MATANDA-MOYO J: Plaintiffs issued summons
against the defendants for damages arising out of electrocution caused by
holding of naked wires, whilst assisting first and second defendants in
erecting some electricity poles at Chiwaridzo Farm in Bindura. The defendants
have since accepted liability during a Pre-Trial Conference. This matter
was referred to trial only for purposes of ascertaining damages payable. At the
date of hearing the defendants were in default and I directed that plaintiff's
counsel submit affidavits of evidence and heads of argument justifying the
amounts claimed.
The present claim is for damages arising
from bodily injuries and patrimonial loss due to the negligence by the
defendants. The facts herein are common cause. The plaintiffs are
farmers in Bindura area. There was an electric fault which affected their
farming operations. First and second defendants attended to the fault in the
course and scope of their employment with the third defendant. The first
and second defendants then requested the plaintiffs to help them uplift some
poles. The second defendant was the controller and had issued a work
permit in terms of ZESA regulations for the repairs to be carried out.
The line was switched off to allow the repairs to be carried out. During
the course of the repairs second defendant switched on the 33KV line resulting
in the electrocution of the plaintiffs. The plaintiffs sustained the
following injuries;
Prince Chinembiri: suffered deep electrical burns of the left forearm and such
left forearm was amputated.(see medical report by Dr L. Hlatshwayo of
Bindura hospital of the 11the of October 2011). The doctor put the
degrees or percentage of injury at 60%.
Paradzai Mupandenyama: suffered extensive deep electrical burns. He was
amputated the right forearm from below the elbow. He also suffered
contracture of the left hand and damaged tendon. The doctor who examined
him observed that the injuries suffered were serious and permanent. The
doctor put the degree of injury at 90%.
Alexio Tembo: suffered deep electrical burns on the right hand and on both
legs. He was amputated the right index finger. He lost flexion of
the right wrist thus losing function of the right hand. He sustained
serious and permanent injuries. The doctor put the degree of injury at
75%.
Kudakwashe Pfunde: suffered superficial electrical burns resulting in
contracture and stiffness of the left shoulder. The doctor put the
percentage of injury at 40%.
Clemence Shawu: suffered deep electrical burns on the right foot, thigh, left
leg and on both hands. His percentage of injuries was put at 18%.
Orchard Kanjando: suffered deep burns on both hands and on lower limbs and
thighs. Degree of injuries was placed at 14%.
Quantum of Damages
The first plaintiff's claim for damages is
under four headings, namely
i. Shock and
trauma
$10 000
ii. Pain and
suffering
$10 000
iii.
Permanent disfigurement $65 000
iv. Loss of
amenities
$30 000
In considering these four heads I will palliate i and ii, that is, shock and
trauma and pain and suffering as one then iii and iv.
1) Pain and suffering.
In the Law of Delict PQR Boberg
Vol 1984 at p 516, the learned author had this to say about the remedy of pain
and suffering
“compensation may be awarded not only for
actual 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 those non-pecuinary misfortunes – past and future of an injured
person. Nor is the list a closed one.”
The pain and suffering experienced by a
person varies. No two individuals can experience the same level of pain
and suffering. Hence its difficult to rely on past cases except as
general guidelines.
In Minister of Defence & Anor
v Jackson 1990 (2) ZLR 1 GUBBAY JA (as he then was) had this to say at
p7
“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 of
assessing damages for personal injury is one of the most perplexing a court has
to discharge.”
The learned Judge went on to highlight
eight 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 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 Govt v Warreck
1911 AD 651 p665.
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 p 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. SeeSigairnay vGillbanks
1960 (2) SA552 at p 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
NO 1984 SA 98 at 116 B-D, Ngwenya v Mafuka S-18-89 at p8
of the cyclostyled copy.
6.
No regard is to be had to the subjective value of the 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 Haugh 1949 (1) SA380 at 386.
7.
Awards must reflect the state of economic development and current economic
conditions of the country. Sadomba v Unity Insurance
Co Ltd and Anor 1978 RLR262 G at 270K, Min of Home Affairs vAllan
1986, ZLR 263 (S) at 272. They should tend towards conservatism lest some
injustice be done to the defendant see Bay Passenger Transport Ltd v Franzer
1975 SA 269 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 the jurisdictions both
political and economic are so different.
