CHITAKUNYE J: The plaintiff is a former employee of the
defendant. The defendant is a duly incorporated company in terms of the laws of
Zimbabwe.
The
plaintiff was employed by defendant from 1990 to 2006. He was employed as a Cibra
Machine Operator. Later he was assigned to work as an Assistant Tapeline 11
Machine Operator.
On
the 19 to 20 April 2006 the plaintiff was involved in a workplace accident. His
right hand was trapped between machine rollers of the tapeline 11 machine as he
tried to insert some broken plastic strands. He sustained a crushed right hand
assessed at 65% disability. After the accident he was taken to hospital. He
remained hospitalised from the 20th April 2006 to 4 September 2006. Upon
discharge from hospital he was later discharged from employment on medical
grounds with effect from 1 June 2007.
As
defendant was a contributor to the National Social Security Authority Scheme, here
in after referred to as NSSA, relevant documents were completed and plaintiff
was awarded compensation in terms of the NSSA scheme.
Upon
receipt of the compensation the plaintiff approached his employer for more
compensation as he stated that the compensation from NSSA was too little. The
defendant declined to compensate the plaintiff contending that he had been
adequately compensated in terms of the NSSA scheme.
The
plaintiff being dissatisfied sued defendant in this court for more compensation
in the form of damages. The plaintiff alleged that the accident was caused by
the negligence of the defendant. The particulars of negligence he alluded to were
that :
1. the
defendant compelled the plaintiff to operate the Tapeline 11 Machine to which
he had no requisite know how of its operation since he was a novice at that time.
2. Defendant
failed to provide a safe working condition for the plaintiff.
3. Defendant
did not take the necessary steps to avoid such a happening as the machine had
no emergency devices at all regardless of being informed on innumerable times
that the machine was faulty.
The plaintiff's employment
was terminated as the defendant contended he could not continue working with one arm.
The
plaintiff's claim, as amended on the date of trial was for:
(a) Payment of USD30,000 (thirty thousand United States
dollars) being damages for loss of future earnings.
(b) Payment of USD10 000 (ten thousand United States
dollars) being damages for pain and suffering; and
(c) Payment of USD60 000 (sixty thousand United States
dollars) being damages for permanent disfigurement and loss of amenities of
life.
(d) Costs of suit.
The defendant denied liability and contended that it was
plaintiff's negligence that led to the accident in question.
In its plea, the defendant contended that the plaintiff had
been operating similar machines throughout his 10 years or so of his employment
with the defendant. Defendant went on to
say the plaintiff had been operating this particular Tapeline II Machine for
more than a year.
In para 3 of its plea the defendant stated that:
“..At the time of the accident the
plaintiff was employed as an operator on the Tapeline II Machine and had been
employed in that capacity for more than a year”.
Defendant further stated
that the working conditions were totally safe and the plaintiff
had been trained in work and safety
procedures. Shortly before the accident he had infact attended and participated
in a safety training workshop at the workplace which was conducted by NSSA.
Further, the defendant stated in its plea that the Tapeline II Machine in
question had and still has cut off switches at very accessible level, which the
plaintiff should have used to stop the machine when the plastic strand broke
instead of inserting his hand into moving machinery. When his hand got trapped
the plaintiff should have used this cut off switch to stop the machine.
The
machine had never been faulty and neither the plaintiff nor his assistant had
ever notified anybody that the machine was faulty. As far as the defendant is
concerned therefore it was the plaintiff's own negligence which led to him
being injured. The plaintiff also contravened laid down work procedure and
safety rules by inserting his hand into the moving rollers to try and reconnect
the plastic strand leading to his hand being trapped in the rollers.
It
was the defendant's further contention that the plaintiff had no claim at
common law as the plaintiff was compensated fully in terms of Zimbabwean law
and there was no further claim for damages. Defendant also disputed the quantum
of damages as claimed by the plaintiff.
The
issues for determination were identified as:
1. Whether
the plaintiff was a Tapeline II Machine Operator or was asked to do a job he
was not familiar with.
2. Whether
or not the injury suffered by the plaintiff was a result of the defendant's
negligence.
3. Whether
there is any basis at common law, on which the defendant could be liable to the
plaintiff for damages.
4. What
is the quantum of damages, if any?
