TAMBUDZAI MAFUSIRE

versus

LEWIS GREYLING

and

ELGREY INVESTMENTS (PRIVATE) LIMITED

HIGH COURT OF ZIMBABWE

CHATUKUTA J

HARARE4, 5, 15 May, 16 July, 16 October 2009 & 28 July 2010

Civil Trial

H. Zhou &D. Gapare, for the plaintiff

 E. Jori,for the defendants

            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 1^stdefendant in that:

1. he attempted to overtake another vehicle in the face of the plaintiff’s vehicle;
2. he drove at an excessive speed; and
3. that he failed to take evasive action or act reasonably when an accident was imminent .

The defendants denied that the 1^stdefendant 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 11 am 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 1^stdefendant was driving a Toyota Hilux pick/up truck owned by the 2^nddefendant and was proceeding from Concession to Harare.  The 1^stdefendant was driving the truck during the course of his employment with the 2^nddefendant. 

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 1^stdefendant’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 1^stdefendant 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 1^stdefendant paid an admission of guilt fine of ZW$2 500.

Two main issues were referred to trial.  The first issue for determination is who between the plaintiff and the 1^stdefendant caused the accident.  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 1^stdefendant’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 1^stdefendant could not go back into his lane.  The 1^stdefendant 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 1^stdefendant 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 11 am 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 1^stdefendant’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 1^stdefendant’s vehicle when it was already overtaking the lorry.  However, it appears that she had seen the 1^stdefendant’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.

• 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 1^stdefendant 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 50 km/hr.  It is common cause that the skid marks were made from the time when she first saw the 1^stdefendant 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 1^stdefendant’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 1^stdefendant overtaking the lorry would have been reduced significantly to less than 30m if the 1^stdefendant 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 50 km/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 1^stdefendant’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 1^stdefendant had already been taken to hospital, the vehicles had not been moved.  The lorry which had occupied the 1^stdefendant’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 1^stdefendant’s vehicles.  The plaintiff’s skid marks measured 36 metres and the 1^stdefendant’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 1^stdefendant 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 1^stdefendant 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 1^stdefendant could not move back into his lane when he was overtaking because it was occupied by the lorry.  He however, maintained that the 1^stdefendant 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 1^stdefendant 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 30 km/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 1^stdefendant’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 1^stdefendant 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 1^stdefendant therefore also sought to minimize the speed that he was travelling at before impact.  The difference between the plaintiff’s and 1^stdefendant’s skid marks is only three metres.  Just like the plaintiff, the 1^stdefendant was also driving at a very high speed.

In fact, the statement by the 1^stdefendant 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 1^stdefendant that he was stationary cannot therefore be true.  I therefore find that the 1^stdefendant was travelling at an equally high speed under the circumstances.

The first witness who was called by the 1^stdefendant 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 1^stdefendant’s vehicle coming from the direction of Mvurwi towards Harare.  The 1^stdefendant’s vehicle went off the road towards the right side and stopped.  The plaintiff’s vehicle skidded off the road and crushed into the 1^stdefendant’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 1^stdefendant was stationary at the point of impact to be true in view of the 1^stdefendant’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 1^stdefendant were travelling at an excessive speed in the circumstances.
2. The lorry that was blocking the 1^stdefendant’s lane was stationary at the relevant time.
3. Both parties were in motion on impact.

Contributory negligence

The 1^stdefendant 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 1^stdefendant was the sole cause of the accident.

The onus to prove contributory negligence on a balance of probabilities lies with the 1^stdefendant.  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 1^stdefendant 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 1^stdefendant 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 1^stdefendant 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 1^stdefendant’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:

1. Hospital, x-rays and other related expenses;
2. Orthopaedic surgeon’s costs;
3. Charges for towing the damaged motor vehicle;
4. Costs of replacing spectacles; and
5. And value of the groceries lost in the accident.

She however persisted with her claim of:

1. US$10 000 in respect of damages for pain, shock, suffering and loss of amenities;
2. US$5 000 in respect of future medical expenses; and
3. 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:

1. USD 40 000 for pain and suffering and loss of amenities,;
2. USD 1 000 for future medical expenses; and
3. USD 4 000, being the pre-accident value of 2^ndDefendant’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 c Cloete 1982 (1) SA 734 (A).   The cases are equally helpful in determining the damages due to the 1^stdefendant.

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 7½% for the knee joint, 7½% for the ankle joint and 5% for permanent scars giving a total disability of 20%.    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 % for the knee and ankle joints.  They however disputed the 5 % awarded for a scar on the knee.  I am persuaded by the submissions by the defendants to discount the 5% 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% were arrived at based on the Workmen’s Compensation Schedule, the 5% 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 1^stdefendant’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% 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 1^stdefendant sustained a neck injury, fractured ribs, fracture of the right talus, fracture of the right 5^thmetacarpal 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 1^stdefendant 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 1^stdefendant would required mild pain killers.  However, in the long terms he would require stronger ones.  The 1^stdefendant 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%.

The 1^stDefendant submitted that his own damages would be proportional to those awarded to the plaintiff.  He  submitted that the award of US$10 000 for the plaintiff was excessive given that the plaintiff had suffered 15%  disability and he had suggested that the plaintiff be awarded US$ 500. 

The plaintiff did not challenge Dr Vera’s assessment of the 1^stdefendant’s degree of disability or that the 1^stdefendant has endured pain and suffering and loss of amenities.  Ms Gapare urged me to make a determination on the extent of the 1^stdefendant’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.  Firstly, I am not a medical expert and do not have the competence to make that assessment.  Secondly, as already indicated, the plaintiff did not meaningfully challenge the orthopaedic surgeon who attended to the 1^stdefendant 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 1^stdefendant sustained.

It appears to me, for the same reasons that I have advanced in respect of the plaintiff’s claim, that the 1^stdefendant’s counter-claim for damages in the sum of US$40 000 is excessive.  In the result, I award the 1^stdefendant 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$10 000 consisting of:- surgeon fees US$ 1 500, anaesthetist  US$800, prosthesis US$2 000, assistant’s fee US$150 hospital fees about US$5 000. The defendants did not dispute that the plaintiff had suffered 15% 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 1^stdefendant 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 1^stdefendant’s claim for future expenses.  I therefore take it that the 1^stdefendant’s entitlement to this damages and the quantum thereof are not challenged.  I am therefore satisfied that the 1^stdefendant 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 HH-80-04, Monica Komichi v David Edwin Tanner & Anor HH 104/05, Edward Marume & Anor v Todd Muranganwa HH 27/07 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 Gapareconceded 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 2^nddefendant’s original counter-claim for the pre-accident value of its vehicle was Z$1 billion.  It led evidence from the 1^stdefendant 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 2^nddefendant were in local currency.  In light of the cases already cited, it therefore follows that the 2^nddefendant 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% of her costs and the 1^stdefendant 40% 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%.  She is therefore entitled to 60% 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% he is entitled to 40% 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% of the plaintiff’s costs.

1^stand 2^ndDefendants’ counter claim

1.   The plaintiff be and is hereby ordered to pay the 1^stdefendant 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 2^nddefendant’s counter-claim for damages being the pre-accident value of the 2^nddefendant’s vehicle.

            3.   The plaintiff shall bear 40% of the defendants’ costs.

Scanlan & Holderness, plaintiff’s legal practitioners

Wintertons, defendant’s legal practitioners