On
the 12th
February 2012, the plaintiff was a passenger in a commuter omnibus
bearing registration number ABZ 0276. At the 24km peg, along the
Bulawayo-Beitbridge road, there was a motor vehicle collision
involving a Mahindra motor vehicle, registration number G-LL6641, and
the commuter omnibus. The vehicle belongs to the second defendant and
was being driven by the first defendant during and in the course of
his employment. According to the police report the accident was
caused by the negligence of the first defendant who was charged with
and convicted of culpable homicide in consequence thereof.
The
first defendant was fined US$400= and his driver's licence was
cancelled and he was prohibited from driving for a period of six
months.
The
plaintiff was seriously injured in the collision. The particulars
concerning his injuries and their sequelae
will be canvassed in more detail in this judgment. At the time of the
accident the plaintiff was aged 67 years. He was no longer employed
having been retired at 65 years. As a result of the collision, the
plaintiff sustained severe injuries being a fracture of the right hip
and tibia and had a permanent disability of 37%. The plaintiff had to
undergo surgery, and, in subsequent years, had to seek constant
medical attention within and outside Zimbabwe. The plaintiff
instituted proceedings for damages for bodily injuries.
The
defendants entered appearance to defend. The defendants were barred
for failing to file their plea timeously. The matter was placed on
the unopposed roll. I directed the plaintiff to file detailed Heads
of Argument in support of the claims which was done. The plaintiff's
prayer is for default judgment for payment of the sum of US$79,561=
broken down as follows:
(a)
Special damages for medical expenses in the sum of US$53,961=.
(b)
General damages being:-
(i)
Disfigurement in the sum of US$7,500=.
(ii)
Loss of amenities of life in the sum of US$13,600=.
(iii)
Pain and suffering in the sum of US$4,500=.
(c)
Interest at the prescribed rate from the date of service of summons
to date of full payment.
(d)
Costs of suit…,.
I
now turn to consider the quantum of damages suffered by the
plaintiff.
The
plaintiff clearly suffered serious injuries in the accident. In
brief, he sustained a right hip and right tibia plateau fractures.
Surgery was performed at United Bulawayo Hospitals. He has a
permanent disability of 37%. According to the clinical notes of a
specialist orthopaedic surgeon, Mr C. Msasanure, the plaintiff had a
dynamic hip screw fixation on the right hip. He also had a
debridement and external fixation of the right tibia plateau
fracture. In July 2013, the plaintiff travelled to South Africa for
further treatment. Dr Z. A. Peer of the Department of Orthopaedics at
the Tambo Memorial Hospital prepared a report where he confirms that
the plaintiff was treated at Charlottee Maxeke Hospital. The report
notes that the plaintiff had a fracture on his right femur. He also
had multiple other problems from an orthopaedic point of management
in that he required an extensive operation on his right thigh. There
was need for the removal of the hardware with re-alignment
osteotamies of the femur and a possible knee replacement to get him
back to walking again. He would need rehabilitation. A further report
by Dr D. Moyo, a specialist Orthopaedic Surgeon, indicates that the
plaintiff had established MMI (Maximum Medical Improvement). Maximum
Medical Improvement (MMI) is defined as the point at which the
injured person's condition had stabilized and further functional
improvement is unlikely - despite continued medical treatment or
physical rehabilitation. A treatment plateau in the patient's
recovery is reached and that is as good as the patient is going to
get. In some instances it may mean that the patient has fully
recovered from the injury. At Maximum Medical Improvement (MMI), no
further healing or improvement is expected and the degree of
permanent or partial impairment can now be determined. In the instant
case, Dr D. Moyo ascertained that the overall Whole
Person
Impairment
rating was 37% (degree of permanent disability).
In
a supplementary affidavit filed on 22 March 2016, the plaintiff
states that his right knee is not fully functional. His mobility is
now restricted. He can no longer walk upright as he used to do before
the accident. He now walks with the aid of a walker. The plaintiff
further states that he can no longer perform the simple task of
bathing and dressing up un-aided. He can no longer embark and alight
from vehicles without assistance. In essence, the plaintiff has
difficulty in using public transport. He has to hire vehicles for the
purposes of moving from one point to another which is very costly.
For
the purposes of assessing the quantum of damages, I will have to
rely, to a large degree, on the medical report by Dr D. Moyo which is
fairly detailed. The full report is set out in the following terms:-
“Impairment
Evaluation: Mr Abel Mkhwananzi
He
was involved in a road traffic accident in February 2012.
He
has now established MMI (Maximum Medical Improvement). He has an
ankylosed right knee and a painful right hip with an internally
rotated right lower limb.
Right
knee
1.
Class Diagnosis 4 with a default rating of 75% of the lower extrimity
i.e. ankylosis of right knee with flexion limited to about 5 degrees.
Also there is poor alignment.
2.
Grade Modifier Functional History = 3 Antalgic unstable transfers
with routine use of gait aids.
3.
