IN THE HIGH COURT OF ESWATINI
Held at Mbabane Case No.: 549/2013
In the matter between
SIFISO MABUZA Plaintiff
AND
PHINDUVUKE BUS SERVICE 1ST Defendant
Neutral Citation: Sifiso Mabuza Vs Phinduvuke Bus Service (549/2013) [2019] SZHC 194 ( 16th October 2019)
Coram: Hlophe J.
For the Plaintiff: Mr S. Jele
For the Defendants: Mr L.M. Simelane
Date Heard: 30th April 2019
Date Judgement Delivered: 16th October 2019
Summary
Civil Law – Action Proceedings – Delictual Claim – Claim for special damages and general damages – Meaning of these terms in law – Whether Defendant delictually liable to pay Plaintiff any or all of the damages claimed – Which of the claimed specific damages are proved to be payable if any – Quantum of such damages and how they are assessed in law.
JUDGMENT
Introduction:
[1] This judgement is a sequel to the one by the Supreme Court which reverted this matter to this Court for rehearing. This the Supreme Court did at its First Session of 2019. It was after it found inter alia that this Court had not applied the proper test when it dismissed the Plaintiff’s claim after upholding an application for absolution from the instance.
[2] Whereas this court had in its said judgement applied what is known as the concrete or relative approach to negligence to come to the conclusion it did (which was to the effect that no prima facie case had been made for the relief sought), the Supreme Court came to the conclusion that the applicable approach was that called the abstract approach which is about the harm that ensues being generally reasonably foreseeable.
[3] The Supreme Court therefore concluded that this Court had erred when it found as it did because on the basis of the evidence before it then, it should have found that a prima facie case had been made and therefore that Defendant had a case to answer in the merits; which should have necessitated that the Defendant’s case commenced with the necessary witnesses being led on its behalf.
[4] This Judgement is therefore an outcome of the full trial which was continued with and eventually concluded in line with the Supreme Court’s decision and it followed with the parties having led all the witnesses they had intended to lead. This judgement also entails the reasons for the ruling I made on the 29th day of November 2018, when I concluded, after listening to all the defence witnesses, that a case for the liability of the defendant had been made and therefore that the next step was to determine what the appropriate damages were.
The Merits
[5] The evidence by the Plaintiff was that on or about the 03rd day of September 2009, he was a passenger in one of the Defendant’s Buses which plied the Manzini – Lomahasha – Magomini – Matfuntini and Nkalashane route and back. After alighting at Magomini bus stop he was hit on his left eye by the piece of a bottle that had sprung up from the road after having been trampled upon by one of the bus’s tyres.
[6] The Plaintiff contended in his testimony that the said bottle had actually been collected on the floor of the bus by the bus conductor among other forms of litter and thrown under the bus where it had apparently landed on the route to be traversed by the tyre of the bus, hence its piece springing up and hitting him on the left eye.
[7] This aspect of the Plaintiff’s case was corroborated in material respects by one of his witnesses, Ms Martha Mkhabela, PW2, the only one who had alighted from the said bus at the same station as the Plaintiff and had gone on to witness the Plaintiff being injured, just as she had gone further to render help to the Plaintiff after he had just been injured in the manner described above. I say she materially corroborated the plaintiff because, whereas there was a conflict in their testimony on the number of bottles that had allegedly been picked up from the floor of the bus and thrown under it (he said two and she said only one), there was no one to confirm or contradict this version on the part of the Defendant given that the conductor who allegedly picked up the bottle or bottles on the ground was not called, because he was reported to have relocated to the Republic of South Africa , where he was now working, having, subsequent to the accident, left the Defendants employ.
[8] The Defendant’s witness who was in the bus, the driver, claimed not to have seen any bottle on the floor of the bus but also qualified his version by saying he could not do so from the way in which his cubicle in the bus was positioned. The Defence counsel could only make do with putting his case to the Plaintiff’s witnesses claiming that no bottle had been picked from the bus nor was any thrown under it. This however is not enough to stand in the stead of direct evidence as that given by the Plaintiff’s witnesses.
[9] The discrepancy in the versions of the Plaintiff’s witnesses as regards the number of bottles picked from the floor of the bus and those thrown under it was in my view no longer material because the version of the Defendant had not set out evidence contradicting or confirming any of the conflicting versions. Had I gone on to find the conflict material, I am convinced I would not have sustained a contrary finding and I would have easily been found to have placed unnecessary weight on immaterial issues. This is because in the current setting, I could not have been able to say that the accident was not caused by the Defendant. If the only issue was whether one or two bottles had been thrown under the bus as opposed to whether any bottle had at all been thrown there under it seems to me to be immaterial in the current circumstances. This aspect of the matter does no more than underscore the significance of instituting proceedings timeously to avoid prejudice to either of the parties’ cases as well as to emphasise that where there had been an unreasonable delay in the institution of such proceedings, that may have to be reflected on the damages to be awarded incase the Plaintiff was successful.