The plaintiff gave
evidence and called two witnesses namely Mr Themba Mazvipunza and Mr Tawanda Murindi. Two defence
witnesses namely Mr Reginald Takura Kawonza and Mr Chrispen Singe, thereafter
gave evidence.
A
number of documentary exhibits were tendered into evidence. In an effort to
acquaint the court with the machine in question an inspection in loco was
conducted during which the operations of the machine were explained segment by
segment. The position where the plaintiff was operating from was shown together
with the rollers that trapped his hand.
ISSUES
1. Whether
the plaintiff was a Tapeline II Machine Operator or was asked to do a job
he was not familiar with
The
plaintiff's evidence was to the effect that he was not a Tapeline II Machine
Operator. He was a Cibra Machine Operator. He was assigned to go and work at
the Tapeline II Machine as an assistant to Themba Mazvipunza in March 2006 when
there was a shortage of raw materials for his Cibra Machine.
He
categorically denied the defendant's contention that he started working as
Assistant Tapeline II Machine Operator in August 2005. He maintained that he
was only assigned to assist Themba Mazvipunza in March 2006.
As
Assistant Tapeline II Machine Operator, his duties comprised taking job cards
to the workshop, mixing the material used to make plastics and pouring the
mixture into the hooper. He would also be sent by the operator on errands. He
was very clear that his duties did not include operating the machine as the
operator.
Mr
Themba Mazvipunza gave evidence next. He was the Tapeline II Machine Operator.
His evidence was to the effect that the plaintiff was not a Tapeline II Machine
Operator, but a Cibra Machine Operator. He confirmed the plaintiff's evidence
on the circumstances that led to the plaintiff joining him on the Tapeline II
Machine.
He
also confirmed that the plaintiff was assigned to assist him in March 2006 and
not in August 2005. Plaintiff was thus his assistant from March 2006 to 19
April 2006. During that period the plaintiff had not worked as an operator of
the Tapeline II Machine but only as his assistant.
Mr
Themba Mazvipunza further confirmed that there was no formal training given to
the plaintiff. Whatever the plaintiff learnt was by observing what Themba
Mazvipunza was doing.
It
is clear from the plaintiff's evidence and that of Mr Mazvipunza that, at the
time the plaintiff was asked to operate the Tapeline II Machine, he had not
received any training as a Tapeline II Machine Operator. He had merely been an
assistant to Themba Mazvipunza for a few weeks.
The
defendant's contention on this aspect was without support. Mr Reginald Takura
Kawonza, the defendant's Human Resources Officer gave evidence. Unfortunately
as he confirmed himself, at the time of the accident he was not yet employed by
the defendant. He thus had no first hand evidence on the events in question. He
could not confirm that the plaintiff was a Tapeline II Operator. He did not
produce any documentary proof of the plaintiff's status at the time of the
accident.
The
defendant's second witness was Chrispen Singe, also known as Nyikadzino. He was
the plaintiff's supervisor. As a supervisor he exercised some authority over
the plaintiff. Mr Singe's evidence was to the effect that the plaintiff was
assigned to work as Themba Mazvipunza's assistant on the Tapeline II Machine in
August 2005.
He
confirmed that there was no formal training for the job but one had to train on
the job by observing what the Tapeline II Machine Operator was doing. Though Mr
Singe insisted that the plaintiff was assigned as assistant to Themba
Mazvipunza in August 2005, he could not produce any evidence to confirm the
date of the assignment. It thus remained a question of his word against that of
the plaintiff and Mr Mazvipunza. On the status of the plaintiff at the time of
the accident, Mr Singe confirmed what both the plaintiff and Mr Mazvipunza said
that he was an assistant Tapeline II Machine Operator. The night of the
incident was his first time to act as the operator of the tapeline II machine.
Mr
Singe's evidence contradicted the defendant's defence as depicted in the plea
and summary of evidence in some material way. Firstly, on the status of the
plaintiff whilst in the plea and summary of evidence defendant contended that
the plaintiff was employed as a Tapeline II Operator, Mr Singe confirmed the
plaintiff's assertion that he was an assistant Tapeline II operator.
Secondly
whilst in its plea the defendant contended that the plaintiff had been
operating similar machines throughout the 10 years of his employment with
defendant, Mr Singe did not support this contention. Mr Singe said the
plaintiff only started working at the Tapeline II Machine in August 2005 as an
assistant to Mr Themba Mazvipunza. The machine that the plaintiff had been
operating prior to that was Cibra machine. That machine was in no way similar
to the Tapeline II machine.
