CHATUKUTA
J: On 4 December 2007, the plaintiff issued
summons claiming damages in the sum of $5 583 250 000.00 (old currency)
together with interest thereon, at the prescribed rate, from the date of
summons to the date of payment and costs of suit. The summons was amended on two occasions
before trial. In the last amendment, the
amount claimed was deleted and substituted with the sum of $69 266 436.00
(revalued). The claim arose from a motor
accident which happened at Belgravia Shopping Centre, Harare on 15 September 2007. The defendant had been driving the
plaintiff's vehicle, a Toyota Cressida, registration No. AAW 0053.
The defendant contested the claim on
the basis that the plaintiff voluntarily assumed risk by allowing her to drive
his vehicle unsupervised, well aware that she was not a licensed driver. The defendant further denied that she drove
negligently.
I perceive the issues as being
mainly two. The first issue is whether
or not the defendant was liable for the damages suffered by the plaintiff. In the event that I hold that the defendant
was liable, the second issue would be whether or not the plaintiff is entitled
to the quantum of damages claimed.
The
plaintiff testified that on 15 September 2007 at about 2200hours, he was
driving along Second Street Extension, when he observed the defendant and her
husband pushing a Nissan Sunny. He stopped
and assisted in pushing the vehicle to a nearby service station. As it was
late, and for security reasons, he requested the defendant to remain in his
vehicle. As he was pushing the vehicle,
he realized that it was not safe for the defendant and the child to remain in
his vehicle where he had parked it. He
inquired from the defendant's husband if the defendant was a licensed driver so
that she would drive his vehicle to the service station. The husband advised him that she was a
licensed driver. The plaintiff then gave
the defendant his car keys and went back to push the defendant's vehicle.
When
they got to the service station, he realized that his vehicle was still parked
where they had left it. They went back
to his vehicle. Upon arrival, the
defendant indicated that she could not start the vehicle. He advised her that
the vehicle had an automatic gear transmission system. He told her that the vehicle could only be
started when in the parking gear. The
defendant then opened the rear doors for the plaintiff and her husband to get
into the vehicle. She started the
vehicle and took off at an alarming speed.
She failed to negotiate a right turn.
The plaintiff could not assist in controlling the vehicle as he was
seated in the back. The defendant then
rammed into a pharmacy, after having leaped over the pavement in front of the
pharmacy.
The plaintiff testified that the
defendant did not tell him that she was an unlicenced driver still undergoing
driving lessons. They had not met before. It was late at night and not safe to be
teaching someone to drive. He would therefore not have allowed the
defendant to drive if he had known that she was not a licensed driver. He denied forcing the defendant to drive the
vehicle. He would have sat in the front
passenger seat, had he forced her to, instead of the back seat. He would have also expected the defendant to refuse
to drive the vehicle if she was unlicenced and not familiar with an automatic
vehicle.
The vehicle sustained serious
damages. He attempted to have the vehicle repaired but the cost was
prohibitive. He was only able to
purchase headlamps, shock absorbers and the front grill. Some of the garages
did not have the required spare parts in stock.
The defendant's husband offered to assist in repairing the vehicle. He paid a total of $5 billion (old currency) towards
the repair of the vehicle but the amount was too little. As at the date of hearing, he had not used
the money neither had he returned it to the defendant's husband. The
plaintiff confirmed that the amount that was paid by the defendant's husband
fell short of the amount he had initially claimed in his summons by only $583
250 000.00 (old currency). He testified
that the amount constituted the damages he had suffered as a result of the
accident and soon after the accident. However,
due to inflation, the cost of repairing the vehicle had risen to $69 266 436.00. It is this amount that he sought to claim as
damages. The plaintiff closed his case.
The plaintiff gave his evidence well
and impressed the court as an honest witness. He did not appear to be
exaggerating his evidence. He withstood
cross examination well and did not waiver from his evidence-in-chief.
The
defendant took the witness stand. She testified
as follows: On 15 September 2007 the
plaintiff stopped to help her and her husband after their vehicle had developed
a mechanical fault. He offered to assist
her husband to push the vehicle to safety.
He inquired whether she could drive.
She replied that she was still going for driving lessons. The plaintiff then gave her his car
keys. When she got into the vehicle, she
noticed that the vehicle was different from the ones that she had driven before. She then remained seated in the vehicle until
her husband and the plaintiff returned.
She told the plaintiff that she could not drive the vehicle. The plaintiff told her to get into the
driver's seat and he got into the back seat together with her husband. He forced her to drive the vehicle despite
having told him that she was not qualified to drive. He then gave her instructions on how to
operate the vehicle and she started driving the vehicle. He instructed her to turn. The vehicle gained speed. He then instructed her to apply brakes. She could not locate the brakes. Instead, she stepped onto the accelerator and
ended up in the pharmacy.
She testified that sometime after
the accident, she was advised by her husband that the plaintiff had sent a quotation
of repairs to the vehicle and the plaintiff's banking details where the
defendant would deposit the money stated in the quotation. Her husband made payments totaling $5 billion
as an out of court settlement. She
testified that the payment was in satisfaction of the claim by the plaintiff
although there was an outstanding balance.
The payment was however made without her consent.
