CHAPTER 20 - ASSESSMENT OF DELICTUAL DAMAGES

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General aspects

Broadly, the Aquilian action provides a remedy for patrimonial loss and the actio injuriarum affords compensation for sentimental loss. However, under the influence of Germanic custom, Roman-Dutch law accepted that there could be recovery for certain forms of non-patrimonial damage under the actio legis Aquiliae. In this latter regard, it is possible, under the modern Aquilian action, to recover damages for such things as pain and suffering, disfigurement, loss of amenities of life and loss of expectation of life.

 

Under the Aquilian action, “the basic principle under-lying an award of damages [under this action] is that compensation must be assessed so as to place P, as far as possible, in the position he would have occupied had the wrongful act causing the injury not been committed”. (Corbett, Buchanan & Gauntlett The Quantum of Damages in Bodily and Fatal Injury Cases.) In computing the level of damages, the court must therefore compare P’s position before and after the commission of the delict. Account must be taken not only of the positive loss suffered by him, but also of negative losses in the form of gains which P was prevented from making in consequence of the wrongful act. Thus, P who has been injured can claim not only for things such as medical and hospital expenses, but also for loss of earnings during the period of his disablement. Additionally, it is possible to claim for non-patrimonial damage, such as disfigurement and pain and suffering. These latter types of harm cannot be assessed with any mathematical precision, and the amount “awarded as compensation can only be determined by the broadest general considerations and the figure arrived at must necessarily be uncertain, depending upon the judge’s view of what is fair in all the circumstances of the case.”

 

In calculating damages for bodily injury, especially for non-patrimonial harm, the courts pay heed to the levels of awards in previous cases of a comparable nature. The courts seek to ensure that major discrepancies in the levels of awards do not arise as between comparable cases. This is merely a rough guide to calculation, however, and such comparison can only be undertaken where the circumstances of the cases are clearly shown to be broadly similar in all material aspects. When making comparisons with previous cases the courts take into account the decrease in the value of money which has occurred over the years, but Corbett, Buchanan & Gauntlett observe that the allowance made for such decrease is necessarily a rough one and should probably incline towards conservatism. In dealing with quantum of damages the court does not take into account the cultural or economic circumstances of the injured plaintiff. Thus, the court does not downgrade the level of damages because P is a very poor man, to whom money will mean a lot. By the same token, the very rich man is not entitled to more damages than the poor man in identical situations, because money means less to the rich man. The court simply assesses the nature and extent of the injuries and the amount of loss, immaterial of the social or economic circumstances of the injured person.

 

In searching for comparable past cases the book by Corbett, Buchanan & Gauntlett is very useful. It contains some of the Zimbabwean cases as well as all the important South African decisions. See also Potgieter, Quantum of Damages Quick Guide Juta 2014, Visser and Potgieter,The Law of Damages Juta 3rd Edition 2012 and Koch Damages for Lost Income. See also the summary of the important Zimbabwean cases on damages for personal injury at the end of the section on damages.

 

Single action

As a matter of general principle, a person may only bring one action against the same defendant upona single cause of action. Once he or she has brought that action his or her remedies at law are exhausted and he or she is precluded by the principle of res judicata from bringing a further action. P must therefore claim damages for all the harm flowing from the delict, because if he fails to do so, he or she will thereafter be precluded from claiming damages in a subsequent action. P thus must claim in a single action compensation both for the loss already suffered by him and the prospective loss which he or she reasonably expects to suffer in the future. If he fails to include the claim for prospective loss he or she will forfeit his right to such damages. This applies even if it only transpires later that the damage suffered was more severe than it appeared to be at the trial, or even though P did not know of such further damage at the date of the trial. So, too, if a delict causes both bodily injury and property damages, both claims must be combined in the same action.

 

In determining the quantum of damages for prospective loss, the court must consider all the contingencies and decide whether or not there is a reasonable probability of pecuniary loss occurring in the future. Although, strictly speaking, damages should be assessed at the date of the wrong, when considering claims for prospective damage the court is bound to inform itself of subsequently occurring facts, which are known at the date of the trial and which throw light upon the claim. In this way the difficulty of assessing prospective damages and the amount of speculation involved in such assessment are reduced.

 

There is some debate as to whether it is possible to claim solely prospective damages in an action where there has been no actual damage. Some dicta in the case law suggest that this is not possible, as prospective damages may be awarded only as ancillary to accrued damages. Corbett, Buchanan & Gauntlett, however, contend that such an action should be possible where the prospective damage can be established as a matter of reasonable probability.

 

The once and for all rule has been the subject of considerable criticism. The basic object of the rule is to save D from a multiplicity of actions based on a single cause of action and to bring finality in claims for damages. But the rule causes major difficulties as regards prospective loss such as the extent of future disability. The prognosis as to what is likely to happen in the future may be highly speculative and may lead either to under-compensation if P’s condition unexpectedly deteriorates or over-compensation if his condition unexpectedly improves. In various countries they have modified the rule to allow interim awards, provisional awards or periodical payments. In Zimbabwe, the Law Development Commission has recommended the introduction of a system of provisional awards. See Report No. 43. A summary of this report is given below.

 

This report points out the harshness that this rule can cause to P and sometimes even to D. In a motor accident case where P is injured due to D’s negligence, P must claim in one action before prescription expires not only for compensation for the loss already suffered as a result of his injuries, but also for future losses that will stem from the injuries such as further medical treatment and further loss of earnings. This involves crystal ball gazing into the future to try to gauge what the future will bring: this entails asking such questions as will P’s medical condition deteriorate, and if so how badly, and what will be the cost of such treatment; will P’s condition improve over time and what earning capacity will P then have? Such estimates are exceedingly difficult to make and if they are too low they are unfair to plaintiffs and if they are too high, they are unfair to defendants.

 

The report points out, however, that there are also legitimate reasons for desiring finality in litigation in civil matters. Insurance companies object that if they have to keep their files open indefinitely this would clash with their policy of assessing appropriate premiums for potential claims on a turn-over basis which is related to a fairly limited period. This is made all the more necessary today by continuous inflation. There would be also considerable extra administrative costs involved if the once and for all rule were to be abandoned.

 

Taking into account these competing interests, the Law Development Commission has recommended the alteration of the hard and fast once and for all rule by allowing the courts to make interim and provisional awards in certain circumstances. These awards will only be able to be made against the State, parastatals and against insured persons or their insurers as these agencies have the administrative and financial capacity to be able to absorb the extra burden involved in this system.

 

Interim awards should also be able to be made where D admits he or she is liable to pay compensation but there is a dispute as the amount of damages. It is unsatisfactory that P has to wait until completion of litigation before he or she receives any compensation. Once the court arrives at the final judgment, any interim award already made will be taken into account.

 

In a personal injury claim where the courts are satisfied that there is a reasonable possibility that the injured party may in the future develop a serious disease or suffer serious deterioration in his condition, the court should have the power to issue a provisional award, leaving it open to P to come back to court if the serious disease develops or serious deterioration occurs. The Rules of Court can then provide for placing a time limit on when any application for further damages may be made. Where a provisional award is made it will be based on the injured party’s present condition. The possibility of future injury should not be taken into account when assessing the present damages.

 

The recommendations contained in this report have not yet been adopted and implemented by Government.

 

Special and general damages

When damages are claimed in personal injury cases they are claimed in two broad categories, namely general and special damages. Special damages are those damages that have already occurred and can be precisely calculated at the date of the trial. “It is an elementary proposition of law that a claim for special damages must not only be specially alleged and claimed, but also be strictly proved.” Mdlongwa v Ngwenya HB-54-13. These losses must be specifically claimed and proved with full details. They include such things as loss of wages, property damage, medical and other expenses incurred as a result of the injury up to the date of the trial.

 

General damages are those damages naturally flowing from the wrong that are of a non-pecuniary nature, such as, pain and suffering, loss of limbs and so on. The harm which has occurred in the past (e.g. pain suffered) or which he will suffer in the future (e.g. loss of amenities of life) does not have a precise value, but the court will decide upon an appropriate award with reference to comparable previous cases.

 

Items for which claims can be made in personal accident cases:

  • Medical and hospital expenses (Past)
  • Future medical expenses (Prospective)
  • Other expenses occurring as a direct result of the accident (Past)
  • Loss of earnings (Past)
  • Loss of earning capacity (Prospective)
  • Pain and suffering (Past and Prospective)
  • Disfigurement (Prospective)
  • Loss of amenities of life (Prospective)
  • Shortened expectation of life (Prospective)

 

Medical and hospital expenses

P is entitled to recover damages for medical and hospital expenses reasonably incurred by him and which are fairly attributable to the bodily injuries sustained in the accident. He or she can also claim incidental expenses such as the cost of travelling to his or her medical adviser or to and from hospital. If the medical treatment is still taking place at the date of the trial, P can claim anticipated future medical and hospital expenses. P must establish that, as a matter of probability, these expenses will need to be incurred. He can also claim for anticipated ancillary losses, such as loss of earnings, while undergoing future medical treatment.