The
inspection in loco revealed that the Cibra machine was a much simpler machine
comprising one station where as the Tapeline II machine is a heavy duty machine
with several segments operating at the same time. It is no doubt a much more
complicated machine than the Cibra machine.
According
to the defendant's summary of evidence, Mr Singe was to come and say that the
plaintiff was in fact the substantive operator of the Tapeline II machine and
he had no assistant. The person who had gone for a funeral was working on a
different machine altogether.
Unfortunately
Mr Singe's evidence was not to that effect. He in fact confirmed that the
substantive operator of this machine was Mr Themba Mazvipunza with the
plaintiff as his assistant. It is Mr Themba Mazvipunza who had gone for a
funeral thus leaving the plaintiff alone at the machine.
In
the summary of evidence it was contended that there existed laid down
procedures and safety regulations that the plaintiff contravened. Mr Singe did
not confirm this. He could not tender any such laid down procedures and safety
regulations that the plaintiff had been trained in when operating the Tapeline
II machine.
The
inconsistencies and contradictions between Mr Singe's evidence and the
defendant's plea and summary of evidence creates doubt on the veracity of
defendant's version of events. Mr Singe was defendant's key witness, yet his
testimony was materially different from the defendant's plea and summary of
evidence. It is thus difficult to rely on Mr Singe's evidence or defendant's evidence
especially were it conflicts with the plaintiff's evidence.
On
issue number one, it appears common cause from all who testified on it that the
plaintiff was not a Tapeline II Machine operator.
2. Whether
he was asked to do a job he was not familiar with
That should follow from the above
finding.
Plaintiff
had never operated the machine in question. He had not received any formal
training. The person who was expected to have trained him on the job Themba
Mazvipunza confirmed that no formal training had occurred. The few weeks the
plaintiff worked with Mr Mazvipunza were spent as an assistant Tapeline II
Operator performing duties expected of an assistant.
Mr
Singe did not say there was anytime the plaintiff was trained to be a tapeline
II machine operator neither did he ever witness the plaintiff operating the
machine as the operator. Thus even from the defendant's evidence there was no
concrete evidence to rebut the assertion that the plaintiff was not familiar
with the job of a Tapeline II Machine operator. From the evidence adduced I am
inclined to believe the plaintiff when he said that he did not volunteer to
operate the machine. The probabilities are that he could not have volunteered
to operate a machine he had never operated before. Mr Singe as the supervisor
had authority over him and so when his initial refusal was turned down the
plaintiff proceeded to do the job as instructed by the supervisor. He had to
comply with the order of the supervisor more so as he knew that the supervisor
had consulted another senior person. It was thus not proper for Mr Singe to
order the plaintiff to operate the machine in the circumstances.
3. The
next issue is whether or not the injury suffered by the plaintiff was a result
of the defendant's negligence.
The defendant contended
that it was not negligent at all. It is the plaintiff who was negligent in attempting to insert
the broken plastic strands in between the rollers when the machine was in
motion.
The
plaintiff on the other hand said that he was not negligent at all.
It
should be apparent from my findings on the first issue that the plaintiff was a
novice in the operations of the machine in question. Plaintiff had only been
assistant to Themba Mazvipunza for about 5 weeks. He had not received any training
on how to operate the machine. All he had learnt was from observing Mr
Mazvipunza operating the machine whilst he performed his duties as an
assistant.
During
these operations he had observed Mr Mazvipunza connect and insert broken
plastic strands into the rollers without first stopping the machine.
That
novice operator was assigned a novice assistant operator Mr T. Murindi. Mr
Murindi confirmed that he had not worked on the machine before and so he did
not know much about this particular machine. There was no denying that Mr
Murindi had not been trained or even been introduced to the safety procedures
and emergency devices on this machine. It was thus a tale of two novices being
ordered to operate the Tapeline II Machine which they were clearly not familiar
with.
Since
the plaintiff had seen Mr Mazvipunza reconnect or insert the broken plastic
strands into the rollers without first stopping the machine, he proceeded to do
the same.
