Civil Trial
KUDYA J: On 22 August 2007
on the Tafara Highway in Mabvuku Harare, the 6 year old daughter of
the plaintiff was hit by a bus driven by the second defendant, which
belonged to the first defendant, during the scope and course of his
employment.
The plaintiff issued summons on 6 June 2008, on the girl's behalf,
claiming special damages and general damages denominated in local
currency and costs of suit.
In line with the new currency regime operating in Zimbabwe at the
time of trial, an application to amend the amounts sought was granted
by consent.
The plaintiff seeks special damages in the sum of US$530.00 and
general damages in the sum of US$10,000.00.
The defendants denied both liability and the claim for damages.
The plaintiff testified and called the evidence of his wife and the
girl and Dr. Arnold Tawanda Vhumisai. In addition he produced three
documentary exhibits.
The second defendant was the sole witness for the defendants.
At the pre-trial conference that was held on 24 June 2009, the
following two issues were referred to trial:
1. Whether or not the second defendant was negligent.
2. If the second defendant was negligent, what was the quantum of
damages suffered by the plaintiff as a result of the accident.
The plaintiff's evidence established that the girl was born on 21
January 2001. On the day of the accident she was doing Grade 1 at
Simudzai Primary School in Mabvuku. It was during the school
holidays. Her mother, Florence Chidakwa left her at home in the
company of her 12 year old sister while she proceeded to her market
stall, situated in the locality. The elder sister left the girl at
home while she went to the nearby shops to purchase a packet of
maputi.
Unbeknown to the elder sister, the girl followed her.
She saw the bus driven by the second defendant stationary. The girl
proceeded to cross the road at this busy spot close to Kamunhu Shops.
She was hit by the bus near a road hump and fell underneath it.
Her left arm was crushed.
She was retrieved by an unnamed man from underneath the bus. She was
crying in pain. Her mother arrived at the scene and took her to the
local clinic from where she took her to Parirenyatwa Hospital where
she was admitted from 22 August until her release on 8 November 2008.
The plaintiff produced exhibit 2, the photocopied two page hand
written notes of the trial magistrate of the criminal trial of the
second defendant.
The first page is a record of the plea of guilty that was entered.
The second page contains the mitigation taken, which was followed by
special circumstances in which he suggested that he was confronted by
a sudden emergency.
Underneath each page is an unsigned date stamp of the Harare
Magistrates Clerk of Court of 3 June 2007.
The plaintiff did not produce the charge sheet, statement of agreed
facts or the verdict and sentence.
The girl was attended to by doctors who included Dr. Vhumisai.
The doctor compiled a medical affidavit, exhibit 3 on 14 November
2008.
The child suffered injury of the left hand. It was severe and would
result in permanent disability. The wound constituted 5% of her total
body surface. A skin graft was carried out and betadine and glycerin
were constantly applied on the hand to speed up healing of the wound.
The wound healed and the girl was discharged. He recommended that the
child undergo physiotherapy to prevent the hand from contractures,
that is, from stiffening.
In his oral testimony he stated that unaesthetic scars were left by
the skin grafting. He was unable to estimate the future physiotherapy
expenses that the plaintiff would incur.
The plaintiff did not lead any evidence on past or future medical
expenses.
The defendant applied for absolution from the instance.
The test was set out in Lourenco
v Raja Dry Cleaners & Steam Laundry (Pvt) Ltd
1984 (2) ZLR 151 (S) at 158C-D and
Munhuwa
v Mhukahuru Bus Service (Pvt) Ltd
1994 (2) ZLR 382 (H)
at 383 G.
It is whether on the evidence led by the plaintiff the court might or
could and not should or ought to give judgment for him.
Mr Mukonoweshuro,
for the defendants contended that in the absence of independent
evidence from the police or onlookers, the plaintiff had failed to
establish negligence.
He also contended that exhibit 2, the handwritten notes of the trial
magistrate in the criminal conviction, was insufficient to establish
that the second defendant had been convicted of negligent driving.
Mr Mutandwa,
for the plaintiff, relied on the provisions of section 31 of the
Civil Evidence Act [Cap
8:01] and the
sentiments expressed by GUBBAY CJ in S
v Ferreira 1992 (1)
ZLR 93 (S).