In casuthe
first plaintiff Prince Chinembiri went through shock and excruciating pain as
he was being electrocuted to an extent that he and his colleagues who were
assisting passed out. That was a near death experience. Thereafter
the first plaintiff was hospitalized for three months. Whilst in hospital
he was in pain and had to undergo major surgeries that is skin grafting and
amputation of the right arm. For all this pain and suffering the
plaintiff claimed a sum of USD 20 000.
In Muzenga v Marais and Anor HH80/2004 CHINHENGO J set out at
pp2 and 3 of the cyclostyled judgment the nature and extent of injuries he
observed at p 2 of the cyclostyled judgment that
“the child is 100% disabled and the
prognosis of her future extremely poor she will be uneducatable and never be
employable and her life expectancy will be limited”
He awarded the plaintiff $9 million for
the pain and suffering and loss of amenities. At the time the cross rate
between the Zimbabwean Dollars was $5 730 to US$1.00. The award was
equivalent to US$1 570.
In Minister of Defence and
Anor1990 (2) ZLR 1. The plaintiff was a 26 year old medical doctor
who suffered a shortened leg, loss of smell, double vision, memory loss,
labored speech and emotional instability. He was awarded $35 000, Zim
dollars, for pain and suffering loss of amenities and disfigurement.
In Gwiriri v Highfield Bag
Pvt Ltd 2010 (1) ZLR 160 H. A plaintiff whose hand was crushed by
rollers of a machine he was working on was granted USD3000 for pain and
suffering.
Going by the above awards it should be
apparent that US$20 000 dollars for pain and suffering is rather high.
The award should be not be punitive but compensatory for pain and suffering.
It is not in dispute that the plaintiff
suffered pain as he was being electrocuted and when his hand was being
amputated. The pain continued, even after discharge from hospital.
I am of the view that a sum of US$6 000 would be adequate compensation for pain
and suffering.
Permanent disfigurement and loss of
amenities would be combined into one heading. Under this heading the
plaintiff's total claim is US$95 000.
The disability the plaintiff suffered is
the loss of his right arm as it was amputated. This is a disability he
will have to live with for the rest of his life.
The concept of loss of amenities of life
has been tersely but aptly defined by LORD DEVLIN in H West and Son Ltd
v Shepherd 1963 (2) ALLER 625 HL at 636 G - H as 'a diminution in the
full pleasure of living'''.
Factors that can influence the amount to
be awarded include the age and sex of the injured person and 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 do or has he been in capacitated for and what did those
activities mean in his life?
The first plaintiff Prince Chinembiri
indicated that he is contractured in both legs and suffered tendon
damage. The first plaintiff's affidavit of evidence is contradictory as
to the arm which was amputated. Para 11 of the same talks of right arm para 24
(a) talks of left arm whichever way there was an amputation of an arm.
Plaintiff further indicated that he cannot hold or pick anything with the
remaining hand, cannot write, can no longer drive.
The disfigurement is visible and he will
have to live with that discomfort. The disfigurement whilst
prominent does not appear to be as serious as that in Ministry of Defence
and Anor v Jackson supra as already alluded to in
that case a 26 year old doctor suffered injuries that affected the said
functioning of his faculties of smell, vision , speech, emotional
instability and a shortened leg. In that case an award of $35 000
Zimbabwean dollars was made.
In Gwiriri v Highfield Bag
Ltd supra. Plaintiff claimed US$60 000 for disability and
loss of amenities, the facts have already been alluded to and was granted $6
000.
I am of the view that an appropriate award
would be in the sum of US$ 8 000.
Accordingly judgment is hereby entered for
the first plaintiff and against the defendant as follows:
1.
USD$ 6000 for pain and suffering
2.
USD $8000 being damages for permanent disfigurement and loss of amenities of
life.
3.
Costs of suit.
The second plaintiff Paradzai
Mupandenyama. This plaintiff's claim for damages is under five headings
1.
Trauma and
shock
US$ 80 000
2.
Pain and
suffering
US$ 100 000
3.
Permanent
disfigurement
US$ 400 000
4.
Loss of essential body
parts
US$ 250 000
5.
Loss of
amenities
US$ 800 000
US$ 1 630 000-00
Pain and suffering, I will palliate trauma and shock, pain and suffering into
one claim of US$180 000.
The same considerations for plaintiff one apply here hence an award of US$6 000
will be awarded for pain and suffering considering point no 6 in the guideline
of damages assessment enunciated in Minister of Defence and Anor v Jackson
supra.
