Jeremiah Mugadzaweta v The Co-Ministers of Home Affairs and 5 Others

### Preamble
1
HH439-2012
HC 2582-2010
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JEREMIAH MUGADZAWETA

versus

THE CO-MINISTERS OF HOME AFFAIRS

and

THE COMMISSIONER-GENERAL OF POLICE

and

THE OFFICER COMMANDING CRIMINAL INVESTIGATIONS DEPARTMENT,

KADOMA DISTRICT

and

DETECTIVE INSPECTOR DZAPFUNYA

and

DETECTIVE CONSTABLE SIBANDA

and

DETECTIVE CONSTABLE NYAMURINDIRE

HIGH COURT OF ZIMBABWE

ZHOU J

HARARE, 1 August and 20  November 2012

M. Mandevere for the plaintiff

No appearance for the defendants

ZHOU J:  This is an unopposed claim for general damages for an assault perpetrated upon the plaintiff at about midnight on 13 October 2009, by fourth, fifth and sixth defendants who are police officers. The plaintiff’s declaration merely narrates the events which or evidence of what occurred on the day in question rather than pleading the facts which constitute the cause of action. The declaration contains material which should be found in an affidavit rather than in a pleading. No wonder then that the affidavit of evidence filed in support of the quantum largely reproduces the contents of the declaration. Also, the summons and declaration limit the cause of action to “unlawful assault, pain, shock and suffering, disfigurement and loss of amenities of life”, even though the evidence pleaded reveals other causes such as unlawful arrest and detention. The time has come for the profession to seriously consider mandatory continuing professional development or legal education in order to complement the efforts of universities which are primarily centres for research. It is necessary for the profession to continue to refresh its knowledge on matters such as drafting pleadings and other court documents.

The facts upon which the claim is founded are as follows:

On 13	October 2009 the plaintiff was at a hotel in Kadoma known as the Grant Hotel. He was on his way to CARAX Mine where he had been contracted to provide security services.  He woke up as a result of noise on the door to his hotel room. The fourth, fifth and sixth defendants, together with other police officers entered the room and assaulted the plaintiff all over his body. They used open hands, booted feet, button sticks and other blunt objects in the assault. They then handcuffed him using his handcuffs. The assaults continued even after he had been handcuffed. He was subsequently detained at Kadoma Police Station.  Even as he was in the police station the police officers continued to assault the plaintiff.  During the assaults he was tortured by being forced to lie prostrate while the officers took turns to assault him. The plaintiff states that the police officers falsely accused him of illegal possession of a firearm.

As a consequence of the assault the plaintiff suffered some injuries as detailed in the medical report prepared by a doctor who examined him at Parirenyatwa Hospital on 17 October 2009.  The injuries are described as multiple petechial hemorhages on the buttocks and blisters, as well as chronic subdural hematoma. The plaintiff suffered partial disfigurement of the right buttock. The degree of shock, pain and suffering experienced by the plaintiff at the time of his hospitalisation is described as severe. The medical report reveals that there will be permanent scars on the plaintiff’s body as a result of the assault.  The doctor stated that at the time of the examination the plaintiff suffered from memory lapses, and that the problem of loss of memory was likely to continue. In his affidavit of evidence the plaintiff states that he suffers loss of memory as well as persistent headaches and loss of sleep. The loss of memory, according to the medical evidence, will limit the plaintiff’s participation in recreational activities. The plaintiff requires specialist monitoring by a neurosurgeon. The doctor stated that he was treated using analgesics.

The plaintiff initially claimed a sum of one hundred thousand United States dollars.  In his heads of argument he reduced the amount to seventy thousand dollars.  In the supplementary affidavit of evidence he proposed a lower figure of thirty thousand dollars.

Assessing general damages arising out of bodily injury is by no means an easy task.  The ominous task is not at all mitigated by the fact that the claim is unopposed, as the Court still has to be satisfied that the amount awarded is fair and reasonable in the circumstances.  That point is remarkably articulated by the Supreme Court in the celebrated case of Minister of Defence and another v Jackson 1990 (2) ZLR 1(S) at p. 7, in the following terms:

“It must be recognised that translating personal injuries into money is equating the incommensurable, money cannot replace a physical frame that has been permanently injured.  The task therefore of assessing damages for personal injury is one of the most perplexing a court has to discharge.”

In that case the Court set out eight general principles which the courts will take into account in assessing general damages.  Those principles have stood the test of time.  See Gwiriri v Highfield Bag (Pvt) Ltd 2010 (1) ZLR 160(H) at 172A-G.  They will guide the approach in the instant case.

The plaintiff claimed a global figure of one hundred thousand United States dollars, which was subsequently reduced to seventy thousand dollars and, eventually, to  thirty thousand dollars, in respect of what are essentially four heads.  These are pain and suffering, shock, disfigurement, and loss of amenities of life.  It is preferable to itemise the claims under the individual heads in order to assist the court, as they are distinct forms of loss.Visser&Potgieter’sLaw of Damages 2nd Ed, p. 99-102.  The plaintiff referred to the case of Nyandoro v Minister of Home Affairs and another HH 196-2010, in which an amount of US$5 000 was awarded for general damages.

Pain and suffering covers all pain, physical and mental suffering and discomfort occasioned by bodily injury, emotional shock, or the medical treatment to be given to the injured person.  Sandler v Wholesale Coal Suppliers Ltd 1941 AD 194 at 199;  Hoffa v SA Mutual Fire & General Insurance Co of SA Ltd 1965 (2) SA 944(C). The pain which is relevant is that actually suffered by the plaintiff and not what would be experienced by a reasonable person. The fact that the plaintiff is more or less sensitive than the dilgens paterfamilias is of no relevance in the assessment of the pain suffered. In the case of Gwiriri v Highfield Bag (Pvt) Ltd (supra) at p. 174B, the court awarded damages for pain and suffering in the sum of US$3 000, where the plaintiff’s hand had been trapped between machine rollers and was crushed by the rollers. The plaintiff in that case was hospitalised for more than three months. Unlike in that case, the injuries in this case were deliberately inflicted and included inflicting torture on the plaintiff. The injuries were inflicted all over the body, including in the head and buttocks. The doctor who treated the plaintiff describes the pain and suffering as severe. The plaintiff still experiences severe headaches as a result of the injuries.  Having regard to the principles in the case of Minister of Defence & another v Jackson (supra), it seems to me that a sum of five thousand United States dollars (US$5 000) would represent reasonable compensation for the excruciating pain and suffering which the plaintiff experienced.

Shock, particularly emotional shock, is closely associated with pain and suffering, albeit it may sometimes account for other forms of loss such as insomnia, anxiety neuroses, hysteria, depression or other mental or physical conditions which the law recognises as non-patrimonial loss. Potgieter describes emotional shock as “a sudden, painful emotion or fright resulting from the realisation or perception of an unwelcome or disturbing event which involves an unpleasant mental condition such as fear, anxiety or grief”. Visser & Potgieter’s Law of Damages, p. 100. The attack on the plaintiff involved instilling fear in him. The assailants forcibly entered into the hotel room and started to assault him without introducing themselves. The assaults were indiscriminate. The medical evidence tendered shows that the plaintiff suffers memory loss as a result of the injuries sustained in the attack. The realisation that the assaults were being perpetrated by police officers and, subsequently, at a police station must have traumatised the plaintiff who would expect the law enforcement agents to protect him from that kind of behaviour. As pointed out above, the injuries have affected the plaintiff psychologically, as he suffers loss of sleep and often has nightmares as he relives the assault in his sleep. The plaintiff states that during the assaults he suffered “great pain, indignity, discomfort, distress, fear and anxiety”. A sum of US$4 000 would reasonably compensate him for the shock.

In the case of Gwiriri v Highfield Bag (Pvt) Ltd (supra) the Court awarded a total sum of US$6 000 for disfigurement and loss of amenities.

Disfigurement, which is also referred to as deformity, refers to any defacing or mutilation of the plaintiff’s body or any part thereof. It includes scars, loss of limb, a limp caused by an injury to the leg(s), and distortions of the body.  The loss involves the aesthetic value of the body or a part thereof and not its functional performance. Visser & Potgieter (supra) at 101 state that the extent of the loss under this head depends upon a number of factors, which include the plaintiff’s sex, age, the visibility of the disfigurement, its influence on the plaintiff’s life, and the plaintiff’s appearance before the injuries. Whether the disfigurement is temporary or permanent is also a factor to be considered. In casu there is partial disfigurement of the right buttock. The medical evidence revealed, too, that the injuries will leave permanent scars on the plaintiff. Although disfigurement of a buttock is not a readily visible deformity, the plaintiff’s body remains physically impaired by it. I would therefore award a sum of three thousand United States dollars (US$3 000) for the disfigurement.

Loss of amenities of life is experienced when a person loses the ability and/or will to take part in certain activities in life and fails to enjoy life as he used to do prior to the injuries being sustained.  This damage is not confined to the loss already sustained but also includes loss which will probably be suffered in future.  In the case of H West and Son Ltd v Shephard[1963] 2 All ER 625(HL) at 636G-H, loss of amenities is described as “a dimunition in the full pleasure of living”.  See also Gwiriri v Highfield Bag (Pvt) Ltd (supra) at 174D.  In Administrator-General, SWA v Kriel1988 (3) SA 275(A) at 288D-G, amenities of life are described as:

“those satisfactions in one’s everyday existence which flow from the blessings of an unclouded mind, a healthy body, and sound limbs.  The amenities of life derive from such simple but vital functions and faculties as the ability to walk and run;  the ability to sit and stand unaided;  the ability to read and write unaided;  the ability to bath, dress and feed oneself unaided;  and the ability to exercise control over one’s bladder and bowels.  Upon all such powers individual human self-sufficiency, happiness and dignity are undoubtedly highly dependent.”

The medical evidence shows that the plaintiff’s participation in recreational activities will be impeded by memory lapses.  There is no doubt, too, that the persistent headache which he complains of will affect his enjoyment of amenities of life.  An award of a sum of three thousand United States dollars (US$3 000) will meet the justice of the case.

Accordingly, judgment is hereby given in favour of the plaintiff against all the defendants jointly and severally, the one paying the others to be absolved, in the sum of US$15 000, together with interest thereon at the prescribed rate from the date of service of summons to the date of payment in full, and costs of suit.

Mbidzo Muchadehama & Makoni,  plaintiff’s legal practitioners