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 v Jackson 1990 (2) ZLR 1 (SC)..., 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 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.

(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.

(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.

(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."

(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.

(7) Award must reflect the state of economic development and current economic conditions of the country. They should tend towards conservatism lest some injustice be done to the defendant.

(8) For that reason, reference to awards made by English and South African courts may be an inappropriate guide, since conditions in those jurisdictions, both political and economic, are so different."    

At the conclusion of the hearing of this matter in the High Court, the court, inter alia, granted absolution from the instance in respect of the appellant's claim for general damages, future expenses, and replacement value for his motor vehicle.

It is only against that portion of the judgment that the appellant has appealed to this Court.

The facts of this case are as follows:

On 23 July 2006, the appellant was involved in a serious road accident with the respondent at the intersection of Breach Road and Kingsmead Road in Borrowdale, Harare. As a result of the accident, the appellant sustained serious injuries. He was conveyed to Parirenyatwa Hospital whilst in a coma. Thereafter, he was detained in the High Dependency Unit for seventeen (17) days. He spent seven-and-a-half months at St. Giles Rehabilitation Centre. He spent a total of about one-and-half years undergoing hospitalization.

It was accepted, during the trial, that, prior to the accident, the appellant had been active in sport and that he had been in charge of sport and discipline at St Johns College, Borrowdale. In particular, he was in charge of rugby, swimming, hockey, and athletics at the school.

The court a quo found, on the evidence, that the accident was the result of gross negligence on the part of the respondent.

In considering the appellant's claim for general damages, the court a quo found, as a fact, that the appellant will require surgical operations, regular physiotherapy, and medication for the rest of his life. The court also found that he experiences weaknesses of the forearm and arm on the left side and that he will suffer from pain for a very long time.

A report prepared by Professor Kalangu stated that the lower plexus should show good improvement but did not indicate to what extent he was likely to improve. The court was of the view, that, in the absence of evidence from the two doctors who attended to the appellant, the extent of his disability was debatable.

On that basis, the court a quo granted absolution from the instance.

On the question of future medical attention, the court accepted that the appellant will require transport to attend physiotherapy and rehabilitation and that he will require future medical attention. However, the court reached the conclusion that the plaintiff had failed to show how many sessions he would be required to undertake to enable the court to assess the future expenses that he was likely to incur.

On that basis, the court also granted absolution from the instance.

On the question of the replacement value of the motor vehicle, the court a quo came to the conclusion that since delictual damages are calculated as at the time of the delict, the appellant had failed to explain, satisfactorily, the delay between the time of issuance of the summons and the time when quotations were obtained.

In particular, the court was of the view that consideration of factors such as inflation in the calculation of delictual damages would amount to altering the quantum of the debt and would be in conflict with the principle of currency nominalism.

As a result, the court a quo also granted absolution from the instance.

In his grounds of appeal, the appellant has attacked the decision of the court a quo on three bases. These are:

1. That the court a quo erred in failing to consider the evidence placed before it and thereafter to exercise its discretion to make an award for general damages in favour of the appellant.

2. The court a quo erred in failing to consider the evidence placed before it and thereafter in exercising its discretion to make an award for future medical expenses in favour of the appellant.

3. The court a quo erred in applying the principle of currency nominalism and in failing to exercise its discretion to make an award in favour of the appellant for the replacement value of his motor vehicle.

The appellant seeks an order that paragraph 2 of the order of the court a quo be set aside and that the respondent be ordered to pay;

(a) The sum of US$50,000, being the equivalent of Z$1 billion as at the date of judgment, as general damages together with interest thereon at the rate prevailing in the United States of America from the date of judgment to date of payment in full;

(b) The sum of US$5,000, being future medical expenses together with interest thereon at the rate prevailing in the United States from the date of judgment to the date of payment; and

(c) The sum of US$8,000 being the replacement value of the appellant's motor vehicle.

It is appropriate, at this stage, to consider the approach that has been followed by the Courts in the assessment of damages in general, and special damages in particular.

In Hersman Shapiro & Co 1926 TPD 367, 379-80 STRATFORD J observed:

“…, monetary damage having been suffered, it is necessary for the Court to assess the amount and make the best use it can of the evidence before it.

There are cases where the assessment by the Court is very little more than an estimate; but, even so, if it is certain that pecuniary damage has been suffered, the Court is bound to award damages. It is not so bound in the case where evidence is available to the plaintiff which he has not produced; in those circumstances, the Court is justified in giving, and does give, absolution from the instance.

But, where the best evidence available has been produced, though it is not entirely of a conclusive character and does not permit of a mathematical calculation of the damages suffered, still, if it is the best evidence available, the Court must use it and arrive at a conclusion based upon it…,.”

In Ebrahim v Pittman N.O. 1995 (1) ZLR 176H, 187C-D BARTLETT J quoted with approval the remarks of BERMAN J in Aarons Whale Rock Trust v Murray & Roberts Ltd & Anor 1992 (1) SA 652 (C), 655H-656F that:

“'Where damages can be assessed with exact mathematical precision, a plaintiff is expected to adduce sufficient evidence to meet this requirement. Where, as is the case here, this cannot be done, the plaintiff must lead such evidence as is available to it (but of adequate sufficiency) so as to enable the court to quantify his damage to make an appropriate award in his favour. The court must not be faced with an exercise in guesswork; what is required of a plaintiff is that he should put before the court enough evidence from which it can, albeit with difficulty, compensate him by an award of money as a fair approximation of his mathematically unquantifiable loss.…,.'

There must of course be sufficient evidence before the court for it to be in a position to make a proper assessment of damages; for '…, it is not competent for a court to embark upon conjecture in assessing damages where there is no factual basis in evidence, or an inadequate factual basis, for an assessment, and, it is not competent to award an arbitrary approximation of damages to a plaintiff who has failed to produce available evidence upon which a proper assessment of the loss could have been made': per ROSE INNES AJ in Monumental Art Co v Kenston Pharmacy (Pty) Ltd 1976 (2) SA 111 (C) at 118E. See also Mkwananzi v Van der Merwe & Anor 1970 (1) SA 609 (A) at 630.

Thus, where evidence is available to a plaintiff to place before the court to assist it in quantifying damages, and this is not produced, so that it is impossible for the court to do so, or there is no, or quite insufficient evidence which can be produced by an unfortunate plaintiff, he must fail and the defendant must be absolved from the instance…,.”

In, The Quantum of Damages in Bodily and Fatal Injury Cases, 3ed by CORBETT, BUCHANAN & GAUNTLETT, the learned authors state as follows…,:

“In the case of damages which are capable of exact mathematical computation, such as, for example, medical and hospital expenses, proper evidence establishing the loss and substantiating the precise amount of the claim must be tendered.

Where, on the other hand, mathematical proof of the damages suffered is in the nature of things impossible, then, provided that there is evidence that pecuniary damage in this regard has been suffered, the court must estimate the amount of the damages as best as it can on the evidence available and the plaintiff cannot be non-suited because the damages cannot be exactly computed.

However, the application of this principle is dependent upon the plaintiff having adduced the best evidence available to him. Where he has not done so, and the difficulties in assessing the quantum of damages are due to the manner in which he has conducted his case, then the court is justified in ordering, and does order, absolution from the instance.”

The remarks made in the authorities cited above no doubt correctly reflect the law on the approach to damages in bodily and fatal injury cases both in this country and South Africa.

The first ground of appeal that falls for determination by this Court is whether the court a quo erred in failing to consider the available evidence, and, thereafter, making an award for general damages in favour of the appellant.

The amount claimed as general damages before the court a quo was the sum of Z$1 billion as at the date of judgment. The Z$1 billion claimed represented damages for pain and suffering, disability, bodily disfigurement, shock, discomfort, loss of amenities of life, and shortened life expectancy.

The court a quo delivered its judgment on 16 April 2009, and, in respect of this particular claim, granted absolution from the instance. The basis for that decision was that the remark by Dr Kalangu, in his report, that, “lower plexus should show good improvement”, was imprecise. The court a quo was of the view that it was not clear to what extent the improvement would affect the degree of disability. Further, although the report alluded to the need for a repeat study after six months, no such examination appears to have been undertaken. In view of the medical opinion that the appellant's condition could improve with rehabilitation and treatment, the court concluded that the extent of the disability was debatable, and that, therefore, the appellant had not placed sufficient evidence before the court to enable it to make a proper assessment.

It is correct, as the court found, that no further tests were done to ascertain the degree to which the appellant was likely to recover. The fact that the appellant had sustained very serious injuries from which he could never fully recover was common cause. The court accepted, that, following the accident, he had had to be hospitalized for about one-and-a-half years. The court accepted the report by Dr Kalangu, that, the appellant had sustained “complete paralysis of the left and complete paralysis of both lower limbs” (sic). The radiological investigations had revealed a fracture of the left clavicle, fracture of the spine in C5 and C6 and dislocation of the vertebra in C5-6 associated with spinal cord compression. Dr Kalangu estimated the percentage of disability at 60%. He further found that the appellant will have pain for a long time and he will require physiotherapy.

The court also accepted the report by Professor Meikle, of the Clinical Neurophysiology Laboratory, Harare Hospital, that the appellant had weakness of all the muscle groups in the left arm with no movement in the shoulder and elbow muscles. The Professor found the upper plexus to have been seriously injured with no sign of recovery “at present” but the lower plexus was expected to show good improvement.

Although the Professor recommended repeat studies in six months, as already noted, nothing further appears to have happened after the preparation of that report.

The court a quo found that the accident had had a serious effect on the appellant, who, before the accident, had been in charge of sport at St Johns College, Borrowdale, and had generally been active in short. His condition, after the accident, had also affected his relationship with his daughter, who, it appeared, simply could not understand why her father could no longer engage in the activities he used to.

The court a quo further accepted, as fact, that the appellant will, for the rest of his life, require medical attention, including operations, regular physiotherapy, and medication.

It certainly would have helped had the appellant undergone further examination thereafter so that the exact degree of his injuries could have been ascertained. This notwithstanding, the evidence placed before the court, in my view, was sufficient to enable the court to make an award.

As WATERMEYER JA aptly put it in Sandler v Wholesale & Coal Supplies Ltd 1941 AD 194, 199:

“…, it must be recognized that though the law attempts to repair the wrong done to a sufferer who has received personal injuries in an accident by compensating him in money, yet, there are no scales by which pain and suffering can be measured, and there is no relationship between pain and money which makes it possible to express the one in terms of the other with any approach to certainty. The amount to be awarded as compensation can only be determined by the broadest general considerations and the figure arrived at must necessarily be uncertain, depending upon the judge's view of what is fair in all the circumstances of the case.”

The extent of the injuries sustained was substantiated.

The doctors suggested that there was some possibility of improvement but this could only be determined if a repeat study was carried out at a later stage. During the trial, the appellant said nothing about such a repeat study. The court itself did not ask in order to clarify the situation.

The failure to lead evidence on this should not have resulted in the appellant being non-suited.

As stated in The Quantum of Damages in Bodily and Fatal Injury Cases, 3ed by CORBETT, BUCHANAN & GAUNTLETT…, in a case such as the present, a Court does not grant absolution but may tend towards conservatism in assessing the damages. The learned authors state:

“The general attitude of the court has been that if there if evidence upon which an estimate, not unfair to the defendant, can be made, it should not refuse to make an award merely on account of the deficiencies in the case presented upon the plaintiff's behalf. Nevertheless, the failure to adduce such evidence would normally operate to the disadvantage of the plaintiff, in that, in its absence, the court would normally tend towards conservatism in computing the damages.”

In my view, this is the approach that the court a quo should have adopted.

I would agree with the appellant that the finding of absolution in these circumstances resulted in an injustice.

It is not uncommon, in claims for general damages, for a plaintiff to claim, and a Court to award, individual damages for pain and suffering, disfigurement, loss of amenities of life, and shortened life expectancy: see The Quantum of Damages in Bodily and Fatal Injury Cases, 3ed by CORBETT, BUCHANAN & GAUNTLETT…,.

The finding of absolution must therefore be set aside.

The amount claimed, as at the date of commencement of the trial in October 2008, was the sum of Z$1 billion.

Judgment was given six months later, in April 2009.

At the time, the country was gripped by a hyperinflation environment which quickly eroded the value of money. In February 2009, however, the multiple currency system was introduced. Whilst the Zimbabwean dollar remained legal tender, it is a fact that transactions in the local currency ceased effectively rendering the Zimbabwean dollar valueless.

At the time that the court was asked to make its determination, the appellant was seeking the sum of Z$1 billion. It is that claim that should have been considered by the court a quo.

In terms of section 6 of the Presidential Powers (Temporary Measures) (Currency Revaluation and Issue of New Currency) Regulations S.I.6 of 2009 financial institutions were instructed to accept, between 2 February 2009 and 30 June 2009, Old Zimbabwean currency at the rate of one trillion dollars for one dollar of the new currency system.

In terms of section 8 of the Presidential Powers (Temporary Measures) (Currency Revaluation and Issue of New Currency) Regulations S.I.6 of 2009, debts incurred before 2 February 2009 were deemed to have been incurred, entered, created, or transferred in terms of the old currency system and were to be settled, discharged, or liquidated in terms of the old currency system provided, however, that, on or after 1 July 2009 every debt was to be settled, discharged, or liquidated in terms of the new currency system only.

In the definition section, “debt” includes anything which may be sued for or claimed by reason of any obligation arising from statute, contract, delict, or otherwise.

By operation of the law, therefore, the claim by the appellant, for general damages, in the sum of Z$1 billion stood to be dealt with in terms of the Presidential Powers (Temporary Measures) (Currency Revaluation and Issue of New Currency) Regulations.

The one billion dollars claimed under the old currency equated to a fraction of a cent under the new currency system.

Considering the extent of the injuries sustained by the appellant, the claim for damages in the sum of Z$1 billion may not have been an unreasonable sum at the time of commencement of the trial proceedings. However, the law, through the Presidential Powers (Temporary Measures) (Currency Revaluation and Issue of New Currency) Regulations (Statutory Instrument 6/09), has converted what would otherwise have been a substantial claim to a most trivial one.

The result is obviously a most unfair one and the appellant, and the general public, would be excused for thinking that there is something seriously wrong with the law or at least the way it works.