[10] Whatever the situation, it ended up not mattering whether one or two bottles had been thrown under the bus because the witness who could have effectively challenged on this aspect of the matter, was no longer available and could therefore not be called for the reasons stated above. This then elevated the version by the Plaintiff’s witnesses to a finding that one or two bottles had been thrown under the bus with the result that when at least one was crushed or trampled upon by the bus it had sprung and hurt the Plaintiff on the eye.
[11] With this question having been settled, the next one was whether the Defendant’s employee, acting within the cause and scope of his duties, had thrown such a bottle or bottles under the bus resulting in a piece therefrom springing up and hitting the Plaintiff on the eye and whether Defendant could avoid a legal conclusion that he acted negligently and therefore that the latter had to compensate the Plaintiff in damages for the injuries suffered.
[12] So much had been said in the previous judgement of this court and that of the Supreme Court on this aspect of the matter. In fact in the manner in which the Judgement of the Supreme Court had been framed, as soon as I would confirm, after hearing the Defendant’s case, that the bottle piece that hit the Plaintiff was from that (or one of those) thrown under the bus by the Defendant’s employee, acting within the course and scope of his duties, then the necessary finding or conclusion was that the Defendant’s employee and by extension the Defendant, had negligently disposed of the bottle so as to cause the accident that eventually befell the Plaintiff. In that sense the Defendant could therefore not avoid liability.
[13] As stated in the previous judgement and that of the Supreme Court, a party must take reasonable cause to avoid acts or omissions which one could or should reasonably foresee would likely injure someone else. Encouraged by the concrete or relative approach to negligence my view had initially been that the precise nature of the injury including its precise occurrence ought to have been foreseeable for liability to be attributed to a particular Defendant. Having been directed by the Supreme Court that reasonably foreseeable harm does not necessarily mean foresight of the precise injury including its precise nature of occurrence, it follows that from the circumstances of the matter and the bottle piece that caused the damage having arisen from that thrown under the bus, then only one conclusion has to be reached, namely that the Defendant is liable for the injury that befell the Plaintiff.
[14] In other words seeing that the only reason I had found in the manner I had was because I had concluded that the precise nature of the accident including its precise manner of occurrence, had to be reasonably foreseeable which I had found not to be the case herein, it follows that if a much broader conclusion was allowed, in law, as the Supreme Court has directed, then the Defendants cannot avoid liability. The Supreme Court as a higher court to this one has in fact been preemptive on what these circumstances mean. I am now obliged to find differently as long as it has been shown that the bottle was indeed thrown under the bus by the conductor. I could only find that it was thrown there by the conductor in question in these circumstances.
[15] I agree that if I approach the matter in the manner directed by the Supreme Court, it should follow that what it said at paragraph 37 of its judgement is apposite in this matter. The effect of it is that I should come to the conclusion that the Defendant could not avoid liability therefore. The Supreme Court said the following in that paragraph:-
“In a decision of the House of Lords in United Kingdom Capero Industries PLC V Dickman (1990) UKHL 2, [1990] 2 AC 605, the Court reviewed many cases which had dealt with the issue of duty of care and developed a threefold test which requires that;
(a) The harm caused by the Defendant must be reasonably foreseeable,
(b) There must be a relationship of proximity between the Plaintiff and the Defendant, and
(c) It must be fair and just to impose liability.
.
[16] Commenting further on this test and thus Further limiting the options of this court, the Supreme Court said the following at paragraph 40 and 41 of its judgement:-
“41.In my view the court a quo took a narrow view of the concept of negligence and the foreseeability test. There is no doubt that the Respondent owed a duty of care to its passengers or indeed other road users not to engage in actions or omissions which were reasonably likely to injure them. These persons ought to have been in the reasonable contemplation of the Respondent’s employees in the bus.
42.The action of the bus conductor in throwing a bottle under the tyre of the bus was unlawful, careless and inconsiderate. Any reasonable person ought to have known or reasonably contemplated that if the bus ran over the bottle it would break and the bottle particles would fly off or spring up hitting any person who was standing near the bus. It is immaterial that a reasonable person may not have contemplated that the bottle pieces would land on a specific part of the body, namely the eye. But it was in contemplation of a reasonable person that one of the parts of the body which could be injured would be the eye. Therefore, even by applying the concrete approach the specific consequences which the Respondent’s conduct caused were reasonably foreseeable and therefore preventable. It is also fair, just and reasonable to impose liability against the Respondent for the damage caused to the Appellant.”