Mr
Mazvipunza in his evidence confirmed that he would connect the broken plastic
strands whilst the machine was in motion just as the plaintiff had tried to do.
He would only stop the machine when a lot of the strands broke. In cases of
only 1 or 2 strands breaking he did not stop the machine to connect the
strands.
It
was in a bid to do what he had seen Mr Mazvipunza doing, inserting the broken
strands in the rollers whilst the machine was in motion, that the plaintiff's
overall was trapped on the arm. When this happened a fellow novice who had no
clue about the safety or emergency device of the machine, was expected to
switch off the machine.
Plaintiff indicated that
at the time of the accident no emergence switch was in place and within reach. Though
Mr Singe indicated that there was such an emergence device within reach, the
inspection in loco confirmed that the one he referred to could not effectively
and swiftly turn off the machine.
It needed to be wound
for sometime before it could stop the machine. It also needed to be wound by
someone who had knowledge about its operations.
In casu,
both the plaintiff and Mr Murindi were not shown to have been trained in its
effective use. A more effective emergence device was only put in place after
the accident.
A number of scenarios
may be observed.
Had Mr Singe not ordered
the plaintiff to operate a machine he was not familiar with probably the
accident would not have occurred. Equally had the defendant put protective
bars, as it has now done on the rollers, the plaintiff would not have had his
hand trapped by the rollers. It may also be said that had the plaintiff been
trained on the operation of the machine and on the dangers associated with the
machine he would probably not have been tempted to do as he had seen Mr
Mazvipunza doing.
It is also apparent that
had the defendant installed a more effective emergency stop device and ensured
that only trained personnel worked on that machine either the plaintiff or Mr
Murindi could possibly have stopped the machine as soon as the plaintiff's hand
was trapped.
I thus conclude that the
defendant was negligent. It is that negligence that caused the plaintiff to be
injured.
4. The next issue is whether there is any
basis at common law on which the defendant could be liable to the plaintiff for
damages.
The defendant contended
that the plaintiff had no claim against the defendant at common law as the
injury occurred in the course of the plaintiff's employment with the defendant
and the plaintiff was fully compensated in terms of the Zimbabwean law.
In their addresses
counsel for both parties referred to compensation schemes in terms of the
National Social Security Authority [Cap
17:04]. The National Social Security Authority (Accident, Prevention and
Workers Compensation Scheme) Notice 1990 (S.I 287/90) hereinafter referred to
as the Notice sets out the compensation payable in the event of the death or
injury of an employee.
The defendant's
contention was based on s 8 of the Notice. That section states that:
“From and after the 1st
January, 1960 -
(a) no
action at common law shall lie by a worker or any dependant of a worker against
such worker's employer to recover any damages in respect of any injury
resulting in the disablement or death of such worker arising out of and in the
course of his employment; and
(b) no
liability for compensation shall arise save under and in accordance with this
scheme in respect of such disablement or death; ….. “
The plaintiff on the
other hand argued that his case was for additional compensation as provided for under s 9 of the Notice
as the employer was negligent.
Section 9(1) of the Notice states
that:
“Not with standing anything to the
contrary contained in this scheme if a worker meets with an accident which is
due:
(a) to
the negligence.
(i) of
his employer; or
(ii) of
a person entrusted by his employer with the management or in charge of such
employer's trade or business or any branch or department thereof; or
(iii) of
a person having the right to engage or discharge workers on behalf of his
employer; or
(b) to
a patent defect in the condition of the premises, works, plant or machinery
used in such trade or business, which defect his employer or any person
referred to in para (a) has knowingly or negligently failed to remedy or caused
………………………..
…………………………
the worker or, in the case of his
death as a result of such accident, his representative, may, within three years
of such accident, proceed by action in a court of law against his employer,
where the employer is an employer individually liable, or otherwise against his
employer and the general manager, jointly, for further compensation in addition
to the compensation ordinarily payable under this scheme.
Provided that in the case of an
action in which the employer and the general manager are joined, nothing in
this section shall be construed to mean that any compensation awarded under
this section is payable by the employer”.
In
casu, it is common cause that the
plaintiff was paid the compensation ordinarily payable under the scheme.
It
was after that, that he approached his employer for more compensation as he deemed
the compensation paid inadequate and also alleged negligence on the part of his
employer.
