IN THE HIGH COURT OF ZIMBABWE CASE NO.

HC 1405/03
HELD AT HARARE
In the matter between:

ARTHUR CHIWARA Plaintiff

And

TURNPARK TRANSPORT COMMUTER

OMNIBUS (PRIVATE) LIMITED First Defendant

And

ALEX MAPFUMO Second Defendant

NOTICE OF SET DOWN (UNOPPOSED ROLL)

TAKE NOTICE THAT this matter is set down for hearing on the ………. day of
………….. 2004 at …………am/pm in the forenoon or so soon thereafter as the matter
may be heard.

Dated at Harare this day of July 2004.

_______________________
Mawere & Sibanda
Plaintiff’s Legal Practitioners
10th Floor, Southampton House
Union Avenue/First Street
Harare (VB Sibanda/0566(6)/bp)

To: The Registrar

High Court of Zimbabwe
Harare
IN THE HIGH COURT OF ZIMBABWE CASE NO.HC 1405/03
HELD AT HARARE
In the matter between:

ARTHUR CHIWARA Plaintiff

And

TURNPARK TRANSPORT COMMUTER

OMNIBUS (PRIVATE) LIMITED First Defendant

And

ALEX MAPFUMO Second Defendant

DRAFT ORDER

Before the Honourable Mr./ Mrs. Justice........................................................

Mr. Machingura, legal practitioner for the Plaintiff

Defendant in default.

WHEREUPON after reading documents filed of record and hearing counsel;

IT IS ORDERED THAT:

1. Judgement be and is hereby entered against the Defendants in the sum of $1

698 190.18 jointly and severally the one paying the other to be absolved
together with interest thereon at the prescribed rate from the date of service of
Summons to date of payment and;

2. The Defendants pay costs of suit

Date: By the Court

JUDGE/DEPUTY
REGISTRAR
IN THE HIGH COURT OF ZIMBABWE CASE NO.HC 1405/03
HELD AT HARARE
In the matter between:

ARTHUR CHIWARA Plaintiff

And

TURNPARK TRANSPORT COMMUTER

OMNIBUS (PRIVATE) LIMITED First Defendant

And

ALEX MAPFUMO Second Defendant

_______________________________________________________

PLAINTIFF’S AFFIDAVIT OF EVIDENCE

_______________________________________________________

I, the undersigned,

ARTHUR CHIWARA

Do hereby swear and state that: -

PARTIES

1. I am the Plaintiff, in this matter.

2. First Defendant is TURNPARK TRANSPORT COMMUTER OMNIBUS

(PRIVATE) LIMITED a duly registered Company carrying on business at 347
Affirmative Way, Harare.

3. Second Defendant was ZIMNAT INSURANCE COMPANY LTD a duly

registered Insurance Company carrying on business at ZIMNAT House, Nelson
Mandela Avenue, Harare.

4. Third Defendant is Alex Mapfumo, an adult male, who was at all material times
employed as a driver by the first Defendant and whose address 6351 89 th Crescent
Glen View 1, Harare.

5. My claim against the Second Defendant was withdrawn on the 2 nd December

2003 upon realising from their plea that it was not the insurer for the First
Defendant. I have attached hereto as Annexures “A” and “B” the Notice of
Withdrawal and the Second Defendant’s Plea.
6. Summons in this matter was issued in this matter on the 24 th of January 2003.
Attached hereto and marked “C” is a copy of the summons.

7. These were duly served on the Defendants on various days and appearance to
defend was filed by Gill, Gordonton and Gerran legal Practitioners on the 21 st of
March 2003 on behalf of all the Defendants, who were three at the time. Attached
hereto and marked “D” is a copy of the Appearance to defend.

8. Gill, Gordonton and Gerran legal Practitioners thereafter renounced agency on

22nd August 2003 on behalf of the First and Third Defendant. I have attached
hereto a copy of the Notice and marked Annexure “E”.

9. Gill, Gordonton and Gerran legal Practitioners then proceeded to file a plea on
behalf of the Second Defendant in which it claimed that the Second Defendant
was not the insurer of the First Defendant, which claim turn out to be correct.

10. As such I withdraw my claim as against the Second Defendant.

11. On the 20th of January 2004 I file a Notice to Plead and Intention to bar to be
served against the remaining Defendants, which notice was duly served on them
by the deputy Sheriff. I have attached hereto copies of the Deputy Sheriff’s return
of service as proof of service and marked them “F” and “G” respectively.

12. The Defendants did not file their plea within the five days stipulated by the notice
and the bar was subsequently filed on the 16th July 2004.

13. The Defendants are therefore barred and default judgement may be entered
against them.

14. The facts of the matter are set out in my declaration, particularly clause 6 t0 9,
which I specifically incorporate herein. I have attached a copy of the summons
hereto for ease of reference and marked it “C”. However these are more clearly
set out in the affidavits attached hereto and marked “H” deposed to myself on the
3rd of July 2002.

CAUSE OF ACCIDENT

15. The collision was caused by the sole negligence of the Third Defendant in that: -

15.1 He drove at an excessive speed in the circumstances.

15.2 He failed to keep the motor vehicle under control.

16. Third Defendant was charged with Culpable Homicide and was convicted of three
count thereof and sentenced to 24 month in prison with labour as evidenced by the
police report I specifically incorporated hereto as Annexure ‘J’.
 INJURIES SUSTAINED

17. Attached hereto as Annexure ‘I’ is my doctor’s report, which among other things
illustrates the injuries I sustained, which are; -

17.1 Fracture of the tibia and fibula on both legs and right humerus; and

17.2 Dislocation of the left elbow.

SPECIAL DAMAGES

18. As a result of these injuries, I incurred medical expenses amounting to $118

943.00. I also incurred numerous other expenses auxiliary to my hospital
expenses such as transport cost and cost for procuring medicine As such I am
claiming $ 198 190.18 for my past medical expenses.

19. As a further consequence of the accident and because of the recurrent nature of
the injuries I suffered, I will incur a further $200 000.00 as future medical
expenses.

20. The medical report I have attached hereto as Annexure ‘I’ will reveal that I am
likely to develop a degree of chronic arthritis in the left knee due to the its
deformity and will require life long occasional analgesics to relieve the pain.

21. Therefore I will constantly require medical attention and as such I am claiming
$200 000.00 as future medical expenses.

GENERAL DAMAGES

22. The accident caused me considerable pain both physically and emotionally. I was
rendered unconscious by the accident and was the subject of numerous medical
procedures, which also contributed to my pain and suffering.

23. I believe that the sum of $900 000.00 (nine hundred thousand dollars) is fair and
reasonable compensation for the pain and suffering I have endure.

24. I verily believe that the sum of one million six hundred ninety eight thousand one
hundred and ninety dollars, eighteen cents is fair compensation for my
experience.

I therefore reiterate my claim in terms of the summons.

SWORN TO AT HARARE this day of July 2004.

 ----------------------------------------
ARTHUR CHIWARA

BEFORE ME

----------------------------------------
COMMISSIONER OF OATHS
IN THE HIGH COURT OF ZIMBABWE CASE NO.HC 1405/03
HELD AT HARARE
In the matter between:

ARTHUR CHIWARA Plaintiff

And

TURNPARK TRANSPORT COMMUTER

OMNIBUS (PRIVATE) LIMITED First Defendant

And

ALEX MAPFUMO Second Defendant

HEADS OF ARGUMENT

THE FACTS

1. This is an application for default judgment for failure by the Defendants to file
their plea.

2. Summons was issued against the Defendants on the 24 th of January 2003 and
served on
2.1 First Defendant on the 14th February 2003.

2.2 Second Defendant on the 20th of March 2003.

3. Defendants entered appearance on the 21st of March 2003.

4. Defendants failed to file a plea within the time specified in the rules of this
Honourable Court.

5. The Plaintiff filed a Notice to Plead and intention to bar on the 21st of January
2004, which notice was served on the Defendants and the bar was subsequently
filed on the 16 July 2004.

6. Defendants are therefore barred and default judgment may be granted in favour of
the Plaintiff subject to him satisfying the court on the issue quantum of damages.

DAMAGES

7. Plaintiff’s damages falls under two headings, which are;-

 5.1 Special damage in respect of medical expenses incurred and;

5.2 General damages for;-

i) Shock, pain and suffering; disability and permanent

disfigurement and loss of amenities; and

ii) Future medical expenses.

MEDICAL AND HOSPITAL EXPENSES

8. As a result of the accident Plaintiff sustained Fracture of the tibia and fibula on
both legs and right humerus. In addition to which Plaintiff had a dislocation of the
left elbow.

9. Plaintiff’s claim is for One hundred and ninety eight thousand one hundred and
ninety dollars and eighteen cents ($198 190.18) this being reasonable
compensation for medical expenses incurred by him as a result of the incident.

10. As a result of these injuries Plaintiff had to undergo medical treatment at

Parirenyatwa Hospital.

11. It is trite law that Plaintiff is entitled to recover damages in respect of medical and
hospital expenses reasonably incurred or fairly attributable to bodily injury as a
result of the unlawful conduct of another.

Salikman vs London Assurance 1959 (1) SA 523 at 527

Mtetwa v Tenda Transport Services and others HH 89/2000

11.1 Plaintiff however has the onus to prove the damages. Normally
this is, where applicable, by way of receipts and invoices, which
receipt and invoices Plaintiff has attached to his affidavits of
evidence.

11.2 Further Plaintiff is generally awarded as damages, ancillary

expenses to the medical treatment he receives, for example
transport costs to and from hospital.