[17] It follows that with the Supreme Court having said what it did in the foregoing paragraphs it would be very difficult for this court to find any how else. Consequently these are the reasons for my having concluded that the Defendant is liable to pay damages for the Plaintiff.
Damages:
[18] With regards the question of damages, I directed the parties to either lead the necessary witnesses to prove the damages and motivate for or against each other’s position. Only the Plaintiff led a witness in proof of damages. This was the Eye Specialist Doctor, Owen Pons, Dw2. They otherwise each provided reasons or made submissions on how the court should approach the question of damages, including the reasons why.
[19] The starting point is that the Plaintiff has claimed both special and general damages in his papers and submissions. The distinction between special damages and general damages can best be found from the excerpt I have been referred to by Counsel for the Defendant. It is taken from the book by Neethling, Potgieter and Visser with the tittle, Law of Delict, 2nd Edition at Page 209. It captures the position as follows:-
“General damage often refers to the damage which is presumed to flow from an unlawful act and which need only be pleaded generally, while special damage means loss in respect of which such a presumption does not apply and which has to be specially pleaded and proved. The term general damage is also used to describe non – patrimonial loss. In the field of delictual liability for bodily injuries, all non – Patrimonial loss (pain, suffering etcetera) as well as prospective patrimonial damage (such as future medical expenses loss of earning capacity and support) amounts to general damage while monetary losses sustained up to the date of trial (medical expenses already incurred) amount to special damages” (underlining is added)
[20] It follows that under special damages, that is damages in the form of a monetary loss incurred by the Plaintiff, the latter has claimed such things as medical expenses and transport costs. For general damages the Plaintiff has claimed under heads such as estimated future medical expenses, Pain and suffering, trauma, loss of business and disability.
[21] To succeed in proving special damages, the position is trite that such damages should be specifically pleaded on the papers and must be proved during the trial. As I understand the position, by asserting that the damages should be specifically pleaded is meant what is stated in the rules relating to or applicable to pleadings as opposed to merely mentioning such damages which does not amount to pleading as referred to in the principle. That is to say a mere mention of the heads under which the claim for special damages is made without particularizing how the damages arose and how they are constituted is not enough. This position is best set out in Herbstein and Van Winsen’s, The Civil Practice of The Supreme Court of South Africa, 4th edition, Juta and Company, at page 450, where the position is set out in the following words:-
“Every pleading must contain a clear and concise statement of the material facts upon which the pleader relies for his claim, defence or answer to any pleading, as the case may be, with sufficient particularity to enable the opposite party to reply to it. A plaintiff acts in breach of this requirement when his particulars of claim include extensive extracts from and references to other documents and sources, or when, despite the particulars containing concise statements of fact, those statements are not material to any clearly disclosed cause of action.
A pleading must allege the facts that are required in order to disclose a cause of action or defence. A pleading that states conclusions and opinions instead of material facts, or that draws a conclusion without alleging the material facts which, if proved, would warrant that conclusion, is defective”. (underlining is mine)
See also Prius V University Van Pretoria 1980 (2) SA 171 and Joubert V Bester 1977 (4) SA 560.
[22] On the question of claiming damages and how the pleadings relating thereto ought to be framed, including what they should entail, the position was put as follows in Herbstein and Van Winsens, The Civil Practice of The Supreme Court of South Africa, 4th Edition at page 453:
“A plaintiff suing for damages must set them out in such a manner as will enable the defendant reasonably to assess the quantum. This applies both to claims for general damages and to claims for special damages. A bald statement of broad principles as to the basis on which the damages have been claimed for example that they are necessary in order to place the Plaintiff in the position he would have occupied had it not been for the defendant’s (breach of contract) will not satisfy the requirement of adequate quantification.
[23] In the matter at hand, the Plaintiff only wrote a bare statement with regards his claims on special damages. He for instance said he was claiming E2000.00 for medical expenses and E1000.00 for transport costs. He did not particularise how these figures arose nor did he give any evidence confirming these. Clearly it is very difficult for this court to tell how much it can award for which one of the special damages claims made as there are no particulars setting out how the figures in question were arrived at, just as there was no evidence proving such losses. This means that no amount for the special damages claimed has been proved, and by extension that none of the special damages claims has been proved.
[24] It has since been found that the injury sustained by the Plaintiff was a result of the Defendant’s negligent conduct. The plaintiff claims for the damage that presumably flowed naturally from the said unlawful act which in law are the general damages. The general damages listed above are the ones that are claimed as having flowed from the alleged unlawful conduct. Other than the claim for future medical expenses whose success depends on their particular proof, I am of the view that there is no value to be gained by giving an award for each one of heads under which the damages are claimed them. It suffices that I should consider awarding a globular figure to compensate for the injury concerned which is with the exception of the future medical expenses. To confirm this approach, PJ. Visser and JM. Potgieter, had the following to say in their book, The Law of Damages at page 398.
“It is, of course, not essential that an award of damages for non – pecuniary loss should be subdivided into the different forms such a loss may take.”
See also: Blythe Vs Van Den Heever 1980 (1) SA 191 (A) at 227 as well Chetty Vs Minister of Police 1976 (2) SA 450 at 456.
[25] It is true that in awarding general damages, there is no special measure or formular used to come up with mathematically accurate figures. The court is often guided by reasonableness and fairness among other considerations. According to P.J. Visser and J.M. Potgieter at page 394;
“Although damage in the form of non-patrimonial loss is incapable of being directly expressed in money, the relationship between the two is found by using fairness as a type of formula. In practice this means that a plaintiff will not be compelled to pay a large amount of damages just because of the law’s sympathy with an injured plaintiff. In Pitt V. Economic Insurance Co. Ltd 1957 (3) SA 284 (D) at 287, the court stated:-
“I have only to add that the court must give just compensation to the Plaintiff, but it must not pour out largesse from the horn of plenty at the Defendant’s expense.”
[26] The position is also trite that the court should strive to, without being unreasonable, exercise its discretion carefully and conservatively and should rather award too little than award too much. It should not be about burdening the defendant at the expense of the Plaintiff. Ofcourse the other consideration is that there should not be undue sympathy for the Defendant.
[27] Previous court awards have also been seen as one of the vital tools in assessing the appropriate quantum of damages. This particular tool is important notwithstanding one’s appreciation of the general principle that no cases are the same. This measure is also best observed if taken together with the time at which the award is made visa vis the time when the incident giving rise thereto arose.
[28] The following cases which are one way or the other about the loss of eyesight on one eye as a result of injuries suffered, gave compensation of about E200,000.00 in each instance. These are the cases:- Mvundla V Road Accident Fund 2012 ZAGPHC, Mthembu V Minister of Law and Order 1991 4 C & B 13-1D, AA Oudenlinge Assurance Associate V Sodom 1980 (3) C & B 105. Two local cases in which one or the other entailed the loss of eyesight in one eye, resulted in the Plaintiff being awarded damages ranging between E120,000.00 and E100,000.00. These are the cases of Sipho Sikhosana Vs The Motor Vehicle Accident Fund High Court Case No.3549/2006 and Masins Vs Umbutfo Swaziland Defence Force and Another, High Court Case No.274/2005.
[29] Although very persuasive, I will consider as well that they are 2006 and 2005 cases respectively and that they were therefore decided more than ten years ago. This makes the award by the South African Courts referred to above to sound very attractive to this court. The award made in those cases also looks attractive if I have to take into account the fact that although they occurred in the 1990’s they are from a country with a stronger economy which means that I consider more the amount awarded than the period when it was made. The Plaintiff is shown by the circumstances of the matter as having taken some four or so years before instituting the proceedings we are currently about here.
[30] It seems to me that a sum of E230,000.00 would be a fair and appropriate amount to award for all the general damages claims listed in the Plaintiff’s particulars of claim except for the future medical expenses which in terms of the evidence were fixed at a particular sum. According to the evidence of the ophthalmologist, Dr Jonathan Pons, the Plaintiff who was now 40% blind on the left eye following the injury suffered could have his position improved through a further surgery. This 0peration could be done at his surgery in Siteki. He estimated its costs at around eleven or twelve thousand Emalangeni.
[31] Given that there would most likely be some further incidentals towards the success of the surgery, it seems to me that a sum of E20,000.00 would be appropriate to carry out this exercise.
[32] Accordingly, taking into account the circumstances of the matter together with previous decisions in comparable matters and the overall evidence tendered in court, I am satisfied that an overall sum of E250,000.00 as damages suffered by the Plaintiff be and is hereby awarded to him.
[33] That being the case I make the following order:-
1. The Plaintiff be and is hereby awarded a sum of E250,000.00 as entailing all or any of the general damages claims the Plaintiff made against the Defendant.
2. The Plaintiff is further granted interest at 9% from the date of judgment to that of payment.
3. The Defendant is also ordered to pay the costs of these proceedings at the ordinary scale.
______________________
N. J. HLOPHE
JUDGE – HIGH COURT