In
his correspondence to his employer dated 31 July 2007 and 25 September 2007
(exhibits 9 and 12 respectively) he made it clear the employer was at fault in
forcing him to operate a machine he was not familiar with with another person
who was also new to the machine. In his level of English he wrote thus:
“It was caused by some illegitimate
inference of management which forced me to operate a machine which I was not great
at”.(See para 1 of exb 12)
It
is clear from the correspondence that what the plaintiff was seeking was
additional compensation due to the employer's negligence.
In
order for the plaintiff to be entitled to such additional or further compensation
he must show that his case falls within the provision of s 9 of the Notice,
that is that the employer was negligent in one or more of the ways stated
therein.
The
plaintiff based his claim on the negligence of the employer as provided for in
s 9(1)(c)(i) and also on the fact that the machine was not safe because it did
not have emergency stop devices.
When
ruling on the 2nd issue, I found the defendant to have been
negligent. The question of the lack of emergency stop devices on the machine
was quite evident.
Whilst
the defendant contended that there was an emergency switch, even as on the date
of the accident, that switch as observed during the inspection in loco was not
that effective.
The
report by the Inspector of factories Mr Marufu, dated 12 March 2008 confirmed
as much. That report shows that the
safety provisions on the machine were highly inadequate. Mr Marufu made a
number of findings which included that:
“1. The machine had no emergency switch off
button.
2. Nip
points of the machine were not guarded.
3. The
operator was not trained on the safe procedure of the machine”.
Those findings were consistent with
the plaintiff's evidence on the lack of an emergency switch off device and lack
of training. The lack of an emergency switch off device was something that the
employer was well aware of as confirmed by Themba Mazvipunza. The employer had
nevertheless not seen it fit to attend to the issue. The appropriate emergency
stop devices were only put in place after the accident.
Section
9(2) of the Notice provides that:
“If the court is satisfied that the
accident was due to any such negligence or defect as is referred to in
subsection (1), it shall award the applicant such additional compensation as it
would deem equitable to award as damages in an action at common law”.
It is my view that in
this case I am satisfied that the plaintiff is entitled to be awarded damages.
5. The
next issue is the quantum of such damages
Quantum of Damages
The plaintiff's claim for damages is
under three headings namely:
(a) Loss
of future earnings USD30,000(Thirty thousand United States dollars).
(b) For pain and suffering USD10,000 (Ten thousand United States dollars).
(c) Permanent
disability and loss of amenities of life USD60,000 (Sixty thousand United States dollars).
As
the damages are being considered in terms of s 9 of the Notice the provisions
of s 9(3) of the Notice are pertinent. That
subsection states that:
“In making any award under this
section the court shall have regard to the amount of compensation which has
been paid or in the court's opinion will be paid under other provisions of this
scheme”
I
will thus consider the fact that the plaintiff was paid compensation and is
expected to be receiving monthly compensation. It is not clear how much he will
be paid as he said only last week he received USD$20 after several months of
waiting. He was not advised for what period that USD$20 covered.
In
considering the three heads I will consider the loss of future earnings last.
(b) PAIN AND SUFFERING
In his book, 'The Law of
Delict' by PQR BOBERG Volume 1 1984 at p 516, the learned author had this to say about
the remedy for pain and suffering.
“Compensation may be awarded not
only for actual physical pain but also shock, discomfort and mental suffering,
disfigurement, loss of amenities of life and disability; and loss of
expectation of life. For convenience we speak simply of 'pain and suffering',
but the concept embraces all these non-pecuniary misfortunes – past and future
– of an injured persons. Nor is the list a closed one”.
By virtue of its description, it is
not an easy task to provide for pain and suffering in monetary terms in an exact
manner. There is no hard and fast rule the various aspects constituting pain
and suffering can be measured to come up with an exact figure.
The 'pain and suffering' experienced
by each individual varies. No two people can experience the same level of such
pain and suffering. This makes it hard to rely on past cases with any certainty
except as general guidelines.
Indeed in Minister of Defence and Another v Jackson
1990(2) ZLR 1 (SC) GUBBAY JA (as he then was) had this to say at p 7.
“It must be recognised that
translating personal injuries into money is equating the incommensurable, money
cannot replace a physical frame that has been permanently injured. The task of
assessing damages for personal injury is one of the most perplexing a court has
to discharge”.
