MBUNDIRE v BUTTRESS 2011 (1) ZLR 501 (S)

Flynote

Damages — quantification of damages — serious bodily injury resulting from motor accident — evidence relating to assessment of damages available to plaintiff but not placed before court — effect — when proper for court to grant absolution from the instance — remittal by Supreme Court to D the court a quo so as to consider the question of damages

Damages — Lex Aquilia — method of assessing damages — compensation to be assessed so as to place the plaintiff in the position he have occupied but for the wrongful act resulting in his injury — consideration of comparable awards — inflation to be taken into account

Damages — assessment of general damages for pain and suffering — upon issue of summons claim expressed in old Zimbabwean currency — effect of hyper-inflation since the issue of summons — need to place the plaintiff in the position he would have been in but for the wrongful act of defendant — whether permissible for the court to make an appropriate award in F new currency and expressed in American dollars

Damages — patrimonial property — damages claimable for cost of replacement of damaged vehicle — damages originally claimed in old Zimbabwean currency — subsequent amendment so as to claim in new United States currency — amended claim in conflict with the principle of currency G nominalism

Headnote

"[W]here evidence is available to a plaintiff to place before the court to assist it in quantifying damages, and this is not produced, so that it is impossible for the court to do so, or there is no, or quite insufficient evidence which can be produced by an unfortunate plaintiff, he must fail and the defendant must be absolved from the instance..." (dicta per Berman J in Aaron's Whale Rocks Trust v Murray and Roberts Ltd & Anor 1992 (1) SA 652 (C) at 655H-656H applied).

The basic principle underlying an award of damages in the Aquilian action is that the compensation must be assessed so as to place the plaintiff, as far as possible, in the position he would have occupied had the wrongful act causing him injury not been committed. It is also established that the fall in the value of money is to be taken into account in considering comparable awards. The allowance for inflation is a rough one and one should incline towards the conservative. In July 2006, the appellant was involved in a collision between his vehicle and a vehicle driven negligently by the respondent. As a result of the accident, the appellant sustained very serious injuries causing him to be hospitalised for a period, in total, amounting to about one and a half years. His vehicle was damaged beyond economic repair. In the consequent trial, which commenced in October 2008, the appellant claimed from the respondent general damages, inter alia for pain, suffering and disability, the sum of $1 billion (old currency) and a further sum for the cost of future medical treatment. In respect of his vehicle, he had originally claimed in his summons $500 billion (old currency) but shortly before commencement of the trial, he had obtained two quotations for the replacement thereof in the sum of US$8 000. He had thereupon amended his claim accordingly. The High Court delivered its judgment on 16 April 2009 and in respect of each of the appellant's claims, granted absolution from the instance. In so far as the claim for general damages was concerned, it held that the expert medical evidence was imprecise in that it was not clear to what extent an improvement in the appellant's condition would affect his degree of disability. Concerning his claim for costs of future medical treatment, the court considered that there was no evidence as to how long he would require physiotherapy and rehabilitation and consequently no proper estimate could be determined as to what those costs might be. In dealing with the appellant's third claim in respect of the replacement cost of his vehicle, the court held that the alteration of the claim, expressed in the new currency, after a period in excess of two years, so as to reflect inflation, would be in breach of the principle of the currency nominalism.

The appellant appealed. As far as his claim for general damages was concerned, he sought an order that the respondent be required to pay the sum of US50 000 being equivalent in the new (US) currency of $1 billion (old currency) as at the date of judgment. During the argument before the Supreme Court, it was noted that on 1 July 2009 the Legislature had was dispensed with the old currency altogether and that all monies owing had to be paid in the new (US$) currency at a rate of one trillion dollars (old currency) to $1. It was argued therefore, on behalf of the appellant that an award for general damages expressed in the old currency would be meaningless as a result of the hyper inflation over the previous years. The appellant also sought an order that the respondent pay him the sum of US$5000 in respect of his future medical expenses and the further sum of US$8000 being the replacement of cost of his vehicle.

Held, that in respect of the claim for general damages, the court a quo had erred in granting absolution from the instance. Notwithstanding that the effect of the future improvement in his condition on his general disability was not explored, it was clear that his injuries had been very serious. He had been hospitalised for a very long time and would have to endure pain in the future. Having regard to these and other facts there was sufficient evidence before the court to enable it to make an award.

Held, further, that the claim for general damages must be remitted to the court a quo for a determination thereof.

Quaere, whether in doing so, and having regard to the need to place the appellant as far as possible in the position he would have been had the wrongful act causing him injury not been committed, the court a quo should make an appropriate award based in the permitted new currency.

Held, further, that as far as the claim for the costs of future medical expenses was concerned, the evidence led was clearly insufficient to establish for how long physiotherapy and rehabilitation would be required, although such evidence was available. In the circumstances, this claim was properly dismissed by the court a quo.

Held, further, that the appellants amended claim for the replacement costs of his vehicle must also be dismissed. Had the respondent been called upon to pay shortly after the accident, he would have paid no more than $500 000 000 000 (old currency). The suggestion that owing to inflation, he must now pay US$8 000 (new currency) was not based on any legal principle and, as the court a quo had found, would have been in conflict with the principle of currency nominalism.