Mills vs Church N.O 1935 GWL 24 at 33

12. Plaintiff having satisfied all the requirements for an award for damages in respect
of medical expenses is therefore entitled to award as prayed for in the summons.

SHOCK PAIN AND SUFFERING

13. Plaintiff claims, in addition to the medical expenses, the sum of nine Hundred
Thousand dollars as fair and reasonable compensation for the shock, pain and
suffering he went through.

14. Needless to say the actual collision caused the Plaintiff immense Shock, pain and
suffering but in addition to which he also had to undergo numerous medical
procedures.

15. Plaintiff had to undergo the following medical procedure;-

15.1 treatment in the intensive care unit; and

15.2 He was treated in traction for both legs and P.O.P for the arm.

16. These procedures also contributed to the Plaintiff’s pain and suffering.

17. The right for a victim to seek compensation for shock, pain and suffering is well
founded at law.

HOFFA NO VS SA MUTUAL FIRE AND GENERAL INSURANCE 1965 (2) SA

944 at 950 H-95A

17.1 Emotional shock is usually associated with pain and suffering1. Shock
maybe of an organic or a psychic (non-physical) nature or a combination
of the two.

17.2 Pain and suffering refers to all pain2, physical and mental suffering 3 and
discomfort caused by bodily injury. Of importance here is the pain and
suffering actually experienced by the Plaintiff irrespective of whether he is
more a less sensitive that the average person4.

DHEMBA VS MOYO HH 256 99

DISABILITY AND PERMANENT DISFIGUREMENT

18. Disfigurement refers to the bodily disfigurement such as scars, loss of limbs,
facial and bodily distortion caused by the accident.

19. Plaintiff is likely to develop a degree of chronic arthritis in the left knee and will
require life long occasional analgesics. His right arm has a marked mid shaft
deformity which is permanent.

20. It has long been part of our law that an injured party is entitled to claim
compensation for such disfigurement.

1
Corbett and Buchanan I 36, Potgieter 9 LAWSA 1-14
2
Yeko v SA Eagle Insurance Co Ltd Corbett and Honey E3-1 @ E3-5
3
Gillbank v Sigourney 1059 (2) SA 11 (N)
4
Marshall Southern Ins Ass Ltd 1950 2 PHJ 6 (D) @ 14
21. Strictly speaking damages for disfigurement should be merged into damages
awarded for loss of amenities.

WEBSTER V CHIVHIYA HH-209_85

22. A disability may be permanent or temporary.

23. Where the disability is temporary it should be included and is normally merged
with the claim for pain suffering and loss of earning capacity. 2

24. The question in this matter is therefore that of quantum.

24.1 The issue of quantum is a discretionary exercise by the court having

regard to the circumstances of the cause, it being based on a subjective
inquiry

Capital Insurance Co Ltd vs Ritcher 1963(4) SA 901

24.2 Pain and suffering it shall be underlined includes both physical and mental
pain suffered (Gill banks vs Sigourney Supra) both future and past
(Brownus Bloemfontein Municipality 1924 OPO226) including pain of the
medical treatment necessitated by the injuries.

24.3 In this case, Plaintiff suffered Fracture of the tibia and fibula on both legs
and right humerus. In addition to which Plaintiff had a dislocation of the
left elbow. Plaintiff's affidavit of evidence elaborates on the extent of
these injuries. He suffered tremendous emotional pain.

25. Certain Guidelines in the assessment of damages for personal injury have
evolved. There are clearly enumerated in the case of: -

Minister of Defense and another vs Jackson 1990(2) ZLR 1SC

26. Among other factors, the court has to take need of is the fall in the value of money
as provided for in the case Biti vs Minister of State securely 1999(1) ZLR 165(5).

27. Plaintiff will therefore respectfully submit that he has established a case for
damages for pain, shock and suffering in the amount prayed and urges the court to
exercise its discretion in his favour.

FUTURE MEDICAL EXPENSES

28. Plaintiff is likely to develop a degree of chronic arthritis in the left knee and will
require life long occasional analgesics.

2
Prof. Feltoe page 94" A guide to the Zimbabwean law of Delict" (LRF 3rd Edition)
29. It is part of our law that an injured party may claim for damages in the form of
Patrimonial or non-patrimonial loss, which will with a sufficient degree of
probability materialise after the time of the assessment of damages on the account
of the Delict.

30. Plaintiff is therefore claiming Two hundred thousand dollars ($200 000.00) for
future medical expenses which he will reasonably incur because of the metal plate
in his leg.

31. Wherefore Plaintiff claims for judgement as claimed in the Summons.

Dated at Harare this day of July 2004.

_______________________
Mawere & Sibanda
Plaintiff’s Legal Practitioners
10th Floor, Southampton House
Union Avenue/First Street
Harare (VB Sibanda/0566(6)/bp)

To: The Registrar

High Court of Zimbabwe
Harare