Abel Bushman V Attorney General (C of A (CIV) 47/2020) [2025] LSCA 71 (7 November 2025)

LESOTHO IN THE APPEAL COURT OF LESOTHO HELD AT MASERU C of A (CIV) 47/2020 CIV/T/322/2009 In the matter between: ABEL BUSHMAN APPELLANT AND ATTORNEY GENERAL RESPONDENT CORAM : MOSITO P MUSONDA AJA MATHABA AJA HEARD DELIDERED 7 OCTOBER 2025 : : 7 NOVEMBER 2025 FLYNOTE Delict — Police assault — Quantum of damages — Appellate interference — Medical evidence — Global award — Special damages: strict proof, causation, and pleadings cap — Remoteness — Constitutional/dignitary harm — Interest a tempore morae. Facts. The appellant was assaulted by police officers. Medical evidence (Drs Mokoto and Knight) recorded multi-site soft-tissue injuries, lumbar involvement, marked head swelling, conjunctival haemorrhage, concussion, temporary auditory incapacity, and hospital admission on 29 August 1993. Subsequent records reflected persistent lumbar pain, renal symptoms with haematuria, and ongoing generalised pain; various diagnostic and treatment receipts were produced. The High Court awarded M40,000 for pain, shock and suffering, M845 for medical expenses, and costs. Issues. Whether the award for non-patrimonial loss was so inordinately low, or rested on a misdirection, as to justify appellate intervention; how the unchallenged medical evidence and aggravation (assault by State agents) should inform quantum; which medical expenses were strictly proved and causally linked to the assault; the effect of temporal remoteness; whether a global award should be made to avoid duplication; and whether the pleaded cap on special damages bound the court. Held. Appeal allowed. The court a quo under-appreciated the proved medical gravamen and the dignitary/constitutional dimension of police brutality. The award of M40,000 was manifestly low and constituted a misdirection. A global award is appropriate to capture pain, suffering, shock, disfigurement (including scarring) and contumelia. Special damages must be specifically pleaded and strictly proved; temporal remoteness does not defeat recovery where causal nexus is shown, but items lacking medical linkage (spectacles/cataract) are disallowed. Although recoverable medical expenses exceeded M5,000, the appellant is confined to that pleadings cap absent amendment. Principles. Appellate restraint in quantum yields where the trial court misdirects itself or the award falls outside the reasonable range; medical evidence of concussion and life-threatening head trauma materially elevates non-patrimonial damages; assaults by State agents aggravate and warrant rights-vindicating but non-punitive compensation; overlapping non-patrimonial heads are best treated globally; special damages require strict proof and causation; remoteness is answered by medical nexus; pleaded specials cap recovery. Order. Judgment below set aside. Substituted: M200,000 (global general damages) + M5,000 (special damages, being the pleaded cap), both with interest at the legal rate a tempore morae from summons to payment; costs in the High Court and on appeal to the appellant. JUDGMENT MOSITO P Introduction [1] This appeal concerns the adequacy of the damages awarded to the appellant by the High Court (Banyane J) for a serious assault perpetrated upon him by police officers. Liability was admitted or established; only quantum is in issue. The court a quo awarded M40,000 for pain, shock and suffering, M845 as medical expenses, and costs. The appellant says the award for non-patrimonial loss is inordinately low, given the gravity of the assault and the medical evidence, and that his proven medical expenses exceed the amount allowed. [2] The particulars of claim sought M300,000 for pain, shock and suffering, M195,000 for disfigurement, M5,000 for medical expenses, and costs. The appellate task is orthodox: to decide (i) whether the trial court misdirected itself or made a wholly erroneous estimate; and if so (ii) what award is just. [3] The appellant’s injuries and sequelae were proved by a suite of medical reports and receipts that formed part of the record and were not seriously challenged in their authenticity. Because the dispute is about quantum, it is necessary to set out the medical evidence with some care. [4] Dr Mokoto substantively identified multiple soft-tissue injuries, including a back (lumbar) injury. Soft-tissue trauma of this kind is consistent with blows delivered by blunt objects. The report speaks to diffuse pain and tenderness, with expected functional limitation in the early weeks and months. [5] Dr Knight’s report records: conjunctival haemorrhage; swelling of the right knee; marked swelling of the head; and injury in the lumbar region. The appellant was admitted to the hospital on 29 August 1993. Although the report notes “injury or disability — none” under the heading for permanent injury, it expressly records that the appellant sustained injuries “dangerous to life” caused by a blunt object, with concussion diagnosed and a contemporaneous note that he was unable to hear. The combination of head trauma, concussion and temporary auditory impairment bespeaks a high- energy assault with significant dignitary and psychological impact, even if permanent disability was eventually avoided. [6] The appellant attended an optometrist on 3 December 1993, paying M845.99. That proximate expense is plainly referable to the ocular consequences of the assault (conjunctival haemorrhage and visual disturbance) and is recoverable as special damages. [7] Exhibit “F” evidences that the appellant remained a patient from 12 August 1993, was referred by Dr Knight as a victim of police