
1991 (2) ZLR 139 (SC)).
The plaintiff explained that he had been hospitalised for a period of
almost one and a half years. During that period he could not have
obtained the quotations because he was incapacitated. His family was
also concentrating on his welfare.
It appears to me that the explanation would have been plausible had
the quotations been obtained at the time when summons were issued.
Summons were issued on 27 October 2007. The plaintiff was then
claiming $500,000,000 (old currency).
Under cross examination, the plaintiff explained that that amount
reflected the replacement value of the vehicle at the time. He
explained that as a result of inflation he had to obtain new figures.
It is my view that the plaintiff failed to explain satisfactorily the
delay between the issuance of the summons and the obtaining of the
quotations.
The explanation that the new quotations were obtained because the
original amount had been eroded by inflation cannot be sustained.
It has been stated in a number of
cases that consideration of factors such as inflation in the
calculation of delictual damages would amount to altering the quantum
of the debt according to when the plaintiff sought to exact it. The
result would be in conflict with the principle of nominalism. (See
Muzeya NO
v Marais & Anor
(supra);
Monica
Komichi v David Edwin
Tanner & Anor
(supra);
Edward Marume &
Anor v Todd Muranganwa (supra);
and SA Eagle Insurance
Co Ltd v Hartley (supra)).
It is my view that the plaintiff has therefore failed to establish
the damages of US$8,000. As in the other claims, the defendant must
be absolved from the instance.
Interest
The plaintiff had claimed
interest of the damages for past expenses at the prescribed rate. It
is my view that the award in foreign currency should accrue interest
at a different rate. It has been held interest rate should be at the
rate appropriate to that currency. (See AMI
Zimbabwe (Pvt) Ltd v Caselee Holdings (Successors) (Pvt) Ltd 1997
(2) ZLR 77 at 86C-87-E.)
Costs
When a defendant is absolved from
the instance he should be regarded as being the successful party, and
the plaintiff should be ordered to pay the defendant's costs unless
there are good reasons for ordering otherwise. (See General
Wholesale Suppliers (Pvt) Ltd v Aims Distributors 1975
(1) SA 600 (RA) at 601 A and “The
Civil Practice of the Supreme Court of South Africa”
(supra)
at page 465C).
The plaintiff partially succeeded in that I have found the defendant
to have been liable for the damages. He has also succeeded with the
award for past expenses.
In my view, the plaintiff has been overally been the successful
party. He is therefore entitled to his costs.
In the closing submissions, the plaintiff conceded that the claim of
$704,576,798.45 is now academic as it meaningless in real terms.
He conceded that an award would
be for no practical consequences as far as its purpose to compensate
the plaintiff is concerned. Following
the removal of zeros by the Reserve Bank of Zimbabwe between the date
of amendment of the summons and date of judgment, the amount is
indeed insignificant and serves no purpose in compensating the
plaintiff.
Whilst acknowledging that that the claim for damages denominated in
the local currency is academic, the plaintiff submitted that it is
entitled to the order in principle.
The plaintiff's wish is my command.
In the result, it is ordered that:-
1. The defendant be and is hereby
ordered to pay the sum of -
(a) $704,429,905.95 being past
medical expenses and interest on that amount at the prescribed rate
from 6 May 2008 to the date of payment.
(b) US$4,104 being past medical
expenses and interest on that amount at the prescribed rate
prevailing in the United States of America.
2. The defendant be and is hereby
granted absolution from the instance with respect to the claim for
general damages, future expenses, and the replacement value for his
vehicle.
3. The defendant be and is hereby
ordered to pay the plaintiff's costs.
Gill, Godlonton & Gerrans, plaintiff's legal
practitioners
Messrs Atherstone & Cook, defendant's legal
practitioners