Subsections (2), (3) and (5) of section 31 of the Civil Evidence Act
state:
“(2) Subject to this section,
where it is relevant in civil proceedings to prove that a person
committed a criminal offence or did or omitted to do anything
referred to in subsection (3), the fact that he has been convicted of
that offence by any court in Zimbabwe or by a military court in
Zimbabwe or elsewhere shall be admissible in evidence for the purpose
of such proof.
(3) Where it is proved in any civil proceedings that a person has
been convicted of a criminal offence, it shall be presumed unless the
contrary is shown —
(a)
That he did all acts necessary to constitute the offence; or
(b)
Where the offence is constituted by an omission to do anything, that
he omitted to do that thing; as the case may be.
(5) For the purposes of proving in civil proceedings that a person
was convicted of a criminal offence, a document which —
(a)
Purports to be a copy of the record of the criminal proceedings
concerned or a copy of any part of the record which shows that the
person was convicted of the offence; and
(b)
Is proved to be a true copy of the original record or part thereof or
purports to be signed and certified as a true copy by the official
having custody of the original record;
shall be admissible on its
production by any person as prima
facie proof
that the person concerned was convicted of that offence:
Provided that this subsection shall not preclude the admission of any
other evidence to prove that the person committed the offence.”
Exhibit 2 is not certified and is insufficient to show that the
second defendant was convicted. The second defendant appeared to have
raised the defence of sudden emergency which obliged the trial
magistrate to alter his plea to one of not guilty.
The absence of an extract of the
conviction and sentence from the Court Record Book kept by the Clerk
of Court or of the charge sheet or any record of the verdict
militated against acceptance of exhibit 2 as prima
facie evidence of a
criminal conviction for negligent driving. The provisions of section
31 did not assist the plaintiff in the present matter.
In S
v Ferreira, supra,
the appellant knocked down and killed a seven year old boy who had
dashed out in front of the vehicle driven by the appellant from the
side of the road where he had been standing. He was convicted of
culpable homicide and sentenced.
In dismissing his appeal against conviction, the learned CHIEF
JUSTICE stated at 95D-G thus:
“There is a very definite duty
upon a motorist who knows himself to be in the near vicinity of young
children, for they have a propensity for impulsive and sometimes
irrational action. Children should not be credited with the same
mature intelligence and presence of mind as grown-up people. A
motorist must anticipate that a child on or just next to the road may
unexpectedly decide to run across oblivious of danger. He must keep
his vehicle under such control as to be able to suddenly pull-up if a
child starts to cross the line of his route. He must prepare himself
for such an eventuality. It has been aptly remarked that young
children are 'as wide as the road' and are liable to get into the
way of a motorist without any overt warning. Thus greater care is
demanded towards children than is necessary for the safety of adults.
This doctrine has been applied in
many cases. See, for example, South
British In Co Ltd v Smit
1962 (3) SA 826 (A) at
837A-B; Neahaus
NO v Bastion Ins Co Ltd
1968 (1) SA 398 (A) at 406A-D; S
v Phyffers 1970 (4)
SA 104 (A) at 109F-G; Ndlovu
v AA Mutual Ins Assn Ltd
1991 (3) SA 655 (E) at 661C-E.
However this is not to suggest that precautions must be taken against
every possible manoeuvre which a child might imaginably perform, and
not merely against such conduct as would fall within common
experience. To place such a burden upon a motorist would be totally
unrealistic and impracticable of fulfillment.”
In the present case a six year old girl who was on her own was
involved.
Dashing into the road in front of oncoming traffic by such a girl
would fall within the common experience of drivers. I was satisfied
that the second defendant was legally bound to explain his conduct.
I thus dismissed the application for absolution from the instance.
The second defendant thus gave evidence for the defendants.
He was driving the bus which belonged to the first defendant in the
course of his employment. He had been driving buses along that route
for a period of 10 years before the day in question. He was familiar
with the crowded nature of the area around Kamunhu Shops. The bus was
in perfect condition and the weather was sunny and his visibility
clear.
As he approached the shops, he reduced the speed of his bus to about
10 kilometers per hour because he was approaching a road hump and
some passengers intended to alight at Kamunhu bus stop. Before he
reached the hump he saw the girl some 3 meters away from the bus. She
then dashed “like a rabbit” into the line of travel of his bus.
He immediately applied brakes. The child was hit by the front part of
the bus and fell underneath it. Her left arm was crushed. He believed
that he acted swiftly to avert mortal danger to the girl.
