Shamiso Chidamajaya v Biggie Gomba and Pardon Muzenda

### Preamble
1
HH 211/2013
HC 705/2011
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SHAMISO CHIDAMAJAYA

versus

BIGGIE GOMBA

and

PARDON MUZENDA

HIGH COURT OF ZIMBABWE

MATHONSI J

HARARE, 19 JUNE 2013 AND 03 JULY 2013

D. Moyo, for the plaintiff

No appearance for the 1st defendant

W. Nyika, for the 2nd defendant

Civil Trial

MATHONSI J:	The plaintiff instituted proceedings against the defendant, a minibus driver who has since died, and the second defendant, the owner of a minibus registration number WPPG 938GP registered in South Africa, for damages in the sums of US$7 865-89 special damages, US$30 000-00 for pain and suffering, permanent disability and loss of amenities of life, US$10 000-00 for future medical expenses and US$20 000-00 for loss of earning capacity.

The plaintiff averred in her declaration that on 20 June 2008 she was a passenger in the second defendant’s minibus aforesaid which was being driven by the first defendant, an employee of the second defendant, who was acting within the course and scope of his employment as such. The said minibus was involved in a collision at the 13,5km peg along the Masvingo – Beitbridge road which collision was caused solely by the negligence of the second defendant’s driver who failed to see a stationary vehicle from a distance and rammed onto it.

She averred further that as a result of the accident she sustained a pilon fracture of the left ankle joint, experienced severe pain and suffering for a period of 3 months and sustained a 30% permanent disability and that she continues experiencing pain as a result of weather changes. She requires constant medical treatment for her injuries. At the time of the accident she was a cross border trader realising an average of US$1000-00 a month which she is no longer able to make as the injuries have rendered her incapable of earning a living. She was also employed earning of average of US$50-00 per month but she is no longer able to work. She therefore prayed for damages totalling US$67 865,89.

The second defendant contested the claim stating in his plea that Biggie Gomba was never employed by him but was driving the second defendant’s minibus as “an independent contractor who would use the said vehicle for commission calculated weekly.” He also averred that the plaintiff has been paid various sums of money by his insurers and himself which sums he did not specify. In her replication, the plaintiff admitted receiving ZAR 3100-00 from the second defendant although it is not stated what that money was for.

I must mention that the plaintiff originally cited the second defendant as Muzenda Taxi Investments Republic of South Africa” which citation was amended at the pre-trial conference by consent to read “PARDON MUZENDA”. At that pre-trial conference the parties drew up a joint minute setting out the issues for trial as;-

Whether or not the first defendant (now deceased) was employed by the second defendant.

Whether or not the plaintiff has any claim against the second defendant.

Whether or not the second defendant is liable to pay the plaintiff any damages, and if so, the quantum thereof.

The plaintiff gave evidence at the trial and called another witness, one Masiiwa Chiwota to also give evidence. The plaintiff testified that at the relevant time, she was employed by Blue Line, as a depot supervisor earning a sum in Zimbabwe dollars which she could not remember. At the same time she would regularly travel to South Africa on weekends as a cross border trader engaged in buying electrical goods in that country for resale in Zimbabwe at a profit.

It was on one such trip that she was involved in an accident. On the fateful day, she and other passengers who included Masiiwa Chiwota had boarded a minibus belonging to the second defendant in Johannesburg South Africa returning to Zimbabwe. This was a big bus which was not full. For that reason, it proceeded to Pretoria in search of more passengers. It was in Pretoria, at the bus rank, where they found the second defendant and a smaller bus belonging to the Muzenda Taxis stable which was also calling for passengers going to Zimbabwe.

When the driver parked the bigger bus, he immediately alighted and proceeded to consult the man who was standing nearby, whom they later discovered was the second defendant. He directed that the passengers in that bigger bus should alight and board the smaller bus so as to fill it up and proceed to Zimbabwe. The driver requested the passengers to plead with the second defendant not to transfer them to the smaller bus as he was against that idea. The second defendant came and addressed them introducing himself as Muzenda, the owner of the 2 minibuses. He requested them to transfer to the smaller bus. Although there was a misunderstanding between the passengers and the second defendant, as the passengers resisted being transferred, they eventually complied.

In the full view of the plaintiff and other passengers, the second defendant was approached by one passenger with a request that the bus should pass through same rural area in South Africa to pick up his bag which he had left there. They saw the second defendant paying an extra fare for that excursion and indeed the bus proceed via that rural area to pick up the passenger’s bag.

The plaintiff stated further that on the Zimbabwean soil, the bus was involved in an accident. She made reference to the police report attached to her declaration which is to the effect that Biggie Gomba, who was then facing criminal charges at Masvingo Magistrates court had “failed to see a stationary vehicle from a distance and rammed onto it.”

She was injured in the accident and ferried by ambulance from the scene to Masvingo General Hospital from where she was transferred and again ferried by ambulance to Harare Central Hospital. At the latter hospital X rays were taken the result of which showed that her left leg was broken. She was not able to get treatment at the poor hospital which did not have even a bed for her to lie on. The plaintiff later consulted Dr Makoni at West End Hospital who was able to put her leg on traction weights to try and bring the broken bones together keeping her at West End Hospital for 2 days.

As she could not afford the hospital fees at West End, Dr Makoni admitted her at Chitungwiza Hospital where she remained for a full month undergoing treatment. She was operated on by Dr Makoni who inserted a plate on her left ankle. The witness produced a medical report signed by the good doctor which described her injuries as;-

“ Pilon fracture of left tibia, fracture of the lateral malleolus. Ankle swollen with wounds and blisters on exterior aspect.”

The Doctor described the pain sustained by the plaintiff during that period as severe, fixed the extent of permanent disability at 30% and stated that in future the plaintiff would have weather pain. He concluded that the patient would be unable to carry on with her normal occupation as the ankle will be painful due to second degree post traumatic osteoarthritis.

The plaintiff stated that although she was claiming a sum of US$7 865-89 as special damages for medical expenses incurred, she had in fact expended $9 315-00 on that and even more in Zimbabwe dollars which she did not include in her claim. She only claimed what she paid in United states dollars as the medical institutions then were already charging in foreign currency even before dollarization. She produced a bundle of receipts, exhibit 2, to sustain that claim.

The plaintiff went to say that after being discharged, she continued going to Chitungwiza Hospital on a weekly basis for reviews and dressing up of her wounds for sometime. The doctor had advised her to commence putting weight on the left foot after 3 months but as she did so, little did she know that the fractured bones were not in position and the leg was bending. She continued experiencing pain until she returned to Dr Makoni who suggested an amputationor further surgery. She sought a second opinion from Dr Gova who, after examining her advised her that there was need for another operation as the fracture had not healed and the bones remained apart. She was then operated on by Dr Gova in 2010.

The second operation did not yield the desired results and Dr Gova advised the witness that she still needs further surgery, a procedure which would dry up the leg but will limit movement. The result would be that, if successful, that procedure will take away the pain that the plaintiff continues to suffer which has forced her to live on brufen pain killers ever since the accident occurred, but she will have limited movement on the left leg and will walk with a limp. She has not undergone that surgery because of lack of funds, Dr Gova having quoted a sum of $10 000-00 for it. She produced a letter from Dr Gova, dated 12 April 2011 to her then legal practitioners which reads in relevant part thus:-

“ Re:	MRS SHAMISO CHIDAMAJAYA

Thank you very much for asking me to assess Mrs Shamiso Chidamajaya who was involved in a road traffic accident in 2008 and injured the left ankle. This was called a pilon fracture. She had an operation by a colleague which did not cause the healing of the fracture because of its complexity. She saw me on 20 June 2010 and I took her to theatre and did bone grafting and plating of the fracture. The fracture is healing but the leg is now stiff and deformed. To straighten the leg she will need further operations in future to fix her leg and these operations are way above the $10 000-00 that she is claiming. I hope this letter clarifies her situation.”

The plaintiff testified that as a result of the accident, she lost her employment and is also unable to undertake her part-time cross border trading. She has lost all her earning capabilities. She produced, as exhibit 4, a Loss of Earnings Actuarial Computation done by the Zimbabwe Actuarial Consultants using the plaintiff’s payslip as at 30 November 2011, (note that the plaintiff testified that she was removed from the payroll in 2009 after she had spent 6 months without reporting for work), the actuary computed her total claim for loss of earnings at US$21 797,05 against the plaintiff’s claim under that head of $20 000-00. It stands to reason that if the plaintiff still had a payslip in November 2011, then she did not lose earnings between June 2008 and November 2011.