In the case of Simbanegavi v Jachi HC-4187-12 the court held that a total of six bullets were fired into the plaintiff’s legs. As a result, he sustained numerous injuries from which he;

  • endured and still experiences excruciating pain,
  • had to have four steel plates surgically inserted in his right leg,
  • had to have an above the knee amputation of his left leg,
  • suffered contumelia as he was subjected to cruel, inhuman and degrading treatment.

The plaintiff incurred medical expenses in relation to the knee amputation, insertion of steel plates to reinforce the injured leg, analgesics and other medical procedures. Due to the nature of the injuries and associated complications, the disability percentage was assessed at 63%.

 

General damages

In NyandorovMinister of Home Affairs & Anor 2010 (2) ZLR 332 (H) 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.

In Mungate v City of Harare & Ors HH-328-16 the court said that legal practitioners should know that general damages are not a penalty, but compensation. They are meant to compensate the victim and not to punish the wrong doer. Awards that are granted by the courts, apart from compensating the victim, should also reflect the state of economic development and the current economic conditions of the country. In making claims for general damages, litigants should claim reasonable and realistic amounts and they should be guided by previous decided cases. If litigants and their lawyers adopt this approach, the chances of such matters being resolved and settled at the pre-trial conference stage will be increased. The major reason why such cases fail to settle without proceeding to trial is because of the ridiculous and unrealistic figures that are claimed by the plaintiffs.

 

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 or she is a millionaire or a pauper. Thus, the courts are not concerned with the probably erroneous value that a person would put on his or her 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. 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.

 

In Mdlongwa v Ngwenya HH-74-12the plaintiff was assaulted by defendant and as a result instituted a delictual action. The court enunciated that general damages for personal injuries are not meant to penalise the defendant but to achieve some form of compensation for the plaintiff.  The court must ensure therefore that the damages awarded are reasonable fair and just. In Sandler v Wholesale Coal Suppliers Ltd 1941 AD 194 at p 199 it was said: “… it must be recognised that though the law attempts to repair the wrong done to a sufferer who has received personal injuries in an accident by compensating him in money, yet there are no scales by which pain and suffering can be measured, and there is no relationship between pain and money which makes it possible to express the one in terms of the other with any approach to certainty.  The amount to be awarded as compensation can only be determined by the broadest general considerations and the figure arrived at must certainly be uncertain, depending upon the judge’s view of what is fair in all the circumstances of the case.”

 

In Mbundire v Buttress 2011 (1) ZLR 501 (S) the appellant was involved in a road accident with the respondent, as a result of which the appellant sustained serious injuries. The appellant claimed for general damages, future expenses and replacement value for his motor vehicle. The court held that if it is certain that pecuniary damage has been suffered, the court is bound to award damages. Where the best evidence available has been produced, though it is not entirely of a conclusive character and does not permit of a mathematical calculation of the damages suffered, the court must use it and arrive at a conclusion based upon it. Where damages can be assessed with exact mathematical precision, a plaintiff is expected to adduce sufficient evidence to meet this requirement. Where this cannot be done, the plaintiff must lead such evidence as is available to it (but of adequate sufficiency) so as to enable the court to quantify his or her damage to make an appropriate award in his or her favour. If there is evidence upon which an estimate not unfair to the defendant can be made, the court should not refuse to make an award merely on account of the deficiencies in the case presented upon the plaintiff’s behalf. Those deficiencies would normally operate to the disadvantage of the plaintiff in that the court would normally tend towards conservatism in computing the damages. In the present case the court said it certainly would have helped had the appellant undergone further examination so that the exact degree of his injuries could have been ascertained. This notwithstanding, the evidence placed before the court was sufficient to enable the court to make an award.

 

The court also said 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. The fall in the value of money is to be taken into account in considering comparable awards, but the allowance for inflation is a rough one and should incline towards conservation.

Pain and suffering

 

P can claim for all pain, suffering and discomfort suffered, or to be suffered, by him as a result of D’s wrongful act. Account must be taken not only of the pain and suffering occurring as a direct consequence of the infliction of the injuries, but also of pain and suffering associated with surgical operations and other curative treatment reasonably undergone by P in respect of such injuries. The quantum of damages in this regard is extremely difficult to assess and here particular regard should be had to comparable past cases as a guide to assessment. In making an assessment, the prime considerations are theduration andintensity of the pain. These factors will turn upon the nature of the injuries, the medical evidence and the general circumstances of the case. The test is a subjective one. The thin skull rule would apply here. If P is abnormally sensitive to pain he or she is entitled to greater damages than the normal person. Conversely, if P is abnormally insensitive to pain, he or she cannot enhance his claim by advancing evidence that the normal person would have suffered extreme pain.

In Chinembiri & Ors v Ncube HH-74-12 the court highlighted eight broad principles that should guide a court in assessing such damages. These include that:

  1. General damages are not a penalty but compensation. The award is designed to compensate the victim and not punish the wrong doer.
  2. 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 Govt v Warreck 1911 AD 651 p665.
  3. 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 p 199.
  4. 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 Sigairnay v Gillbanks 1960 (2) SA 552 at p 555H.
  5. 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 an adherence to mathematics as may lead to an unreasonable result: per Shreiner JA in Sigournay’s case supra at 556C see also Southern Insurance Association Ltd v Bailey NO 1984 SA 98 at 116 B-D, Ngwenya v Mafuka S-18-89 at p8 of the cyclostyled copy.
  6. No regard is to be had to the subjective value of the money to the injured person, for the award of damages for pain and suffering cannot depend upon or vary according to whether he be a millionaire or a pauper: See Radebe v Haugh 1949 (1) SA 380 at 386.
  7. Awards must reflect the state of economic development and current economic conditions of the country.Sadomba v Unity Insurance Co Ltd and Anor 1978 RLR 262 G at 270K, Min of Home Affairs v Allan 1986, ZLR 263 (S) at 272. They should tend towards conservatism lest some injustice be done to the defendant see Bay Passenger Transport Ltd v Franzer 1975 SA 269 at 274 H.
  8. For that reason reference to awards made by the English and South African courts may be an inappropriate guide since conditions in the jurisdictions both political and economic are so different

Sometimes P has no recollection of the pain and suffering he or she has undergone. A distinction is drawn between pain of which the mind of the injured person was not aware at the time and which, for that reason, is not subsequently recalled, and pain of which the mind of the injured person was contemporaneously aware, but which, for some reason, he or she was unable subsequently to recall. The injured person is entitled to recover compensation in respect of the latter, but not in respect of the former.

 

In Mugadzaweta v Co-Ministers of Home Affairs 2012 (2) ZLR 423 (H) pointed out that shock is closely associated to pain and suffering.

 

Gwiriri v Starafrica Corporation (Private) Limited t/a Highfield Bag (Private) Limited

 

Disfigurement

 

Strictly speaking, damages for disfigurement should be merged into damages awarded for loss of amenities. Disfigurement includes bodily disfigurement such as scars, loss of limbs, facial and bodily distortion, etc. in the case of Muchabaiwa v Chinhamo HH-179-2003 the plaintiff who was standing at the side of the road opposite some shops when she was hit by a commuter minibus that was being driven by the first defendant. The court held that, the level of disability of the plaintiff was very high. She was in almost continual pain and she is virtually bed-ridden. Her life expectancy has been reduced. She was unable to take part in any recreational activities. She was likely to need medication such as pain killers, tranquilizers and anti-depressants for the rest of her life. Her disfigurement and disability were much greater than is the case in the other cases cited and it appears that her pain and suffering still continues. As regards future medical expenses, the cost of medication at present is very high. The rate of inflation is expected to increase dramatically over the next six months and so medication is likely to be unaffordable for ordinary members of the public.

 

Mugadzaweta v Co-Ministers of Home Affairs 2012 (2) ZLR 423 (H)

Disability

 

A disability may be temporary or permanent. Where the disability has disappeared by the time of the trial, the claim would normally be merged with the claims for pain and suffering and loss of earnings. Where the disability ispermanent or is likely to extend beyond the date of the trial, P will claim additionally for diminution in earning capacity and impairment or loss of amenities of life. Where P is alleging permanent disability he or she must show that he or she has no reasonable prospect of recovering. If he or she is alleging temporary disability he or she must show that there is no reasonable prospect of recovering prior to the date upon which he or she alleges the disability will cease. Sometimes P will seek to prove that a disability is likely to supervene, although at the date of the trial, it has not yet come about. The disability may be a physical or a mental one.

In Chirinda v Minister of Home Affairs HH 150-2003 P was shot by the riot police and fell down only to be rescued by a by-passer. The court held that in determining the question of damages in a case of this nature the court must consider whether:

  • P suffered excruciating pain both at the time and subsequently.
  • P gave a graphic description of that pain.
  • P has lost amenities of life, is now disabled and suffers permanent discomfort. 
  • P entitled to an award under this separate head. 

