CHATUKUTA J: The
plaintiff issued summons claiming damages arising from a motor
vehicle accident which occurred on 18 May 2007. The plaintiff's
claim is founded on allegations that the accident was solely due to
the negligence of the 1st
defendant in that:
(a) he attempted to overtake another vehicle in the face of the
plaintiff's vehicle;
(b) he drove at an excessive speed; and
(c) that he failed to take evasive action or act reasonably when an
accident was imminent.
The defendants
denied that the 1st
defendant was negligent.
They pleaded that the plaintiff was driving at an excessive speed in
the circumstances and failed to take evasive action to avoid the
accident when it was imminent. The defendants pleaded in the
alternative that there was contributory negligence on the part of the
plaintiff.
The defendants filed a counter-claim also claming damages arising
from the accident.
The following facts are common cause.
The collision
between the parties' motor vehicles occurred at approximately 11am
on 18 May 2007 on the 11km peg along the Mazowe-Mvurwi road. The
plaintiff was driving a Mazda 929 and was proceeding from Harare to
Concession. The 1st
defendant was driving a Toyota Hilux pick/up truck owned by the 2nd
defendant and was proceeding from Concession to Harare.
The 1st
defendant was driving the truck during the course of his employment
with the 2nd
defendant.
The description and topography of the scene of accident was that
there was a blind rise at the scene and an embankment on either side
of the road. There was tall grass on the verge of both sides of the
road. There was a railway crossing in the direction from Harare just
before the scene of the accident and a curve just after the railway
crossing.
At the time
when the accident occurred, there was a lorry in the 1st
defendant's lane. The point of impact was on the outer edge of the
plaintiff's side of the road. Upon impact, the plaintiff's
vehicle veered to the incorrect lane and hit into the lorry. The
defendant's vehicle landed in the embankment. The plaintiff applied
brakes before impact resulting in skid marks extending for 36 metre.
The 1st
defendant also applied brakes resulting in skid marks extending for
33 metre. Both parties sustained severe injuries requiring their
hospitalization for some days. Their vehicles were extensively
damaged.
On 25 June
2007, the 1st
defendant paid an admission of guilt fine of ZW$2,500.
Two main issues were referred to trial.
(i) The first
issue for determination is who between the plaintiff and the 1st
defendant caused the accident.
(ii) The second issue relates to the quantum of damages due and
payable by the party found at fault.
Liability
The plaintiff testified in her evidence-in-chief that on 18 May 2007
she left Harare for Concession where she was going to collect her
daughter from Barwick School, 100km from Harare. When she came to the
railway crossing she stopped and only proceeded after she satisfied
herself that it was safe to do so. She suddenly noticed a large lorry
in the other lane travelling slowly in the opposite direction.
She was, at this stage, travelling at about 50km/hr.
At about the
same time she observed the 1st
defendant's vehicle in her lane coming from the opposite direction
overtaking the lorry. The vehicle was between 20 and 30 metres away.
The speed of the other vehicle was such that the 1st
defendant could not go back into his lane. The 1st
defendant must have been travelling at about 60km/hr. She had not
been able to see the vehicle earlier because of the tall grass on the
verge of the road. When she realized that an accident was imminent,
she applied brakes fully and at the same time moved to the extreme
left in the hope that the other vehicle would be able to pass between
her vehicle and the lorry. The other vehicle however moved to its
extreme right in the same direction she was moving resulting in the
collision. The collision occurred at the far edge of the road.
It was her
evidence that the 1st
defendant caused the accident in that he encroached into her lane as
he was overtaking the lorry. He was also travelling at an excessive
speed and failed to avoid an accident when it seemed imminent.
Under cross examination, the plaintiff contradicted her
evidence-in-chief and her summary of evidence.
Although in her evidence-in-chief she had said she was going to
Barwick School to collect her daughter, she had difficulties in
explaining why in her summary of evidence she had stated that she was
going to attend a parents meeting. She stated that she left Harare at
around 10am because the meeting was at 11am yet in the summary of
evidence she had stated that she left home at 8.30am.
Her explanation for the contradiction was that she had left her home
at 8.30am to buy groceries first for use in Harare but left Harare
for the school at around 10am. However, this explanation does not
appear in the summary of evidence.
In the summary of evidence she stated that because she left at 8.30am
for an 11am meeting, she was not in a hurry and was travelling at a
safe speed of 90km/hr.
The accident occurred at about 11am and about 50km from the school.
If she were to abide by her summary of evidence it would have meant
that despite travelling at 90mk/hr, she had only travelled a distance
of 50km in two and a half hours. The fact that the time the
accident occurred is the time when the meeting was supposed to
commence at a place 50km away from the scene of accident clearly
indicates that she was already late for the meeting and discredited
her statement in the summary of evidence that she was not in a hurry.