The learned judge went
on to highlight 8 broad principles that should guide a court in assessing such
damages.
These include that:
“1. General damages are not a penalty but
compensation. The award is designed to
compensate the victim and not to punish the wrong-doer.
2. 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 had not been committed. See Union Gvt v Warnecke 1911 AD 651 at 665.
3. Since no scales exist by which pain and
suffering can be measured, the quantum of compensation to be
awarded, can only be determined by the broadest general considerations. (See
Sandler v Wholesale Coal Suppliers Ltd1941 AD 194 at 199).
4. The court is entitled, and it has the duty,
to heed the effect its decision may have upon the course of awards in future.
(see Sigournay v Gill Bank 1960 (2) SA 552 (A) at 555H.
5. 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 an adherence to mathematics as may lead to an unreasonable result,
per SCHREINER JA in Sigournay's case, supra,
at 556C See also Southern Insurance Association Ltd v Bailey N.O 1984(1) SA 98(A) at 116 B-D, Ngwenya v Mafuka S18/89 not reported at
page 8 of the cyclostyled copy.
6. No regard is to be had to 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 be a
millionaire or a pauper (See Radebe v
Hough 1949(1) SA 380(A) at 386.
7. Awards must reflect the state of economic
development and current economic conditions of the country. See
Mairs case supra at 29H; Sadomba v Unity Insurance Co. Ltd & Another 1978 RLR 262 (G) at 270F; 1978(3) SA 1094 ® at 1097C Minister of Home Affairs v Allan S 76/86… at p 12 of the cyclostyled copy.
They should tend towards
conservatism lest some injustice be done to the defendant See Bay Passenger Transport Ltd v Franzem 1975(1) SA 269(A) at 274H.
8. 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 so
different”.
See also Marufu v Mawona and Others 1996 (1) ZLR 593.
Deklerk & Others v Makwiro HH 31/92.
In casu, the plaintiff went through shock and excruciating pain as his
hand was being crushed by the rollers. He cried in much
pain but his assistant could not switch off the machine. The machine had to be
stopped by workers summoned from another section who had to break a chain as
the machine would not respond to any of the switches. That must have been an
agonizing experience. It is one that adversely affects one's mental faculties,
to watch one's hand being crushed. Thereafter the plaintiff was hospitalised
from the 20th April 2006 to the 4th September 2006.
Whilst in hospital he was in pain as well. For all this pain and suffering the
plaintiff claimed a sum of USD10 000 (Ten thousand United States dollars).
Previous
awards in this jurisdiction were in Zimbabwean dollars. With the advent of the
use of multi currencies the previous awards in Zimbabwean currency may not be
very useful. They are nevertheless a guide.
In
the Minister of Defence & Another v Jackson (supra) the plaintiff was a 26 year old
medical doctor. He suffered a shortened
leg, loss of smell, double vision, memory loss, laboured speech, and emotional
instability. He was awarded $35 000 for pain and suffering, loss of amenities
and disfigurement.
In
Chamunorwa v Soweto and Another HH 212/93, a 50 year
old woman was injured. She had metal plates, put in her arm, and she was left
with facial scars. She suffered a 40% disability. She was awarded $15 000 for
shock, pain and suffering, and loss of amenities of life.
In
Marufu v Mawona & Others (supra) the plaintiff suffered injuries
to his limbs.
Both his lower legs and the right femur
were broken. The bones protruded. Pins were inserted in both legs. His right
leg was now shorter than the other and he had to wear special shoes.
He suffered 40% disability. He was
awarded $50 000 (Zimbabwean dollars) for pain suffering and loss of amenities
of life.
In
Mabvoro & Another v Muza HH
199/85 the two plaintiffs were injured in a road traffic accident. They were
husband and wife. The husband was aged 30 years and the wife 24 years. The
husband suffered a fracture of the left leg below the knee and at the right
wrist. He sustained serious cuts and bruises and was unconscious for some
hours. He was hospitalised for 2 weeks. He was awarded $15 000 (Zimbabwean
dollars) for pain and sufferings, loss of amenities and disfigurement.
The
wife had fractures in both legs above the knees. A mal union of the other bone
in the right leg which was ¾ of an inch shorter than the left. She also had
recurrent pain in her legs for the rest of her life. She was awarded $20 000
(Zimbabwean dollars) for pain and suffering, loss of amenities and
disfigurement.