See also Biti v Minister of State Security 1999 (1) ZLR 165 (S) and Minister of Defence v Jackson 1990 (2) ZLR 7-8.

With regard to disabilities, P has a duty to mitigate his loss and this means that he or she must submit to any operation or other medical treatment that it is reasonable for him or her to submit to and which is reasonably likely to improve the condition and thereby mitigate the loss.

Loss of amenities of life

Limitations of amenities of life caused by permanent or temporary disabilities include impairment or loss of ability or desire to engage in sport, recreation, social commitments or other normal activities. Loss of, or impairment of, amenities would include such things as sexual impotence, sterility, loss of marriage opportunities, loss of general health, change of personality, nervous insomnia and the general handicap of a disability and shortened expectation of life.

 

The fact that P is unaware of the loss of amenities due to brain damage or prolonged unconsciousness does not affect the claim. It is the actuality of the deprivation of the ordinary experiences and amenities of life caused by the injuries with which the law concerns itself.

 

Mugadzaweta v Co-Ministers of Home Affairs 2012 (2) ZLR 423 (H)

Loss of earnings and of earning capacity

If P’s injuries prevent him from working, he or she is entitled to damages for the income or wages he or she would have earned during the period of his incapacity.

 

If he or she has been permanently incapacitated, or his or her incapacity occupies a period extending beyond the date of the trial, he or she will be entitled to claim for loss of future earnings or loss of earning capacity. Where, as a result of his or her injuries, his or her expectations of life has been shortened, his or her claim for loss of future earnings must be computed with reference to his or her reduced lifespan. Basically, the mode of computation of loss of future earnings, where there is a permanent impairment of earning capacity, is as follows: first, the court will calculate the present value of the future income which P would have earned but for his or her injuries and consequent disability; second, it will calculate thepresent value of the estimated future income, if any, having regard to the disability; finally, it will subtract the second figure from the first and make any adjustments to the figure arrived at which are relevant.

 

To calculate the present value of future income without the disability, the courts have to determine the period over which P would normally have continued to work and earn his or her living, but for the accident. The determination of P’s expectation of life will be based either on medical evidence or, if his or her expectation was normal, actuarial evidence. His or her retirement age prior to the accident would have depended upon various factors such as his or her previous general state of health, the nature of his or her work, the terms of his employment and terms relating to retirement. The starting point is his or her earnings at the time of the accident, but allowance is made for possible future fluctuations. The sum claimed must not be outrageous having regard to the present value of money, the prevailing economic conditions and inflation.

 

Principle of nominalism

 

For any award for loss of earnings or support, current inflationary trends must be considered to make sure money is still worth the same amount as at the end of the period for which the award was made. This is widely known as the principle of nominalism. This was elaborated upon in Muzeya v Marais & Anor HH 80-2004. Here the court referred to PJ Visser and JM Potgieter in The Law of Damages Through the Cases, 2nd ed. at page 321where it was stated that “The essence of nominalism of currency, in the field of obligations, was that a debt sounding in money had to be paid in terms of its nominal value irrespective of any fluctuations in the purchasing power of currency.”

 

The principle of nominalism is to be applied in cases where the respondent suffered a loss of income, expressed in dollars, prior to the trial. That loss must be made good by paying to the plaintiff the number of dollars which he has lost irrespective of whether the purchasing power of the dollar has varied in the interim.

 

This principle does not apply to loss of future earnings or future support or where a comparison has to be made of previous awards in quantifying non-patrimonial loss. Its application has been criticized in the sense that “it would represent a revolutionary transformation of our legal system if Courts were to be called upon to determine the true economic value ‘in terms of purchasing power’ of all obligations sounding in money” : Muzeya v Marais & Anor HH 80-2004

 

At this point it must be noted that there are two main approaches to assessing damages for loss of future earning capacity. The one is to make a globular award in respect of general damages inclusive of loss of future earning capacity. The other is to assess the damages under separate headings – damages for pain and suffering and loss of amenities of life separately from damages for pain and suffering and loss of amenities of life separately from damages for loss of future earning capacity. The latter approach depends on the evidence placed before the court including actuarial evidence. In Southern Insurance Association v Bailey NO 1984 (1) SA 98 (A) the court expressed a preference for the second approach pointing out that damages for pain and suffering, etc. are concerned with a loss which cannot be measured in money whereas the loss of future earning capacity is concerned with patrimonial loss and a logical approach based on some calculation can be done in respect of the latter. This approach has generally been adopted in Zimbabwe. See Muzeya v Marais & Anor HH 80-2004

 

In the case of Rusike v Tenda Transport (Pvt) Ltd & Anor 1997 (1) ZLR 495 (H), P had suffered serious injuries in a motor accident that had been entirely the fault of the other driver. The injuries were such that he would be unable to continue to work as a motor mechanic (he had been an apprentice motor mechanic) but that he would be able to move into some other type of employment provided that it was of a sedentary nature. As regards P’s claim for loss of future earning capacity the court decided that wherever possible the loss of future earning capacity should be assessed on the basis of an arithmetical, actuarial basis and not on the basis of a “gut feeling”. However, whilst the court should be guided by actuarial calculations it is not completely bound by them and must arrive at an award that is fair and just in the particular circumstances of the case. It decided further that in the present case although the court had evidence before it of what P would have earned in the future as a motor mechanic, it had absolutely no evidence as to what he might earn in an alternative career. In a case where there has been pecuniary loss but the court has no evidence on the basis of which an actuarial assessment can be made, the court must nonetheless still make an award of an amount that seems to the court to be fair and reasonable even though this award is little more than an informed guess. The court went on to say that to make the exercise of making such an award somewhat less arbitrary in the circumstances of the present case, the court decided to use the approach of applying actuarial formulae to establish what P would have earned as a qualified journeyman over a limited number of years from the trial date, to make a deduction for contingencies, and to award that amount. The rationale behind this approach is to give P a lump sum that, together with the lump sum for past loss of earnings, he could use either to retrain himself and establish an alternative income earning capacity or to provide himself with the capital to set out a business venture. This approach also recognises a definite limit to D’s liability and requires P to develop an alternative earning capacity within a reasonable period of time. Another approach would have been to have taken the full figure claimed by P and to then have imposed a contingency factor sufficiently large to take account of the fact that his future alternative earning capacity could be close to or even exceeding the income earned as a journeyman. If this second approach had been applied the figure that would have been arrived at would not have been significantly different from that arrived at using the first approach.

 

In Biti v Minister of State Security 1999 (1) ZLR 165 (S) the court said that as regards the claim by P for loss of earnings, the claim for such damages should not be dismissed because he was earning that income by operating unregistered taxis or taxis that did not have certificates of roadworthiness. However, only the figure conceded by the defendant for such loss should be awarded because the courts cannot regard it as consistent with public policy to encourage the use of unregistered and/or unroadworthy vehicles as taxis.

 

In Gwiriri v Starafrica Corp (Pvt) Ltd 2010 (1) ZLR 160 (H) P claimed damages for pain and suffering, loss of amenities and loss of future earnings after he had effectively lost the use of his right hand during an accident at work. The accident was caused by the negligence of his employer.The court held that the concept of the loss of amenities of life has been tersely but aptly defined as a diminution in the full pleasure of living. The amenities of life may further be 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 or 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. Factors that may influence the amount to be awarded include the age and sex of the injured person, as well as the disfigurement and its influence on the plaintiff’s personal and professional life: for instance how many of the activities he or she was able to do or participate in and is he or she still able to or has he been incapacitated and what did those activities mean in his or her life?The assessment of an appropriate award for loss of earnings is not as easy as just multiplying figures based on the plaintiff’s previous earnings. There are several contingencies that must be taken into account. As a starting point it is important, wherever possible, to deal with the matter on an arithmetical, actuarial basis as opposed to a “gut feeling” basis. While the court will generally have a regard to arithmetical calculation and to actuarial evidence of probabilities to assist it in its assessment, ultimately it must decide whether the results of such calculations and evidence accord with what is a fair and just award in each particular case. It is a fact of life that it is not in every case that one reaches retirement age. The probabilities or possibilities of early retirement or retirement due to ill health from natural causes, retrenchment and discharge by employer on other grounds have to be considered.

 

In Nyandoro v Minister of Home Affairs & Anor 2010 (1) ZLR 332 (H) the court stated thatin 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.

 

See also Jacksonv Minister of Defence HB-60-88 and Herschell v Bredenkamp GS-349-81 capitalisation of loss of earnings.

Loss of support

The basis of liability to compensate for loss of support is therefore to compensate a dependant such as a widow or a child for the value of the support lost as a result of the death of the breadwinner, spouse or parent.