It leads to the inescapable conclusion that she must in fact have
been in a hurry and was travelling at a faster speed than she
disclosed so as to be in time for the meeting.
The plaintiff
also gave contradictory evidence on whether or not the lorry in the
1st
defendant's lane was moving or stationary.
Although in her evidence in chief she had stated that the vehicle was
moving slowly, she changed her evidence under cross examination and
stated that she thought that she had seen it moving slowly but could
no longer recall whether or not it was stationary.
In her
evidence in chief she stated that she saw the 1st
defendant's vehicle when it was already overtaking the lorry.
However, it appears that she had seen the 1st
defendant's vehicle well before he had commenced to overtake the
lorry.
In her summary of evidence, she had stated as follows:
“3.5
Behind it (the lorry) the Plaintiff noticed some movement which,
whilst not very apparent, was incongruous to the movement of the
Mercedes Benz truck aforesaid.
3.6 In a flush, whilst the
Plaintiff was still trying to figure out the movement behind the
truck, and whilst she was still about 30 or so metres away from it,
The First Defendant's vehicle zoomed into her lane of travel, and
like a missile, shot at her vehicle.”
In answer to the question under cross examination on whether or not
she saw the defendant's vehicle behind the lorry she stated:
“that
is why I said I saw some movement, maybe the tyres under the lorry”.
It appears
that she therefore contradicted herself that she first saw the 1st
defendant when he was already overtaking the lorry. She again could
not satisfactorily explain the contradiction.
There is a presumption that events are clearer nearer to the date of
accident.
The fact that there were major shifts in the plaintiff's oral
evidence and her summary of evidence raised the suspicion that her
oral testimony had been altered to cover up for the loopholes that
were in her summary of evidence. This in my view tainted her
credibility.
The plaintiff also had difficulties in justifying the 36 metres skid
marks if she had been travelling at between 40 to 50km/hr.
It is common
cause that the skid marks were made from the time when she first saw
the 1st
defendant to the point of impact.
She had just
left a railway crossing where she testified that she had come to a
stop. She was gathering speed when she saw the 1st
defendant's vehicle about 20 to 30m away. Her vehicle was moving
at 40-50km/hr. The two vehicles were approaching each other. The 20
to 30m distance from the first time she first saw the 1st
defendant overtaking the lorry would have been reduced significantly
to less than 30m if the 1st
defendant was travelling at the speed she estimated to be 65km/hr.
The skid marks would therefore have been certainly less than 36
meters.
The plaintiff failed again to explain how she caused the 36metre skid
marks over a distance of less than 30 metres.
If I were to
believe that she was travelling at 40 to 50km/hr and had reduced her
speed further when she applied her brakes over a distance of 36
metres, the plaintiff could not explain how, upon impact, her vehicle
pushed the 1st
defendant's vehicle down an embankment.
The only inference to be drawn from these factors is that she was
travelling at a high speed.
Arising from the above contradictions, I am of the view that the
plaintiff was not a truthful witness. She sought to underplay the
speed she was travelling at.
She had just come from a railway crossing and was going up a blind
rise with tall grass on the verge obscuring her vision. She had seen
a movement behind the lorry and yet did not reduce her speed at that
stage despite her limited vision.
It is therefore my finding that she was travelling at a high speed
under the circumstances.
The second witness was Sergeant Fanizo Felix. He was the
investigating officer.
He testified
that he arrived at the scene of the accident about half an hour after
the accident had occurred. Although the plaintiff and the 1st
defendant had already been taken to hospital, the vehicles had not
been moved.
The lorry
which had occupied the 1st
defendant's lane had been moved some distance away from the scene.
He observed two sets of skid marks made by the plaintiff's and the
1st
defendant's vehicles. The plaintiff's skid marks measured 36
metres and the 1st
defendant's 33 metres.
He was advised by the witnesses who had observed the accident that
the lorry had been stationary.
The witnesses
indicated that the plaintiff had been speeding and he formed the same
view because of the long skid marks. He however was of the view that
the 1st
defendant had also been speeding and was the proximate cause of
accident as he did not exercise due caution when he overtook the
stationary lorry and that the accident occurred in the plaintiff's
lane.
The 1st
defendant approached him stating that he wanted to pay a fine which
he freely did on 25 June 2007.
The witness was not shaken under cross examination.
He conceded
that the 1st
defendant could not move back into his lane when he was overtaking
because it was occupied by the lorry. He however, maintained that the
1st
defendant should have proceeded when it was safe to do so.
The evidence of this witness contradicts the plaintiff's evidence
that she was travelling at a safe speed. It further contradicts the
plaintiff's evidence that the lorry was in motion. This witness
attended the scene soon after the accident before any of the
witnesses had been influenced by any of the parties to testify in
their favour. In fact the parties had been incapacitated and taken to
hospital when he attended the scene of accident.