The legislature should have been alive to the obvious injustices that were to follow especially because, on 1 February 2009, the Government introduced the multiple currency system under which it became possible to enter into transactions denominated in other currencies: see section 17 of the Finance (No.2) Act 2/09.

The Finance (No.2) Act 2 of 2009 regularized the introduction of other foreign currencies as legal tender with effect from 1 February 2009.

In his Notice of Appeal, the appellant has requested that his previous claim of Z$1 billion be substituted with the figure of US$50,000.

The appellant, in his heads of argument, has argued that the amendment is justified, regard being had to the current economic conditions of the country where an award in Zimbabwean dollars would render such compensation meaningless.

Alternatively, the appellant has argued that the Court, in the exercise of its discretion, can make an award based on the record using the current multiple currency system.

No authority for that proposition has been cited.

Whether or not such a proposition would violate the principle of currency nominalism has not been explored or commented upon. Whether or not the approach in Makwindi Oil Procurement (Pvt) Ltd v National Oil Company of Zimbabwe 1989 (3) SA 191 (SC) can be extended to cover a situation such as the present has also not been explored.

An action for damages for bodily injury is derived not from Roman Law but from Teutonic Law, but, like the Aquilian Action, it seeks to place the plaintiff as far as possible in the position he would have been had the wrongful act causing him injury not been committed.

Such a result cannot be achieved by making an award of a fraction of the Zimbabwean cent in favour of the appellant.

In all the circumstances, I am satisfied that there is need for a full investigation into the question of the damages that ought to be awarded in this case.

This Court has not had the benefit of argument on this very important issue.

It seems to me that the most appropriate approach would be to remit the matter to the court a quo for consideration of the whole question of damages.

In Halwick Investments t/a Whelson Transport v Garai Stephen Nyamwanza SC48-09, this court clarified the circumstances under which a matter can be remitted to a trial court.

The second ground of appeal is that the court a quo erred in failing to exercise its discretion to make an award for future medical expenses in favour of the appellant.

In its judgment, the court a quo accepted that the plaintiff will require transport to attend physiotherapy and rehabilitation. However, the court found that it had not been shown how many sessions the appellant will be required to undertake although the appellant had proved that each session would cost $5.

On that basis, the court a quo granted the respondent absolution from the instance.

During oral submission before this Court, the appellant's legal practitioner conceded that the evidence led was incomplete as it was not clear how long the appellant would require pain medication and physiotherapy. He accepted that had evidence been led on this aspect, the Court would have been in a position to properly assess the future medical expenses.

It is clear that the evidence led on future medical expenses was insufficient and that although the evidence was available, none was led to show for how long the appellant would require pain medication and physiotherapy sessions.

In these circumstances, the court, in my view, correctly granted absolution from the instance.

The third and last ground of appeal is that the court a quo erred in applying the principle of currency nominalism and in failing to exercise its discretion to make an award in favour of the appellant for the replacement value of his motor vehicle.

It is apparent from the record that when the appellant initially issued summons, in July 2007, he sought damages for, inter alia, pecuniary loss of the motor vehicle that was damaged in the sum of Z$500,000,000 (old currency). This figure was, in the appellant's own opinion, the replacement value of the vehicle at the time.

What then happened after that was that, on 24 September 2008, shortly before the commencement of the trial, the appellant obtained two quotations from Borrowdale Auto and Tandem Motors in respect of a similar vehicle i.e. a 1991 Nissan Sunny with 121,000 kilometres on the clock. Both gave quotations for US$8,000.

The appellant conceded, during evidence, that he obtained new quotations in US currency owing to inflation.

The court a quo was of the view that the delay between the time when summons was issued and the quotations obtained had not been satisfactorily explained and that the explanation given, that this had been done to take into account inflation, would amount to altering the quantum of the debt and would be in conflict with the principle of currency nominalism.

It is correct, as the court a quo found, that, in general terms, damages should be assessed as at the time of the delict.

The basic principle underlying an award of damages in the aquilian action is that the compensation must be assessed so as to place the plaintiff, as far as possible, in the position he would have occupied had the wrongful act causing him injury not been committed.

It is also established, that, the fall in the value of money is to be taken into account in considering comparable awards.

The allowance for inflation is a rough one and should incline towards conservation: The Quantum of Damages in Bodily and Fatal Injury Cases, 3ed by CORBETT, BUCHANAN & GAUNTLETT…,.

The amount initially claimed by the appellant, as representing the replacement cost of the vehicle, was the sum of Z$500,000,000. This was later amended to US$8,000 shortly before the trial.

No authority has been cited for such an approach in a matter involving partrimonial loss.

Had the respondent been called upon to pay shortly after the accident, he would have paid no more than Z$500,000,000 old currency. The suggestion, that, owing to inflation he must now pay US$8,000 is not based on any legal principle and would be in conflict with the principle of currency nominalism: see the remarks of MAKARAU JP…, in Edward Marume & Ellen Chamunorwa v Todd Muranganwa HH27-07.

Bearing in mind that the appellant was obliged to prove his claim for damages for the damaged vehicle as at the date of the delict, the amended claim in US dollars, made shortly before the trial, has no basis in law.

It is now established, certainly in South Africa, that a monetary debt has to be paid according to its nominal value, and, to take into account inflation, interest is then added on that debt until payment is made in full. In this regard, I can do no better than quote the remarks of E M GROSSKOPF JA in SA Eagle Insurance Co. Ltd v Hartley 1990 (4) SA 833, 841C-F that:

“…, non-economic loss is not susceptible of measurement in money. Any figure which is awarded cannot be other than artificial, and, if the aim is that justice meted out to all litigants should be even-handed instead of depending on the idiosyncracies of the assessor, the figure must be 'basically a conventional figure derived from experience and from awards in comparable cases' (Ward v James [1965] 1 All ER 563 (CA) at 576E).

The need for even-handedness requires that, when comparing awards in comparable cases, regard must be had to the purchasing power of the currency at the time when such cases were decided, otherwise one would not be comparing comparables. This does not offend against the principle of currency nominalism.

In assessing general damages, one is dealing, not with a monetary debt, but with the valuation of a non-monetary loss. Such a valuation must obviously be made in terms of currency values as they are at the time of valuation, and not in terms of the values of an earlier time.

In the same way, as it was put in argument, a valuer determining the present value of a farm would not use the currency values of the past. A monetary debt is not, however, subject to a similar type of valuation. It has to be paid according to its nominal value.”…,.

I am not persuaded, therefore, that the court a quo erred in coming to the conclusion that the appellant had failed to establish the claim for US$8,000.

In any event, prior to the introduction of the multiple currency system, in February 2009, it was not competent, except in the instances outlined in Makwindi Oil Procurement (Pvt) Ltd v National Oil Company of Zimbabwe 1989 (3) SA 191 (SC), to institute claims for amounts denominated in foreign currency.

In the result, therefore, the appeal succeeds only to the extent that the order granting absolution from the instance in respect of general damages must be set aside.

On the question of costs, I am of the view that, as the appellant has only been partially successful on appeal, an order that each party pays its own costs would be most appropriate.

In the result, I make the following order:

1. The appeal succeeds to the extent that the finding of absolution from the instance, in respect of the claim for general damages, is set aside.

2. The claim for general damages is remitted to the court a quo for determination.

3. Each party is to pay its own costs.

As regards damages sustained by his motor vehicle, the plaintiff indicated that his motor vehicle suffered extensive damages including the bursting of its air bags. After the collision, the second defendant's insurers assessed his motor vehicle and ruled that it was damaged beyond economical repair.

It was also his evidence that at the time of the collision he valued the pre-accident value of the motor vehicle at $3 billion….,.

On the first defendant's offer to have the motor vehicle repaired at her cost, the plaintiff said he had no problems with that save to say some of the damage, like the air bags, were not repairable. Those had to be fitted by the manufacturer.

On the replacement value, he indicated that as at the time of trial the replacement value was $9,6 trillion and that is the sum he was seeking. In that regard, he tendered a quotation from DESMIC Motors dated 27 May 2008 for a similar Nissan Sunny motor vehicle at a price of $9,6 trillion.

Mr Benjamin Matambanadzo gave evidence for the plaintiff. He is a panel beater by profession and owner of Imperial Motors. He did his apprenticeship with the City of Harare from 1989 to 1992. After 1992 he qualified as a panel beater. He worked as a panel beater from the time of apprenticeship to the present. His evidence was as an expert in motor vehicle repairs.

His evidence was to the effect that after examining the plaintiff's motor vehicle he concluded that it was damaged beyond economical repair. In his assessment, he looked at two principal factors, namely; the total cost of repairs and the availability of the spares. In this, he took the total cost of repairs and compared it with the cost of an accident free similar motor vehicle. He also considered the non-availability of spares locally and considered the cost of importing such spares to come up with the total cost. It was after considering these two aspects that he concluded that the motor vehicle was damaged beyond economical repair.

His conclusion was in tandem with the assessment by the second defendant's insurers' report tendered into evidence as exhibit 2. That report states that:

“The vehicle was written off due to the fact that repair costs exceed 70% of the market value mainly brought about by the fact that spares are not readily available.”

Mr Matambanadzo also alluded to the non availability of spares and the fact that air bags are not repairable.

Under cross examination, Mr Matambanadzo indicated that, in his view, the motor vehicle was for car breaking. The evidence by Mr Matambanadzo was not challenged in any meaningful way. The first defendant did not call any expert evidence to rebut the testimony by this witness….,.

The next issue is on the quantum of damages.

The assessment of damages in accidents is not an easy one. The law has been espoused in a number of cases but it would appear parties still fail to comprehend what is expected of them.

In his book, Motor Law, Volume Two, Juta 1987…, the learned author, W E COOPER, stated that:

“An owner is entitled to a sum of money (damages) which will place him in the financial position he would have been in if his motor vehicle had not been damaged. The object of an award is to compensate the owner for material loss, not to improve his material prospects. In other words, the owner is entitled to claim his negative interesse (interest).

The plaintiff's loss must be assessed as at the time the motor vehicle was damaged.”

This was also elucidated in Erasmus v Davis 1969 (2) SA 1…, wherein POTIGIETER AR said that:-

“The principle of assessment of damages in delict is that a plaintiff must, by monetary compensation, be placed in as good a position financially as he would have been in if the delict had not been committed (see de Jager v Grunder 1964 (1) SA 446 (AD) at p.456). Generally speaking, payment to a plaintiff of a sum representing the diminution in value of his damaged property will place him in such a position. In order to prove such diminution in value a plaintiff would be entitled to establish the difference between the pre-collision and post-collision value of his damaged property.”

This was also confirmed by MULLER WN AR in Erasmus v Davis 1969 (2) SA 1…, when he said that:-

”A litigant who sues in delict is entitled to recover, from the wrong doer, the amount by which his patrimony has been diminished as a result of the conduct of the latter.”

He is thus not entitled to recover anything more.

In our jurisdiction, MAKARAU JP had occasion to restate the position in Monica Komichi v David Edwin Tanner and Eaton & Young HH104-05. At page 3 of the cyclostyled judgment the Hon. Judge President stated that:-

“It is indeed the settled position that the measure of delictual damages in our law, also known as the 'negative interesse', is the calculation of an amount of money which is necessary to place the plaintiff in the (hypothetical) financial position he would have enjoyed had the delict not been committed. The measure of damages requires the plaintiff to establish the extent of her estate before the delict and a diminution to that estate as a result of the delict.”

In order to establish the diminution in value there are two methods a party can seek to employ, namely;

(a) By proving the vehicle's pre-collision and post-collision value; or

(b) By proving the cost of repairing it.

See Motor Law, Volume Two, Juta 1987 by W.E. COOPER…,.

The onus rests on the plaintiff of proving, not only that he has suffered damages, but also the quantum thereof. To discharge such onus, expert evidence is required to establish the pre-collision value and the post-collision value. The evidence must show what damages were suffered and what it would cost to put the motor vehicle to the state it was before the collision.

The plaintiff is thus required to prove the pre-accident value of the motor vehicle and its post accident value in order to reveal the diminution in value thereof. This is so because, as pointed out above, the measure of damages payable to the plaintiff is the diminution in value of the motor vehicle by reason of the damage sustained in the accident. Generally, expert evidence will be required to establish the pre-collision and post-collision values. An expert would be able to describe the nature and extent of the damage and the necessary repairs and cost thereof.

In casu, the plaintiff claimed for the replacement value as at the time of judgment. He seemed oblivious to the need to prove the pre collision and post collision value. The expert witness he called was not called upon to testify on such values at all. Whilst not giving the post accident value Mr Matambanadzo said that the motor vehicle can only be for car breaking. That, in my view, confirmed that the motor vehicle still had value. The fact that the motor vehicle was deemed damaged beyond economical repair did not imply that it was valueless. In fact, in answer to a request for further particulars, the plaintiff had said the salvage value was now about $75,000,000,000= (that is as at 26 March 2008). Unfortunately, in his evidence, such salvage value was not testified to at all. That value should have been ascertained as at the date of the accident and then used to ascertain the diminution in value of the motor vehicle. The evidence did not touch on the cost of repairs at all, again, a factor necessary in such claims. Instead, the plaintiff sought quotations of prices of similar motor vehicles. That, in my view, would not be the damages suffered in the collision. That price did not take into account the pre-collision value less the post-collision value. It is a price of a motor vehicle similar in make to the plaintiff's motor vehicle and nothing more.

The plaintiff's prayer for quantum as at the time of judgment was without legal justification.

I did not hear counsel to refer to any legal principal justifying quantum of damages as at the date of judgment in delictual claims.

The plaintiff provided a quotation as at 27 May 2008, which was the date of commencement of trial and not the date of judgment. That sum was $9.6 trillion. It is that figure that the plaintiff, in his evidence, sought to prove as the damages he suffered as a result of the first defendant's conduct.

In his closing submissions, the plaintiff's counsel submitted that such a value (of $9.6trillion) “cannot now purchase a similar vehicle. In the premises, it is respectively submitted that it would only be just and equitable that the first defendant be ordered to pay the replacement cost of the plaintiff's vehicle as at the time of such payment to take into account the increase in value of the vehicle caused by hyper inflation. An amendment to the plaintiff's prayer is therefore respectively sought in that regard.”