Under cross examination, the plaintiff conceded that she did receive a sum of ZAR 3100-00 from the second defendant which was not deducted from her total claim. She had initially claimed that she only received ZWR 100-00. I accept that this sum is far less than what she abandoned under the special damages head and does not reduce her claim.

Masiiwa Chiwota was also a passenger in the minibus which was involved in an accident on 20 June 2008 she having also boarded it in Johannesburg with the plaintiff. She corroborated the evidence of the plaintiff on what transpired in Pretoria and the identity of the second defendant. In particular, she maintained that the way the second defendant was commanding his drivers, including the one who drove them to Zimbabwe, and the way he received an extra fare from a passenger who wanted the minibus to make a detour on its way to Zimbabwe, it was clear that Gomba was employed by him and was not an independent contractor.

According to Chiwota, it was practically impossible for Gomba to drive the omnibus on a routine trip to Zimbabwe and cross the border without the authority of the owner and a frolic of his own. She observed that all immigration and customs formalities were complied with at the Beitbridge border, something which convinced her that the minibus was on a scheduled journey, with the full blessing of the second defendant. I believe her. In fact she was clearly a truthful witness whose presentation was convincing.

The second defendant did not attend the trial and therefore did not testify. He contented himself with only his legal counsel cross examining the plaintiff’s witnesses. As a result, I did not have the benefit of hearing the second defendant’s side.

Turning now to the issues to be determined at the trial, I have accepted the evidence of the plaintiff and Chiwota that the second defendant was indeed the employer of Gomba and that he sanctioned the trip to Zimbabwe. Indeed the second defendant was a public carrier who undertook the trip for reward. It would have been impossible for a vehicle registered in South Africa to pass through the border carrying paying passengers the way it did without the approval of the owner and sufficient paperwork which ordinarily includes a police clearance of the vehicle. I therefore find as proved that the late Gomba was employed by the second defendant and was acting within the course and scope of his employment when the accident occurred. This explains why the second defendant felt obliged to pay R3100 to the plaintiff while she was detained in hospital. In my view the second and third issues are inter-related and cannot be treated separately. That an employer is vicariously liable for the delicts of his employee committed within the course and scope of his employment is a long standing principle of our law. See P. Q R. Boberg, The Law of Delict, Vol 1, Juta&Co  Ltdpp 327-382; First Class Enterprises (Pvt) Ltd v Trymore Muchingami & others HH 49/13. I therefore find that the plaintiff has a claim against the second defendant who is liable to pay her certain damages by virtue of the concept of vicarious liability.

It is the quantum of those damages which needs further consideration. I have little or no difficulty at all accepting the plaintiff’s claim for special damages of US$7 865,89. That claim is supported by receipts which have been produced and were not challenged at all by the second defendant. I find therefore that the plaintiff has proved, on a preponderance of probabilities, that claim.

I also have no difficulty whatsoever with the plaintiff’s claim for future medical expenses because evidence has been placed before me which shows that she still needs to undergo another operation to straighten her leg which exercise would eliminate the pain she is currently suffering and allow her to live a near normal life. I have been shown the quotation of a Specialist Orthopaedic Surgeon, Gova, that the procedure to be carried out will cost well over the $10 000-00 that she is claiming. The defendant has not challenged that in any meaningful way. More importantly he has not come up with a counter quote suggesting that the procedure will cost less. I therefore find as proved, that the plaintiff requires future medical attention at a cost of not less than $10 000-00. She has proved her entitlement to that amount.

The plaintiff’s claim for general damages presents some difficulties. In approaching it, I am mindful of the pronouncement of GUBBAY CJ in Minister of Defence and Anor v Jackson 1990 (2) ZLR 1 (S) at 7G-H and 8A-G that;-

“ It must be recognised that translating personal injuries into money is equating the incommensurable; money cannot replace a physical frame that has not been permanently injured. The task therefore of assessing damages for personal injury is one of the most perplexing a court has to discharge. This notwithstanding, certain broad principles have been laid down which govern the obligation. These are:-

General damages are not a penalty but compensation. The award is designed to compensate the victim and not to punish the wrong doer.

Compensation must be so assessed as to place the injured party, as far as possible, in the position he would have occupied if the wrongful act causing him the injury had not been committed. See Union Government v Warnecke 1911 AD 651 at 665.

