Unopposed
Application
MAKONI
J: On 8 December 2010 at
around 1700 hours and in Avonlea Drive, the plaintiff was approached
by the defendant who was in company of other officers of the Criminal
Investigation Department. The defendant ordered the plaintiff to
disembark from the motor vehicle where he was sitting. He ordered the
plaintiff to lie on the ground on his back.
The
defendant accused the plaintiff of having stolen the motor vehicle he
was in. The plaintiff protested his innocence. The defendant who was
standing directly above the plaintiff, fired several shots aimed at
the plaintiff's legs. He proceeded to handcuff the complainant and
drove around with him for several hours before dropping him off at
Harare Hospital. He did not remove the handcuffs. The defendant did
not take the plaintiff to any police station for charges to be laid
against him.
A
total of six bullets were fired into the plaintiff's legs. As a
result, he sustained numerous injuries from which he;
(a)
Endured and still experiences excruciating pain;
(b)
Had to have four steel plates surgically inserted in his right leg;
(c)
Had to have an above the three amputation of his left leg;
(d)
Suffered contumelia
as he was subjected to cruel, inhuman and degrading treatment.
The
plaintiff incurred medical expenses in relation to the knee
amputation, insertion of steel plates to reinforce the injured leg,
analgesics and other medical procedures.
Due
to the nature of the injuries and associated complications, the
disability percentage was assessed at 63%.
The
plaintiff then instituted action proceedings against the defendant
claiming:-
(a)
$50,000-00 being damages for shock, pain and suffering;
(b)
$100,000-00 being damages for loss of amenities of life;
(c)
$50,000-00 being damages for contumelia;
(d)
$11,367-00 being special damages for medical expenses;
(e)
Interest on the total sum of $211,367-00 at the prescribed rate for
the date of summons to date of trial payment;
(f)
Costs of suit.
The
defendant was served with the summons and did not enter appearance to
defend. The matter was set down on the unopposed roll for the
plaintiff to establish his claim.
In
his affidavit of evidence, the plaintiff detailed how he was shot,
the injuries he sustained, some of the procedures he underwent and
the medical expenses he incurred in respect of the procedures.
He
then concluded in affidavit with a statement that he is entitled to
the damages in the summons and declaration as the shooting was
unjustified and unprovoked.
He
did not give evidence at all to establish a basis for awarding him
damages for contumelia
and loss of amenities of life. Some attempt was made in the Heads of
Argument to establish how the plaintiff suffered damages for the
contumelia
and loss amenities.
The
case of Matthew
Mbundire v Tryone
Sim Buttress SC13/11
is very instructive.
GARWE
JA considered the approach that has been followed by the courts in
the assessment of damages in general and special damages in
particular. He looked at a number of authorities and I will quote in
extenso from p4 of the judgment:-
“In
Hersman Shapiro & Co 1926 TPD 367, 379-80 STRATFORD J observed:
'….
Monetary damage having been suffered, it is necessary for the Court
to assess the amount and make the best use it can of the evidence
before it. There are cases where the assessment by the Court is very
little more than an estimate; but even so, if it is certain that
pecuniary damage has been suffered, the Court is bound to award
damages. It is not so bound in the case where evidence is available
to the plaintiff which he has not produced; in those circumstances
the Court is justified in giving, and does give, absolution from the
instance. But where the best evidence available has been produced,
though it is not entirely of a conclusive character and does not
permit of a mathematical calculation of the damages suffered, still,
if it is the best evidence available, the Court must use it and
arrive at a conclusion based upon it…..
In
Ebrahim v
Pittman N.O.
1995 (1) ZLR 176 H, 187C-D BARTLETT J quoted with approval the
remarks of BERMAN J in Aarons
Whale Rock Trust v
Murray & Roberts
Ltd & Anor 1992
(1) SA 652 (C), 655-656F that:
'Where
damages can be assessed with exact mathematical precision, a
plaintiff is expected to adduce sufficient evidence to meet this
requirement. Where, as is the case here, this cannot be done, the
plaintiff must lead such evidence as is available to it (but of
adequate sufficiency) so as to enable the court to quantify his
damage to make an appropriate award in his favour. The court must not
be faced with an exercise in guesswork; what is required of a
plaintiff is that he should put before the court enough evidence from
which it can, albeit with difficulty, compensate him by an award of
money as a fair approximation of his mathematically unquantifiable
loss.' …
There
must of course be sufficient evidence before the court for it to be
in a position to make a proper assessment of damages, for '.. it is
not competent for a court to embark upon conjecture in assessing
damages where there is no factual basis in evidence, or an 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 the loss
could have been made': Per ROSE INNES AJ in Monumental
Art Co v Kenston
Pharmacy (Pty)
Ltd 1976
(2) SA 111 (C) at 118E. See also Mkwananzi
v van der Merwe &
Anor 1970 (1) SA 609
(A) at 630.