 

The basic ingredientsof the plaintiff’s cause of action would be-

 

  • a wrongful act by the defendant causing the death of the deceased,
  • concomitant culpa (or dolus) on the part of the defendant,
  • a legal right to be supported by the deceased, vested in the plaintiff prior to the death of the deceased, and
  • , in the sense of a real deprivation of anticipated support

 

In order for an action to be brought under this head, it must be proved that the deceased owed a legal duty of support to the claimant during the deceased’s lifetime. The action is usually raised by the dependants whose breadwinners have died as a result of road traffic accidents

 

It would seem that a contract by the deceased to accept all risk of injury cannot be set up against the deceased’s dependents (i.e. the defendant is not able to raise volenti non fit injuria as a defence to the dependent’s action - see under the defence of volenti). However, apportionment applies to P’s action (i.e. the amount of damages payable to the dependant for loss of support will be reduced by the extent to which the deceased was at fault).

 

The computation of damages for loss of support may only take into account the actual material loss caused to the dependants. Their mental suffering and distress cannot influence the quantum of damages, unless a recognised mental ailment is caused by the shock of witnessing the death in circumstances where the law would accept that the causing of the mental condition was reasonably foreseeable.The measures of damages for loss of support is, usually, the difference between the position of the defendant as a result of the loss of support and the position he or she could reasonably have expected to be had the deceased not died The particular equities of the case must also be taken into account and an adjustment made if appropriate. The trial Judge has a discretion to award what under the circumstances he thinks right. Thus any addition to a dependent’s income, arising from the death of the deceased, must be deducted from the total amount of the loss.

 

In assessing the value of the benefit-and indeed the loss-the court may be guided but is certainly not tied down by inexorable actuarial calculations. Where property is inherited by a dependent, in determining the extent of his or her loss the court should take into account not the value of the property but that of the accelerated accrual.Joubert (ed) The Law of South Africa (1st re-issue) Vol 7 para 89, citing Jameson's Minors v Central South African Railways 1908 TS 575 at 603; Hulley v Cox 1923 AD 234; and Legal Insurance Co Ltd v Botes 1963 (1) SA 608 (A).

 

This entails assessing the probabilities of the dependent having inherited the property should the deceased not have been killed through the wrongdoing of the defendant, but dying from a different cause at a later stage.

 

In Mabaire v Jailosi & Anor HH-228-10 the court stated that damages for loss of support constitute general damages, and as such, are calculated as at the date of judgment. In most cases, the plaintiff relies either on medical or actuarial evidence; or on the general evidence of the deceased’s earning capacity prior to his or her death; or on both. Where there is proof of loss of support, even in the face of inadequate evidence, the court is enjoined “to pluck a figure from the air”. Judgment will, however, be denied to a plaintiff who through lack of diligence fails to produce evidence that would have been available to him or her. The total amount of loss of support that is arrived at may be subjected to two discounts. The first of these discounts caters for the capitalization rate of the award. This is often equivalent to the rate of interest that the plaintiff would earn on investing the award. The second discount caters for contingencies, such as errors in calculations, taxation and other unforeseen events. While the level of maintenance that the deceased used to provide to his family is important, the court cannot use the expenses incurred by the plaintiff to calculate the loss of support without reference to the deceased’s earning capacity. It is a basic fact of life that expenses may often be much higher than a breadwinner’s earning capacity, so to use the expenses to calculate the estimated loss of support may distort the award for loss of support to the prejudice of the defendant and would amount to an improper exercise of the court’s discretion.

 

In MacDonald & Ors v Road Accident Fund (453/2011) [2012] ZASCA 69; [2012] 4 All SA 15 (SCA) a motor vehicle collision occurred on a highway. The collision tragically claimed the lives of two young parents.The proceedings which eventually led to this appeal commenced when a curator ad litem for the three appellants, who were still minors at the time, instituted an action against the respondent for the loss of support that they had suffered due to the death of their parents. The court said that the first amongst these relevant principles is that loss of support is confined to actual pecuniary loss. In the first place that means that the dependants cannot claim compensation in the form of a solatium for the grief, the stress and the hurt brought about by the death of a loved one because these are not capable of being calculated in money. It also means that the dependants are not allowed to profit from the wrongdoing of the defendant. Accordingly, the actual pecuniary loss to which the dependants are entitled, can only be ascertained by a balance of losses and gains that is by having regard not only to the losses suffered, but also to the pecuniary advantage which may come to the dependants by reason of the breadwinner’s death. This requires one to take into account any income available to the dependants by way of an inheritance from the erstwhile breadwinner. And it matters not whether the income thus available would come to the dependants directly from the deceased breadwinner’s estate or indirectly through the mechanism of a trust. If the net assets in the estate of a deceased parent, together with the income derived from those assets are therefore sufficient to support the dependants in full, no claim for loss of support as a result of the breadwinner’s death can be sustained. See Lambrakis v Santam Ltd 2002 (3) SA 710 (SCA) paras 19 and 20.

 

It should be noted that in terms of s 25(5) of the Road Traffic Act [Chapter 13:11] only one dependant is required to take legal action against an insurer in respect of all the deceased’s dependants.

 

The fact that income accrues from other sources which compensate for the loss is not a ground for reducing the amount payable by the wrongdoers unless such income is a direct consequence of the death of the deceased. In Zimbabwe section 9 of Damages (Apportionment and Assessment) Act [Chapter 8:06] provides for certain benefits to be excluded in assessment of damages in a claim for loss of support. It reads as follows:

9 (1) In this section—

“benefit” means any payment by a friendly society or trade union for the relief or maintenance of a dependant of a member;

“insurance money” includes a refund of premiums and any payments of interest on such premiums;

“pension” includes a refund of contributions and any payment of interest on such contributions and also any payment of a gratuity or other lump sum by a person or provident fund or by an employer in respect of the employment of any person.

(2) In assessing damages for loss of support as a result of the death of a person, no insurance money, pension or benefit which has been or will or may be paid as a result of the death shall be taken into account.

 

In South Africa this legal principle is also derived from statute, more particularly from theThis is a claim for loss of support in terms of the Road Accident Fund in Act 56 of 1996 and the Assessment of Damages Act 9 of 1969. The latter Act is a model of brevity. Its operative provisions are all contained in section 1, which provides: ‘When in an action, the cause of which arose after the commencement of this Act, damages are assessed for loss of support as a result of a person’s death, no insurance money, pension or benefit which has been or will or may be paid as a result of the death shall be taken into account.’

 

In Mfomadi & Anor v Road Accident Fund (34221/06) [2012] ZAGPPHC 152 the court noted that the general principle applied by the South African Court is that a dependent plaintiff when entitled to damages for loss of support, should be awarded damages only for the "material loss caused by his death.

 

See also Jameson’s Minors v CSAR 1908 (1) TS 575, 589; Munarin v Peri-Urban Health Board 1965 (1) SA 545 (W); Evins v Shield Insurance Ltd 1980 (2) SA 814 (A) at 837; Victor NO v Constantia Insurance 1985 (1) SA 118 (C) 122G; Tsara v Mutongawafa S-17-82; Dlikilili v Federated Insurance 1983 (2) SA 275 (C); Hulley v Cox 1923 AD 234; Boberg’s Law of Persons and the Family 2 ed (by Belinda van Heerden, Alfred Cockrell and Raylene Keightley) at 298 et seq; Joubert (ed) The Law of South Africa 2 ed Vol 7 para 88). Indrani v African Guarantee and Indemnity Co Ltd 1968 (4) SA 606 (D) at 607F-H).

Parties who may sue in cases of bodily injuries and death

Primarily, the person entitled to sue for damages for bodily injury is the injured party himself or herself. In cases where that person is a minor, or for some reason he or she does not havelegal standing to litigate his or her natural guardian or legal representative must bring the action, but this action nevertheless represents a claim by the injured party himself or herself. However, in certain circumstances, other people may sue.

 

Where death has occurred, patrimonial loss includes medical expenses prior to death and funeral expenses.

 

Father

A father may sue to recover damages in respect of medical expenses and loss of services where his minor child has sustained bodily injury. This rule is founded upon the ancient concept that a child was in dominio patris and injury to him constitutes a loss of the father’s property. Under present day conditions, the rule would be justified on other grounds. Medical expenses may be claimed on the ground that the father, as a parent, is obliged to furnish these as part of his obligation of support. Loss of services may be claimed for where the child is obliged to give his or services on the ground that the father, through being deprived of the right to demand such services, has suffered patrimonial loss. However, a father may not sue, in his own right, for damages in respect of disfigurement, pain and suffering, disability, etc. to the minor.

Husband

A husband can sue in respect of his wife’s death if the wife had a legal duty to support him or to contribute towards his support.

 

A husband may claim damages against someone who has caused bodily injury to his wife and thereby deprived the husband of his wife’s services. The husband must be able to show that the loss of his wife’s services has actually caused him patrimonial loss. Marriage in or out of community of property makes no difference to his right once established, but it is an important factor in determining whether or not such duty exists.