I therefore do not have a basis for disbelieving his evidence.
The 1st
defendant denied liability in the main and pleaded in the alternative
that the plaintiff contributed to the collision.
He testified that he joined the main road from a side road at about
400m from the point of impact. He was travelling at a speed of
65km/hr. As he approached the scene of accident and at the start of a
curve, he observed a stationary lorry occupying the entire left lane.
He reduced speed and engaged the third gear. He moved slightly into
the right lane in order to see if the lane was clear so that he would
pass the lorry safely. He did not see any vehicle approaching from
the other direction. He had reduced the speed of his vehicle to 20 to
30km/hr. He increased when he started to pass the lorry.
As he was now passing the lorry he observed an oncoming vehicle.
The vehicle was travelling at a very high speed straddling the centre
line and therefore encroaching into his lane. He could not move back
into his lane as he was now passing the lorry. He applied brakes and
at the same time moved to the extreme right side of the road and
pulled off the road intending to give way to the oncoming vehicle to
pass between him and the lorry. He could not move any further off the
road because there was an embankment on his right hand side.
The plaintiff moved back to her lane at the same time as he moved to
the extreme right and applied her brakes. The plaintiff's vehicle
skidded out of control towards where he had stopped his vehicle. The
two vehicles collided on the verge of the road, off the plaintiff's
lane. As a result of the impact his vehicle was pushed for about five
meters backwards and landed in the embankment.
Two days after he was discharged from hospital, following the
accident, he was invited to Mazowe Traffic Police to give his
statement. He stated that when he first wrote the statement he did
not include the distance that he was travelling at when the accident
occurred. He inserted the speed of 65km/hr upon inquiry by the
police. He had intended to insert it as the speed that he was
travelling at when he first saw the lorry. He attributed the error to
the trauma he was going through and the sedation he was under.
He admitted to paying an admission of guilt fine on the advice of
Sergeant Fanizo. He was told that if he went to court and was
convicted he would pay a heavy fine and lose his driver's licence.
Sergeant Fanizo advised him that it was better for him to admit that
he was driving without due care and pay a nominal fine than go
through the inconvenience of a trial.
He confirmed that he gave a statement to the police at the scene of
the accident when he went to make indications.
He testified that after he had paid the admission of guilt fine, he
visited his lawyers on a different issue. He explained to his lawyer
about the accident. Upon advice, he then realized the implications of
his admission of guilt. He then deposed to an affidavit and gave it
to Mazowe Traffic Police section seeking to change his plea.
There were
contradictions in the 1st
defendant's evidence which became apparent under cross examination.
Whilst in the Traffic Accident Book (TAB) he stated that he was
overtaking the lorry at a speed of 65km/hr, in his oral evidence he
sought to reduce the speed to 20-30km/hr. In the TAB he stated that
the speed would have been 20-30km/hr at the point of collision yet in
evidence he stated that he was stationary.
The 1st
defendant could not have been travelling at a speed of 20 to 30km/kh
as he had increased speed when he commenced overtaking the lorry.
The skid marks that were observed by Sergeant Fanizo extending for
some 33 metres were not consistent with a vehicle that was travelling
at a speed of between 20 and 30km/hr.
The 1st
defendant therefore also sought to minimize the speed that he was
travelling at before impact.
The difference
between the plaintiff's and 1st
defendant's skid marks is only three metres. Just like the
plaintiff, the 1st
defendant was also driving at a very high speed.
In fact, the
statement by the 1st
defendant in the TAB that he was travelling at a speed of 20-30km/hr
at the point of impact contradicts his evidence-in-chief that the
impact occurred after he had stopped.
The fact that
he was still in motion is consistent with the plaintiff's evidence
and the indications by Sergeant Fanizo of the point of impact on the
road. The averments by the 1st
defendant that he was stationary cannot therefore be true.
I therefore
find that the 1st
defendant was travelling at an equally high speed under the
circumstances.
The first
witness who was called by the 1st
defendant was Tongai Mutapanyama.
He testified
that on the day in question, he was in the company of his friend
Maxwell Munyanga. They were walking in the direction of Harare. They
passed a stationary Mercedes Benz lorry which has stopped in the lane
facing Harare. He observed the plaintiff's vehicle proceeding from
Harare towards Mvurwi. The vehicle was travelling at a very high
speed. He commented on the speed and that it was being driven by a
woman. He then heard the screeching of brakes and observed the 1st
defendant's vehicle coming from the direction of Mvurwi towards
Harare. The 1st
defendant's vehicle went off the road towards the right side and
stopped. The plaintiff's vehicle skidded off the road and crushed
into the 1st
defendant's truck. Upon impact, the plaintiff's vehicle veered
towards the lorry and hit it and then landed in the ditch. When the
police arrived, the lorry had been moved because it was blocking free
flow of traffic.