Thus
where evidence is available to a plaintiff to place before the court
to assist it in quantifying damages, and this is not produced, so
that it is impossible for the court to do so, or there is no, or
quite insufficient evidence which can be produced by an unfortunate
plaintiff, he must fail and the defendant must be absolved from the
instance…..'.
In
The Quantum of Damages
in Bodily and Fatal Injury cases
3ed by Corbert, Buchanan & Gauntlett, the learned authors state
as follows at p99:
'In
the case of damages which are capable of exact mathematical
computation, such as for example medical and hospital expenses,
proper evidence establishing the loss and substantiating the precise
amount of the claim must be tendered. Where, on the other hand,
mathematical proof of the damages suffered is in the nature of things
impossible, then provided that there is evidence that pecuniary
damage in this regard has been suffered, the court must estimate the
amount of the damages as best as it can on the evidence available and
the plaintiff cannot be non-suited because the damages cannot be
exactly computed. However, the application of this principle is
dependent upon the plaintiff having adduced the best evidence
available to him. Where he has not done so and the difficulties in
assessing the quantum of damages are due to the manner in which he
has conducted his case, then the court is justified in ordering, and
does order absolution from the instance'”
What
is coming out of the above authorities as quoted by GARWE JA in
Matthew Mbandire supra
is that a plaintiff must provide a factual basis, in evidence, that
he suffered pecuniary damage. Once that is established, the court can
then estimate the amount of damages as best as it can on the evidence
available. When he has not done so, the court is justified in
ordering absolution from the instance.
This
is the situation that the plaintiff finds himself in
casu.
Evidence
is led through the plaintiff either viva
voce or through an
affidavit. It cannot be canvassed in the Heads of Argument.
In
the result the defendant must be absolved from the instance regarding
the claims of contumelia
and loss of amenities.
Special
Damages
These
are damages that have already been incurred and can be precisely
calculated at the date of trial.
Under
this head, the plaintiff has managed to establish that the incurred
medical expenses to the tune of $11,367-00.
I
would however comment that a plaintiff must, in his or her affidavit
of evidence clearly tabulate his/her medical expenses. In casu
the plaintiff simply
referred the court to the annexures which are the receipts he
received upon payment. He then expected the court to add up the
invoices to come up with the total figure claimed. The tabulation was
then done in the Heads of Argument. As already stated, a litigant
does not lead evidence in the Heads of Argument.
Shock,
Pain and Suffering
Assessment
of damages in personal injury cases is one of the most daunting tasks
that can confront a judicial officer.
GUBBAY
JA (as he then was) summed it up in Minister
of Defence and Anor v
Jackson 1990
(2) ZLR 708 (SC) when he stated:-
“It
must be recognized that translating personal injuries into money is
equating the incommensurable, money cannot replace a physical frame
that has been permanently injured. The task therefore of assessing
damages for personal injury is one of the most perplexing a court has
to decide”.
Again,
unfortunately, I do not have much to go by in assessing the damages
for pain and suffering. The plaintiff must have been admitted into
hospital at one point judging by the receipts attached as annexures.
One cannot make out for how long he was hospitalised.
The
plaintiff states that he suffered numerous injuries but do not give
details. All he says is that as a result of the injuries he had to
have an above the knee amputation of the left leg and four steel
plates inserted in his right leg. He endured and still experiences
excruciating pain. He was taken to hospital several hours after the
shooting.
There
is no doubt that the plaintiff suffered severe injuries and he
under-went much pain and suffering. He had to under-go various
operation procedures.
In
coming up with an award, it is my view that I must take into account
that the plaintiff can still proceed to claim damages for loss of
amenities. I take guidance from the Minister of Defence & Anor
supra
where the claims for pain and suffering, loss of amenities and
disfigurement were considered under one head.
I
will therefore award the plaintiff the sum of $10,000-00 for shock
pain and suffering.
I
will therefore make the following order:-
(1)
The defendant is ordered to pay the plaintiff the sum of:-
(a)
$11,367-00 being special damages.
(b)
$10,000-00 being general damages for pain and suffering.
(c)
The defendant to pay interest on the above amounts at the prescribed
date from date of summons to date of payment in full.
(d)
The defendant is absolved from the instance in respect of the claims
for contumelia
and loss of amenities.
(e)
The defendant to pay the plaintiff's costs of suit.
Zimbabwe
Human Rights NGO Forum (Public Interest Unit), plaintiff's
legal practitioners