As with the previous prayer for quantum as on the date of judgment, this new prayer for the quantum as at the date of payment was made without any legal justification. It was made with the desire to get the replacement value as at the date of payment yet as has been stated above the plaintiff is entitled to the damages suffered as a result of the delict by the defendant and nothing more. Those damages are calculated taking into account the pre-collision value less the post-collision value. For example, if just before the collision the vehicle was worth A and after the collision it is now worth B; the difference between the A and B would be the cost of repairing the motor vehicle to its pre collision state A. If C is that difference then that is the figure the defendant should be saddled with and not the cost of replacing the entire motor vehicle including B. If there are any arguments about inflation adjustments those, in my view, should be made vis a vis the damages C and not the whole motor vehicle.

In casu, the plaintiff's approach on assessment of damages was wrong and did not prove the extent of the damages suffered.

Accordingly, the defendant is granted an absolution from the instance.

QUANTUM OF DAMAGES

The company appealed against the granting of the following special damages –

(a) 63,750= Botswana Pula in respect of the replacement value of the damaged motor vehicle;

(b) 1,800,000 Botswana Pula for lost income; and

(c) 120,000= Botswana Pula for car hire charges.

I will deal with the three awards in turn.

(a) Motor Vehicle Replacement

The claim by the respondent for the value of a replacement motor vehicle was based on the allegation by him, which was not challenged in cross-examination, that his motor vehicle, a 1993 Mercedes Benz E200, had been damaged beyond repair.

In granting special damages of Botswana Pula 63,750= in respect of the replacement value of the damaged vehicle, the learned Judge in the court a quo mainly relied upon a document which was produced at the trial as Exhibit 6. The respondent alleged that Exhibit 6 was the Agreement of Sale concluded on 4 December 1999 when he bought the vehicle in question.

The alleged Sale Agreement was handwritten on what appears to be a fax print-out dated 27 April 2000. The whole document reads as follows:

"27/04/00          12:10    FAX 213960      LIFELINX INS.041299

Mr Makoni Robson

Passport No. ZIM ZA 899361

Tel. 213960, Fax 213960

One 1993 MERCEDES 200E CLASS

Registration: B320 ACF

Chassis: 1240216B533139

Engine: 10296362029673

Colour: White

P63,750=

Seller:-

Thuso General Store (Pty) Ltd

P.O. Box 660

Serowe Tel. 431188

P63,750=."

Of great significance in this document is the fact that the Sale Agreement allegedly concluded on 4 December 1999, and dated 4 December 1999, was handwritten on a fax print-out dated 27 April 2000, which would not have been in existence on 4 December 1999. This discrepancy is not explained anywhere in the record of the proceedings. The authenticity of Exhibit 6 is, therefore, questionable.

In the circumstances, the learned Judge in the court a quo should not have relied upon Exhibit 6 in determining the replacement value of the vehicle.

In my view, the more reliable value of the respondent's vehicle is the value which the respondent declared to the customs officials at the border post on 17 December 1999 when he brought the vehicle to Zimbabwe. He declared that the value of his vehicle was Botswana Pula 40,000=. In his evidence, the respondent alleged that he had under-valued his vehicle in order to reduce the amount of carbon tax payable. That evidence should have been rejected because no-one should be allowed to benefit from the perpetration of fraud by him.

In the circumstances, the special damages in respect of the vehicle should be reduced to Botswana Pula 40,000=.

(b) Motor Vehicle Hire

The award in respect of motor vehicle hire charges was Botswana Pula 120,000=. The award was erroneously indicated in the order of the court a quo as Botswana Pula 12,000,000=. However, it is clear from the judgment that the amount awarded was Botswana Pula 120,000=.

In my view, there was no basis for awarding the respondent Botswana Pula 120,000= in respect of motor vehicle hire charges. The respondent did not claim that sum at any stage.

Firstly, in his declaration, filed in the High Court on 30 April 2001, the respondent claimed Botswana Pula 18,000= in respect of motor vehicle hire charges. Secondly, in the amendment to the declaration, filed in the High Court on 18 January 2006, the claim in respect of motor vehicle hire charges was re-stated as Botswana Pula 18,000=. Thirdly, in his evidence-in-chief, the respondent stated that he had hired the motor vehicle for six months in terms of the motor vehicle hire agreement. Bearing in mind that that agreement provided for payment of Botswana Pula 3,000= per month, the total sum claimed by the respondent in respect of motor vehicle hire charges was Botswana Pula 18,000=. Fourthly, during cross-examination, the respondent made it quite clear that he was not claiming more than Botswana Pula 18,000= in respect of motor vehicle hire charges, as the following passage, at the top of page 111 of the record, shows:

"Q. Now, the issue of car hiring…, exhibit number 7 was the invoice dated June 2002 which claims a figure of P18,000= only?  

A. Yes, my Lord.

Q. Now, I am having here in my possession and I need to clarify this, another invoice generated on the 30^th of November 2000 which claims another further figure of 15,000= (Pula). For the benefit of this court, are you confining your claim in relation to car hiring services only to the 18,000= (Pula) from January to June of 2000? Is that correct?  

A.   Correct.

Q. So there is no claim further for car hiring services from June 2000?  

A. Correct."

Finally, in the written submissions filed by the respondent's legal practitioner at the end of the trial, appearing on page 63 of the record of pleadings, the claim in respect of vehicle hire charges is stated as Botswana Pula 18,000=.

There is, therefore, no doubt, that by awarding the respondent Botswana Pula 120,000= in respect of motor vehicle hire charges the learned Judge in the court a quo erred.

However, that is not the end of the matter, because consideration ought to be given to whether the respondent should have been awarded Botswana Pula 18,000=; the sum claimed by him in respect of motor vehicle hire charges.

In this regard, counsel for the appellant attacked the authenticity of Exhibit 8, the Vehicle Hire Agreement. He pointed out certain curious features concerning Exhibit 8, and submitted that the overwhelming probability was that the claim in respect of motor vehicle hire charges was fabricated in order to inflate the claim for damages.  

I must admit that this submission has taxed my mind.

However, in view of the existence of Exhibit 14, a final reminder dated 30 November 2000, sent to the respondent by Agastat Marketing & Distributors, calling upon the respondent to pay vehicle hire charges, I am persuaded to accept that there was a vehicle hire agreement. The reminder reads as follows:

"Dear Mr Makoni,

Ref: Agreement Number 40529 – Car Hire Colt Registration Number B881 AFF

The above refers.

This note serves as a final reminder for you to settle the above account. We have now handed this matter to our attorneys for the full recovery of the total amount."

In awarding the respondent Botswana Pula 120,000= in respect of motor vehicle hire charges, the learned Judge said:

"In assessing the quantum of hiring charges for the vehicle, I have deducted from the claim the pro rate (sic) charges for the period (the) plaintiff was bedridden and therefore did not require the services of a vehicle. The periods in question are those between 21^st December 1999 and mid March 2000, and also the period he was bedridden in Francistown in 2000. In my assessment, (the) plaintiff is entitled to rental charges for eight months out of the year he had claimed. In my considered view, (the) plaintiff is therefore entitled to hiring charges amounting (to) Botswana Pula 120,000=."

It is quite clear from what the learned Judge said that he was labouring under two misapprehensions.   The first was that the respondent had claimed motor vehicle hire charges for twelve months, when in fact the claim was for six months only. And the second misapprehension was that the respondent had claimed motor vehicle hire charges at the rate of Botswana Pula 15,000= per month, when the respondent's claim was at the rate of Botswana Pula 3,000= per month. Since the learned Judge concluded that the respondent did not require a motor vehicle for four months during the relevant period, he should have deducted the four months, not from twelve months, but from six months. Had he done so, he would have come to the conclusion that during the relevant period, i.e. December 1999 to June 2000, the respondent required the motor vehicle for only two months, and would have awarded the respondent Botswana Pula 6,000= in respect of motor vehicle hire charges.

In the circumstances, the award in respect of motor vehicle hire charges should be reduced to Botswana Pula 6,000=.

A Supreme Court judgment aptly summed up the correct legal position as follows:

"...Where damages can be assessed with exact mathematical precision, a plaintiff is expected to adduce sufficient evidence to meet this requirement. Where, as is the case here, this cannot be done, the plaintiff must lead such evidence as is available to it (but of adequate sufficiency) so as to enable the court to quantify his damage in order to make an appropriate award in his favour. The court must not be faced with an exercise in guess work; what is required of a plaintiff is that he should put before the court enough evidence from which it can, albeit with difficulty, compensate him by an award of money as a fair approximation of his mathematically unquantifiable loss..."

The plaintiff issued summons against the defendant on 19 May 2007 seeking an order for the payment of damages in the sum of $20 billion.

In her declaration, she averred that she had purchased, from the defendant, certain immovable property situate in the district of Kariba for the sum of $180 billion which she paid in full. At the time of the agreement of sale, the defendant had already sold the same property to a company going by the name of Woolwork Investments (Pvt) Ltd. On account of this prior sale, the plaintiff further averred that the sale to her was a fraud as the defendant knew he had disposed of his rights in the property and had none to sell to the plaintiff. Thus, she claimed damages from the defendant.

The claim was defended.

The matter proceeded to a pre-trial conference where, due to the plea that had been taken by the defendant, the issues for trial were settled as follows:

1. Whether the plaintiff and the defendant entered into an agreement of sale in respect of House No.52 Beira, Mahombekombe, Kariba;

2. Whether the defendant breached the agreement of sale by failing to transfer the property to the plaintiff;

3. Whether, as a result of the breach, the plaintiff is entitled to consequential damages, and, if so, the quantum thereof;

4. Whether the plaintiff is entitled to costs on a legal practitioner and client scale.

At the trial of the matter, the parties advised that the defendant was no longer defending the claim and that the sole issue that fell for determination in this matter is the quantum of damages due to the plaintiff.

The parties further narrowed down the issue between them to one of establishing the current market value of the property. The defendant agreed that such would represent the quantum of damages due to the plaintiff.

It is pertinent at this stage to note that prior to the matter being set down for hearing, the plaintiff had applied to amend her declaration to increase the amount of damages sought to US$35,000=. No objection having been raised against the amendment, I duly granted it with the consent of the defendant.

The plaintiff called the evidence of one Emmanuel Mutambirwa. He is employed by the City of Harare as a Chief Valuations Officer. He holds a Diploma in Quantity Surveying, a Bachelor of Banking and Commerce degree and an MBA, amongst his qualifications, all of which are set out in the report that he compiled on the value of the property in dispute. In or about October 2008, he visited the property in question and formed the opinion as to the value of the property. He revisited his opinion on 12 February, and, taking into account the trends in the property market, revalued the property at US$35,000=.

The witness, who, in my view is well qualified to give values of properties, gave his evidence well. He was understandably excited in having to be the first to testify in the matter and at times would be unnecessarily argumentative in his responses to questions put to him in cross-examination. All in all, I have little difficulty in accepting that he gave me his honest opinion on the value of the property in dispute.

The defendant also testified as to the value of the property.

He averred that he purchased the property from his employer, on a date that he cannot recall, for the sum of $150,000=. In his opinion, if he were to sell the property on the date of the trial, he would not ask for more than US$5,000=.

Clearly, the defendant is not an expert in the field and his opinion, as to the value of the property, is of marginal probative value.

The issue that has exercised my mind in this matter is not so much the current market value of the property in dispute, but, rather, whether, in the circumstances of this matter, I can award damages sounding in foreign currency.

In his address, counsel for the plaintiff was of the view that I can, following the decision in Makwindi Oil Procurement (Pvt) Ltd v National Oil Company of Zimbabwe 1988 (2) ZLR 482 (SC). On his part, counsel for the defendant confined himself to arguing that the plaintiff had not sufficiently proved her claim.

Makwindi Oil Procurement (Pvt) Ltd v National Oil Company of Zimbabwe 1988 (2) ZLR 482 (SC) was a ground breaking decision seeking to reconcile two conflicting judgments of this court.

In 1985, MFALILA J, in National Food Distributors v Weltman 1985 (2) ZLR 310 (HC), had held that in the face of exchange control restrictions, Zimbabwe courts could not freely give judgments in foreign currency even where the proper law of contract is foreign law. Anyone seeking redress in Zimbabwean courts would have to state their claim and have their judgment in Zimbabwean currency. In 1988, ADAM J took a different position in the Makwindi Oil Procurement Company matter, a decision that was then taken on appeal.

After reviewing the trend in English and South African cases on the issue, GUBBAY CJ was of the view that in the absence of any legislative enactments which require our courts to order payment in local currency only, the innovative approaches taken in England and in South Africa, in making orders in foreign currency had to be adopted. This would bring Zimbabwe into line with many foreign legal systems.

Specifically regarding the award of damages in foreign currency, the learned judge appears to have fully endorsed the approach taken by the House of Lords in two appeals held concurrently were unanimous that that the approach taken earlier would also apply to claims for damages.

In allowing the appeal that was before them, GUBBAY CJ held, on the facts of the matter before the court, that the plaintiff, a company that conducted business in this country and was subject to exchange control regulations, and had to purchase its foreign currency using local currency, had failed to persuade him that its loss was in United States Dollars. He was of the view that the loss of foreign currency was felt or borne by the national foreign currency reserve and not by the plaintiff itself.

From his judgment, it appears to me that GUBBAY CJ was approving the approach by LORD WILBERFORCE in Owners of the MV Eleftherotria v Owners of the MV Despina R [1971]1 All ER 421 (HL)…, where he stated:

“It appears to me that the plaintiff, who normally conducts his business through a particular currency, and who, when other currencies are immediately involved, uses his own currency to obtain those currencies, can reasonably say that the loss he sustains is to be measured not by the immediate currencies in which the loss first emerges but by the amount of his own currency, which, in the normal course of operation, he uses to obtain those currencies. This is the currency in which his loss is felt, and is the currency which it is reasonably foreseeable he will have to spend.”

In the same year that the Supreme Court handed down its judgment in Makwindi Oil Procurement (Pvt) Ltd v National Oil Company of Zimbabwe 1988 (2) ZLR 482 (SC), a similar approach was taken in South Africa in Elgin Brown and Hammer v Dampskibsselskabet Torm Ltd 1988 (4) SA 671 (NPD).

After citing the passage I have cited above from Owners of the mv Eleftherotria v Owners of the mv Despina R [1971]1 All ER 421 (HL), the learned judge in that matter proceeded to hold that the court has a discretion which currency to award the judgment in, and, with refreshing clarity, had this to say about claims for damages…,:

“Where a loss is in fact suffered in a foreign currency, there is, as I see it, no reason not to assess and quantify the damages in that currency; indeed, not to do so might be to deny a plaintiff the amount of his actual loss.”