Under cross examination, Tongai estimated that the plaintiff was
travelling at the maximum speed the vehicle could go. He denied
indicating to the police that the vehicle was travelling at 140km/h
as contained in his statement to the police. He assumed that the
police recorded that speed because he had stated that the vehicle was
going “at its fastest speed”. He testified that the lorry had
stopped nearer the centre line.
The second witness was Maxwell Muyanga. His evidence was
substantially the same as Tongai's evidence.
The plaintiff submitted that the two defence witnesses could not be
believed as there was evidence that they discussed their evidence
before the trial. The plaintiff did not elaborate the basis for the
alleged connivance.
The witnesses
appeared to me to be very simple, unsophisticated and candid. I
believed their evidence when they testified that they could not have
been able to estimate the exact speed the plaintiff was going at
other than indicate that she was travelling at a very fast speed
because of their simplicity. However, I do not find their evidence
that the 1st
defendant was stationary at the point of impact to be true in view of
the 1st
defendant's own admission in the TAB that his vehicle was still in
motion on impact.
Upon examination of the totality of the evidence in both the
plaintiff's and defendant's cases I make the following findings:
1. Both the
plaintiff and the 1st
defendant were travelling at an excessive speed in the circumstances.
2. The lorry
that was blocking the 1st
defendant's lane was stationary at the relevant time.
3. Both
parties were in motion on impact.
Contributory negligence
The 1st
defendant submitted that there was contributory negligence by both
motorists and that the provisions of the Damages
(Apportionment and Assessment) Act
(Cap
8:06)
ought to be applied.
The stance
taken by the plaintiff, as has already been noted above, is that she
was not to blame at all for the collision and that the 1st
defendant was the sole cause of the accident.
The onus to
prove contributory negligence on a balance of probabilities lies with
the 1st
defendant.
It is common
cause that the collision occurred on the extreme left side of the
plaintiff's lane. The parties were in agreement that the general
rule of the road requires a driver to keep to the left side of his or
her lane of travel. (See Klompas
N.O v Potgieter
1912 TPD 863 at 867, Gains
Golden Grain Bakeries, Ltd v Gouws
1929 TPD 137 and South
African Motor Law,
Cooper and Bamford, 1965, at p 512).
However, as
submitted by Mr
Jori,
the rule is not absolute. Mr
Zhou,
was quite selective when he quoted Klompas
N.O v Potgieter
and omitted the proposition that the rule of the road is not
absolute.
WESSELS J observed at 868:
“But
there is no obligation on a person who is riding or driving along a
road to ride through all the ruts and other inequalities on the left
of the road. He is at liberty to avoid such obstacles. If he can find
a better part of the road, he is entitled to ride on that part of the
road, especially when riding or driving in the country. But, then he
must use more care than when he is on his own side of the road.
If there is a vehicle in the
way, and he wishes to pass it, then whether the road on his left is
rutty or not he must keep to his left.
The law with regard to this is
laid down in two old and well-known cases.
In
Pluckwell
vs Wilson
(5 Carr. and P. 375) the following proposition is stated:
'A
person driving a carriage is not bound to keep on the regular side of
the road; but, if he does not, he must use more care, and keep a
better look-out, to avoid collusion, than would be necessary if he
were on the proper part of the road.'
In
Chaplin
vs Hawes and Others
(3 Carr. and P.554), the law is stated as follows: 'Though the rule
of the road is not to be adhered to, if by departing from it an
injury can be avoided, yet in cases where parties meet on
the sudden,
and an injury results, the party on the wrong side should be held
answerable, unless it appears clearly that the other party on the
right had ample means and opportunity to prevent it.'
Cooper and
Bamford, supra,
also states at 513 that:
'When
a vehicle is driven on the incorrect side of the road the driver must
exercise greater care and take every precaution to avoid colliding
with vehicles approaching him: he must recognize that persons
travelling on the correct side of the road have a paramount right and
are entitled to preference in the use of the road so that if any
danger of collision arises, it is his duty first to give way.
Every driver must swing to his
left as far, and as quickly, as possible in the face of approaching
vehicles and the failure to do may be negligence.
If
a collision occurs between two vehicles travelling in opposite
directions along the same road when the defendant's vehicle is on
the incorrect side of the road, the fact that it is on the incorrect
side of the road is, as a general rule, prima facie evidence of
negligence. When a plaintiff proves that the defendant's vehicle
for no apparent reason suddenly swerved on to its incorrect side of
the road an inference of negligence could, in the absence of an
explanation be drawn against the defendant - res
ipos loquitur.
The defendant is then required
to produce evidence sufficient to displace the inference of
negligence which arises from the fact that he was on the wrong side
of the road.
If he fails to do so, the
prima facie evidence becomes sufficient to discharge the onus which
rests on the plaintiff. But if the defendant gives an explanation the
plaintiff can succeed only if at the conclusion of the case and on
the evidence as a whole there is a balance of probabilities in his
favour that the defendant was negligent.'”