He stated under cross examination that he was never convicted nor
sentenced of the offence of negligent driving at Harare Magistrates
Court.
I am satisfied that the plaintiff discharged the onus on him to show
on a balance of probabilities that the second defendant drove his bus
negligently on the day in question.
He did not notice the young girl until she was 3 meters away yet by
his own admission he was at a busy intersection. He did not disclose
why he failed to see her before she was just 3 meters away. It seems
to me that his failure to see her earlier demonstrated that he was
not keeping a proper look out.
The fact that he only braked after the child had dashed like a rabbit
in front of him also showed that he had not prepared himself for the
possibility that the child would impulsively cross the road in the
manner she did. He thus failed to keep his vehicle under control in
that had he only reacted when it was too late. A prudent driver
driving past a crowded area would drive slowly with his foot on the
brakes in anticipation that he may be required by the exigencies of
the situation to stop.
I answer the first issue referred to trial in the plaintiff's
favour.
The next issue for determination revolves around the measure of
damages due to the plaintiff.
The plaintiff did not lead evidence on the actual amount expended in
treating the girl or for future medical expenses.
In argument, Mr Mutandwa
abandoned the plaintiff's claims for past and future medical
expenses.
He prayed for general damages of pain and suffering in the sum of
US$10,000.00.
In
Sandler
v Wholesale Coal Suppliers Ltd
1941 AD 194 at 199 WATERMEYER JA recognised that the task of
estimating the compensation which should be paid for the pain and
suffering and permanent disability in consequence of an accident was
a difficult one. He proceeded to recognize that:
“though the law attempts to
repair the wrong done to a sufferer who has received personal
injuries in an accident by compensating him in money, yet there is no
scale by which pain and suffering can be measured, and there is no
relationship between pain and money which makes it possible to
express the one in terms of the other with any approach to certainty.
The amount to be awarded as compensation can only be determined by
the broadest general considerations and the figure arrived at must
necessarily be uncertain, depending upon the judge's view of what
is fair in all the circumstances of the case.”
The measure of damages is an estimate of what the judicial officer
determining the issue arrives at after considering all the
circumstances of the case.
I
was not referred nor was I able from my research to find any
comparable cases which involved a young child.
Muzeya
v Marais & Anor
HH80/2004 involved injury caused to an 8 year old girl in a road
traffic accident. On 31 March 2004 CHINHENGO J set out at pages 2 and
3 of the cyclostyled judgment the nature and extent of the girl's
injuries. He observed at page 2 of the cyclostyled judgment that:
“This
child is 100% disabled and the prognosis for her future extremely
poor. She will be uneducatable and never be employable. Her life
expectancy will be limited.”
He
awarded the plaintiff $9 million for pain and suffering and the loss
of amenities. At the time the cross rate between the Zimbabwean
dollar and the United States dollar was $5,730.00 to US$1.00. The
award was equivalent to US$1,570.00.
The
plaintiff's daughter in the present matter suffered a disability
which approximates to one-twentieth of the girl in the Muzeya case
which would amount to US$80.00 were a mathematical formula to be
used.
I
however note that the Muzeya was awarded a total of $61 million and
US19,000.00 for the claims he made, which would amount to
approximately US$29,000.00.
Mr
Mukonoweshuro,
for the defendants, argued that US$10,000.00 was an outrageous figure
and contended that the sum of US$2,000.00 would be fair and just in
the circumstances of this case.
The six year old girl was maimed for life with a 5% disability. She
is not able to use the left hand. The plaintiff failed to raise money
for physiotherapy. The hand has suffered contractures. She is not
able to carry out simple tasks like bathing and laundering her school
socks or helping her parents with the dishes. The scarring is visible
and ugly. She suffered excruciating pain and though the wound has
healed, she occasionally experiences pain in cold weather.
While decided case law seems to show that the figure of US$2,000.00
is on the high side for pain and suffering for a 5% disability on a 6
year old girl, it is fair and just that I order the defendants to pay
that amount in deference to their legal practitioners contention.
Accordingly, it is ordered that:
The defendants shall pay to the plaintiff jointly and severally, the
one paying the other to be absolved US$2,000.00 being general damages
for pain and suffering and costs of suit.
Justice for Children Trust,
plaintiff's legal practitioners
Mukonoweshuro & Partners,
defendants legal practitioners