The
awards were all in Zimbabwean dollars. It is not easy to translate that into United States dollars more so currently when the
real value of the United
States dollar does not seem to be well
appreciated. What is clear is that in the periods above the United States
dollars was generally stronger than the Zimbabwean dollar.
Going
by the above awards, which were not just for pain and suffering, it should be
apparent that $10000 US dollars for pain and suffering only is rather high. The
award should not be punitive but compensatory for pain and suffering.
It
is not in dispute that the plaintiff suffered pain as the rollers crushed his
hand. It is also not disputed he was hospitalised. Even after discharge from hospital
it was not disputed the hand had not completely healed. The pain and discomfort
continued. I am of the view that a sum of US$3 000 would be adequate
compensation for pain and suffering.
(c) Permanent disability and loss of
amenities
Under
this heading the plaintiff claimed US$60,000 (Sixty thousand United States dollars).
The disability that the plaintiff
suffered is the loss of part of his right hand, as this was crushed. He has
thus lost the use of his right hand. This is a disability he will have to live
with for the rest of his life.
The
concept of loss of amenities is not an exact concept. In Administrator-General, South West Africa
and Others v Kriel 1988(3) SA 275 at p. 288 D-G. HOEXTER JA had this to say
about this concept:
“The Concept of the loss of
amenities of life has been tersely but aptly defined by Lord Devlin in H.West and Son Ltd v Shephard [1963] 2
ALL ER 625 (HL) at 636G-H as:
'a diminution in the
full pleasure of living'
The amenities of life may further be
described, I consider, as those satisfactions in one's everyday existence which
flow from the blessings of an unclouded mind, a healthy body, and sound limbs.
The amenities of life derive from such simple but vital functions and faculties as
the ability to work and run; the ability to sit or stand unaided; the ability
to read and write unaided; the ability to bath, dress and feed oneself unaided;
and the ability to exercise control over one's bladder and bowels. Upon all
such powers individual human self sufficiency, happiness and dignity are
undoubtedly highly dependent”.
Factors that may influence the amount
to be awarded include the age and sex, of the injured person. Also the
disfigurement and its influence on the plaintiff's personal and professional
life. For instance how many of the activities he was able to do or participate
in is he still able to or has he been incapacitated and what did those activities
mean in his life.
The
plaintiff indicated that he is right handed and so the loss of the use of his
right hand was devastating He now has to learn to use the left hand. He is no
longer able to participate in any activities that require the use of both
hands. The disfigurement is visible and he will have to live with that
discomfort. As far as employment is concerned he can no longer be employed were
the use of both hands or the right hand is needed.
The
disfigurement whilst prominent does not appear to be as serious as that in Ministry of Defence and Another v Jackson (supra). As
already alluded to in that case a 26 year old medical doctor suffered injuries
that affected many aspects of his life such as shortened leg, loss of smell,
double vision, memory loss, laboured speech and emotional instability. In that
case an award of $35 000 Zimbabwean dollars was made.
I
am of the view that an appropriate award would be in the sum of $6,000-00.
(d) Loss of future earnings
It
is common cause that as a result of the disability, the plaintiff was
discharged from the defendant's
employment on medical grounds. That discharge was accompanied by a loss of
salary and other benefits that employees in his grade were entitled to.
Unfortunately no evidence was adduced as to the salary such a grade was
entitled to from the time of his discharge.
The
plaintiff claimed a sum of USD$30,000 for loss of earnings. He based his claim
on what he said employees in his grade are currently earning. In his computation
of damages in this regard the plaintiff multiplied the current monthly wages
and benefits for employees in his grade by the number of years left to
retirement from time of the accident. At the time of the accident he was 37
years old and he said the retirement age was 60 years. He was therefore left
with 23 years of working life. The current earnings of employee in his grade
were stated as follows:
Basic
monthly wage USD88-00
Accommodation
allowance USD15-00
7%
Basic wage being shift allowance USD6-16
Total
monthly USD109-16
Multiplying
that by 12 months a year and then by 23 years gives a total of USD30,128-16 of
which he claimed USD30,000.
The
assessment of an appropriate award for loss of earnings is not as easy as just
multiplying figures. There are several contingencies that must be taken into
account.