The rule of the road is therefore not absolute.
A defendant must establish that he had a reason for deviating from
the correct side of the road and that he or she exercised greater due
care than ordinarily exercised by a driver on his or her correct side
of the road.
Although the fact that the collision occurred on the wrong side would
be prima facie evidence of liability of the person on the wrong side
of the road, the presumption can however, be rebutted if the
defendant can show that the other party contributed to the accident.
Turning back
to the case at hand, I have already made a finding that the defendant
was avoiding a stationary lorry in his lane when the accident
occurred on his incorrect side of the road. However, given the
obstruction, and the terrain causing limited visibility, the 1st
defendant ought to have exercised greater caution and travelled at a
safe speed. The skid marks clearly indicate the excessive speed that
he was travelling at when he overtook the stationary lorry.
On the other
hand, the plaintiff, upon seeing movement behind the stationary
lorry, and because of the same challenges posed to the 1st
defendant by the terrain should also have exercised caution, by
reducing her speed. She failed to do so. She had just crossed a
railway crossing and her speed should therefore have been greatly
reduced.
Counsel for
both the plaintiff and the 1st
defendant conceded that the skid marks caused by both parties
suggested that they were travelling at almost the same speed.
If that is so, then both parties cannot escape the conclusion that
they were both travelling at excessive speeds under the
circumstances. Both were therefore negligent and failed to avoid the
accident when it was imminent.
I am however
of the view that, given the fact that the accident occurred on the
1st
defendant's incorrect lane, he bears the greater degree of fault.
Therefore, I have come to the conclusion that the plaintiff's
contribution to the accident was 40% and the first defendant's 60%.
Damages
The next issue for determination revolves on the measure of damages,
if any, that are due to each party.
The plaintiff abandoned her claim for the following damages:
(a) Hospital,
x-rays and other related expenses;
(b)
Orthopaedic surgeon's costs;
(c) Charges
for towing the damaged motor vehicle;
(d) Costs of
replacing spectacles; and
(e) And value
of the groceries lost in the accident.
She however persisted with her claim of:
(a) US$10,000
in respect of damages for pain, shock, suffering and loss of
amenities;
(b) US$5,000
in respect of future medical expenses; and
(c) US$9,000
being the pre-accident value of the motor vehicle.
The defendant abandoned his counter-claim for special damages.
He persisted with the following counter-claim:
(a) USD40,000
for pain and suffering and loss of amenities;
(b) USD1,000
for future medical expenses; and
(c) USD4,000,
being the pre-accident value of 2nd
Defendant's vehicle.
Damages for pain and suffering, disfigurement and loss of
amenities
The leading
case in our jurisdiction on damages is Minister
of Defence & Anor v Jackson 1990
(2) ZLR 1 (SC).
As was stated in that case, general damages for personal injuries are
not, and will never be, a penalty. They are compensation intended to
place the injured in the position he would have occupied had the
wrongful act causing his or her injury not been committed.
In cases where
a litigant is seeking compensation for damages for pain, suffering,
disablement and disfigurement, comparable cases, when available,
should be used to afford some guidance to assist the Court in
arriving at an award which is not substantially out of accord with
previous awards in broadly similar cases, regard being had to all
factors which are considered to be relevant in the assessment of
general damage - see Protea
Assurance Co
v Lamb
1971 (1) SA 530 (AD).
The plaintiff
referred the court to the case of Reyneke
v Mutual & Federal Insurance Co. Ltd 1991
(3) SA 332 (W), AA
Onder Linge Assurancie Associasie Bpk v Sodoms
1980 (3) SA 134 (A) and Ned-Equity
Insurance Co. Ltd v Cloete 1982
(1) SA 734 (A).
The cases are
equally helpful in determining the damages due to the 1st
defendant.
Whilst these cases may be useful for comparative analysis, each case
must be decided on its peculiar set of facts.
In the Reyneke
v Mutual & Federal Insurance Co. Ltd,
the plaintiff was awarded damages for pain and suffering and loss of
amenities in the total sum of ZAR56,000 for 100% disability. In that
case, the plaintiff was reduced by the accident to a permanent
vegetative state. She was blind, mute and deaf with no prognosis of
recovery. She had to be fed through a nasal gastric tube, her urine
being drained through an indwelling catheter.
In Onder
Linge Assurancie Associasi Bpk v Sodoms
the plaintiff was awarded ZAR6,000 for general damages arising from
an accident in which he lost the sight of one eye.
In Ned-Equity
Insurance Co. Ltd v Cloete
the plaintiff was awarded damages for pain and suffering and loss of
amenities in the sum of ZAR6,000.