 

The patrimonial loss in this cause would, for instance, be the cost of replacing her in providing for the care and upbringing of children and the running of the household. It would also include the value of the wife’s services as assisting the husband in the business. Patrimonial loss would cover out-of-pocket expenses, such as hospitalisation, medical expenses, etc. paid in respect of the wife’s treatment.

 

In McKelvey v Cowan NO 1980 ZLR 235 (G) the husband claimed that the wife had a legal duty to assist him in carrying on his business and this assistance was essential for maintaining joint household.

 

A husband has no claim, unlike English law, for damages for being deprived of his wife’s comfort and society as a consequence of death or bodily injury.

Wife and children

The right of a wife or child to claim loss of support for a husband’s or father’s injuries only arises when those injuries result in death. This is because, if as a result of injuries sustained, a husband and father have diminished earning capacity, then he is the person who is entitled to claim. However, it should be noted that a wife married out of community of property, who, by reason of her husband’s indigence, is under a legal duty to maintain and support him, would be entitled to claim damages for medical and other out-of-pocket expenses paid by her. The same would apply to a child.

 

Thus, a wife can bring such a claim in respect of the death of her husband, and she will usually have no difficulty in proving a right of support, the only exception being where the husband was too indigent to provide any support. (It is interesting to note that under s 3(1) of the British Fatal Accidents Act of 1976 even a “common law wife”, that is, a person who has been living with the deceased outside wedlock, is entitled to claim for loss of support if she had been living with the deceased for a period of at least two years prior to his death.) In the case of Zimnat Insurancev Chawanda 1990 (2) ZLR 143 (S), the Zimbabwean Supreme Court ruled that a woman married to a man in an unregistered customary law marriage can claim for loss of support arising out of the death of her husband.

 

Exemption from liability

If X enters into an agreement which exempts D from liability from injury caused to X, this agreement will prevent a dependant from suing in the event of X dying.

Jameson’s Minors v CSAR 1908 TS 575

 

The breadwinner was killed in a train accident caused by the negligence of the railway company. The breadwinner was a passenger who had “a free pass” which excluded liability of the railway company in the specific circumstances.

 

The court decided that this exemption provision was no defence against the action by the dependant.

 

Voluntary assumption of risk by breadwinner

Loubser et al The Law of Delict in South Africa  p 164

Consent to the risk of death by a breadwinner, for example, when taking part in a hazardous activity that may result in injury or even death, is not a defence against a claim by dependants for loss of support, if the death was caused by another’s person’s negligence.

Burchell Principles of Delict p 73 volenti may exclude unlawfulness re deceased but claim by dependant independent and volenti does not exclude unlawfulness in respect of dependant. See dicta in

Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A) at 837

Victor NO v Constantia Insurance 1985 (1) SA 118 (C) at 122

Children

A child (even an illegitimate child) can sue for loss of support caused by the death of either parent. Even a child who has attained majority can sue if he can prove a continued duty of support after majority.

Parent

A parent can sue for loss of support caused by the death of a child if he or she can prove that he or she could not support himself and he or she was dependent upon the support provided previously by the deceased child.

Sibling

Even an indigent brother can claim in respect of the death of a brother who was supporting him, if he can prove that the parents could not provide support. However, the duty of support cannot usually be taken to extend to more distant relatives.

Relatives under customary law

As regards the customary law position as to whether relatives can claim for negligent causing of death, see Tsarav Mutongawafa S-17-82 and Dlikililiv Federated Insurance 1983 (2) SA 275 (C).

Employer

The court held in the South African case of Union Government v Ocean Accident and Guarantee Corporation Ltd 1956 (1) SA 577 (A), that an employer has no right of action for loss of his or her servant’s services, although the old Roman-Dutch authority did allow recovery in respect of loss of a domestic servant’s services. It would seem unlikely that in the modern context a distinction would be made between domestic workers and other employees in this regard.

Heirs

Heirs cannot, claim damages for disappointed expectations based upon arguments that if the deceased had lived longer they would have inherited more.

Property damage

Where property has been destroyed or damaged, P is entitled to be put in as good a position that he would have been in had the wrong not been committed. The amount of damages to which P will be entitled if his property has been damaged will be the difference between the market value of the thing before and after the damage assessed at the time of the delict. The courts will take the reasonable cost of repairing the damage as the measure. But P must prove the reasonableness of the repairs. In Halfpenny v Mujeyi & Anor HH-96-88, P whose vehicle had been damaged had not proved the reasonableness of repairs simply by producing a quote and invoice from the company carrying out the repairs. On the other hand, in the case of Mutendi v Maramba 1994 (2) ZLR 41 (H) P had gone to two panel beaters to obtain quotes and had accepted the lower quote.

 

In GDC Hauliers (Pvt) Ltd v Chirundu Valley Motel 1988 (Pvt) Ltd 1998 (2) ZLR 449 (S) a vehicle belonging to D collided with an electricity pole at P’s hotel, causing an electrical blackout and resultant damage to some electric motors. The driver of the vehicle was admittedly negligent. Repairs were carried out on the motors. P sought to rely on the account from the repairer to establish the quantum of damages. The court held that where a person claims damages arising out of repairs following damage caused by another’s negligence, he must show that the repairs were necessary and that the cost of the repairs was fair and reasonable. The repairs must also be shown to be necessary to bring the article back to its pre-accident condition. It is not enough for P merely to produce an account from the repairer. Without such evidence, the damages cannot be proved.

 

In Ebrahim v Pittman NO 1995 (1) ZLR 176 (H) P claimed damages resulting from an accident in which P’s vehicle, a mechanical horse towing two trailers loaded with grain, was involved in a collision with a car. P claimed the cost of repairs to the mechanical horse; the cost of replacing the tri-axle and independent trailers; recovery expenses; and loss of profits caused by the inability of the plaintiff to carry on part of his business due to the unavailability of the vehicle. On the question of damages, P had the vehicle and trailers repaired at his own workshops, though he had obtained quotes from two panel beaters. No job cards or other documentary evidence were produced and P’s oral evidence was vague as to the cost to him of carrying out the repairs. Although P claimed that the trailers were no longer able to carry the weights they could before, certificates of fitness had subsequently been obtained. D called an insurance assessor, who gave his opinion as to the diminution in value of P’s vehicle and trailers as a result of the accident. On the question of loss of profit, the parties reached a compromise agreement. The court held that where damages to property are claimed, P must lead adequate evidence to enable the court to quantify his damages. Where the damages can be assessed exactly, P is expected to lead enough evidence. Where he cannot produce such evidence, there must be at least enough evidence for the court, even with difficulty, to make a fair approximation of the P’s mathematically unquantifiable loss. If such evidence is not produced, D is entitled to absolution. The P’s evidence in this case was vague and unsubstantiated by documentary evidence. The evidence of the insurance assessor called by the defendant accordingly would be accepted.

Interest on damages

In terms of s 6 of the Prescribed Rates of Interest Act [Chapter 8:10] there are provisions relating to unliquidated claims e.g. for pain and suffering and for disfigurement. It is provided that once the amounts of such claims have been fixed by the court, interest is payable at the prescribed rate from the date the cause of action arose (e.g. the date of the motor accident that caused the injury) but the court has a discretion to order that interest is payable over a more limited period.

 

In the case of Mutendi v Muramba & Anor 1994 (2) ZLR 41 (H), the court ordered that interest on damages for pain and suffering and disfigurement should be payable from the date of the accident, but that interest on the cost of repairs to the car should only be payable from the time the repairs were actually paid for.

 

In Biti v Minister of State Security 1999 (1) ZLR 165 (S) the court decided that it would not be fair to make interest on general damages to run from the date of the accident, since general damages were calculated as at the date of judgment. Interest was ordered to run from the date of service of summons.

 

In Kondoni v Eagle Insurance Co Ltd & Anor 2000 (1) ZLR 286 (H) the court held that in a motor accident situation interest on special damages in the form of medical expenses runs from the date on which the expenses were incurred whereas general damages for pain and suffering are assessed at the date of the judgment and therefore interest on such damages should run from the date of the judgment.

 

See also Mutendi v Muramba & Anor HH-89-94.

Duty to mitigate loss

P is bound to mitigate or minimise his loss. This duty arises as soon as P realises that he or she has suffered loss by reason of the wrongful act of D. P’s duty is not an absolute one: it is simply a duty to take all reasonable steps to minimise the loss that has already occurred or to avert harm in the future. Where P has failed to take such reasonable steps, P is debarred from recovering the loss that results from this failure. In other words, P will not be compensated for such portion of his or her loss as could have been avoided by taking reasonable steps. P has the further duty to avoid aggravating his damages by his own wanton or careless conduct. The onus is on D to prove that P did not take reasonable steps to mitigate or was guilty of aggravating his damages.

 

In Cargo Carriers (Pvt) Ltd & Anor v Nettlefold & Anor 1991 (2) ZLR 139 (S) the amount payable for repairs to a vehicle had been increased due to the delay on the part of P. D was not liable for the extra amount attributable to the delay.

 

In Magoge v Zimnat Lion Insurance Ltd 2003 (2) ZLR 382 (H) the court P is under no duty to mitigate loss but if he or she fails to do so he may have his or her damages reduced. The onus of proving that he or she did not take such reasonable steps is on D.

 

In Fokoseni v Lobels Bakery 2004 (1) ZLR 406 (S) the court ruled that a person wrongfully dismissed from employment must mitigate his or her loss without delay. He or she must look for alternative employment. In the circumstances the court found that P could not have done more to mitigate his loss.

Collateral source rule (res inter alios actae)

The basic principle of compensation in delictual actions is to place the plaintiff in the position she would have been in had the delict not occurred. However, the collateral source rule provides that something that happens between the parties should not concern anyone else.The rule lays down that certain payments made to P from third parties must be disregarded when P claims damages from D. This rule has been applied to two main situations. However, in all jurisdictions where the rule is recognised, it has been fraught with difficulty and has been diversely applied.

 

Gratuitous payments

When a third party intervenes and make payments to the plaintiff out of generosity or benevolence or charity, the collateral source rule comes into play. Here there is reluctance on the part of the law to allow the “wrongdoer” to benefit from the acts of kindness of another unrelated party.

 

Indemnity and non-indemnity insurance

Here it is seen as being inequitable to allow D to benefit from the fact that P has been prudent enough to insure himself or herself and thus insurance payments to P should be disregarded when .

 

This postulates that insurance payments paid to  P do not prevent him or her claiming  damages from  D. This is justified primarily on the basis that D should not be able to benefit from the foresight of P in taking out insurance. But this creates the problem of double compensation.

 

The problem does not arise if the Insurance firm has fully compensated the policy holder and under subrogation the insurance company sues D  to recover its loss from paying out to D.

 

But what if  P has been paid out by the insurer for his or her entire  loss and he or she still sues D for damages? If the court awards P the damages then he or she gets doubly compensated and the insurance company is no longer able to recover its losses through subrogation.

 

This issue was addressed in the case Tsodzai v Magezi & Anor HH-193-2011. After arguments by opposing counsel on this point, the court seems to have rejected the collateral source rule but without making any reference to this rule.  Referring to the precedent of the early South African case of Ackerman v Loubser 1918 OPD 31 the court decided that where the insured takes the initiative to institute  delictual action against D, the pleadings must make it clear that the insured is taking this action for the benefit of his insurer.  If he does not do so the inevitable conclusion would be that he intends to have a double benefit over the same loss. The court must not be left to speculate as to whether P may or may not hand over the benefits of his litigation to the insurer. In the Ackerman case P had been paid out by his insurance company. A term of the insurance policy was that he was compelled to bring action against D if so requested by the insurance company. The insurance company had made this request and P’s pleadings made it clear that he was bringing the action on behalf of the insurance company.

 

In the Tsodzai case P did not disclose that he had been paid out by the insurance company and that he was bringing the action on behalf of the insurance company. He only inadvertently revealed this during the course of the hearing. Even after this P did not in his evidence advise the court that he intended to hold the damages that he would recover on behalf of the insurance company.To further compound his position, P’s declaration and his summary of evidence deliberately withheld this vital information about his indemnification.  I am unable to countenance such level of dishonesty.  In my view all this was calculated to ensure that P would quietly enjoy a double benefit over a single loss knowing fully well that his insurer had adequately indemnified him. The court said that there is nothing on paper or in his evidence that his actions were meant to benefit his insurer. If anything, there is overwhelming evidence that he intended to line up his pockets, thus running foul to the very basic principle of subrogation.  I am unable to positively reward P’s non-disclosure.The court then decided that consequently, it was satisfied that P has no locus standi in judicio to bring this action against Ds.

 

Collateral source rule in South Africa

The collateral source rule forms part of South African law. Professor Boberg states at page 479 of The Law of Delict that although the existence of the collateral source rule cannot be doubted; to what benefits it applies must be determined casuistically; where the rule itself is without logical foundation, it cannot be expected of logic to circumscribe its ambit. Boberg suggests that the rule must also be seen in the context of being partially corrective of our “once and for all” rule which of course carries the danger of under compensation.

 

It also has a bearing in the argument pertaining to whether in delictual actions we compensate for loss of earning capacity or for loss of earnings. Loss of earning capacity allows for a more flexible approach in that it extends compensation to those who at the time of injury were not utilising their earning capacity e.g. the woman who is a qualified accountant but chooses to take time off of her career in order to raise children, or the doctor who is working in missionaries in Africa for charitable purposes. Boberg argues that if the true rationale of compensation is loss of earning capacity, the receipt of collateral benefits is rightly disregarded, for they do nothing to restore that which is lost.

 

Under the common law, the fact that the injured party or a dependant of the deceased receives compensation or benefits from a collateral source, wholly independent of the wrongdoer or the wrongdoer’s insurer, does not operate to reduce damages recoverable by the claimant. The rule is based on considerations of equity, fairness and the interests of society.The rule accordingly excludes such compensation from the assessment of the injured party's damages unless 'equity, fairness and the interests of society', which in this context are aspects of public or legal policy, require that such collateral compensation should indeed be brought into account as reducing the damages for which the defendant is liable.See Concor Holdings (Pty) Ltd v Minister of Water Affairs and Forestry & Anor (Judgment on Exception) (16947/2001) [2006] ZAGPHC 138

 

The rule, however, is subject to exceptions. In South Africa the position is basically as follows:

 

            Benefits not deducted from damages claim

  • Benefits received in terms insurance contracts (thisapplies both to indemnity insurance such as accident insurance and non-indemnity insurance such as life insurance);
  • Benefits received under medical aid, where the medical aid has a discretion as to whether to pay the benefit;
  • Paid sick leave, where P’s employer has a discretion as to whether to grant sick leave;
  • Donations and ex gratia payments;
  • An award that has been received as a solace.

 

 

            Benefits deducted from the damages claim

 

  • Medical aid payments received pursuant to a contractual or statutory right;
  • Sick leave granted pursuant to an employment contract or statutory right;
  • Pension paid out pursuant to a a contractual or statutory right;
  • The benefit of free medical care;
  • Savings on income tax as a result of lost income.

 

It has been decided in South Africa that where the collateral benefit derives from the same contract of employment that P has relied upon to prove his loss of earning capacity, the benefit will be taken into account. See Dippenaarv Shield Insurance 1979 (2) SA 904 (A) where a statutory pension was taken into account; Serymelav SA Eagle Insurance 1981 (1) SA 391 (T) where a contractual right to “sick pay” was taken into account. See also Krugellv Shield 1982 (4) SA 95 (T) and Gekhring v Union National 1983 (2) SA 266 (C). Dippenaar’s case lays down that compulsory payments into an in-house fund within his employment must be deducted, whereas if the payments were voluntary and not compulsory these would not be taken into account.

 

In Bosch v Parity Insurance Co Ltd1964 (2) SA 449 (W): P claimed damages for personal injuries sustained in a motor vehicle accident. During his recovery period he was off work for a period of some 68 days, for which he was remunerated by his employer in terms of sick leave benefits stipulated in his contract of employment. The plaintiff therefore had received full wages and his real loss had been using up his accumulated sick leave. The court held that the fact that the plaintiff had received his wages during the period of incapacitation was to be disregarded in assessing his damages by virtue of the collateral source rule. It was held that it mattered not the benefits flowed from his contract of employment as this right was deemed to have been purchased much the same way as an insurance.

 

In May v Parity Insurance Co Ltd 1967 (1) SA 644 (D) the plaintiff claimed loss of earning for a period during which he was off work. The plaintiff was entitled to receive payment from his employer for the time off work as of right and received sick pay. The defendant argued that this amounted to double compensation. The court (Milne JP) held that the plaintiff was entitled to receive compensation from the defendant irrespective of what he had independently bargained for with his employer.

 

In Santam Versekeringsmaatskappy Bpk v Byleveldt 1973 (2) SA 146 (A) the plaintiff had sustained a severe head injury in a motor vehicle accident. Despite being “feeble minded” and virtually unfit for work, his former employer, a garage proprietor, continued to employ him and remunerate him commensurately as a mechanic. In the twenty months before trial he earned R4 123.00 in wages. The question before the court was whether this amount was recoverable from the defendant for loss of earnings. The Appellate Division held by a majority of 4 to 1, that it was recoverable.

 

In Swanepoel v Mutual and Federal Insurance Company Limited 1987 (3) SA 399(W): In this case the issue was whether a pension or a pensionable allowance to which the plaintiff was entitled in terms of the Military Pensions Act, was to be taken into account in the assessment of damages. The plaintiff made no contributions to the fund and did not rely on a contract of service with the defence force when computing his damages. The court said:

 

“When damages for personal injury are to be assessed a person’s patrimony includes, inter alia, the capacity to earn money through his effort. This capacity to earn money ‘is considered to be part of a person’s estate and a loss or impairment of that capacity constitutes a loss if such diminishes his estate.’”