Permanent disfigurement, loss of essential body parts and loss of amenities
would be palliated into one. Plaintiff claimed US$1 450 000 as per
his affidavit of evidence filed of record.
The same considerations as with the first
plaintiff apply and an award of US$10 000 is hereby granted for loss of
amenities and permanent disfigurement.
Loss of earnings; plaintiff claimed US$70
122-00. Second plaintiff based his claim on the fact that he operates three
General dealer shops and butcheries and claims he was earning an average of;
from Shops +/- $2 000 per day per shop
from Butcheries +/- $500 per day per shop
and that he lost one hectare of potatoes and nothing was recovered lost US
$+/-$15 000. Finally he had 3 220 pigs of which 102 of them died due to
neglect and plaintiff lost US$11
220-00
as a result.
The assessment of an appropriate award for loss of earnings/profit is not as
easy as just multiplying figures. There are several contingencies that
must be taken into account. Where there is insufficient evidence on the exact
figures to use the court is still enjoined to make an award. In Santam
Insurance Co Ltd v Paget 1981 ZLR 73 A the 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 make the above averment because the evidence led by the second plaintiff did
not state the sales at the relevant time when he was in hospital, further the
books produced by the second plaintiff are not books of accounts hence I did
not place much reliance on them.
In assessing loss of earnings there are
certain considerations to be taken into account.
In casu the plaintiff was not rendered vegetative or useless. His
mental functions are fully functional. He can delegate duties and
be an effective manager for his businesses.
As for the potato field which was lost amounting to US$15 000 and US$11 220 for
the 102 pigs which were lost, such special damages are regarded in law as being
too remote to be recoverable, see the case of Holdene Brick Works (Pvt) Ltd
v Roberts Construction Co Ltd 1977 3 SA 670 (A) at 687 D-E.
The second plaintiff lost both arms and there will be limits to the nature and
extent of activities he can engage in, I will award that loss in a progressive
manner. An award of US$ 10 000 will meet the justice of the case.
3. Alexio Tembo
Third plaintiff's claim for damages is under headings
1.
Shock and trauma
$15 000
2.
Pain and
suffering
$15 000
3.
Permanent disfigurement $40 000
4.
Loss of essential body parts $10 000
5.
Loss of
amenities
$40 000
6.
Cost of suit
4.
Kudakwashe Kapfunde
Fourth plaintiff claim for damages is under
headings
1.
Shock and
trauma
$15 000
2.
Pain and
suffering
$35 000
3.
Permanent disfigurement $35 000
4.
Loss of amenities
$20 000
5. Clemence Shawu
This plaintiff claimed damages under the
headings
1.
Shock and
trauma
$15 000
2.
Pain and
suffering
$10 000
3.
Permanent disfigurement $20 000
4.
Loss of
amenities
$40 000
6. Orchard
Kanjado
Claimed damages
under the headings
1.
Shock and
trauma
$5 000
2.
Pain and
suffering
$10 000
3.
Permanent disfigurement $15 000
4.
Loss of
amenities
$10 000
In applying the same principles above I
make the following awards. Judgment is entered in favour of plaintiffs as
follows:
1.First plaintiff:
To be paid;
i. $6 000-00
for pain and suffering.
ii. $ 8 000-00
being damages for permanent disfigurement and loss of amenities for life
iii. Costs of
suit.
2.Second plaintiff
i. $6 000- 00
for pain and suffering.
ii. $ 10 000 -
00 damages for permanent disfigurement and loss of amenities.
iii. $10 000
- 00 being damages for loss of profit and earnings
iv. Costs of
suit
3.Third plaintiff;
i. $6 000 -
00 for pain and
suffering
ii. $9 000- 00
for permanent disfigurement and loss of
amenities
iii.
Costs of suit
4.Fourth Plaintiff
i. $6 000-00
for pain and
suffering
ii. $7 000-00
for permanent disfigurement and loss of amenities
iii. Costs of
suit
5.Fifth plaintiff
i. $5 000-00
for pain and
suffering
ii. $3 000-00
for permanent disfigurement and loss of amenities
iii. Costs of
suit
6. Sixth plaintiff
i. $4 000-00
for pain and
suffering
ii. $2 000-00
for permanent disfigurement and loss of amenities and
iii. Costs of
suit
Interest shall be payable at the
prescribed rate from date of judgment to date of final payment for all the six
plaintiffs.
Kajokoto
and Company, plaintiffs' legal practitioners