Plaintiff's claim
It is not in issue that the plaintiff sustained serious injury to the
knee and ankle requiring surgery. She was hospitalized at Westend
Hospital for four days and received treatment during that period. She
was attended to by Dr Owen Senzai Makoni, an orthopaedic surgeon. She
sustained an open dislocation of the left patellar with abrasions on
the patellar femoral cartilage. The right knee was bruised together
with the left side of the neck and chest. The surgeon attended to
these injuries in theatre.
On 19 August 2007, the surgeon compiled a report which he produced in
court.
He concluded
that the plaintiff had a nasty permanent scar on the left knee and
would develop secondary to post traumatic osteo-arthritis of the left
knee and ankle joints and would require a total knee replacement in
the future. He assessed her permanent disability at 7 and a half
percent for the knee joint, 7 and a half percent for the ankle joint
and 5 percent for permanent scars giving a total disability of 20
percent. He concluded that that the plaintiff would have endured
severe pain soon after the accident but the pain would subside with
time.
The plaintiff testified that she still experienced pain on the left
knee when climbing stairs or walking for considerable distances. She
can no longer do some of the household chores she used to do and can
no longer kneel or jog. At the time of the accident she had abandoned
formal employment as an accountant was into horticulture. Although
she had workers who did the work, she used to move around her plot
supervising their work. She can no longer move around with ease and
this has forced her to return to formal employment as an accountant.
The defendants
accepted the plaintiff's degree of permanent disability of 15
percent for the knee and ankle joints. They however disputed the 5
percent awarded for a scar on the knee.
I am persuaded
by the submissions by the defendants to discount the 5 percent
disability. Dr Makoni was unable to justify how he arrived at that
degree of disability. He conceded that whilst the other degrees of
disability totalling 15 percent were arrived at based on the
Workmen's Compensation Schedule, the 5 percent was not. In his
opinion, the assessment was justified because it disfigured the
plaintiff in that she could no longer wear short skirts.
Plaintiff did not state in her evidence that the scar precluded her
from wearing short skirts. It is therefore not clear on what basis
the doctor arrived at his conclusion.
Further, I had
the benefit of the evidence of Dr Vera, the 1st
defendant's orthopaedic surgeon.
He confirmed Dr Makoni's evidence that scarification was not
classified as a disability under the Workmen Compensation Scheme. He
testified that a percentage would be awarded for scarification in
very special circumstances where the scarification can constitute a
set back in the achievement of one's profession. He gave the
example of a model. The other special circumstance was where the
scarification results in interference with motion of a joint in which
event the Workmen's Compensation Schedule gives a percentage of
what the scar does to movement of the joint as opposed to appearance.
In such a case the doctor would be considering how the disfigurement
contributes to disability or might give rise to pain and restricts or
affects motion.
The explanation by Dr Vera was very enlightening.
The plaintiff testified that she suffered severe pain soon after the
accident and required medication to control the pain. She now
occasionally suffers from weather pain but has not seen the need to
consult her doctor as the pain usually goes away on its own without
medication. Presently, her pain and suffering cannot therefore be
said to be severe. The last time that she visited her doctor for
medical attention in connection with the injuries was in November
2007. Her latest visit to the doctor, just before the trial commenced
was merely in the furtherance of the prosecution of her claim and not
for medical attention.
It appears to me, in view of the cases that the plaintiff referred me
to, the claim for pain and suffering and loss of amenities in the sum
of US10,000 is excessive.
As observed
earlier, in Reyneke
v Mutual & Federal Insurance Co. Ltd,
the plaintiff in that case was awarded damages for pain and suffering
and loss of amenities in the total sum of ZAR56,000 for 100%
disability. The plaintiff's disability is no where near the pain
and suffering and loss of amenities suffered by that plaintiff. If
one were to use the average exchange rate of the US dollar and rand
of about 1:7 (as cited in the November 2007 Reserve Bank Daily
Interbank Exchange Rate produced by the plaintiff or the estimate of
1:8 used by the defendants in their closing submissions), the award
in the Reyneke
case would come to about US$7,467 for a person reduced to a
vegetative state. The plaintiff is still pursuing her professional
career as an accountant despite her 15 percent disability which is
about a sixth of the disability in Reyneke
case.
I am cognisant of the fact that each case is determined on its own
merit and an award cannot be arrived at with mathematical precision.
I am inclined to award the plaintiff the sum of US$1,000 for pain and
suffering and loss of amenities.
Defendant's counter-claim
The 1st
defendant sustained a neck injury, fractured ribs, fracture of the
right talus, fracture of the right 5th
metacarpal base, blunt abdominal trauma.
He testified that he has developed a permanent limp and a permanent
flattened talus. He is a tobacco farmer and is thus required to
inspect his crops on foot and can no longer do so as he now finds it
difficult to walk because his tendons no longer supported his right
foot neither could he ride a motor bike. He was a sportsman but can
no longer run or swim because of the leg injury.
