NYANDORO V MINISTER HOME AFFAIRS & ANOR 2010 (2) ZLR 332 (H)

NYANDORO V MINISTER HOME AFFAIRS & ANOR 2010 (2) ZLR 332 (H)

Flynote

Damages - assessment of - delict - actio in juriarum - principles - purpose of award of non-patrimonial loss - need for conservative approach - need for objective value to be placed upon injuries - bodily injury - assault by police on person taking part in peaceful demonstration - contumelia - assault in public place and photograph of assault published in newspaper - serious example of contumelia

Headnote

The plaintiff claimed damages for an assault by members of the police force. He had been involved in a peaceful demonstration organised by a non-government organization. The police had broken up the demonstration. Most of the crowd ran away and dispersed, but the plaintiff was caught and assaulted by about 10 to 12 policemen. A photograph was published in a newspaper, depicting a policeman running behind the plaintiff and brandishing a baton within striking distance. The plaintiff fell to the ground and continued to be assaulted. He and others were taken to Harare's central police station, where he was further assaulted by two police officers. The injuries he received resulted in hospitalization and surgery. Because of his injuries, he was unable to continue with his two occupations, of ferrying goods from Harare to a rural company and selling produce from horticulture farming. His savings were exhausted in medical expenses. The quality of his life was greatly reduced as a result of the assault upon him and he was no longer able to assist his three dependent children who were still at school.

Held, that the assaults upon the plaintiff's physical integrity were unlawful in that they were perpetrated without lawful authority. They were also patently wrongful as being demonstrably incompatible with boni mores and the legal convictions of the community concerning the exercise of police powers.

Held, further, that the broad purpose of an award for non-patrimonial loss is to enable the claimant to overcome the effects of his injuries and to provide psychological satisfaction for the injustice done to him. Since pain and suffering cannot be accurately measured, the quantum of compensation to be awarded can only be measured by the broadest general considerations. The compensation awarded should be assessed so as to place the injured party, as far as is possible, in the position he would have been in if the wrongful act causing him injury had not been committed. However, general damages do not constitute a penalty but are designed to compensate the victim and not to punish the wrongdoer. The court is entitled and has a duty to heed the effect its decision may have upon the course of awards in the future. Moreover, awards generally must reflect the state of economic development and current economic conditions of the country. Consequently, they should tend towards conservatism lest some injustice be done to the defendant. No regard is to be had to the subjective value of money to the injured party and, therefore, the award cannot vary according to whether he is a millionaire or a pauper. Thus, the courts are concerned not with the probably erroneous value that a person would put on his own life and limbs, but with the dispassionate and neutral value which society at large would deem appropriate on the basis of the prevailing value of money in that society.

Held, further, that in determining prospective loss, all the contingencies must be considered, including facts known at the date of the trial, in deciding whether or not there is a reasonable probability of pecuniary loss occurring in the future. In assessing pain and suffering, regard may be given to the age of the claimant because an older person has less resistance to pain than a younger person.

Held, further, that the aspect of contumelia is as important as pain and suffering and it is necessary to take into account the public and private embarrassment suffered by the plaintiff as a result of the wrongful conduct. The plaintiff was initially assaulted in a public place in full view of his colleagues and passers-by. The photograph was also published for all of a newspaper's readers to see. The assault was aggravated by the fact that it was committed by members of the police who are State servants paid from public funds. The plaintiff was consequently humiliated and embarrassed and must therefore be entitled to appreciable damages for contumelia.