Grade Modifier Physical Examination = 4 Range of motion – very
severe.
4.
Grande Modifier Clinical Studies = 4 Severe deformity.
Right
Hip
1.
Class diagnosis 3 with a default rating of 30% of lower limb. Had a
right intertrochanteric fracture and communited fracture of the mid
shaft.
2.
Grade Modifier Functional History = 3.
3.
Grade Modifier Physical Examination = 4.
Knee
rating shifts – 1 to 71% while the hip rating shifts by + 1 to 32%
translating to 28% and 13% Whole Person Impairment.
The
overall Whole Person Impairment rating is 37% (degree of permanent
disability).”…,.
Special
Damages
Special
damages relate to damages that have already occurred and are capable
of precise mathematical calculation. These are the damages associated
with costs of medical bills that should be proved by placing before
the courts the amounts incurred by the plaintiff in seeking and
obtaining medical treatment. The plaintiff was hospitalized and
underwent surgical procedures, namely:-
(i)
Dynamic hip screw fixation of the right hip;
(ii)
Debridement and external fixation of the tibia plateau fracture at a
cost of US$3,961=.
(iii)
The plaintiff has to undergo further surgical procedures for a total
knee replacement and rehabilitation at a cost of ZAR500,000= (which
equates, at the prevailing exchange rate, to US$33,348=).
The
cost for the total knee replacement is broken down as follows:
Ward
fees R150,000=
Theatre
R150,000=
Implant
R100,000=
Dispensary
drugs R100,000=
R500,000=
I
have no difficulty at all in accepting the claim for future medical
treatment as sufficient evidence has been placed before the court
detailing the exact nature of treatment to be rendered to the
plaintiff as well as the precise costs thereof.
General
Damages
The
plaintiff has claimed general damages for disfigurement, pain and
suffering as well as loss of amenities of life.
In
the case of Minister
of Defence & Another v Jackson
1990 (2) ZLR 1 (SC), the court indicated that there are certain broad
principles which govern such awards, some of which are:
1.
General damages are not a penalty but compensation. The award is
designed to compensate the victim and not punish the wrongdoer.
2.
Compensation must be 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.
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 considerations.
4.
No regard is to be had to the subject 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.
Pain
and suffering
The
plaintiff has claimed an amount of US$4,500= for pain and suffering.
In
assessing damages for pain and suffering, the prime considerations
are the duration and intensity of the pain. The plaintiff has
undergone surgery and this process entailed the painful procedures of
screw fixation and debridement. The plaintiff is yet to undergo
further surgery for total knee replacement and rehabilitation and
this procedure will no doubt cause pain and suffering.
I
find that the sum of US$2,500= is reasonable in the circumstances.
In
arriving at this figure, I have considered the case of Gwiriri
v Highfield Bag (Pvt) Ltd
2010 (1) ZLR 160 (H). In this case, CHITAKUNYE J awarded the
plaintiff, who had effectively lost the use of his right hand during
an accident at work, the sum of $3,000= for pain and suffering and
$6,000= for permanent disfigurement and loss of amenities of life.
See also Mafusire
v Greyling & Anor
2010 (2) ZLR 198.
Loss
of amenities of life and disfigurement
The
plaintiff claimed US$13,600= in respect of loss of amenities of life
and US$7,500= in respect of disfigurement.
I
observe that the plaintiff was aged 67 years at the time of the
accident. He had reached retirement age and was no longer formally
employed. He now has to walk with the aid of a walker. He has
suffered loss of amenities of life and ordinary pleasures of life
have been diminished. The plaintiff's injuries have resulted in a
disability rated at 37% (Whole
Person
Impairment
ratio). The plaintiff can no longer do the ordinary chores without
the need for assistance. The allowance for future contingencies can
never be determined with accuracy. This was well put by MARGO J in
Goodall
v President Insurance Co Ltd
1978 (1) SA 389 (H)…, when he said:-
“In
the assessment of a proper allowance for contingencies, arbitrary
considerations must inevitably play a part, for the art of science or
foretelling the future, so confidently practiced by ancient prophets
and soothsayers and by modern authors of a certain type of almanack
is not so numbered among the qualifications for judicial service.”
I
am satisfied that an award of US$5,000= in respect of loss of
amenities of life and US$2,500= in respect of disfigurement is
appropriate regard being had to the particular circumstances of the
plaintiff and to decided cases I have referred to.
In
the result, it is ordered as follows:-
1.
Default judgment be and is hereby entered in favour of the plaintiff
in the sum of US$47,309= broken down as follows:
(a)
Special Damages, being medical expenses, in the sum of US$37,309=.
(b)
General damages, being:
(i)
Loss of amenities of life in the sum of US$5,000=.
(ii)
Disfigurement in the sum of US$2,500=.
(iii)
Pain and suffering in the sum of US$2,500=.
2.
Interest at the prescribed rate from date of service of summons to
date of full payment.
3.
Costs of suit.