 

On the basis that the loss of capacity is sought to be compensated, the reason for excluding charitable payments and benefits derived from a contract of insurance becomes obvious. The charitable benefit is a donation and the benefit in terms of an insurance is purchased. Neither benefit is in fact earned. The reasoning of the court in this case was that the military pension bore no relationship to the plaintiff’s earning capacity and therefore could not be deducted.

 

In Zysset & Ors v Santam Limited 1996 (1) SA 273(C): In this matter Swiss nationals received substantial benefits in terms of compulsory Swiss social insurance schemes. The plaintiffs had been injured in South Africa. The issue to be decided by the court was whether the benefits paid in essence by the Swiss insurance schemes were to be deducted. The court held that the enquiry must inevitably involve to some extent considerations of public policy, reasonableness and justice. The considerations include weighing up the factor of double compensation versus the factor that the guilty party ought not to be relieved of liability on account of a fortuitous event such as the generosity of a third party. The court decided that in light of an agreement between the parties and the Swiss insurance scheme requiring the plaintiffs to repay the amounts disbursed, the amounts were not deducted from the plaintiffs’ awards.

 

In Standard General Insurance Company Limited v Dugmore NO[ 1996] ZASCA 89; 1997 (1) SA 33 (A): The issue was whether the plaintiff was entitled to the capitalised value of his salary and pension as he would have received but for the injury, less the capitalised value of the disability pension. The court said that it is generally accepted that there is no single test to determine which benefits are collateral and which are deductible. Both in our country and in England it is acknowledged that policy considerations of fairness ultimately play a determinative role. The court found that the disability pension which flowed from the terms of the contract of employment was to be deducted. A further payment for disability at the behest and discretion of the employer was not deducted.

 

What emerges clearly from the above extracts of law is that no hard and fast rules are applicable in the determination and application of collateral benefits; policy considerations of what is just and fair come into play. What is clear, however, is that where the plaintiff receives a benefit of whatever nature through a third party, and irrelevant of the motive of that third party, this gratuity cannot be taken into account when assessing the losses of the plaintiff. On the basis of the aforesaid authorities, I am of the view that justice and fairness demands on the facts of this case that the benefits provided by Mr. Welsh (the “provider”) in assisting the plaintiff to retain her current salary and position despite her inability to fully render the commensurate services, constitute a gratuity which should not be deducted from her loss

 

This distinction has been criticised and it has been argued that such payments should be disregarded both when they are compulsory and when they are voluntary. (See Boberg p 491.) No such deductions are allowed in England. See Parryv Cleaver 1970 AC 1 (HL).

 

Where the collateral source has paid out to P, Fleming, in An Introduction to the Law of Torts (2nd Ed) at p 130, suggests that the best solution in this situation would be to compel D to reimburse the collateral source. This would compel the defendant to pay in full without conferring a windfall (in the form of double compensation) upon P. This could be done by subrogation whereby the insurer, having paid the insured, can assert the latter’s rights against the tortfeasor or by conferring an independent right to reimbursement upon the agency paying compensation to the injured party.

 

Subrogation in motor accident delictual cases

 

Subrogation is the process whereunder an insurance company that has paid out to an insured party on a claim can step into the shoes of the insured party and seek reimbursement from the party responsible for causing the harm or the harm causer’s insurance company.

 

Cases where D is at fault for accident

D is entirely or partially responsible for the harm caused to P i.e. D negligently caused the motor accident and P was not at fault or was only partially at fault.

If P’s insurance company pays out on P’s claim, the insurance company can then seek reimbursement from D or D’s insurance company party for what it has had to pay out to the insured party. In other words, the insurance company can seek to recover damages from the guilty party or his insurance company.

 

The damages claimed can include not only the amount paid out by the insurance company, but also shortfalls in the amounts paid by P such as where there are limits under the insurance policy on what the insurance will pay to P. (Reinbursement)

 

Cases where insured party is at fault

The subrogation process may also be used if an insured party (D) is at fault in causing damage to P. Here P and/or its insurance company would make a claim against D, usually directly to D’s insurance company.

 

D’s company will then review the case to determine if D is legally responsible for the damages of P. D’s insurance company may then make payment to D’s company if D holds liability insurance with D’s company.

 

Often liability is not clear cut. In some cases, both parties may be partially responsible. For example, one party may be 40% responsible, and the other party may be 60% responsible. This could mean that both insurance companies make subrogation claims against each other, and each company pays their respective portion of the other party’s claim.

 

A knock-for-knock agreement is an agreement between two insurance companies whereby, when both companies' policy-holders incur losses in the same insured event (usually a motor accident), each insurer pays the losses sustained by its own policy-holder regardless of who was responsible.

 

The rationale is economic and administrative efficiency: While an insurer may be able to pursue a recovery from the party responsible for an accident or from its policy-holder, this is a costly administrative procedure. The knock-for-knock agreement simplifies recovery claims among insurers and, over time, attributes costs fairly among insurers.

 

Statutory provision applying in Zimbabwe

Loss of support damages generally

 

Careful note should be taken of section 9(2) of the Damages (Apportionment and Assessment of Damages Act [Chapter 8:06] which provides as follows:

 

9(2) In assessing damages for loss of support as a result of the death of a person, no insurance money, pension or benefit which has been or will or may be paid as a result of the death shall be taken into account.

 

Section 9(1) provides that in this section—

“benefit” means any payment by a friendly society or trade union for the relief or maintenance of a dependant of a member;

“insurance money” includes a refund of premiums and any payments of interest on such premiums;

“pension” includes a refund of contributions and any payment of interest on such contributions and also any payment of a gratuity or other lump sum by a person or provident fund or by an employer in respect of the employment of any person.

 

      Compensation of workers

 

Section 31 of the Accident Prevention & Workers' Compensation Scheme (Prescribed Matters) Notice, 1990 (SI 69 of 1990) provides as follows:

31. Save as is provided under this Scheme, there shall be no abatement of the amount of compensation which the general manager or the employer individually liable has to pay under this Scheme by reason of the fact that, in consequence of the accident causing disablement or death, money has become due to the worker or his dependants under an accident or life insurance policy effected by himself or by any other person.

 

Inflation (fall in value of money)

 

In Biti v Minister of State Security 1999 (1) ZLR 165 (S) the court said that as regards general damages it is not safe to obtain guidance from other countries, given that our economies have changed so greatly and so differently. When referring to a comparable earlier Zimbabwean case, the fall in the value of money must be taken into account. The consumer price index should be used to calculate the equivalent figure in the present case of the damages awarded in the earlier case.

 

In Muzeya NOvMarais & Anor HH-80-04the court said that where making a claim for a debt sounding in money, the principle of nominalism requires that any award must be paid in terms of its nominal value irrespective of any fluctuations in the purchasing power of currency. This principle does not apply to loss of future earnings or future support or where a comparison has to be made of previous awards in quantifying non-patrimonial loss.

 

In Muchabaiwa v Chinhamo & Anor HH-179-03 the court said that in cases where damages are sought for pain, suffering, disablement, disfigurement and shortened life expectancy, 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 damages.

 

See also HuibertsvCohen GS-172-81; Herschell v Bredenkamp GS-349-81.

 

Selected cases on damages for personal injury

Robinson v Fitzgerald 1980 ZLR 508 (GS) D mounted a prolonged assault on P in P’s house. There was contumelia and pain and suffering. The court awarded $1 800 in general damages.

 

Orne-GliemanvGeneral Accident Insurance 1980 ZLR 454 (G) a vigorous elderly man was rendered a virtual cripple as a result of a motor accident. He was awarded $8 000 general damages.

 

Santam Insurance v Paget (1) 1981 ZLR 73 (G) the court discussed how it should proceed when it has insufficient information to assess accurately a claim for loss of future earning capacity.

 

Mendelsohn v Santam Insurance GB-50-81 a 14-year-old girl lost 3 teeth and suffered lacerations to her face in a motor accident. The court had to decide upon how much to award for future medical expenses.

 

Alwanger v Eagle Insurance GS-326-81 death of working wife and mother. The calculation of loss suffered by family.

 

Herschell v Bredenkamp GS-349-81 a 17-year-old girl suffered head injuries resulting in brain damage, personality change and some disfigurement and also a wrist injury which would be likely to result in arthritis in the wrist. The court awarded $31 800 in general damages. It discussed the process of calculating loss of future earnings.

Tena v UANC HS-367-81 Motor accident. A young child suffered a leg fracture and this resulted in a slight shortening of the leg . He was awarded general damages of $2 400.

 

Chibobo v Chidangi GS-341-81 D shot P in the leg. P suffered severe initial pain and permanent inability to participate in sport. He was awarded $1 250 in general damages.