In the matter before him, the learned judge observed that the main heads under which the loss suffered by the plaintiff were either in the sense of money actually expended or money not received. These amounts were all in foreign currency, and, in the opinion of the learned judge, the plaintiff's loss was felt in foreign currency. That being so, the only way the plaintiff could be compensated properly for its loss was to grant judgment in foreign currency.

A review of the authorities on the matter appears to me to indicate that where there is no statutory bar, the courts can award judgments sounding in foreign currency. For damages claims, the plaintiff must prove that his or her loss was suffered in foreign currency, or, put in the language of LEON J in Elgin Brown and Hammer v Dampskibsselskabet Torm Ltd 1988 (4) SA 671 (NPD), the plaintiff must prove that he or she felt the loss in a foreign currency.

In casu, the plaintiff has approached the court for damages arising out of the failure of the defendant to transfer to her certain immovable property. I am persuaded that the property may command a purchase price of the amount of the claim by the plaintiff. However, it has not been argued before me that the property does not have a value in local currency. I would want to believe that it still has, but, as implicit in counsel for the applicant's submissions, the United States Dollar and other foreign currencies from the region have become the de facto currencies of Zimbabwe. The local currency has been rendered valueless by inflation.

In my view, the facts of this matter and the challenges posed by the hyperinflationary environment that Zimbabweans find themselves operating under present a res nova that was not envisaged by the decisions that I have referred to above. The issue that arises is whether a claim for delictual damages may be redressed in foreign currency where it has been felt in both the local and the foreign currency but the local currency has been ravaged by inflation and is de facto valueless.

The authorities seem to suggest that where the loss has been suffered in a particular currency, there is no good reason why the court should not award damages in that currency. They do not seem, to me, to proceed further to hold that where a loss has been suffered, the plaintiff may choose that currency in which he or she would like the loss to be redressed.

In my view, the facts of this matter present a situation where a loss has indeed been suffered. The loss so suffered has been calculated in one foreign currency as opposed to the local currency for the reasons given by counsel for the applicant.

It appears to me that the issue I have to determine is whether to extend the approach that has been taken in Makwindi Oil Procurement (Pvt) Ltd v National Oil Company of Zimbabwe 1988 (2) ZLR 482 (SC) and be innovative enough to suggest that where a loss has been suffered and can be calculated in both the local and in a foreign currency, the court has a discretion to award judgment in that currency that will redress the injury suffered and adequately compensate the plaintiff for the loss. It would then follow that where that currency is the foreign currency as opposed to the local currency, then judgment should be in the foreign currency - for, to award damages in the local currency, where the local currency has been rendered valueless by inflation might be to deny a plaintiff the redress that he or she seeks.

I must confess that I find this approach attractive.

It is not in violation of any statutory provision governing exchange control. It does not render the local currency any less legal tender than do other judgments expressed in foreign currency. It is simply an act of applying the approach to a situation that has arisen due to the ravages of inflation and one that could not have been anticipated when Makwindi Oil Procurement (Pvt) Ltd v National Oil Company of Zimbabwe 1988 (2) ZLR 482 (SC) was decided. Like the Law Lords in 1975, I am merely opting for a more realistic approach to the current economic conditions prevailing in the country, and, as GUBBAY CJ observed in Makwindi Oil Procurement (Pvt) Ltd v National Oil Company of Zimbabwe 1988 (2) ZLR 482 (SC)…,:

“That the majority of the Law Lords succeeded in surmounting (such) an obstacle and opted for a more realistic approach to modern economic conditions, is strongly illustrative of the concept, never to be overlooked, that the law is a living system that adapts to the necessities of present times and is to be given new direction, where, on principle and in reason it appears right to do so.”

In the result, I make the following order:

Judgment with costs is hereby entered for the plaintiff in the sum of US$35,000=.

On 26 August 2004, the plaintiff instituted proceedings in the High Court wherein it sued for $60,000,000= being the sum assured in terms of a motor vehicle comprehensive policy it held with the second defendant. The first defendants were the insurance brokers who facilitated the policy.

On 21 December 2006, and before the pre-trial conference, the plaintiff amended its claim by the addition of paragraph 10 which is a claim for consequential damages in the sum of $100,000,000= being the replacement value of the vehicle.

The first defendant pleaded that it first acted as the second defendant's agent and its obligation ended as soon as the policy was in place and that the premium had not been paid at the time of the accident hence the policy was revoked.

The second defendant, in its plea, pleaded ignorance of the policy and put the plaintiff to the proof thereof.

At the commencement of the trial, the second defendant applied for, and was granted an amendment to its plea. The amendment was a withdrawal of the initial plea and its substitution with a plea to the effect that;

1. The first defendant, as agent of plaintiff, entered into an agreement with the second defendant that the plaintiff should pay the insurance policy premium of $3,524=26 in equal installments over a period of 3 months as from 25 February 2004.

2. That the plaintiff did not comply with this agreement, and, as at the date of the accident the plaintiff had not performed its obligations to pay the instalments.

3. In any event, the plaintiff is covered for a total of $60,000= in terms of the policy and is contractually precluded from claiming more.

The plaintiff gave evidence through its Managing Director, Mr. Zisengwe. Mr. Gideon Muchakwa gave evidence for the first defendant after which Mr. Moses T. Chakaringa and Mr. Member Murasiranwa gave evidence for the second defendant.

From the evidence adduced in court the following are common cause.

The plaintiff entered into an insurance contract with the second defendant. This was done through the first defendant who acted as broker. The premium was put at $3,524,259=. The insured value was put at $60,000,000= (old currency). On 10 February 2004, the plaintiff paid $200= (revalued) towards the premium. The plaintiff was then issued with a policy document dated 18 February 2004. The period of insurance was stated as 'From 10/02/ 04 to 31/01/05 (both dates inclusive)'.

On 23 March 2004 the motor vehicle so insured was involved in an accident and was declared a write off. As at the time of the accident, the plaintiff had not paid the balance of the premium. Such balance was only paid on 7 April 2004 to the first defendant. When the plaintiff attempted to make a claim on the policy the second defendant refused to honor the claim on the basis that the plaintiff had not paid the premium as per policy.

The testimony by Mr. Zisengwe was to the effect that the plaintiff had been asked to pay the premium in three months. It was never stated that the instalments had to be equal. At the time of the accident the three months period had not lapsed. When the accident occurred the plaintiff was asked to pay the balance in order that its claim can be sent to the second defendant - and it did so. In this regard he tendered two receipts as exhibits 1 and 2 for the payments.

The first defendant's evidence, on the other hand, was to the effect that when Mrs. Zisengwe came to insure the plaintiff's motor vehicle she was told the premium that had to be paid. As she did not have the full amount she was allowed to pay $200= on her undertaking to pay the balance in two weeks time. She was warned of the consequences of not paying the full premium. After failing to pay within that period the first defendant extended the period to three (3) months. According to Mr Muchakwa, this extension was at the plaintiff's risk.

At the pre-trial conference, the issues were viewed as;

“1. The interpretation of clause 1 of the contractual document. It being admitted that plaintiff paid its premium on 25 February 2004; and

2. The quantum of damages.”

After hearing evidence from the witnesses, it was apparent that the parties were not agreed that the premium was paid on 25 February, 2004. The receipts tendered showed the initial payment was on 10 February 2004 and the second payment was on 7 April 2004.

The main issues would thus be;

1. Whether or not the plaintiff had paid the premium in terms of the policy;

2. Whether or not the defendants are liable to the plaintiff as per claim;

3. Whether or not the plaintiff is entitled to payment of the sum of $100,000,000= in respect of its claim for the loss of its motor vehicle in terms of the policy agreement; and

4. Who between the defendants is liable to pay the plaintiff....,.

In his closing submissions, the plaintiff's legal practitioner argued that it is not unheard of that even where a party is contractually bound to perform certain obligations, should he do so negligently the wronged party may sue both in contract and in delict.

Unfortunately, counsel could not cite any authority in support of this, and, in any case, the suit here was in contract and not delict. The nature of the amendment did not change the nature of the suit at all.

Nowhere in the amendment is there any allegation of negligence on the part of the defendants.

The distortions caused by the galloping inflation currently characterizing our economy are graphically shown, in part, by the claims that are being brought before the courts. The above, in my view, is one such example.

While inflation is a fact that they must take judicial note of, courts must, in my view, be wary that the distortions caused by inflation in the economy are not transported wholesale into the law thereby causing distortions of legal principles.

The plaintiff operates a butchery from Muzarabani Business Centre in Mashonaland Central. In 2003, he thought of adding to his assets by having a freezer room installed at the butchery. He approached the defendant, who, in or about September 2003, gave him a quotation for installing a 6x8x8 cubic metre cold room for $13 million. In terms of the written quotation, the plaintiff was required to pay 50% of the total cost as a deposit and to show confirmation of the order. A deposit in the sum of $5,4 million was duly paid on 29 September 2003 and installation was to be done in a week's time. On 17 October 2003, the defendant delivered the cold-room, ready to install and commission it. Upon realizing the error, the plaintiff declined to accept delivery and installation of the coldroom whereupon the defendant returned to Harare with the cold room. Efforts to get the defendant to return and install a freezer room were in vain, prompting the plaintiff to approach his legal practitioners for assistance.

In April 2004, the defendant refunded the sum of $1,955,000= to the plaintiff, retaining the sum of $3,445,000= as necessary expenses incurred in manufacturing and attempting to deliver the cold room to the plaintiff. Unhappy with this development, the plaintiff issued summons claiming a payment of the sum of “$13,000,000= of $2,480,000= which is current $657,200,000=, with room to in increase it to match the current costs of installing a freezer room at trial”…., together with interest at the prescribed rate from date of the deposit to date of payment in full and costs of suit.

At the trial of the matter, the claim was amended to $53 billion.

The matter was defended.

In its plea, the defendant denied that it ever quoted the plaintiff for the supply and installation of a freezer room and averred that it quoted it for the supply and installation of a cold room.

At the trial of the matter, the defendant was in default, and, in terms of Rules 59A and 60 of the High Court Rules, 1972 I called upon the plaintiff to lead evidence on the amount of his claim.

The plaintiff's evidence was largely a rehash of the facts of the matter as I have detailed above. In addition, the plaintiff adduced into evidence a quotation that he obtained from a company called Commercial Refrigeration in the sum of $202 billion. The date of the quotation is not given on the handwritten quotation which also includes a component of foreign currency.

When asked to explain his claim in the sum of $53 billion, the plaintiff had the following to say, in part:

“I am claiming an amount that has the same value as the amount that I paid to the defendant in 2003.”

He went on, further, to explain that the amount he is claiming is one quarter of the total amount of the quotation from Commercial Refrigeration just as the amount that the defendant retained was a quarter of the quotation it had given him.

At the commencement of the trial I was under the impression that the plaintiff's claim was one of damages.

It was with this response that it appeared to me that he is simply claiming a refund of the amount that the defendant retained as expenses of manufacturing the cold room and travelling to and from Muzarabani with the wrong refrigeration unit, not at its nominal value, but, at its appreciated value, taking into account the impact of inflation.

His claim appears to me to be one for a debt and not for damages arising ex contractu.

The plaintiff's evidence was to the effect that the sum of $3,445,000= that was retained by the defendant in 2004 now has the same value as $53 billion which he claims. It became clear to me, from this response, that the plaintiff is raising inflation as the basis of his claim.

The plaintiff's stance was re-affirmed by counsel for the plaintiff when he addressed me on the issue.

His argument was to the effect that the plaintiff is entitled to claim the same percentage of the amount that it will now cost to supply and install a freezer room as was the percentage of the amount that the defendant retained in 2004 to the cost of installing a cold room in 2004.

Judges have often used telling adjectives to describe submissions they did not expect from legal practitioners such as “startling” or “ingenious”. Neither term aptly describes my sentiments at being presented with this submission.

I hasten to remark that the matter before me, although set down for trial, proceeded as an application for default judgment.

Ordinarily, a request for default judgment is hardly denied, as, by his default, the defendant is taken to have admitted all the averments made by the plaintiff. I am also aware of the school of thought that holds the view that it is not for a judge or the court determining an application for default judgment to act as the unpaid and un-briefed counsel for the defendant who is in default and deny a plaintiff judgment on issues that the defendant may not have raised if in attendance. Thus, a court dealing with an application for default judgment is perfectly within its rights to enter a default judgment not on the merits of the matter but on the technical basis that the defendant is in default even in cases where it is of the opinion that a defence may have been available to the defendant.

There is, in my view, however, a limit to the non-participatory role that a court may play in an application for default judgment. In my view, where a claim is clearly not well founded in law, a court may not give judgment on such a claim simply on the basis that the defendant is in default. Similarly, where damages have not been adequately proved to the satisfaction of the court, judgment may not be entered in the claimed sum; again, simply on the basis that the defendant is in default.

The basis for drawing the limit to the non-participatory role of the court, in my view, is the fundamental principle that after the parties have made their submissions to the court, the decision or order that is made is solely that of the court and such decision or order must find a basis in law at all times.

In my view, the claim before me is a case compelling me to abandon my non-participatory role for two reasons;

(i) Firstly, I take the view that the plaintiff's claim, being a claim in which the alleged debt has been appreciated to take into account inflation, is badly founded in law. Courts will take inflation into account when assessing damages in certain delictual claims but inflation, on its own, cannot be a cause of action.

In Edward Marume and Another v Todd Muranganwa HH27-07, I had occasion to deal with the issue of inflation in another application for default judgment. The following were my views on the matter:

“In my view, the issue involves a detailed discussion of 'currency nominalism' and 'revalorization' and the place of such concepts in Zimbabwean Law.”

The concept of currency nominalism has been held to be applicable in all aspects of South African Law. See SA Eagle Insurance Co Ltd v Hartley 1990 (4) SA 833. In view of the provisions of the Prescribed Rate of Interest Act, there is a strong case for arguing that the concept also underlies all aspects of Zimbabwean law and that revalorisation, or the appreciation of debts to take into account inflation has no place in our law.

Again, like in Edward Marume and Another v Todd Muranganwa HH27-07, I have not been adequately addressed on the issue.

I hold the view that the distortions caused by inflation in the economy should not lead to the wholesale distortion of legal principles that have withstood the test of time in a bid to find legal solutions to a problem that is not legal in nature and origin and may prove to be transient. I am yet to be persuaded that revalorization is part of our law of debt collection.

Assuming that I have erred in classifying the plaintiff's claim as one based on inflation, and that properly it is one seeking damages for an alleged breach of contract, then, in my view, two other issues arise;

(i) Firstly, it has not been proved that the retention of the sum of $3,455,000= was wrongful in any way or that it constituted breach of the contract between the parties. In fact, it would appear to me that the parties were not ad idem as the plaintiff requested for a freezer room and the defendant supplied a cold room. The offer and the acceptance did not coincide and the parties never had a contract in my view.

Even if one were to be generous and hold that there was a contract that the defendant breached by supplying the wrong refrigeration unit, the damages suffered by the plaintiff for the alleged breach have not been adequately proved.

It cannot be said that the quotation from Commercial refrigeration in any way represents the correct loss of value in money between 2004 and the date of the hearing. It has also not been proved that the quotation by Commercial Refrigeration has any relationship to the quotation given by the defendant in 2003. One was quoting for a cold room of different dimensions and the other was quoting for a freezer room of entirely different dimensions.

How the one can be tendered as proof of the value of the other was not argued before me.

Despite much effort, I cannot figure out a possible argument on the relationship myself.

For the above reasons, I cannot accede to the prayer for default judgment in the matter in the amount prayed.

I have anxiously considered whether I can grant judgment in the sum of $3,455= that was retained by the defendant in 2004 together with interest thereon at the prescribed rate from the date of the retention to date of payment. The amount involved, even with interest, is so pitiful, in my view, as to make a mockery of the justice delivery system where I to order its payment. In m view, the plaintiff is best served by the order that I make below.

In the result, I make the following order:

1. The defendant is granted absolution from the instance.

2. The plaintiff is hereby granted leave, after effecting necessary amendments to his claim, and upon service of such on the defendant, to set the matter down for judgment in terms of Rule 58 of the High Court Rules, 1972.

3. There shall be no order as to costs.

It was submitted, on behalf of the defendants, that this court should grant an order for damages actually caused by the defendants. Such damages ought to be reduced because the plaintiff did not mitigate its loss. This is so in the view of the fact that the plaintiff was in physical possession of the defendants Ferrari motor vehicle as security. It is the defendants view that the plaintiff should have sold the Ferrari in order to reduce its losses which had been occasioned by the breach by the defendant.  

The duty to mitigate one's loss was emphasized in Ambali vs Bata Shoe Company 1999 (1) ZLR 417. If a party does not mitigate its loss, its damages will be reduced.

The defendants further submitted that the plaintiff was in possession of security which he failed to dispose of in terms of the cession of rights from which the parties agreed to.

The defendants..., submitted that the plaintiff should have mitigated its loss by selling the Ferrari that was surrendered as security.

The duty to mitigate does require the plaintiff not to sit back and allow damages to accumulate. The plaintiff is required to take reasonable steps to mitigate its loss. See Reid vs Hepcker Ltd and Sons (Pvt) Ltd (1) RLR 284, where it was held that the onus is on the defendant to prove that the plaintiff failed to take reasonable steps to mitigate his damages.

It seems to me that the plaintiff did not fail to take reasonable steps to mitigate its loss.

It was clear from the evidence that, from the time of seizure of the vehicles, several meetings were held between the parties to try to have the vehicles released from the Zimbabwe Revenue Authority. In view of the efforts both parties were making, there appears to have been no reason for the plaintiff to sell the Ferrari, for it genuinely believed that something was to come out of the efforts. Besides, the defendants kept assuring the plaintiff that things were under control.

The plaintiff's witness gave evidence, which evidence was not disproved, that the plaintiff had been advised by a reputable car dealer that there was no market, in Zimbabwe, at the time, for a Ferrari. The same witness also told the court that even if the plaintiff had wanted to sell the Ferrari, the retention of the keys by the defendants would have made it impossible to sell it.

It was further submitted, on behalf of the defendants, that the plaintiff had claimed damages in the sum of $94,654 after obtaining a quotation from Zimoco for brand new vehicles.

If the court was inclined in granting damages for new vehicles, the figure had to be reduced by US$15,000 which the defendants incurred for the purchase of new vehicles. This would leave the sum of US$79,654 being damages for second-hand vehicles the plaintiff had initially paid for.

The plaintiff produced, in evidence, an invoice from Zimoco for two new similar vehicles. The quotation was for an amount of US$94,654.

The plaintiff claims that amount as damages.  

It must, however, be noted that the quotation is not for second-hand motor vehicles for which he had paid. The second-hand vehicles which the plaintiff paid for had 3,500km and 6,500km on their clocks, respectively. It would be appreciated that although the vehicles had been used, the said vehicles were substantially new, in my opinion. Further, it would not be argued that the usage of 3,500km and 6,500km, respectively, for both vehicles would be equated to US$15,000. The combined usage is far less than the US$15,000 which the defendants want to equate.

In my considered view, the combined usage is negligible, even for the class of vehicle in question, in our country.

The figure given in the Zimoco quotation would still not be reduced because there was no proof, firstly, that the said amount was ever paid to the suppliers in South Africa, and secondly, that the plaintiff ever benefitted from the alleged payment, as it did not get the new vehicles in question in the final analysis.

If, indeed, the payment of US$15,000 was ever made, it would have been easy to produce the receipts in court, which was not done, therefore casting doubts as to the truth of the assertion.

Besides, the issue of the payment of US$15,000 was only raised in court during the trial. The issue was not raised in the defendants' pleas...,.

Claims for damages require that tangible evidence be led to sustain such a suit.

The plaintiff is expected to table, before the court, evidence which shows, on a balance of probabilities, that a claim, as framed, is sustainable. Damage claims are not based on speculation or conjecture. It is eminently important that every averment be properly supported and proved.

There was not the slightest attempt, by the plaintiff, to prove her claim for damages to her property, what the court had, at the end of closure of the plaintiff's claim, were unsubstantiated averments in the plaintiff's declaration, and the annexed schedule.

In this regard, at the time the defendant testified, she had really no reason to even respond to the plaintiffs claim for damages, as nothing in that direction had been established.   

The schedule, on its own, did not speak to the court about the damages to the plaintiff's property.

I now turn to consider the quantum of damages in lieu of specific performance.

The plaintiffs claim was initially for $787,600,000=. That amount was subsequently amended to read US$9,500=.

The plaintiff gave evidence on the nature of his claim against the defendants.

He is a Zimbabwean who is based in South Africa, where he operates a security company. He stated that he simply wanted his vehicle in the same condition as it was in at the time of the accident. He averred that his truck was a write-off.

He holds the wreck, gearbox and engine.

Under cross-examination, he could not say whether or not the vehicle could be repaired. He revealed that the differential, engine, gearbox, and axle, were not intact. While, in his further particulars, he indicated that the pre-accident value of the motor vehicle was $3 billion and the post-accident value was $350 million, under cross-examination, he did not confirm these figures but averred that he had bought the vehicle for R110,000=. He further stated that after buying the truck in South Africa, he replaced the engine and gearbox with the ones that were on the vehicle at the time of the accident. He then imported the vehicle into Zimbabwe.

He did not disclose the cost of the replaced parts and the labour.

His alternative claim for the value of an equivalent truck, prior to the accident, was not quantified. He distanced himself from the original figure he supplied in his further particulars.

He did not give due thought in the formulation of the relief he sought.

He did not lead evidence of the pre-accident value of the truck. While he suggested that it was a write-off, he did not lead any professional evidence to confirm his opinion. It appeared from his evidence that the truck had a salvage value. He did not state what that salvage value was.

His alternative claim, like the main one, fails for lack of evidence.

The plaintiff is a Commissioner in the Zimbabwe Republic Police. The defendant, a duly qualified dental surgeon, was, at the material time, also a member of the Zimbabwe Republic Police. She practiced her dentistry at the Police Camp Hospital and also at her surgery in town.

In June 2007, the plaintiff consulted the defendant complaining of sensitivity to his teeth. She examined him at the police hospital and later invited him to her surgery where she carried out some work on him. The work entailed extracting a tooth that was embedded in his gum. The extraction was not successful and she referred him to Professor Chidzonga, a specialist in the field, who finally extracted the tooth and also found out that, in the process, the plaintiff had suffered a fractured jaw. When the plaintiff's superiors visited him at his house, a decision was made that he be flown to South Africa for further management and treatment. He was duly attended to in South Africa and the fracture was reduced.

On 24 January 2008 the plaintiff issued summons out of this court against the defendant. He alleged that she had been negligent and had caused the fracture in his jaw. He claimed against her the sums of R10,000= for pain and suffering, R10,000= for loss of comfort and R78,000= as special damages.

The suit was defended.

In her plea, the defendant denied that she was negligent as alleged or at all. She further denied knowledge of the injury sustained by the plaintiff, and, in particular, that she fractured his jaw and suggested that this occurred at Professor Chidzonga's surgery where the tooth was extracted.

At the pre-trial conference of this matter, the parties settled the issues for trial as follows:

1. Whether or not the defendant undertook to perform surgery on the plaintiff with such professional skill as is reasonable for a qualified dentist?

2. Whether or not the defendant carried out the surgery on the plaintiff negligently as alleged by the plaintiff?

3. Whether or not the plaintiff suffered damages as a result of the defendant's negligence, and, if so, the quantum thereof.

At the trial of the matter, the plaintiff gave evidence. His evidence was as follows.

In early 2007, he visited the Police Camp Hospital. He was complaining of sensitivity in his teeth. He sought professional assistance from the defendant. She advised him that he required a dental cleaning session and that she needed to examine the exposed roots of his teeth. On the first visit, she applied some medication to his gums. She did not have adequate equipment at the hospital and could offer him treatment at her surgery. He accepted the offer. A week later he visited her surgery and she requested him to have an x-ray. A week later she called him and advised him that she had discovered a buried molar on the right side of his mouth. The tooth had to be extracted. On 26 June, he attended at her surgery for the tooth to be extracted. After taking him through the process, the defendant attempted to extract the tooth using a variety of tools. After some time he grew tired and was also in pain. She advised him that she had almost exposed the tooth. He then felt a sharp pain and told her to stop. He had been on her chair for two and a half hours. She advised him that he now required theater and she would refer him to Professor Chidzonga. She telephoned Professor Chidzonga's surgery and explained to them what she had already done. She wrote him a letter of referral and he left her surgery. He could feel that his jaw was heavy. It was painful.

At Professor Chidzonga's place he was taken into the consulting room, and, by that time, he could not talk. Professor Chidzonga took a small x-ray of the area. He then extracted the tooth in about 20 minutes. He suspected that the plaintiff had fractured his jaw. He could not develop the xray at that time and allowed the plaintiff to go home on a prescription for a mouth wash, a pain killer, and some antibiotics.

As he was driving home, he sent a message on his mobile phone advising the defendant that he was in terrible pain and was suspected of having fractured his jaw. His mouth was now quite heavy and he had to keep on holding his lower jaw. He was also bleeding profusely.

When he reported back to Professor Chidzonga's rooms the following day, the fracture was confirmed. Professor Chidzonga cleaned his mouth and immobilized the jaw. He placed him on a special diet and prescribed more medication.

The Commissioner-General of police visited him at home. At this time his entire face was swollen. He was incoherent. Arrangements were made for him to be flown to South Africa where he was accompanied by his wife.

In South Africa, the wires that had been used by Professor Chidzonga to immobilize his lower jaw were removed and replaced by bracelets. He was placed on a liquidized diet. On 29 July, he returned to the clinic in South Africa where a few of the bands holding his jaw together were removed. He could open his mouth by a fraction and could now use a spoon to eat porridge and yoghurt. In August, all the bands were removed and he was referred for physiotherapy. Around September, he returned to have all the bracelets removed. He was still on physiotherapy. He had to return for reviews in September and December 2007. In January 2008, he attended the final physiotherapy session here in Zimbabwe.

At the time of testifying, he could not chew hard things with his right hand side. He still felt some numbness in the side which he hoped would go away after some time.

The witness then applied to have affidavits by the three medical practitioners who attended to him in South Africa adduced into evidence. Also adduced were various documents, including air tickets from Harare to Johannesburg and invoices for the services rendered him in South Africa.

The witness gave his evidence well. He is fairly articulate. His responses to questions put to him under cross-examination were forthright. He did not seek to exaggerate. It is my finding that the witness was honest and truthful.

The plaintiff called Professor Median Chidzonga. He holds qualifications in dentistry and is a professor in maxillo-facial, oral and dental surgery. He has specialized in facial surgery and has thirty years experience under his belt. His evidence was as follows.

The plaintiff was referred to him by the defendant who wrote a note to him explaining that he should continue with the removal of a wisdom tooth that she had started working on as the plaintiff was now in severe pain.

After sitting the plaintiff in the chair, he took a radiograph of the site and then proceeded to examine him. He saw a socket where an incision had been made. He attempted to remove the tooth and it was during this process that he noticed that the jaw was not moving in unison. He requested the plaintiff to go for an x ray of the jaw. The following day the plaintiff brought back the x-ray and it showed that there was a fracture passing through the socket where he had removed the tooth. He reduced the fracture by wiring. He also obtained the results of the first radiograph he had taken when the plaintiff first visited him. It also showed that there was a fracture. Based on that radiography, he was of the view that the jaw was fractured before he started working on the plaintiff.

He further testified that it is not normal for jaws to be broken during tooth extractions. It is however possible. The possibility of this happening can be assessed through x-rays of the area taken before the extraction.

He was aware that the plaintiff later sought medical attention in South Africa. He was also aware that what was done in South Africa is similar to what he did on the plaintiff in reducing the fracture. The equipment used in South Africa is not available in this country but the expertise is.

Under cross-examination, the witness testified that the breaking of a jaw during a tooth extraction does not, in itself, denote negligence. Each case must depend on its facts. Even where a practitioner exercised all due care, at times, a jaw could still break.

Regarding the plaintiff's subsequent visit to South Africa to seek medical attention, he was of the view that this was not necessary as he could have attended to the plaintiff himself had the deteriorating condition of the plaintiff been brought to his attention.

