BERE J: On 30 November 2011, and after hearing viva voce evidence from the plaintiff
and considering the fairly detailed submissions made by the plaintiff's counsel
I granted the following order:
"It
is ordered that:
1. The
default judgment be and is hereby entered for the plaintiff against the
defendants jointly and severally in the sum of US$30 000-00 being general
damages with interest thereon calculated at the prescribed rate from February
2009 to date of full payment.
2. The
default judgment be and is hereby entered for the
plaintiff against the defendants jointly and severally in the sum of US$2
475-00 being special damages with interest thereon calculated at the prescribed
rate from February 2009 to date of full payment.
3. The
default judgment be and is hereby entered for the plaintiff against the
defendants jointly and severally in the sum of US$7 000-00 for future medical
expenses with interest thereon calculated at the prescribed rate from 30
November 2011 to date of full payment in full.
4. The
defendants pay the various amounts and costs of suit jointly and severally the
one paying to absolve the other."
I did indicate then that my reasons
would follow. Here they are:
The
Background
The plaintiff's
case as derived from his declaration is that the first defendant is a member of
the Zimbabwe Republic Police who at the material time was stationed at Harare
Central Police station. On 13 July 2002 at approximately 1600 hours the
plaintiff was driving his Mazda 323 Sedan motor vehicle along Leopold Takawira
Street, in Harare. Whilst he was in a stationary position, the first defendant
acting in and during the scope of his duties as a policeman with the Zimbabwe
Republic Police emerged near the plaintiff's motor vehicle. Without warning the
first defendant proceeded to discharge eight rounds of ammunition into the
plaintiff's vehicle at close range causing serious injuries to the plaintiff.
The plaintiff was not armed and showed no signs of resistance.
The plaintiff
was rushed to the Avenues Clinic in Harare for medical attention. It was
established that his right arm had been shot resulting in bone muscle and nerve
damage and had to undergo surgical treatment which required the arm to be kept
in plaster for a considerable length of time. In addition, it was also
established that he had suffered serious abdominal injuries.
The plaintiff
has been in and out of hospital ever since he was so seriously injured. The
medical report by the orthopaedic surgeon, BB Bhagat shows the following
detailed injuries suffered by the plaintiff as a result of the gunshots; the
plaintiff is no longer able to use his right wrist and hand for any functional
activities of writing or working because of the weakness of the radical nerve
recovery. The fracture on the hand continues to bother the plaintiff in the
sense that in cold weather it aches. The plaintiff was no longer able to attend
to his occupational duties using his right hand because of radical nerve
paralysis.
On abdominal
injuries, it was established that the soft tissue in the abdominal muscle was
damaged because of the bullet fragments in the abdomen wall.
The operation
which the plaintiff had to undergo has left permanent surgical scars which in
themselves are irritable and the plaintiff will never be the same person again.
The final medical examination quantified the plaintiff's permanent disability
at 50%.
For all what the
plaintiff went through he issued out summons against the defendants seeking the
following:
a) General
damages for pain and suffering, loss of amenities and permanent disfigurement
and loss of bodily functions - US$30 000-00
b) Special
damages - US$10 000-00
c) Future
medical expenses - US$10 000-00
d) Costs
of suit.
On the day this
matter was scheduled to be heard the defendants were in default hence this
matter had to be dealt with by way of a default judgment.
The plaintiff
gave evidence in support of his claim. The narration of the events leading to
his serious injuries was no more than a confirmation of the story as summarised
in his declaration.
The plaintiff's
testimony was to the effect that on 13 July 2002 he drove his Mazda 323 into
the City of Harare carrying two passengers. Having dropped the passengers the
plaintiff drove his car to Leopold Takawira Street and parked his motor vehicle
with the intention of disembarking. He said as he was preparing to disembark
from the motor vehicle he looked to his right and saw a stranger pointing a gun
at him. In his panic - stricken state the plaintiff attempted to lock his doors
from inside. The result was random firing by this stranger who later turned out
to be the first defendant. Several shots were fired, some of which went through
the stomach and exited. One of the shots fractured the plaintiff's right hand
in the humurus.
In a desperate
attempt to draw the attention of other passers-by the plaintiff started the
vehicle and using his left hand tried to pull the vehicle out of the parking
bay. The first defendant's response to all these desperate manoeuvrs by the
plaintiff was to shoot the wheels of the plaintiff's vehicle with the result
that the plaintiff lost control of the vehicle and rammed into a parked truck.