 

Mabatapasi v John HH-265-82 P lost an eye and was unable to participate in most ball games. He was awarded $6 000 in general damages.

 

Gorah v Nhika HH-40-83 motor accident. P suffered major injury and consequent disability. He was awarded $12 000 in general damages.

 

Moyo v Abraham HH-467-84 a woman poked a pregnant woman on the forehead with her finger and challenged her to fight. P was awarded $100 damages.

 

Mayisva v Commercial Union 1984 (2) ZLR 181 (H) P suffered severe injuries to the arm necessitating prolonged treatment. P was unable to engage in previous sports and hobbies. He was awarded general damages of $6 000.

 

Ziyeresa v Fleming HH-92-84 P was shot by D. This resulted in P losing his leg below the knee. He was awarded general damages of $3 500.

 

Mutandiro v Mbubawa HH-354-84 motor accident. A builder suffered a fractured arm and leg and this incapacitated him from active building work. He was also left with a permanent limp and arthritis. He was awarded general damages of $10 000.

 

Nyangani v Maziweyi Bus Service HH-160-84 bus accident. P was unconscious for 4 days and sustained an injury to the neck. He suffered pain. He was awarded general damages of $4 000.

 

Hunt v Ndangama HH-138-84 There was an assault in which P’s ear lobe was bitten off and other minor injuries were caused. General damages of $1 000 were awarded.

 

Shepherd v Zimnat Insurance HH-467-84.

 

Mathe v Maseko HB-77-85.

 

Katsiru v National Railways HH-238-85 motor accident. A 57-year-old farmer in the communal lands had to have his right foot amputated and suffered extreme pain. Awarded $7 500 general damages (the effects of inflation were taken into account), $6 000 for artificial limb.

 

Mabvoro & AnorvMuza HH-199-85 P 1: motor accident left a woman with both legs fractured, permanent pain, reduced ability to walk and perform household chores, inability to continue peasant farming. General damages $20 000 (pain, loss of amenities and disfigurement). (P 2: broken wrist and leg resulted in chronic pain, limp and scarring, reduced ability to work. General damages $15 000.

Webster v Chivhiya HH-209-85 61-year-old man involved in a motor accident, resulting in backache, limping, and inability to continue farming. $10 000 general damages (pain, disfigurement and loss of amenities).

 

Manyika v Nyarume HH-97-85 a motor accident led to P suffering injuries resulting in a slight limp and discomfort when he walked long distances. $8 500 general damages.

 

Chipinda v Zimbabwe Express Motorways HH-55-86 P, a self-employed carpenter, was run over by bus. He suffered severe multiple injuries. He was awarded general damages of $25 000. The court commented upon the process of calculation of future loss of earnings.

 

Chaza v Ramajan HH-459-88 an accidental discharge of a weapon resulted in 21-year-old being paralysed from waist down. He also suffered some pain. He was awarded general damages of $5 000.

 

Nyathi v Tshalibe HB-158-88 an assault resulted in the perforation of P’s eardrum. He suffered persistent pain and permanent deafness in ear. He was awarded general damages of $2 200.

 

Chikanda v Mukumba HH-210-88 motor accident. A 28-year-old constable suffered a severe compound fracture of the tibia and fibula. He had to spend 50 days in hospital and was in severe and prolonged pain. His right leg was an inch shorter and he had arthritis in his ankle. He was no longer able to participate in sport. He was confined to office duties. He was awarded $7 000 in general damages.

 

Jackson v Minister of Defence HB-60-88 motor accident. A recently qualified young doctor suffered severe head injuries and various fractures. He spent 22 days in the intensive care unit. The injuries resulted in loss of his sense of smell, loss of memory, impaired speech, double vision, a shortened left leg and emotional instability. He was only able to perform simple medical tasks. He was awarded $35 000 in general damages.

 

Dube v Manimo HB-44-89 knife attack causing cuts and resulting in amputation of ring finger on one hand, other hand already disabled from polio. $3 000 general damages.

 

Muchechetere v Boka HH-148-89 There was a motor accident. A young boy sustained a thigh fracture and bruising. He was in severe pain for a long period. He had an 8% permanent disability to his leg. The court awarded $6 000 in general damages.

 

Hokonya & Anor v Chinyanyi & Ors HH-17-95 a four-year-old child was so severely injured in a car accident that the child was reduced to a permanent vegetative state. The court awarded general damages in the amount of $65 000 for pain and suffering, loss of amenities, disfigurement and loss of expectation of life.

 

Ndawana v Nasho & Ors 2000 (1) ZLR 23 (H) an elderly pedestrian was knocked down by a motor vehicle that had veered off the road. He was seriously injured, suffering several factures to his leg. He had experienced severe and prolonged pain. He was awarded special damages of $30 000. (In deciding this case, the judge referred to a number of South African and Zimbabwean judgments for comparative purposes.)

 

Mungofa v Muderede & Ors HH-129-03 P, a 40-year old woman was seriously injured in a motor accident. Her cheekbone and both her legs were fractured, he jaw was injured and she endured over four weeks of hospitalization and six operations to treat and remould her broken bones. She was bedridden for four or five months. In all, she suffered 45% disability. As a result of her injuries she was confined to crutches or a wheelchair and lost her employment as a sales manager.

 

She was awarded a total of $8 573 941 of which $300 000 were special damages. From the total sum the court subtracted the amount P had been repaid from her medical aid.

 

Muchabaiwa v Chinhamo HH-179-2003 P was standing on the side of the road when a commuter bus swerved off the road and hit her. She sustained some brain damage and disfiguring injuries, was unable to walk without a stick and then only for short distances, spent a lot of time in bed and suffered epileptic seizures and continuous severe pain.

 

She claimed $800 000 for pain and suffering and $100 000 for future medical expenses. The court held that the amounts claimed were reasonable.

 

Chirinda v Minister of Home Affairs & Anor HH-150-2003 P was a bystander injured by s shot fired by a policeman who was attempting to control a riot. The bullet severed P’s spine, resulting in complete paralysis of his lower body and 100 per cent disability. He lost all bowel and bladder control, was confined to a wheelchair, was unable to take up any employment, and developed suicidal tendencies.

 

He was awarded $1,5 million for loss of amenities of life, in addition to special damages to cover his medical expenses and loss of income.

 

Vellah v Moyo & Anor HB-101-2010 an elderly pastor was assaulted by being severely beaten in his buttocks after being accused of being a member of a particular political party. He had suffered a lot of pain.

He was awarded $50 000 general damages.

 

Gwiriri v Starafrica Corp (Pvt) Ltd HH-20-2010 P claimed damages for pain and suffering, loss of amenities and loss of future earnings after he had effectively lost the use of his right hand during an accident at work. The accident was caused by the negligence of his employer.The court held that the concept of the loss of amenities of life has been defined as a diminution in the full pleasure of living. The amenities of life may further be 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 or 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. Factors that may influence the amount to be awarded include the age and sex of the injured person, as well as the disfigurement and its influence on the plaintiff’s personal and professional life: for instance how many of the activities he was able to do or participate in is he still able to or has he been incapacitated and what did those activities mean in his life?

 

The assessment of an appropriate award for loss of earnings is not as easy as just multiplying figures based on P’s previous earnings. There are several contingencies that must be taken into account. As a starting point it is important, wherever possible, to deal with the matter on an arithmetical, actuarial basis as opposed to a “gut feeling” basis. While the court will generally have a regard to arithmetical calculation and to actuarial evidence of probabilities to assist it in its assessment, ultimately it must decide whether the results of such calculations and evidence accord with what is a fair and just award in each particular case. It is a fact of life that it is not in every case that one reaches retirement age. The probabilities or possibilities of early retirement or retirement due to ill health from natural causes, retrenchment and discharge by employer on other grounds have to be considered.

 

In this case P was not rendered helpless by the disability. What has been rendered of not much use is the right hand. His other limbs, his mental faculties and other abilities were unaffected by the injury. He should be in a position to learn how to effectively use the one remaining hand and embark on another career, which he did not seem to have done. Damages of the nature sought could not sustain him. He was not useless or hopeless. He had to mitigate his loss by engaging in meaningful activities. Due to the fact that he would be using one arm, there would be limits to the nature and extent of the employment or activities he can engage in. It is that deficiency or limitation that must be compensated by an award for loss of earnings.

 

Mafemera v Chidavaenzi & Anor HH-116-2012 a police officer in the course of his duties shot a civilian eight times causing him very severe injuries. He wrongly believed the person he shot to be a criminal that he wanted to apprehend. Plaintiff had to undergo numerous operations and would require further medical treatment in the future. He is no longer able to use his right wrist and hand and was no longer able to work as an accountant. His degree of permanent disability was estimated by the doctor at 50%.

He was awarded US$30 000 as general damages for pain and suffering, loss of amenities and permanent disfigurement and loss of bodily functions. He was also awarded US$10 000 as special damages and US$10 000 for future medical expenses.