assault, and complained of severe lumbar pain, decreased libido, bilateral renal pain with haematuria, and generalised body pain consistent with the soft-tissue injuries earlier described. The note also mentions blindness possibly related to cataract surgery (cataractectomy). On the record before us, there is no expert opinion linking cataract pathology to the assault; absent such a nexus, expenses peculiar to cataract correction are not recoverable as special damages. [8] The papers include receipts evidencing, among other things, PathCare diagnostic tests in the amounts of M530.00 (the summary undated, though the record indicates these were post- assault) and M500.00 in July 2011; consultations with Dr J. Coetzee billed at M1,503.70 and M1,529.70, respectively; an account from Drs Dietrich, Voigt, Miar & Partners dated 10 June 2011 for M500.00; and spectacles supplied by Dr D. N. Ranoko (optometrist) in the sum of M2,720.00. [9] The 2011 items are temporally remote from the index assault in 1993. Remoteness in time does not bar recovery if a medical nexus is shown on the probabilities (for example, for chronic lumbar pain management or investigations of renal sequelae after blunt trauma). Where, however, the causative link is not medically established—as with the cataract/spectacles—the item must be disallowed as special damages. Such late-arising complaints and expenditure, to the extent they reflect persistent discomfort and anxiety, may nonetheless be weighed qualitatively in the reassessment of general damages. Issues for Determination [10] This appeal concerns the propriety of the trial court’s assessment of damages for a proven police assault. The essential questions are whether the award was tainted by misdirection or under-assessment, and, if so, what sum would constitute just compensation. In that inquiry, consideration must be given to whether the medical findings—concussion, head swelling, conjunctival haemorrhage, temporary hearing loss, and lumbar injury—were properly weighed in assessing pain, suffering, disfigurement, and loss of amenity; whether the official character of the assailants, with its attendant humiliation and fear, warranted an uplift to vindicate constitutional rights; and whether a single global award was the proper method for evaluating non- patrimonial loss. It must also be determined whether, against comparable awards and prevailing standards, the figure of M40,000 lay outside a reasonable range. The remaining issues concern the proof and causal connection of medical expenses, the effect of temporal remoteness, the pleaded cap of M5,000 for specials, and, finally, the appropriate commencement of interest and order as to costs. The law [12] The principle that the assessment of general damages lies primarily within the discretion of the trial court, and that appellate interference is exceptional, is well settled in our jurisdiction. In Mphosi v Ramakhula [1993–1994] LLR–LB 24 (CA), this Court (per Mahomed JA) stated, the assessment of general damages is pre-eminently the function of the trial court. An appellate court may interfere only where there is a demonstrable misdirection or where the amount awarded is so inordinately high or low as to represent a wholly erroneous estimate. Similarly, in Matsoso v Lesotho Flour Mills [1999–2000] LLR–LB 356 (CA), Grosskopf JA reiterated that, the appellate court is slow to substitute its own view for that of the trial judge in matters of quantum, unless it is satisfied that the court below acted upon a wrong principle or that the award is so out of proportion to the injuries as to be a clear error. [13] This Court in Mokhachane v Commissioner of Police and Another [1997] LLR 345 (CA) outlined the principal factors guiding the assessment of non-patrimonial loss by pointing out that, in assessing general damages for personal injury, regard must be had to the nature and extent of the injuries, pain and suffering, permanent or temporary disability, disfigurement, and loss of the amenities of life. The court must further consider the circumstances of the assault and the social and constitutional context in which it occurred. In Ramosalla v Attorney General [2000] LLR–LB 201 (HC), the court emphasised that, where the injury is accompanied by humiliation or abuse of authority by the police, the award must also serve a vindicatory function consistent with the protection of dignity under the Constitution. On overlapping heads and global awards, this Court in Mokhachane further observed that pain and suffering, disfigurement, and loss of amenity are not discrete compartments; they frequently overlap, and the trial court is entitled to make one composite award under the general head of non-patrimonial loss. [14] The rule that special damages must be specifically pleaded and strictly proved is of long standing. In Teboho Ntlama v Commissioner of Police [1991] LLR 119 (HC), Molai J held that special damages are awarded for actual pecuniary loss. They must be pleaded with particularity and proved by credible evidence such as receipts. Failure to plead or prove them strictly disentitles the plaintiff to recovery. The principle that a plaintiff cannot recover beyond the pleaded amount was affirmed in Ramainoane v Commissioner of Police [2001] LLR–LB 184 (CA), a court is bound by the pleadings before it and may not, under the guise of discretion, grant a higher award for special damages than that which the plaintiff has claimed. Consideration of the appeal [15] The medical evidence is unequivocal that the appellant suffered a multi-site assault: head trauma with concussion, visible conjunctival haemorrhage, head