He testified that, like the plaintiff, the time he last visited his
doctor in connection with his injuries was in November 2007 (6 months
after the accident). At the time of hearing he was still in pain.
Dr George
Vera, an orthopaedic surgeon testified that he attended to the 1st
defendant after the accident. On 12 March 2008 he examined an x-ray
taken of the defendant's ankle and concluded that he required
further surgical attention. In the medium term the 1st
defendant would required mild pain killers. However, in the long
terms he would require stronger ones. The 1st
defendant would develop degenerative osteo-arthritis requiring
surgical relief. The doctor testified that the ankle is a weight
bearing joint and subject to high stresses. The injury to the ankle
was therefore serious. He assessed the defendant's permanent
disability to be 25 percent.
The 1st
Defendant submitted that his own damages would be proportional to
those awarded to the plaintiff. He submitted that the award of
US$10,000 for the plaintiff was excessive given that the plaintiff
had suffered 15 percent disability and he had suggested that the
plaintiff be awarded US$500.
The plaintiff
did not challenge Dr Vera's assessment of the 1st
defendant's degree of disability or that the 1st
defendant has endured pain and suffering and loss of amenities. Ms
Gapare
urged me to make a determination on the extent of the 1st
defendant's disability on the basis of my own observations in
court.
I do not believe that it is competent for me to do so for two
reasons.
(i) Firstly, I
am not a medical expert and do not have the competence to make that
assessment.
(ii) Secondly,
as already indicated, the plaintiff did not meaningfully challenge
the orthopaedic surgeon who attended to the 1st
defendant and is qualified to make the assessment.
The plaintiff
appeared in her closing submissions to be challenging the quantum of
damages as being inconsistent with the injuries that the 1st
defendant sustained.
It appears to
me, for the same reasons that I have advanced in respect of the
plaintiff's claim, that the 1st
defendant's counter-claim for damages in the sum of US$40,000 is
excessive. In the result, I award the 1st
defendant damages in the sum of US$1,500.
Future medical expenses
Plaintiff's claim
Dr Makoni testified that the knee replacement can be done locally and
would cost almost US$10,000 consisting of:-
(a) surgeon
fees US$1,500;
(b)
anaesthetist US$800;
(c) prosthesis
US$2,000;
(d)
assistant's fee US$150;
(e) hospital
fees about US$5,000.
The defendants
did not dispute that the plaintiff had suffered 15 percent permanent
disability.
Dr Makoni maintained in his evidence that the plaintiff would require
a knee replacement in the future as her condition would not improve
as cartilage does not naturally generate itself. The plaintiff
testified of the challenges that she now faces because of the injury
to her knee.
All this was not seriously challenged by the defendants.
Dr Makoni had estimated that the medical expenses would be in the
region of $10,000. The plaintiff claimed US$5,000. I am of the view
that the claim by the plaintiff is reasonable given Dr Makoni's
estimate.
Defendant's counter-claim
Dr Vera
explained that the amount of US$1,000 claimed by the 1st
defendant would only cover expenses such as consultation fees, x-rays
and pain relief medication in the short term. The surgeon confirmed
the need for future medical expenses but was not certain of the exact
nature of the future surgical relief.
The plaintiff
did not make any closing submissions regarding the 1st
defendant's claim for future expenses. I therefore take it that the
1st
defendant's entitlement to this damages and the quantum thereof are
not challenged.
I am therefore
satisfied that the 1st
defendant has established his counter-claim for future expenses in
the sum of US$1,000.
Damages for
Loss of Motor Vehicle
It is trite
that the measure of damages is the value of the motor vehicle at the
time of accident. (See Muzeya
NO
v Marais
& Anor
HH80-04, Monica
Komichi
v David Edwin Tanner & Anor
HH104/05, Edward
Marume & Anor v Todd Muranganwa HH27/07
and SA
Eagle Insurance Co Ltd v Hartley 1990 (4) SA 833 (A))
and Law
of Damages,
Visser & Potgieter at p75.)
The parties are agreed on this principle of the law.
Plaintiff's claim
The plaintiff testified that her motor vehicle was damaged beyond
repair. She produced photographs of the vehicle before and after the
accident.
When the vehicle was purchased in 1992, it was a second hand vehicle
but was in a good condition. She was not sure of the value of the
vehicle at the time of the accident. She did not know how the value
of Z$10 billion reflected in the summons before amendment had been
arrived at. She had later amended her claim to US$9,000 based on an
estimate by Amtec Motors. She however conceded under cross
examination that Z$10 billion was the replacement value of the
vehicle at the time when summons were issued. She conceded that she
did not obtain and did not know the pre-accident value of the
vehicle.
The plaintiff relied on Owen Mupambwa's evidence to establish her
damages.