The evidence of this witness was of great benefit to the court and great reliance shall be placed upon it in the resolution of the matter. He is an expert in his field and I would have been unable to form some of the conclusions I formed in this matter without his expert opinions.

After the evidence of this witness, the plaintiff closed his case.

The defendant testified. She narrated most of the facts that are common cause in this trial as to how the plaintiff approached her for assistance and what she did up to the time she referred the plaintiff to Professor Chidzonga. Regarding the allegation that she was negligent, her evidence was as follows;

The plaintiff's tooth was a difficult one. She did the best that she could to extract it without resorting to surgery. During the process, the plaintiff did not bleed profusely as he alleges. She however was putting water into his mouth during the process.

She was not aware that she had fractured the plaintiff's jaw during the extraction. Had she known, she would have put it in her referral letter to Professor Chidzonga. She only received a report from Professor Chidzonga who stated that, during the time he was extracting the tooth, he felt an abnormal movement to the jaw. She personally did not feel such movement.

The witness also gave her evidence well. Her evidence was, in the main, common cause with that of the plaintiff up to the time the plaintiff left her surgery. I have no reason to disbelieve her.

The defendant also called one Lewis Chidzambwa. He is a Dentist, holding a degree from a university in Finland. He has ten years experience.

The testimony of this witness was of a very general nature. He gave the court his views on what can cause pain to a patient undergoing tooth extraction, how each case is unique, and how fractures can occur in patients.

I found the evidence of this witness to be educative in a very general way.

After this witness was stood down, the defendant closed her case....,.

The plaintiff alleges that the defendant fractured his jaw during a tooth extraction. He further alleges that the fracturing of the jaw was as a result of negligence on the part of the defendant. Finally, the plaintiff alleges that, as a result of the fracture to his jaw, he suffered the various damages whose heads appear in his summons.

The factual issues that fall for determination in this matter present themselves to me as;

(i) Firstly, whether it was the defendant who fractured the plaintiff's jaw; and

(ii) If so, whether such fracturing was as a result of negligence on her part; and, again

(iii) If so, what damages did the plaintiff suffer?

I now turn to the first issue. It is to determine whether the fracture in the plaintiff's jaw was caused by the defendant.

I do not have any direct evidence in answer to this issue. The x-ray that was taken of the tooth area, after the defendant had referred the plaintiff to Professor Chidzonga, was not produced to show whether or not the jaw was fractured before Professor Chidzonga started working on the plaintiff. What was adduced into evidence was a photocopy of the x-ray which did not show anything. The copy of the x–ray was not accompanied by any report explaining the picture, and, as was correctly stated by Professor Chidzonga in his evidence in chief, the photocopy was not useful at all.

The plaintiff was of the firm belief that he suffered the fracture whilst receiving attention from the defendant. He is of this belief because he felt a sharp pain after an hour of drilling and wedging and he stopped the defendant from further proceeding. When he left the defendant's place, he was now holding his lower jaw. He urges me to infer that the sharp pain marked the point when his jaw fractured.

This is a reasonable belief on the part of the plaintiff but it is not the only reasonable inference that one can draw from the facts.

It is common cause that the plaintiff was under a local anesthetic that was now wearing off. The tooth extraction was causing him a lot of pain. The sharp pain could have been pain from the process which would have otherwise been masked by the anesthetic had it been working.

Professor Chidzonga testified that it was during the process of extracting the tooth that he noticed that the jaw was not moving in unison. He did not notice this during the examination of the plaintiff before he commenced the extraction. He then informed the plaintiff that he suspected a fractured jaw. The fracture was only confirmed the following day from xrays.

As indicated above, it would have made my task easier had the plaintiff produced the original x-ray that was taken prior to Dr Chidzonga commencing work on him. The absence of the x- ray and the evidence by Dr Chidzonga that he only noticed the irregular movement of the jaw during the extraction places me in a position where I cannot confidently hold that the jaw was broken at the defendant's surgery. This is compounded by the fact that neither Professor Chidzonga nor the plaintiff asked for leave to and opportunity to replace the useless photocopy with the original x-ray and no explanation was tendered for this omission.

Further, it was Professor Chidzonga's evidence that the x–ray that he took would only show the tooth and nothing much. He was not asked whether it would show the jaw and the fact that he referred the plaintiff to another facility for a bigger picture that would show the jaw seems to suggest to me that the radiograph that he took did not. In any event, neither the plaintiff nor Professor Chidzonga asked for time and opportunity to have the original radiograph adduced into evidence and no explanation was tendered for this omission.

I am unable to come to a conclusion as to where and when the fracture occurred from the evidence adduced before me. It could have occurred at the defendant's surgery. It could have occurred at Professor's Chidzonga's.

On the one hand, I have the testimony of the plaintiff feeling the sharp pain and the testimony of Professor Chidzonga that when he looked at the radiograph that he had taken in his surgery, he observed a fracture. This evidence seems to suggest that the fracture may have occurred at the defendant's. On the other hand, I have the missing radiography and the testimony of the defendant that she did not notice the irregular movement of the plaintiff's jaw when she was working on his tooth or else she would have included that in her written report to Professor Chidzonga.

Further, I have the testimony of Professor Chidzonga that he only noticed the irregular movement of the plaintiff's jaw when he was in the process of extracting the tooth. I also have his evidence that the x-ray he took in his surgery is of a localized nature, showing the tooth area, hence his request to the plaintiff for him to attend the Avenues Clinic for a bigger picture showing the jaw area as well. The learned professor was not asked on whether the localized x-ray he took would show the jaw area as well and to what extent. In my view, the fact that he referred the plaintiff for a bigger picture tends to suggest his one would not show the fracture to the jaw.

I have no crystal ball to gaze into for an answer to this issue. In my view, the balance of probabilities tilts in favour of no party and remains even to the detriment of the plaintiff who bears an onus to establish the facts that he relies on for his claim.

Assuming that I have erred and there is ample evidence upon which a superior court will find that the defendant did indeed fracture the plaintiff's jaw, I will proceed to give my opinion on the next issue which arises. This is to determine whether the defendant was negligent, as alleged, or at all, assuming she did fracture the plaintiff's jaw.

In his declaration, the plaintiff alleged that the defendant was negligent in that she failed to remove the tooth with such skill as is reasonable for a qualified dentist; that she tried to remove the tooth in a way that caused the plaintiff to suffer severe bleeding and unbearable pain; and that she fractured the plaintiff's lower jaw.

In his testimony, the plaintiff confined himself, and correctly so in my view, to narrating the events leading to his visit to Professor Chidzonga's surgery, and, thereafter, to him seeking treatment in South Africa. When asked how the defendant had been negligent, he simply gave his opinion that she must have been unprofessional by failing to extract the tooth in two (2) hours when Professor Chidzonga managed to do so in about 20 minutes.

The difficulty that the plaintiff had in articulating the particulars of the defendant's alleged negligence is, in my view, understandable. He is not a dental surgeon. I understand the plaintiff to have taken the simple approach to this whole matter that because an accident occurred whilst the defendant was in charge, she must have been negligent.

In my view, the particulars of negligence alleged against the defendant can only be validating by making reference to the standard operating procedures of dentists. This is so because to test the negligence of a professional, one has to first establish what an average reasonable professional in the shoes of the defendant would have done. See S v McGowan 1995 (1) ZLR 4 (HC).

The average reasonable professional is not one who is an ace or an expert in his or her field. Thus, the skills exhibited by Professor Chidzonga cannot be used to measure whether or not the defendant was negligent. She may not have been as adept at extracting teeth as the professor was. This, however, does not automatically translate into negligence on her part. An average professional is not one who is so careful that he or she will weigh each and every risk attendant upon the task at hand and advise the client of all such risks before proceeding. He or she will weigh the obvious risks and advise the client of the same.

In casu, it was Professor Chidzonga's testimony that the likelihood of a fracture during a tooth extraction can sometimes show in an x-ray taken before the extraction. It is not in dispute that the defendant caused an x ray of the plaintiff's mouth to be taken before she started working on him. It was not suggested that this x-ray showed that possibility of the plaintiff fracturing his jaw, and, notwithstanding clear evidence of this likelihood, the defendant proceeded with the extraction without taking any steps to guard against the occurrence.

It further appears to me that the reasonable professional is one who will bring their training to bear on the task at hand to assess the attendant risks and proceed with alertness. He or she has a certain degree of confidence in their capacity and skill that allows them to proceed without undue timidity and is, to a large extent, a practical person who wishes to achieve a specified result.

As I have indicated above, to establish what a reasonable dentist would have done in the circumstances of this matter, the evidence of the plaintiff was not material. It would only have been material in showing what the defendant actually did. The evidence of another dentist was imperative to set the standards that are average in the profession and against which the conduct of the defendant would have been measured to show the deviation relied upon to form a cause of action in delict.

The evidence of Professor Chidzonga, called by the plaintiff, did not sufficiently set out the average professional standards expected of a dentist extracting a tooth. His evidence was also largely narrative of the steps he took to extract the tooth after the defendant referred the plaintiff to him. He did not testify that what the defendant had done prior to her referring the plaintiff to his surgery was negligent. He was not examined on this aspect of the matter. The only portion of his evidence-in-chief that I regard as relevant on this issue is when the professor testified that it is not normal that a jaw will fracture during a tooth extraction. He qualified that by testifying that the possibility of a fracture can be assessed by taking an x- ray before the extraction. As stated above, the defendant did cause an x-ray to be taken before she discovered the embedded tooth. The x-ray so taken was not adduced into evidence.

The issue that may have exercised my mind is whether the defendant was negligent in not noticing from this x–ray that the plaintiff's jaw was likely to fracture during the extraction had the plaintiff so pleaded. He did not.

Of significance, in my view, is the evidence of the professor under cross-examination that the fracturing of a jaw during a tooth extraction does not necessarily denote negligence on the part of the dentist. He agreed with counsel for the defendant's suggestion that sometimes even where the dentist was careful a jaw could still break. His explanation was that a lot depended on the circumstances surrounding the case.

Faced with such colourless evidence as to what a reasonable dentist would have done in the circumstances, I have no basis for holding that what the defendant did deviated from that norm and was thus negligence.

Again, assuming that I have erred in holding that there is insufficient evidence before me to hold the defendant negligent I proceed to determine whether the plaintiff has proved that he would have been entitled to damages in this matter, and, if so, the quantum thereof.

Under the first head of damages, the plaintiff claims against the defendant the sum of R10,000= for pain and suffering.

It is common cause that the plaintiff was attended to by two medical practitioners on the same day and was thereafter attended to in South Africa. In his evidence, it is clear that he wishes to be compensated for the pain that he endured not only whilst in the defendant's surgery but thereafter and through his entire ordeal until the braces were removed from his face.

But, it is trite that the defendant can only be liable for the pain that she factually and legally caused.

The issue that immediately arises, and one that counsel for the plaintiff did not address fully, is how I am to apportion the pain and suffering between that caused by the defendant and that caused by the other medical professionals who attended to the plaintiff. It would appear to me that the plaintiff has again taken the simplistic approach that, since the defendant set the whole train in motion, she must be held liable for all the pain that followed her contact with the defendant.

In my view, the attention given to the plaintiff by the professor was clearly novus actus interveniens that broke the chain of events and thus the liability of the defendant.

In this regard, I have asked myself what was the active or direct cause of the pain that the plaintiff suffered in this matter?

It appears to me that the tooth extraction, started by the defendant but finished by the Professor was the direct cause of the pain. Thus, the defendant did not cause all the pain. She may have contributed to the subsequent pain. Some of the pain may have been naturally associated with a tooth extraction and may not have been actionable. I have no way of knowing the pain that the plaintiff suffered unlawfully at the hands of the defendant for no medical evidence was adduced as to the pain that the plaintiff experienced prior to the extraction of the tooth.

Due to the manner in which the events of this matter unfolded, it appears to me that the plaintiff had a mammoth task in proving pain and suffering attributable to the defendant alone.

Legal causation is usually problematic where a whole chain of consecutive or remote consequences results from the wrongdoer's alleged negligence and where it is alleged that he or she should be held legally responsible for all the consequences. I am of the view that the efforts of the professor to assist the plaintiff neutralizes the causative force of the defendant's original conduct. In any event, it has not been argued that a reasonable dentist would have foreseen the entire chain of events that unfolded in this matter and would have taken steps to guard against the same.

Had I found the defendant liable, I would have assessed damages under this head modestly and may have awarded a sum of not more that R2,000= in view of the inadequacies that I have highlighted above.

Regarding damages for loss of comfort, which I believe ought to be correctly reflected as “loss of amenities,” and the special damages of expenses incurred in South Africa, I would have absolved the defendant from liability on the basis that the damage is remotely connected to her conduct in that there was an novus actus interveniens in the form of the services rendered to the plaintiff by Professor Chidzonga.

The attention given to the plaintiff by Professor Chidzonga was the ultimate cause for the discomfort that he suffered and the expenses that he incurred in seeking treatment in South Africa. Had he sought treatment in South Africa immediately after consulting the defendant, my finding on this issue would have been different.

Regarding costs, it is my view that the plaintiff's approach to court was reasonable and was prompted by a desire to be compensated for damages flowing from alleged professional negligence. Tested against a reasonable man, the plaintiff's case has merit. No one expects to have their jaw broken when they request for a tooth extraction from a dentist, and, where this occurs, there should be redress. Unfortunately, the law does not allow the judge, using the test of the paterfamilias, to substitute his or her own standards for those of a reasonable professional such as a dentist.

The stringent test for establishing the negligence of a professional requires that the allegedly defaulting professional be judged by the standards set by his or her peers.

Cases of professional negligence are, in my view, difficult to successfully prosecute in this jurisdiction where most professions are still small and closely knit and members of the profession know each other on personal levels. Testifying against a fellow professional is still frowned upon as being in itself unprofessional, and, thus, evidence of negligence is difficult to come by.

From the above, I am not suggesting that Professor Chidzonga chose not to testify against the defendant as he is personally known to her. He was simply not led on the critical issues of negligence and I do not know what his responses would have been. The testimony of Dr Lewis Chidzambwa, on the other hand, was clearly meant to absolve the defendant from all professional liability.

While he is not succeeding, I see no reason to mulct the plaintiff with an order of costs on the basis of the above observations.

