Application
for default judgment
MUSAKWA
J:
The
plaintiff is seeking delictual damages for injuries arising from an
accident that occurred when she was a passenger on a bus operated by
the defendant.
In
2006 the plaintiff issued summons claiming delictual damages arising
from an accident in which she was a passenger on a bus that was
operated by the defendant. The defendant defaulted attending a
pre-trial conference, hence the striking out of its defence.
The
plaintiff abandoned the claim for loss of earnings in the sum of
US$50,400.00. She also abandoned the claim for medical expenses and
future earnings due to the difficulty in formulating them as they
were suffered in local currency. She has persisted in her claim for
general damages under the following heads -
(a)
Shock, pain and suffering.
(b)
Permanent disability and loss of amenities of life.
In
respect of pain and suffering the plaintiff claims US$30,000.00. In
her affidavit she explains that she continues to experience pain up
to today. In respect of permanent disability and loss of amenities of
life she claims US$25,000.00. Under this head she claims she
sustained permanent disfigurement.
The
plaintiff was a fare paying passenger on the defendant's bus. On 15
May 2006 the bus was involved in an accident along the Gweru-Bulawayo
road. The plaintiff sustained the following injuries -
(a)
Fracture of the left radius.
(b)
Fracture of the distal left fibula.
(c)
Massive degloving of the left leg with bone, tibia exposed.
The
plaintiff was hospitalised from 16 May 2006 to 19 July 2006 whilst
she underwent treatment.
Regarding
pain she was reported to have been in severe pain during the first
week. This necessitated the use of narcotic analgesia. Severe pain
was experienced after every operation for forty eight hours. Further
pain was experienced from bed sores on the left buttock. Permanent
disability from ugly scarring of the left leg was put at thirty per
cent.
The
assessment of general damages is a difficult exercise. The amounts
claimed by the plaintiff are not comparable to any decided cases. The
case authorities cited by her counsel are not helpful at all.
A
useful authority on the principles to apply in such claims is the
case of Minister of Defence
and Another v
Jackson
1990 (2) ZLR 1 (SC). In that case Gubbay JA stated the following at
pp 7 -8 -
“It
must be recognised 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 the 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) SA 552 (A) at 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 (1) SA 98 (A) at 116B-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 E.
(7)
Awards
must reflect the state of economic development and current economic
conditions of the country. See Mair's case, supra, at 29H; Sadomba v
Unity Insurance Co Ltd & Anor 1978 RLR 262 (G) at 270F; 1978 (3)
SA 1094 (R) at 1097C. Minister of Home Affairs v Allan S-76-86 (not
yet reported) at p12 of the cyclostyled copy. They should tend
towards conservatism lest some injustice be done to the defendant.
See Bay Passenger Transport Ltd v Franzen 1975 (1) SA 269 (A) at
274H.
(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.”
In
Christopher
Gwiriri v
Star Africa Corporation (Pvt) Ltd t/a Highfield Bag (Pvt) Ltd
HH-20-10 the plaintiff was involved in a work related accident where
he sustained permanent disability which was assessed at 65%. He was
hospitalised for close to five months. He was subsequently discharged
from employment on medical grounds. The court awarded US$3,000.00 for
pain and suffering and US$10,000.00 for permanent disability.
In
Tambudzai
Mafusire v
Lewis
Greyling
HH-173-10 the plaintiff and the first defendant were involved in a
collision whilst driving their respective vehicles. The court found
contributory negligence on the part of the plaintiff. It apportioned
40% negligence to the plaintiff and 60% to the first defendant. It
awarded US$3,600.00 for pain and suffering and future medical
expenses to the plaintiff whilst it awarded US$1,000.00 to the first
defendant for similar damages.
Coming
to the present matter, the medical report which the plaintiff relies
on was compiled in 2006. The report noted that permanent disability
from forearm fractures should be assessed after removal of hardware
from the radius and ulna. It was recommended that the removal of
hardware be done after twelve months. It was noted that the pain in
the forearm might interfere with work or sporting activities.
Apart
from the noted disabilities, the plaintiff claims that her
performance of household duties has become unbearable. She claims she
no longer walks properly and cannot fend for her family as she used
to do. Prior to the accident she used to do cross-border trading.
This latter assertion is related to loss of future earnings which the
plaintiff abandoned.
In
making the award I have taken into account that there is no
additional medical report. In all probability the plaintiff may still
experience pain the nature of which is not readily ascertainable. She
may no longer be as active as she used to be. I will also take into
account that the first defendant's insurers indemnified the
plaintiff although the quantum was not disclosed. I would therefore
award US$2,500.00 for pain and suffering and US$8,000.00 permanent
disability and loss of amenities of life.
In
the result, it is ordered that -
(a)
The defendant pays the plaintiff US$10,500.00.
(b)
The defendant pays the costs of suit.
Donsa-Nkomo
& Mutangi Legal Practice,
plaintiff's legal practitioners