In
Rusike v Tenda Transport (Pvt) Ltd and
Another 1997(1) ZLR 495(H) BARTLET J had this to say on the assessment of
loss of earnings at p 497-498C:
“As a starting point it is
important, wherever possible, to deal with the matter on an arithmetical,
actuarial basis as opposed to a 'gut feeling' basis – to use a word often
referred to in the authorities . The basic approach is as referred to in Corbett
Buchanan and Gauntlett, 3ed p. 60-61, where the learned authors quote at length
the observations made by NICHOLAS JA in Southern
Ins. Assn v Bailey N.O. 1984(1) SA 98(A) at 113F to 114E. I must also: I feel
take account of the observations made in Carsten
N.O v Southern Ins Assn Ltd 1985(3) SA 1010(C) where, referring to the headnote
it is stated:
“While the court will generally have
a regard to arithmetical calculation and to actuarial evidence of probabilities
to assist it in its assessment, ultimately it must decide whether the results
of such calculations and evidence accord with what is a fair and just award in
each particular case”.
Where there is insufficient evidence
on the exact figures to use the court is still enjoined to make an award. In Santam Ins. Co Ltd v Paget (1) 1981 ZLR
73(A) court held that:
“A court should make some award in
cases where damages are claimed for loss of future earning capacity if it is
satisfied that the plaintiff has suffered such a loss, even where there is
insufficient information to assess the loss accurately and the court has to
pluck a figure out of the air”.
I
raise the above point because there appears to be a gap in the plaintiff's
evidence. The evidence adduced did not state the wages that were being paid to
workers in the grade as from the time he was discharged to when dollarisation of
our economy took place in 2009.
In
the assessment of such loss of future earnings there are contingencies to be
taken into account.
It
is a fact of life that it is not in every case that one reaches retirement age.
The probabilities or possibilities of early retirement or retirement due to ill
health from natural causes, retrenchment and discharge by employer on other
grounds have to be considered.
In
casu the plaintiff was not rendered useless
by the disability. What has been rendered of not much use is the right hand. His other limbs were unaffected by the injury.
His mental faculties and other abilities were not affected. He should be in a
position to learn how to effectively use the one remaining hand and embark on
another career. It is unfortunate that from the evidence adduced, he did not
seem to have embarked on any other career other than to mourn his lost arm. He
should be reminded that damages of the nature sought cannot sustain him. He is
not useless or hopeless. He has to mitigate his loss by engaging in meaningful
activities.
Due
to the fact that he will be using one arm, there will, of cause, be limits to
the nature and extent of the employment or activities he can engage in. It is
that deficiency or limitation that must be compensated by an award for loss of
earnings.
The
plaintiff's case is such that he needs time within which to learn how to use
his left hand. As this may take time I am of the view that the compensation of
the award be done in a progressive manner.
Thus
for the first few years he must be awarded as per the earnings of employees in
his grade as he clearly will be adjusting to the use of the left hand. A period
of about 3 years should be adequate for this adjustment. After that period he
would need to gain experience in the use of the left hand as part of the
adjustment. His level of efficiency will be expected to progressively improve.
The next stage will thus be for about 5 years. These years will be assessed at
a 50% of the earnings. The balance of the years to be assessed at a rate of 1/3
of the wages for the grade. The calculations will thus be as follows:-
USD109-16 x 12 months x 3 years = USD3,929-76
USD109-16/2 x 12 months x 5 years = USD3,274-80
USD109-16/3 x 3 x 12 months x 11 years = USD4,803-04
Total = USD12,007-60
Taking
into account the contingences already alluded to and the fact that he has been
compensated in some way and he will continue receiving some money from NSSA,
albeit the amount was not clear, a provision of 5% for contigencies should meet
the justice of the case.
An
award of USD11,407-00 will thus be just and fair in the circumstances for loss
of future earnings.
Accordingly
judgment is hereby entered for the plaintiff and against the defendant as
follows:
1. USD3,000-00 being damages for pain and
suffering.
2. USD6,000-00 being damages for permanent
disfigurement and loss of amenities of life.
3. USD11,407-00 being damages for loss of future
earnings.
4. Costs
of suit.
Chihambakwe, Mutizwa
& Partners, plaintiff's
legal practitioners
Coghlan,
Welsh & Guest,
defendant's legal practitioners