In the result, I make the following order;

1. The defendant is absolved from the instance.

2. Each party shall bear its own costs.

The plaintiff has issued summons against the defendant for the return of its trailer registration number 467-556M which had been leased to the defendant and which lease agreement has now been cancelled.

Despite demand, the defendant has failed and/or refused to return the said trailer. Alternatively, the plaintiff prays that the value of the trailer should be paid to it.

The basis of the claim is that the trailer belongs to the plaintiff. Upon the expiry of the lease the trailer should have been returned to the owner.

The issues for determination were agreed upon by the parties at the pre-trial conference. These are:

(a)…,.

(b)….,.

(c) Quantum of damages which may be awarded to the plaintiff….,.

The plaintiff…, called Dabpson Kanyoka, the Bulawayo Branch Manager, Zimnat Lion Insurance Company. He placed the value of the trailer at $20 million at the time he testified. Under cross-examination he conceded that he is not an expert in such assessments and that he relied on assessments done by engineers.

His testimony does not take the matter any further.

The plaintiff then called Vongai Gapare, a former senior underwriter at Zimnat. She authored the letter, exhibit 3, which gave the current market value of the trailer as Z$2.2 million in September 2006. She conceded that she did not consult the experts as the matter was urgent. She said she just used “information at hand” to arrive at that figure. She, however, later consulted an engineer who placed the value at $9 million.

Her testimony does not take the matter any further. Her evaluation is “off-the-cuff” and she is not, in any event, an expert in the field.

The plaintiff then called Bhekimpilo Moyo. He said he does vehicle valuation in assessments. He is a qualified vehicle body repairer and has been in the industry for over ten (10) years. He did a desk evaluation for the trailer in question at the behest of Zimnat Lion. He arrived at the conclusion that a similar trailer would be valued at Z$9,5 million….,.

In Principles of Delict by JONATHAN BURCHELL (1993), Juta & Co…, the learned author rightly stated:

“The general principle underlying the award of damages under the aquilian action (and the law of delict as a whole) is one of compensation to the plaintiff. But, frequently, a person injured may have his losses partially or wholly met from outside or collateral sources other than the said damages. Examples of such collateral benefits are: gifts or donations, pension, sick pay benefits, insurance (both indemnity and none indemnity) and medical and…,.

The general rule is that the receipt of money by the plaintiff from an insurance company is not deductable from his damages. The plaintiff has to exercise foresight in taking out insurance cover, for which he has paid premiums on a regular basis and shall not be deprived of the benefit of the cover. Nor should the defendant be spared for liability for his negligence simply because he has, by chance, injured a foresighted individual whose losses are covered by insurance.”

Within the context of indemnity insurance, with the rules of subrogation applying, the insurer, once it has paid out the insurance cover to the plaintiff, is placed in the shoes of the plaintiff and can pursue the claim against the defendant to recoup its own loss. In so doing, the insurer can claim in the name of the plaintiff.

It is clear, therefore, that the negligence of the defendant is not absolved by the new effect insurance – Mackenzie v SA Taxicab 1910 WLD 323 and Dippenaar v Shield Insurance Co. 1979 (2) SA 904 (A).

Benefits in terms of indemnity insurance which a plaintiff has received or will probably receive on account of his loss are seen as res inter alios acta i.e they are not taken into account in reducing his damages – Ackerman v Loubser 1918 OPD 31; Teper v McGees Motors 1956 (1) SA 738 (C); Van Dyk v Cordier 1965 (3) SA 723 (O); Law of Delict by J NEETHLING, J M POTGIETER and P J VISSER (2nd Ed).., and A Guide to the Zimbabwean Law of Delict by G FELTOE (3rd Ed)….,.

Different valuations of the trailer were given during the pleadings and the trial on account of the rapid escalating rate and re-denomination of the currency. The Zimbabwean dollar is no longer in use. The court has taken judicial notice of this notorious fact – Ndawana v Nasho & Ors 2000 (1) ZLR 23 (H) and Reza v Nyangani 2001 (1) ZLR 202 (S). This court has to strive to arrive at an equitable remedy based on recent valuation. The difficulty is that the recent value given during the trial was denominated in Zimbabwean dollars which is no longer in use. The court has to find a way of obviating the problem created by this intervening event….,.

(1)…,.

(2) The defendant is hereby ordered to pay the plaintiff the current market value of a similar trailer as assessed by the average of evaluations of three independent qualified motor vehicle evaluators, with interest on the figure tempore morae from 16 March 2005.

Mr Venturas, who is a senior partner at Byron Venturas & Company, gave evidence in support of the plaintiff.

Having accepted that the defendant breached the contractual agreement between the parties the court must therefore consider whether the plaintiff is entitled to damages as claimed or at all.

DAMAGES

In laying the foundation of its claim for damages, the plaintiff has presented to the court a single quotation from D.C.de Sousa (Pvt) Ltd...., and pegged its claim at $72,473=.

The quotation from D.C.de Sousa (Pvt) Ltd was the only one produced by the plaintiff, and for doing this the plaintiff was severely criticized by the defendant which felt more quotations should have been produced by the plaintiff to justify its claim.

THE ISSUE OF A SINGLE QUOTATION

The plaintiff was criticized for relying on a single quotation as a way of justifying its claim for damages. I accept it is desirable that, where possible, one must have more than a single quotation, but, again, there must not be blind adherence to this requirement. There are occasions when it is not possible to get other quotations.

James Mwanaka was not an impressive witness.

He was a biased expert. He did not observe the damages on either truck yet he could, with a straight face, describe the collision as minor. He under-priced the value of the belly housing at US$200= and misled the court that a used Freightliner horse in good working condition could be purchased for US$6,000=. He did not produce any evidence to show the prices of the materials used by the plaintiff in repairing the horse at the time that the repairs were done. He did not provide any evidence to refute the assumption that in-house repairs done in September 2008 were cheaper than commercial repairs. See the remarks of MUBAKO J in Minister of Defence v Chikumbirike HH61-95…,.

In addition, the plaintiff failed to prove the claim in the sum of US$1,625=20 under the head sundries/disbursements on page 4 of the job card; exhibit 3.

The plaintiff, by the nature of his business, has to uphold his character, credibility, honesty, and good business ethics. The defendants' utterances were meant to tarnish his image in the eyes of his landlord and ultimately his business credibility.

Luke Chigwida produced documents which confirmed the importation as well as the cost price of the vehicle as USD5,100=. He also paid ZAR36,000= to the South African Revenue Service for the vehicle to be shipped from Japan to Durban and this included freight and insurance. He also paid ZAR21,744= to a company called Exploranka Freight (Pvt) Ltd for handling charges. He paid to Freight Solutions (Pvt) Ltd, a Zimbabwean Company, the sum of Z$3,876,830=74 for the vehicle to be imported into Zimbabwe. He also paid duty at the Zimbabwean border in the amount of Z$2,830,000= to ZIMRA.

He produced all the relevant supporting documents...,.

The vehicle was assessed as being beyond economic repair by the assayer. He said that he has since ascertained that it would cost him USD7,000= to replace the truck and he produced a quotation to that effect. He said the wreck was valued at USD800= as that was the last offer he got from a potential purchaser. Under cross-examination, he confirmed that he was claiming the replacement value of the vehicle and all the other stated charges less the amount that he is able to realise from the sale of the body being USD800=.

The first plaintiff's case was then closed.

On the alternative claim for damages, the plaintiff tendered quotations from three panel beating garages indicating what it would cost for the motor vehicle to be repaired to the required standard. The three quotations were as follows-

(a) J. ZIVIRA MOTORS (PVT) LTD                      -           USD5,795=;

(b) J.J. PANEL BEATERS                                   -           USD4,175=; and

(c) CHRIS FREIGHT (PVT) LTD                           -           USD5,824=.

The plaintiff opted for the quotation for US$5,824= as the reasonable cost for the repairs. In its evidence, the defendant did not tender any quotation on the cost of repairs or the value of the motor vehicle to counter the plaintiff's quotations. Though it was stated that repair costs may be in excess of the value of the motor vehicle there was no indication as to the magnitude of the difference and whether such difference would be unreasonable in the circumstances. In Erasmus v Davis 1969 (2) SA 1 (A).., MULLER AJA had this to say on the use of cost of repairs to assess appropriate damages-

“..., the cost of repairs is often used as a yardstick to measure damages, it cannot be used as a yardstick in circumstances in which it would not be an appropriate method of assessing damages. It cannot be a proper yardstick in a case where it is not economical to repair the vehicle and the plaintiff claims the estimated cost of repairs without bringing into account the salvage of the value of the vehicle…,.”

In casu, the plaintiff did not bring the salvage value of the motor vehicle. He, nevertherless, seemed to acknowledge that the repair costs could be higher than the actual value of the motor vehicle due to scarcity of spare parts for the motor vehicle and not that it would make him any richer. The other factor is the defendant's delay in completing the repairs. Had the defendant complied with its undertaking, at the time, the current cost of repairs could have been avoided. In any case, it is not in every case where costs are higher than the claim may be deemed untenable as the circumstances of a case may dictate otherwise.

The defendant's contention that the repair costs exceed the value of the motor vehicle should not disentitle the plaintiff to recover his motor vehicle in the condition it was in before the accident. In any case, as has already been alluded to, the defendant did not offer any concrete evidence in support of its contention.

The quantum of damages claimed in terms of the amendment is the amount of ZW$40,000,000,000= or the value of the property at the time of judgment whichever is greater.

However, during the trial the parties advised the court that they had agreed on the quantum of damages in the event that the court found the first defendant liable to pay damages to the plaintiff. They advised the court that they had agreed that the quantum of damages be the amount of US$22,000=.

The plaintiff is a school teacher at a primary school in Harare. She produced her payslip…,. She multitasks as a cross border trader and conducts extra lessons and organizes roundtables with other women to augment her salary. She moved out of the matrimonial house in January 2010 and rented a smaller one in order to benefit from the rental differentials between the two properties. She rents out the matrimonial property for US$1,000= and rents a much smaller property for US$400=.

She was cross examined.

She revealed that the construction company was a registered private company. Her husband was the driving force behind it. She was a co-director and secretary of the company. It folded on his demise. She did not have any documentation to show the levels of income and expenditure of the company. She averred that her in-laws forcibly dispossessed her of the company documents on the demise of her husband. Her husband earned a salary from the company but she could not recall the amount. During his lifetime, he only sold the three houses whose Agreements she produced. The proceeds were used to support the family and to purchase farming equipment. These were repossessed by her mother-in-law. She did not have documents to indicate the viability of the farming activities. She believed her standard of living testified to the high net worth of her late husband.

The poultry venture was viable as he used to sell 400 birds every month. She indicated that the present cost of rearing a bird was US$2=50 and she sold each bird at US$5=00. She has continued to rear 200 birds at her new home. She sells about 150 birds every month and earns a profit of US$375= every month.

She had a car which was fuelled and serviced by the construction company. The daily home expenses were all charged to the company. She needed US$500= every year to maintain the matrimonial home. She acknowledged her failure to produce evidence on the full extent of her husband's annual income during his lifetime.

The Law

The law on the computation of damages is set out in a plethora of cases and in both ancient and modern textbooks. I was referred to some of the cases and textbook writers by both counsel.

Counsel for the plaintiff referred to the cases of Lebona v President Versekeringsmaatskappy Bpk 1991 (3) SA 395 (W); Nichols v Pearl General Ins Co & Anor 1994 (1) ZLR 193 (H); Hulley v Cox 1923 AD 234; Ebrahim v Pittman NO 1995 (1) ZLR 176 (H); Cattle Breeders Farm (Pvt) Ltd v Veldman 1974 (1) SA 169 (RAD).

Counsel for the defendants referred to The Quantum of Damages in Bodily and Fatal Injury Cases by CORBETT, BUCHANAN and GAUNTLETT 3^rd ed; Jameson's Minors' v Central South African Railways 1908 TS 575 and Hulley v Cox 1923 AD 234.

It is clear that where there is proof of loss of support, even in the face of inadequate evidence, the court is enjoined “to pluck a figure from the air”. See FIELDSEND CJ in Santam Ins Co Ltd v Paget (1) 1981 ZLR 73 (A) referred to in Rusike v Tenda Transport (Pvt) Ltd & Anor 1997 (1) ZLR 495 (HC)…,. In Minister of Defence & Anor v Jackson 1990 (2) ZLR 1 (S) GUBBAY JA…, confirmed…, that there are cases “where it was incumbent upon the trial court to 'pluck a figure out of the air' or 'plunge blindly into the unknown'.” The LEARNED JUDGE OF APPEAL proceeded…, to make “arbitrary” assessments. However, as was stated by BARTLETT J in Ebrahim v Pittman N.O.…, and by GILLESPIE J in Mavheya v Mutangiri & Ors 1997 (2) ZLR 462 (HC)…, and Venture Capital Co of Zimbabwe Ltd v Chirovero Investments (Pvt) Ltd 2000 (2) ZLR 30 (HC)…, judgment will be denied to a plaintiff who, through lack of diligence, fails to produce evidence that would have been available to him or her.

The total amount of loss of support that is arrived at may be subjected to two discounts. The first of these discounts caters for the capitalization rate of the award. This is often equivalent to the rate of interest that the plaintiff would earn on investing the award. In Minister of Defence & Anor v Jackson 1990 (2) ZLR 1 (S)…, it was pegged at 8%. At the moment the rate of interest, in Zimbabwe, differs from one financial institution to the other. Real interest on savings is in negative territory as it is often swallowed up by bank charges. In the present matter, no purpose would be served in discounting the judgment debt by the rate of interest that the plaintiff would earn were she to invest it.

The second discount caters for contingencies. The basis was set out in Minister of Defence & Anor v Jackson 1990 (2) ZLR 1 (S)…,. The point is, however, made in that case that the fortunes of life are not always adverse but may turn out to be favourable. In Minister of Defence & Anor v Jackson 1990 (2) ZLR 1 (S) the contingency allowance was set at 20%. This caters for errors in calculations, taxation and other unforeseen events such as weather disparities, the absence of inputs, the shortage of chicks, the outbreak of diseases that may have adversely impacted on the deceased's ability to farm and rear chickens had he lived.

Counsel for the plaintiff conceded, on the authority of Ebrahim v Pittman NO 1995 (1) ZLR 176 (H)…, that the failure by the plaintiff to adduce tax returns and substantial proof of earnings of the deceased was a material flaw in the plaintiff's claim. He, however, submitted that the plaintiff had led sufficient evidence upon which the court could assess her damages.