Owen testified that he was employed by Amtec Motors as a sales
administrator and he had held that position for a year and therefore
his experience at valuation of motor vehicles was a mere one year.
However, his sole qualification was not in vehicle valuation but what
he termed Call Centre Management. This involved attending to client
queries. Before that, he had been an assistant systems administrator.
On 28 April 2009 he valued the plaintiff's vehicle at US$9,000 as
per the valuation he produced in court.
Ordinarily, he relies on various factors such as the bodywork, the
year of manufacture, interior of vehicle, the mileage and the
prevailing economic environment in arriving at the value of a
vehicle.
In the present case he only relied on the year of the manufacture of
the plaintiff's vehicle in arriving at the amount of US$9,000 as
the estimated value of the plaintiff's vehicle. The other factors
were not relied on because the vehicle had been extensively damaged.
Under cross examination, Owen was confused as to whether or not his
valuation of the vehicle was a pre-accident value or a replacement
value of the vehicle.
In one breath he testified that the estimate of US$9,000 was the
value of the vehicle before it was damaged. In the other breath, he
testified that the amount reflected the replacement value of the
vehicle.
He testified that the value of the vehicle may have been US$6,000 in
2007 and therefore the US$9,000 was the current value of the motor
vehicle.
He conceded that the year of manufacture would only assist depending
on how the owner of the car handled it. He had not seen the
plaintiff's vehicle before and had not accessed records of the
service of the vehicle as alleged by the plaintiff in her evidence.
He had no prior dealings involving a Mazda 929.
It is my view that the plaintiff failed to establish the value of her
vehicle at the time of accident.
Her expert witness, Owen turned out to be no expert at all with only
a year's experience in the sales department and had not dealt in
Mazda 929s before. His concessions that he failed to consider the
variables used in assessing the value of vehicles did not assist the
plaintiff. Therefore there was no basis for the valuation.
Ms Gapare
conceded in the closing submissions that the damages due to the
plaintiff were calculated at the time of accident. The damages that
the plaintiff originally claimed were in local currency. The
plaintiff did not justify its conversion of the damages into foreign
currency as they sought to do using the Interbank Exchange rate
prevailing in 2007. In the result the plaintiff cannot succeed and
will be granted absolution from the instance.
Defendant's counter-claim
The 2nd
defendant's original counter-claim for the pre-accident value of
its vehicle was Z$1billion. It led evidence from the 1st
defendant that the vehicle was 23 years old having been manufactured
in 1984. The defendants amended the counter-claim to US$4,000. The
basis for the amendment was that they had also converted the local
currency to foreign currency.
The defendant's counsel also conceded that the damages under this
heading are calculated as at the time of delict.
The concession was proper.
The damages
suffered by the 2nd
defendant were in local currency. In light of the cases already
cited, it therefore follows that the 2nd
defendant has not established its counter-claim for damages in
foreign currency.
Costs
Ordinarily
costs follow the cause. Both parties have had some measure of both
failure and success in their claims. I am of the view that it is fair
for plaintiff to be awarded 60 percent of her costs and the 1st
defendant 40 percent of his costs.
The award
I have
concluded that the plaintiff is entitled to damages for pain and
suffering in the sum of US$1,000 and US$5,000 for future medical
expenses. The total damages that she is entitled to is the sum of
US$6,000. I have also made the finding that her contribution to the
accident is 40 percent. She is therefore entitled to 60 percent of
the total of US$6,000. This translates to damages in the sum of
US$3,600.
The total
damages due to the defendant are in the sum of US$2,500, being
US$1,500 for pain and suffering and US$1,000 for future medical
expenses. After my finding that his contribution to the accident is
60 percent he is entitled to 40 percent of the total of US$2,500.
This translates to damages in the sum of US$1,000.
Accordingly, I hereby order as follows:
Plaintiff's claim
1. The defendants be and are hereby ordered to pay the plaintiff the
sum of US$3,600, jointly and severally, the one paying the other to
be absolved with interest at the prescribed rate, from the date of
service of summons to the date of payment.
2. Absolution from the instance be and is hereby granted in respect
of the plaintiff's claim for damages being the pre-accident value
of the plaintiff's vehicle.
3. The
defendants shall pay, jointly and severally, the one paying the other
to be absolved, 60 percent of the plaintiff's costs.
1st
and 2nd
Defendants' counter claim
1. The
plaintiff be and is hereby ordered to pay the 1st
defendant damages in the sum of US$1,000, with interest at the
prescribed rate, from the date of service of the counter-claim to the
date of payment.
2. Absolution
from the instance be and is hereby granted in respect of the 2nd
defendant's counter-claim for damages being the pre-accident value
of the 2nd
defendant's vehicle.
3. The
plaintiff shall bear 40 percent of the defendants' costs.
Scanlan & Holderness,
plaintiff's legal practitioners
Wintertons,
defendant's legal practitioners