swelling, knee swelling, and lumbar injury. The report that his injuries were “dangerous to life” and that he was unable to hear in the immediate aftermath is a grave aggravating factor. Assault by state agents aggravates the wrong; humiliation and fear are inherent in such violence and merit robust vindication. [16] It is accepted that Exhibit ‘B’ contains no final certification of a permanent disability. However, that is not determinative of quantum. The question is what pain, suffering, shock and loss of amenity were endured, and for how long. The contemporaneous admission to hospital, the neurological diagnosis of concussion, and the constellation of lumbar and renal symptoms recorded by Dr Hlalele support the conclusion that the appellant’s suffering was significant and protracted. [17] The court a quo awarded M40,000 for non-patrimonial loss without engaging with the medical detail and aggravation just summarised. It did not consider the dignitary dimension in the context of police brutality, nor did it explain why the award sits at a level more apt to lesser wrongs. In our view, that under- appreciation of the proved facts amounts to a material misdirection, and the figure arrived at is manifestly low. [18] Applying the requirements of strict proof and causal nexus, the following expenses are recoverable as special damages: M845.99 for the optometry consultation of 3 December 1993 (Exhibit E), causally linked to the ocular injury sustained; M530.00 for PathCare diagnostic testing reasonably consequent upon the assault; M1,503.70 and M1,529.70 for two consultations with Dr J. Coetzee, being treatment for continuing lumbar and related pain on the balance of probabilities; and M500.00 paid to Drs Dietrich, Voigt, Miar & Partners on 10 June 2011 together with M500.00 to PathCare in July 2011, both accepted as follow-up diagnostics and treatment for chronic complaints traceable to the assault. [19] Those recoverable items total M5,409.39. The spectacles (M2,720.00) are disallowed as special damages because, on this record, the cataract-related expenditure is not medically tied to the assault. The subsequent medical consultations and investigations, including those in 2011, properly serve to confirm the persistence of symptoms in the calibration of general damages. [20] The appellant pleaded M5,000 for medical expenses. In the absence of an amendment, he is bound by that cap. M5,000 is allowed under this head, to reflect that the expenses proved as recoverable are greater than those pleaded. [21] The assessment proceeds on a global basis, comprehending pain and suffering, shock, disfigurement (inclusive of scarring), and the element of contumelia. The medical record evidences: a frightening, life-threatening assault; concussion; head and eye trauma; temporary auditory impairment; multi-site soft-tissue injury with lumbar involvement; and long-running pain requiring investigations and consultations over the years. That narrative, coupled with the fact that the wrongdoers were police officers, requires a rights-vindicating award consonant with contemporary standards. [22] Earlier decisions of this Court—while never laying down tariffs—show that where there is a serious, multi-site assault with aggravating features, awards in the low to mid-hundreds of thousands have been considered appropriate in current money. In light of the medical findings, which include concussion and temporary hearing loss, and tempered by the absence of any permanent disability, an award of M200,000 is appropriate and just to both sides. It reflects the gravity and duration of the appellant’s non-patrimonial harm, marks judicial disapproval of state violence, and maintains coherence with comparable awards without mechanistic adherence. [23] Special damages (M5,000) and general damages (M200,000) shall attract interest at the legal rate a tempore morae from the date of summons to the date of final payment. The appellant succeeds and is entitled to his costs in the High Court and in this Court. Disposal [24] For the foregoing reasons, this appeal must succeed. The trial court materially misdirected itself in its assessment of damages by under-appreciating both the medical gravity of the appellant’s injuries and the aggravating circumstance that the assault was committed by agents of the State. The award made was therefore inordinately low and cannot stand. A reassessment on proper principles yields the conclusion that a global award for non- patrimonial loss, together with special damages (being the pleaded cap), is fair and just in the circumstances. Both sums shall attract interest at the legal rate a tempore morae from the date of summons until payment, and the appellant is entitled to his costs both in the court a quo and in this Court. Order [25] The appeal is upheld with costs. The order of the High Court is set aside and replaced with: (a) The respondent shall pay to the appellant M200,000 as a global award for pain, shock and suffering, disfigurement and contumelia. (b) The respondent shall pay M5,000 as special damages for medical expenses (being the pleaded cap, the proved recoverable expenses having exceeded this amount). (c) Interest on (1) and (2) at the legal rate a tempore morae from the date of summons to the date of payment. (d) Costs of suit in the court a quo and in this Court. ______________________________ K E MOSITO PRESIDENT OF THE COURT OF APPEAL I agree: I agree: _____________________________ P MUSONDA ACTING JUSTICE OF APPEAL _____________________________ R MATHABA ACTING JUSTICE OF APPEAL FOR APPELLANT: ADV C J LEPHUTHING FOR RESPONDENTS: ADV T MOHLOKI 12