Counsel for the defendants conceded that sufficient evidence had been led by the plaintiff to establish the loss of support to the children for their educational requirements and upkeep (school fees, uniforms and food). The educational requirements for the children are set out in exhibit 4. She contended that the plaintiff had failed to prove that the cost of taking the children on holiday twice a year to the country's resorts in Kariba, Nyanga and Victoria Falls would be approximately US$3,000= a year.

I did not hear her challenge the plaintiff's assertion that the children used to go on such holidays when their father was alive. The plaintiff indicated that they would drive to and from and spend three nights at these resorts.

The plaintiff called one Israel Ukama to give evidence on the amount being sought as damages.

The witness told the court that he was employed as a Manager with Coppola Motors, a company involved in the purchase and sale of vehicles. The company has been involved in that business from its incorporation in 1999. He was referred to various invoices sent to the plaintiff by a number of companies, including his own, relating to prices of trucks available on the market. He confirmed that the Ford Ranger 1.8 was no longer in production and that it had been replaced by Ford Ranger 2.2 which had a bigger engine capacity. He said that the nearest vehicle to the Ford Ranger 1.8 was the Mazda BT50 or the Ford Ranger 2.2I single cab in terms of price and not engine capacity, although these last two had the same engine capacity. The Mazda, however, was a twin cab. He said that these were the cheapest vehicles on the market. He was unable to give the specifics of the vehicles or technical figures on the vehicles that he had quoted on and he said he could not as it had not been suggested to him that he would have to do so. His evidence was that the BT50 was being sold at US$18,000= and the Ford Ranger 2.2I at US$20,000=.

A plaintiff seeking payment of damages must prove his damages.

Where a plaintiff fails to prove his damages the court may grant absolution from the instance in favour of the defendant. However, where a plaintiff has led all the evidence it is within his power to adduce then the court must assess the damages based on the evidence placed before it as best as it can. The court can only consider this principle if the plaintiff shows that he has suffered some damages and that only the quantum remains in issue. See Bowman v Stanford 1950 (2) S.A. 210 (D). At pp222-3 SELKE J commented -

Quantum of Damages

In view of my findings on liability, it is obviously not necessary to consider the question of damages. Nevertheless, I think it instructive to point out that the plaintiff's claim for US$150,000= as damages appears to be ill-conceived for a variety of reasons. Apart from the sheer enormity of the sum in question, the specific headings and sub-headings under which this amount is claimed are entirely unclear.

On 16 June 2009, Godwin Dingwiza sought three quotations for similar batteries from three different companies. These were Easycount Battery Centre (US$4,350=); Divart Spares (US$4,100=); and Battery World (US$3,555=).

I agree with counsel for the plaintiff that Dr Neil Robin Deacon failed to show the nature of the loss suffered by the defendant.

While the plea referred to the US$170,000= as the loss of profits, I understood Dr Neil Robin Deacon to equate it with the total expenditure that the defendant would have incurred in the manufacture of pharmaceuticals had it not mothballed its operations. He did not lead any evidence on how he arrived at the estimated cost structure of the defendant's existing operations at the new premises. He simply plucked some figures from the air.

The assessment of compensation for breach of contract is a question of fact. The defendant failed to lay out the facts that would have established its loss.

Similarly, it is not possible for this court to award damages, which were not proved, to the applicant.

The applicant claims, in the alternative, the current value of 3,000 tonnes of molasses without leading evidence to support such claim. It was suggested, in argument, that such proof can be supplied to the court at a later stage. 

Loss of two cows:

The information is scant in the pleadings. All that can be gleaned is that two cows died during the period that the applicant was hospitalized. The applicant does not link the death with his absence from the farm in a meaningful way. It is not clear how his presence on the farm would have prevented the death of the cows. There is no casual link between the assault (and the resultant hospitalization) and the death/loss of the two cows.

Transport between West Nicholson and Bulawayo

There are serious flaws in this particular prayer. In the summons, there are three prayers for transport. It is easy if I quote therefrom:

“Wherefore plaintiff claims:

(a)(i) ….,.

(ii) ….,.

(iii) An equivalent of R15,000= being for transport.

(b) ….,.

(c) A sum equivalent to R4,000= for transport of plaintiff from Jonsyl Farm to Bulawayo.

(d) A sum equivalent to R2,000= being for transport to and from hospital….,.”

These expenses are not explained in the pleadings or the applicant's affidavit of evidence.

What can be discerned from his scant affidavit is that after the attack, his brother, Aarot Vellah, transported him from West Nicholson to Bulawayo and he is claiming R2,000= for that trip. There is no explanation for the R15,000= and R4,000= at all. This claim is, in essence, one for special damages.  Special damages are those damages which have already occurred and be precisely calculated at the date of the trial. These special damages (also known as extrinsic damage) usually mean damage which is not presumed to be the consequence of a damage–causing event and must be specially pleaded and proved – Shatz Investments (Pty) Ltd v Kalovyrnas 1976 (2) SA 545 (A)…., and Law of Damages – P. J. VISSER and J. M. POTGIETER…,.,; A Guide to the Zimbabwean Law of Delict G. FELTOE…,.; The Quantum of Damages (4^th Ed) by J. J. GAUNTLETT…, and Guardian National Insurance Co Ltd v Van Gool NO 1992 (4) SA 61 (A)….,.

The onus is upon the applicant to establish the special damages claimed by it – Caxton Ltd & Ors v Reeva Forman (Pty) Ltd & Anor 1990 (3) SA 547 (A)..,.

The fact that the applicant has failed to quantify, with precision, the transport damages, does not mean that his claim should be dismissed altogether.

In my view, this is the type of case where the court must do the best it can on the material available – Esso Standard SA (Pvt) Ltd v Katz 1981 (1) SA 964 (A)….,. In the nature of things, the court's assessment of the loss here cannot be more than a rough estimate – Caxton Ltd & Ors v Reeva Forman (Pty) Ltd & Anor 1990 (3) SA 547 (A)…., and Law of Damages Through the Cases – P. J. VISSER and J. M. POTGIETER….,.

The distance between Bulawayo and West Nicholson is about 180 kilometres. Soon after the assault, the applicant's brother transported him for this distance. It is unlikely that even during the days of hyper-inflation this trip would have cost as much as ZAR4,000=. Fuel, at that time, was about ZAR10= per litre and would unlikely have cost more than ZAR1,000= per trip - even for a tank of 100 litres. Unfortunately, all these important pointers of damages were not pleaded. The applicant was hospitalized for four (4) months and went back. It is not clear how many, if any, trips he undertook for review by the doctor in Bulawayo.

I would roughly estimate the travel expenses at ZAR5,000= for the initial transportation and subsequent visits for review.

It is accordingly ordered that judgment with costs be and is hereby granted in favour of the applicant (plaintiff) against the respondents (defendants) jointly and severally as follows:

1. General damages in the sum of ZAR50,000= and special damages in the sum of ZAR5,000= together with interest on these sums at the prescribed rate from the date of judgment to date of payment in full.

In both contract and delict the basic aim of an award of damages is to bring about, as far as possible, restitutio in integrum - see Livingstone v The Rawyards Coal Co. (1880) 5 A.C. 25…,;  and De Jager v Grunder 1964 (1) SA 446 (AD)…,.

Clearly, if the plaintiff is not awarded the full amount he paid in order to complete the contract, he will be out of pocket, and will, accordingly, not be restored to the position he would have occupied had there been no breach by the defendant. What this principle speaks to is the requirement that the damages be measured by the actual cost incurred by the plaintiff in order to complete the construction of the pre-cast wall after he ejected the defendant from the site. The issue therefore is whether the plaintiff has proved the cost to him to complete the project.

Unfortunately he has not.

All that the plaintiff has done is to produce and rely on quotations of what it might cost to redo the wall. What is required, however, is more. The plaintiff is expected, and required, to prove that he has since had to complete the project and that he had incurred a given extra cost attributable to the breach by the defendant.

The plaintiff conceded that what he had paid the defendant amounted to 75% of the actual cost to put up the structure. One must also give credit and make appropriate deductions for the posts left in situ by the defendant as depicted in exhibit 10. The plaintiff did not raise any complaint regarding the quality of these upright posts. What value to attach to these upright posts can only be a matter of rough estimation as both the defendant and the plaintiff did not provide sound mathematical basis to apply in arriving on the values thrown around during trial. At the end of the day it is difficult, on the evidence, to say that the plaintiff has, on a balance of probability, proved his case. I say this because I am of the firm view that exact and definitive values are capable of establishment. In all the circumstances, I am unable to say that the plaintiff's case has been proved.

It is trite that when damages are being claimed there must be a clear indication as regards the computation of such damages. A litigant desiring an award for damages must be able to prove such damages to the satisfaction of the court. Computation of damages must not be based on speculative evidence.

In this regard, and in a recent Supreme Court judgment, viz Mathew Mbundire v Tyrone Sim Buttress the court laid down numerous guidelines to be relied upon in the computation of damages. The import of this judgment is, among other things, aimed at discouraging casual presentation or casual assessment of evidence to do with damages in general.

In these proceedings, there was no attempt by the plaintiff to lay before the court the basis upon which he sought to recover $16,800= from the defendant. He dwelt on speculative evidence of a relative who is into vegetable production and attributed the source of the amount of the claim to her without calling her to testify. That is not the correct approach. Consequently, this claim cannot be upheld by the court.

In the final analysis, I grant the following order that:-

1. The third defendant be and is hereby ordered to complete the drilling of a 40 metre deep borehole at the plaintiff's plot within 30 days of the plaintiff giving it, through its representatives who appeared in court $1,000= in accordance with the Agreement as found by the court.

2. In the event of the third defendant failing to comply with part (1) of this order, the third defendant be and is hereby ordered to refund the current total cost of drilling a similar borehole within 60 days from the date of this order.

In addition, Geraldine Mountford relied on exhibit 2 to calculate the value, in United States dollars, of the equipment that was not returned.

Her calculations are captured on page 40 of exhibit 1. She arrived at the value of US$30,771=55 for all the missing equipment. Again, her arithmetic was accurate. It was her testimony that the defendant was informed of the change in the hire charge regime through the invoices that were dispatched to him.

2. The value of the outstanding equipment

Geraldine Mountford testified on the value of the outstanding equipment on behalf of the plaintiff. She outlined her computations and the basis for such computation. She calculated the value at US$30,771=55.

Counsel for the defendant conceded that he did not challenge the computation or the basis thereof. The values of the lost or damaged items were, in the contract of hire, predicated on the current full catalogue price list produced by the plaintiff. Geraldine Mountford produced such a catalogue price list of each of the equipment it hires out as at 1 February 2009 as exhibit 2.

I find that it correctly reflects the value of the outstanding equipment.

Counsel for the defendant also submitted that the plaintiff did not lead any evidence proving the defendant's liability. The same applies to the quantum of damages claimed.

The plaintiff further compounded his case by dismally failing to produce evidence to justify the amount of $150,000= in the form of damages.

It will be noted that when the plaintiff opened his case he indicated through his counsel that the evidence of Dr Lunga was not going to be relied upon as the doctor was not going to be called to testify. Despite this indication, the plaintiff continued to make reference to the letter written by the same doctor to try and justify some of the damages he was claiming.

The result of this patent confusion was that the plaintiff did not manage to put evidence before the court supporting his claim for nervous insomnia, loss of ability to engage in sport, sexual impotence, loss of general health and change of personality during his prosecution. In a suit for damages, these claims are not fanciful but must be supported by real evidence. Such evidence was not forthcoming.

I must say right away that the second defendant did not lead evidence to prove the counter-claim except for the half-hearted, if not extremely brief, testimony of the second defendant relating to the daily takings of the bus in question. Indeed, in his closing submissions, counsel for the first and second defendants stated that the second defendant was abandoning the counterclaim.

Therefore, nothing further should be said about the counter claim….,.

The last witness for the plaintiff was Hillary Simbarashe, one of the Directors of the plaintiff company, who testified on the repairs done to the vehicle after the accident and the loss of business suffered by the plaintiff.

He produced three (3) quotations from different panel beaters approached to repair the vehicle. Accident Panel beaters gave a quotation of US$12,017=50 while Normaz Auto Body & Repairs quoted US$9,490=. The cheapest quote was from Deven Engineering (Pvt) Ltd, the specialists who specially built the plaintiff's bus. They quoted US$4,324=.

The next issue relates to the quantum of damages.

It has been established that as a result of the collision the plaintiff's bus was damaged necessitating repairs which kept it off the road for fourteen (14) days.

As stated by the learned author P.Q.R BOBERG; The Law of Delict,Vol 1, Juta & Co Ltd…, -

“To succeed in the Aquilian action, the plaintiff must prove damnum - a  calculable pecuniary loss or diminution of his patrimony (estate) resulting from the defendant's unlawful and culpable conduct.”

According to BERMAN J in Aaron's Whale Rock Trust v Murray & Roberts Ltd & Anor 1992 (1) SA 652 (C)…, -

“Where damages can be assessed with exact mathematical precision, a plaintiff is expected to adduce sufficient evidence to meet this requirement.”

See also Ebrahim v Pittman N.O. 1995 (1) ZLR 176…, and Gavaza v Shumba & Anor HH268-12…,.

I have accepted the evidence of Hillary Simbarashe on the quantum of damages suffered by the plaintiff in repairing the vehicle after the accident. In my view, the plaintiff's claim under that rubric is very generous, indeed, considering that it opted to repair the vehicle on its own at less than what had been quoted by other service providers. I have also accepted Hillary Simbarashe's evidence on the quantification of the loss of business which is not only done with mathematical precision but is also generous in that the plaintiff averaged its daily loss premised on its usual daily takings and not on the maximum carrying capacity of the bus.

In that regard, the plaintiff must be commended for claiming the bare minimum of the damages claimable. I am therefore satisfied that the plaintiff has succeeded, on a balance of probabilities, in proving its claim for damages for repairs and loss of business.

In the result I make the following order, that:-

1.  Judgment be and is hereby granted to the plaintiff against the first and the second defendants jointly and severally, the one paying the other to be absolved in the sums of US$4,200= and US$5,140= being damages for vehicle repairs and loss of business respectively.

2.  Interest on both sums at the rate of 5% per annum of 18 July 2009 to date of payment.