The plaintiff
who was badly injured and now in a pool of blood, was taken to Harare Central Police
Station and it was there that a decision was made to convey the plaintiff to
Parirenyatwa Hospital in a City of Harare ambulance. The plaintiff found
himself in the special intensive care unit where his condition had to be
monitored every minute.
It was the
plaintiff's evidence that he did undergo an operation on the stomach and the
hand to see the extend of the injuries. This operation was carried out by Dr
Mungami (a specialist surgeon) and Doctor Bhagat (a specialist for bones). The
plaintiff said he had to undergo three operations on 13, 15, and 27 July 2002.
The plaintiff
said ever since he had been in and out of hospital and that he is supposed to
undergo further operations. The detailed medical reports by Dr B Bhagat
confirmed this.
The plaintiff
took us through the medical expenses incurred in the whole exercise including
anticipated future medical expenses.
As for the
medical expenses incurred the plaintiff produced invoices and receipts which
totalled US$2 475-00.
As for future
medical expenses the plaintiff produced estimates from his specialist surgeon
which amounted to $7 000-00.
It is imperative
at this stage to try as much as I can to lay down the legal approach that the
courts have followed in the assessment of damages. I must confess; the process
of quantifying damages is not an easy walk. It does not follow a mathematical
formula but it invariably requires properly anchored estimations largely guided
by the best evidence presented.
The principles
which the court must consider are well documented though not exhaustive. One of
the leading decisions on the subject is the case of Minister of Defence & Anor v Jackson
where the court attempted to lay down broad guidelines in the assessment of
damages by stating the following:
"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 discharge. This
notwithstanding, certain broad principles have been laid down which govern the
obligation. These are:
(1) General
damages are not a penalty but compensation. The award is designed to compensate
the victim and not to punish the wrongdoer.
(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 injury had not
been committed. See Union Government 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 Ltd 1941 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 the future. See Sigournay v Gillbanks
1960 (2) SA522 (A) at 555 H.
(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 556 C. See also Southern Insurance
Association Limited v Bailey NO 1964 (1) SA 98 (A) at 116 B-D; Ngwenya v Mafuka S-18-89 (not reported) at p 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) Award
must reflect the state of economic development and current economic conditions
of the country. See Mair's case, supra, at 29 H; Sadomba v Unity Insurance
Company Ltd & Anor 1978 RLR
262 (G) at 270 F; 1978 (3) SA 1094 (R)at 1097 C. Minister of Home Affairs v Allan
S-76-86 (not yet reported) at p 12 of the cyclostyled copy. They should tend
towards conservatism lest some injustice be done to the defendant. See Bay Transport Ltd v Franzen 1975 (1) SA 269 (A) at 274 H.
(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."
It has been
stated on times without number that the quantification of damages as an
exercise is not just like a walk in a park - it is not an easy exercise but at
the end of the day one must endeavour to award a figure of compensation "which
is fair in the eyes of society" given the peculiar circumstances of the case.
In casu, by absenting themselves from court
on the day of the hearing, the defendants must have fully realised the futility
of the nature of their defence to the plaintiff's clear case. In the court's
view, this is one case which demonstrates unimaginable brutality and
unacceptable overzealousness on the part of the first defendant. To pump out
several shots into the body of an unarmed civilian who is suspecting nothing
from the police except the usual protection is to be extremely reckless and
that conduct is highly reprehensible.
Reasonable
suspicion of one's possible involvement in some criminal conduct must not just
be grounded in air but there must be some basis for it, otherwise police officers
would involve themselves in serious omissions with impunity.
In the instant
case, even if one were to give the first defendant some benefit of doubt on his
motive in shooting the plaintiff (which position I am extremely constrained
from adopting) a reasonable police officer does not just start by recklessly
pumping bullets into the body of a suspect. There is certainly a more civilized
way of confronting a criminal suspect.
What was
demonstrated by the first defendant was typical of a war situation. But the
plaintiff was not at war with the first defendant, but an innocent citizen
going about his own business. The swift and ruthless action by the police
completely surprised the plaintiff.
The result of
the brutal action of the first defendant is that the plaintiff will never have
his body intact and in its original frame. Prior to his injury he commanded a decent
job as an accountant. The plaintiff, has been forced to leave this job because
he was no longer able to fully discharge his functions in his injured state.
It was for these reasons that on 30 November
2011 I granted the order in question.
Wintertons, plaintiff's legal
practitioners