Since no scales exist by which pain and suffering can be measured, the quantum of compensation to be awarded can only be determined by the broadest general considerations. See Sandler v Wholesale Coal Suppliers Ltd 1941 AD 194 at 199.

The court is entitled; and it has the duty, to heed the effect its decision may have upon the course of awards in the future. See Sigournary v Gillbanks 1960 (2) SA 552 (A) at 555H.

The fall in the value of money is a factor which should be taken into account in terms of purchasing power ‘but not with such adherence to mathematics as may lead to an unreasonable result……….’

No regard is to be had to the subjective value of money to the injured person, for the award of damages for pain and suffering cannot depend upon, or vary, accordingly to whether he be a millionaire or a pauper. See Radebe v Hough 1949(1) SA 380 (A) at 386.

Awards must reflect the state of economic development and current economic conditions of the country……………

For that reason, reference to awards made by the English and South African courts maybe an inappropriate guide, since conditions in those jurisdictions, both political and economic are different.

The formulation of further principles in the assessment of damages for personal injury is no easy matter. Overall what is to be sought, is a compensation which is fair in the eyes of society.”

Mr Moyo, for the plaintiff conceded in his closing address that the plaintiff’s claim for general damages of $30 000-00 is excessive. In making the concession Mr Moyo cited two cases falling under the multi-currency era namely Gwiriri v Highfield Bag (Pvt) Ltd 2010(1) ZLR 160 (H) in which CHITAKUNYE J awarded the plaintiff, who had effectively lost the use of his right hand during an accident at work, $3000-00 for pain and suffering and $6 000-00 for permanent disfigurement and loss of amenities of life and Mafusire v Greyling & Anor 2010 (2) ZLR 198 (H) in which CHATUKUTA J, having found 40% contributory negligence on the part of the plaintiff who was involved in a motor vehicle accident resulting in 20% disability, awarded $1000-00 for pain and suffering and US$5 000 for future medical expenses.

Mr Moyo submitted that the plaintiff is entitled to $8000-00 as general damages. Mr Nyika for the defendant did not make any useful submissions in this regard as he busied himself with trying to disprove vicarious liability on the part of the second defendant and did not do a good job of what either. I have already found the second defendant liable.

What we have here is a situation in which the plaintiff sustained a broken left ankle which has since been subjected to 2 operations without success. She was hospitalised for 30 days. She is still able to use that foot but it is now deformed and requires further surgery to make it right. I have already found that she is entitled to damages for that future medical treatment which will alleviate her plight. Her degree of disability of 30% suggested by Dr Makoni was not subjected to test and is difficult to accept as it is.

In light of the authorities cited and in particular the fact that we live in a dollarized economy, the court being duty bound to heed the effect of its decision on future awards, I am of the view that an award of $6 000-00 or pain and suffering and loss of amenities for life will be fair in the eyes of the society.

On loss of earnings and loss of capacity, I agree with Mr Moyo’s concession that the plaintiff has not proved loss of earnings from her cross border activities. I have taken judicial notice of the fact that she still was the proud bearer of a payslip as late as November 2011 which suggest that she did not lose earnings during her difficult times while undergoing treatment.

Mr Moyo has submitted that the total amount due to her for loss of earnings is $7 621,62 being $1 118,92 for the period 1 February 2009 to 31 December 2009; $1 300-54 for the period 1 January 2010 to 31 August 2010 and $5 202,16 for the period September 2010 to 30 April 2013. He has conceded that loss of future earnings has not been established because the available medical evidence is that she will recover sufficiently once she undergoes the third surgery. It is not possible to dispute that the plaintiff lost earnings after 30 November 2011 because her last payslip which was presented to the actuary was for that date. Therefore she has only established an entitlement of $2601-08 that is the period 1 January 2012 to 30 April 2013.

In the result, I hereby order that;-

The second defendant shall pay to the plaintiff the sum of US$7 865,89 being special damages.

The second defendant shall pay to the plaintiff the sum of US$10 000-00 being future medical expenses.

The second defendant shall pay to the plaintiff the sum of $6 000-00 for pain, suffering and loss of amenities of life.

The second defendant shall pay to the plaintiff the sum of $2 601-08 for loss of earnings.

Interest on all those sums at the prescribed rate from the date of judgment to date of payment.

Costs of suit.

Ngarava Moyo & Chikono, plaintiff’s legal practitioners

Messrs Nyika legal practitioners, defendant’s legal practitioners