It
is my view that the defendant was not a credible witness. She was evasive under cross examination. She could not explain why the plaintiff, a
total stranger who they had met at 10pm, would abandon his trip to teach her
how to drive. She could not explain why,
if he was teaching her, he sat in the back seat. She further could not explain how the
plaintiff had forced her to drive the vehicle, particularly when he knew that
she was not familiar with the plaintiff's vehicle and was still undergoing
driving lessons. She failed to explain
the inconsistency in her evidence that in one breathe she accepted that payment
made by her husband was in full and final settlement of plaintiff's claim and in
the other, deny liability. However,
under re-examination she conceded that she was accepting liability for damaging
the plaintiff's vehicle.
The
second defence witness was Wilbert Tunha, the defendant's husband. His evidence was substantially the same as
the defendant's. He testified that plaintiff
gave him the quotation for $5 583 250 000 (old currency). He made two payments into the plaintiff's
account to settle the amount stated in the quotation. The payment was made against the defendant's
will. He was of the view that effecting
payment would bring the matter to rest. He
did not pay the balance because the plaintiff thereafter issued summon.
Turning
to the issues for determination, as alluded to earlier, there are two issues
for determination. The first issue is
whether or not the defendant was liable for the damages suffered by the
plaintiff. In the event that I hold that
the defendant was liable, the second issue would be whether or not the
plaintiff is entitled to the quantum of damages claimed.
It
is not in issue that the defendant was driving the plaintiff's vehicle when the
accident occurred. The plaintiff's
vehicle was extensively damaged. The
defendant sought to avoid liability by raising the defence of volenti non fit injuria. As rightly submitted by Mr. Muchandiona, for the plaintiff, the onus to establish the
defence rested on the defendant. The
defendant conceded under re-examination that she was liable for the damages
suffered by the plaintiff. She further
conceded that payment made by her husband to the plaintiff was settlement of
the plaintiff's claim. In view of the
concessions, liability is therefore no longer in issue. I therefore do not consider it necessary to
dwell on the defendant's defence of volenti
non fit injuria. The only remaining issue
for determination is the quantum of damages.
It
is common cause that the plaintiff submitted for payment to the defendant an
initial quotation dated 31 October 2007 for an amount of $583 250 000.00 (old
currency). It was endorsed that the
quotation was valid for forty eight hours only.
Payment was only effected on 4 and 17 April 2008. The plaintiff amended his pleadings by altering
the damages to read $69 266 436 (revalued). The new amount was as per a
quotation dated 11 September 2008.
Both
parties accepted that delictual damages are calculated as at the time of the
delict. This principle of nominalism is
clearly enunciated in SA Eagle Insurance
Co Ltd v Hartley 1990 (4) SA 833 (A).
It was stated in that case 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 and that
the result was in conflict with the principle of nominalism. The principle of currency nominalism holds
that a debt sounding in money has to be paid in terms of its nominal value
irrespective of any fluctuations in the purchasing power of the currency. The principle has been applied in our
jurisdiction in cases such as Muzeya NO v Marais & Anor
HH-80-04, Monica Komichi v David Edwin
Tanner & Anor HH 104/05, Edward
Marume & Anor v Todd Muranganwa HH 27/07.
CHINHENGO
J had this to say in Muzeya NO v Marais & Anor, after citing with approval SA Eagle Insurance Co Ltd v Hartley (supra), at p11:
"I think that it is correct to adopt
the principle of nominalism in dealing with all obligations sounding in money.
I appreciate that the rate of inflation in Zimbabwe had been high and as
stated by Mr. Muskwe, it is
presently above 500%. But a departure from the principle of nominalism will
create such uncertainty in the law that the whole system, will be unworkable.
The monetary obligation to be discharged will then depend on when the plaintiff
sought to exact it and, even more ominously, on when the court handed down its
judgment. Therefore a debt sounding in money must be paid in terms of the
nominal value of the currency irrespective of any fluctuations in its purchasing
power. In any event I think the principle of nominalism is even-handed because
it places the risk of depreciation of the currency on the creditor and that of
appreciation on the debtor."
I
do not find any basis for departing from this principle either. The plaintiff relied in its submissions in
the cases of Leighton v Eagles Insurance
Co. (Pvt) Ltd & Ors 2002 (2) ZLR 592 (H) and Cargo Carriers (Pvt) Ltd & Anor v Nettleford & Anor 1991
(2) ZLR 139 (SC). In Leighton v Eagles Insurance Co. (Pvt) Ltd
& Ors the court deviated from the principle of nominalism on the basis
that the defendant had filed its Plea more than 5 years after the summons was
served on it. However, the court at p597
accepted this to be a departure from the usual principle of determining
patrimonial loss. The court in Cargo Carriers (Pvt) Ltd & Anor v
Nettleford & Anor did not discuss the principle of nominalism and
therefore is not, in my view, of any assistance to the plaintiff.
It
is my view that the plaintiff has therefore failed to establish the damages in
the sum of $69 266 436.00 (revalued). In
any event the plaintiff was paid almost the entire initial amount claimed. The outstanding balance of $583 250 000.00
(old currency) is of no value now (even at the time trial commenced) because of
the removal of zeros over the years by the Reserve Bank of Zimbabwe. It is my view that there was no basis for the
plaintiff to bring this action.
In
the result, the plaintiff's claim is dismissed with costs.
Danziger, plaintiff's legal
practitioners
Karuwa &
Associates, defendant's legal practitioners