2
HH 40-13
HC 4187/12
(a) $50 000-00 being damages for shock, pain and suffering
(b) $100 000-00 being damages for loss of amenities of life
(c) $50 00-00 being damages for contumelia
(d) $11 367-00 being special damages for medical expenses.
(e) Interest on the total sum of $211 367-00 at the prescribed rate for the date of
summons to date of trial payment
(f) Costs of suit.
The defendant was served with the summons and did not enter
appearance to defend. The matter was set down on the unopposed roll for the plaintiff to
establish his claim.
In his affidavit of evidence, the plaintiff detailed how he was shot, the injuries he
sustained, some of the procedures he under-went and the medical expenses he incurred in
respect of the procedures.
He then concluded in affidavit with a statement that he is entitled to the damages in
the summons and declaration as the shooting was unjustified and unprovoked.
He did not give evidence at all to establish a basis for awarding him damages for
contumelia and loss of amenities of life. Some attempt was made in the Heads of Argument
to establish how the plaintiff suffered damages for the contumelia and loss amenities.
The case of Matthew Mbundire v Tryone Sim Buttress SC 13/11 is very instructive.
GARWE JA considered the approach that has been followed by the courts in the assessment
of damages in general and special damages in particular. He looked at a number of authorities
and I will quote in extenso from p 4 of the judgment:“In Hersman Shapiro & Co 1926 TPD 367, 379-80 STRATFORD J observed:
„…. Monetary damage having been suffered, it is necessary or the Court to assess the
amount and make the best use it can of the evidence before it. There are cases where
the assessment by the Court is very little more than an estimate; but even so, if it is
certain that pecuniary damage has been suffered, the Court is bound to award
damages. It is not so bound in the case where evidence is available to the plaintiff
which he has not produced; in those circumstances the Court is justified in giving, and
does give, absolution from the instance. But 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, still, if it is the best evidence
available, the Court must use it and arrive at a conclusion based upon it…..
In Ebrahim v Pittman N.O. 1995(1) ZLR 176H, 187C-D BARTLETT J
quoted with approval the remarks of BERMAN J in Aarons Whale Rock Trust v
Murray & Roberts Ltd & Anor 1992(1) SA 652(C), 655-656F that: