Kaplin v Naison and 2 Others (37 of 2024) [2024] ZWCHHC 37 (10 April 2024)

1 HCC37/24 HC123/22 DANIEL SIMBARASHE KAPLIN Versus BIG NAISON And CARGO CARRIERS (SABOT) And ECONET INSURANCE COMPANY (Pvt) Ltd HIGH COURT OF ZIMBABWE MUZOFA J CHINHOYI, 4, 11 March & 10 April 2024 Application for Absolution from the Instance J Zuze, for the plaintiff TI Mapuranga, for the 2nd defendant No appearance for the 3rd defendant MUZOFA J: This judgment is pursuant to an application for absolution from the instance made by the 1st and 2nd defendants at the close of the plaintiff’s case. The plaintiff is a male adult who is into the business of farming in Banket. The 1 st defendant is also a male adult employed by the 2nd defendant as a driver. The 2nd defendant is a duly registered company in the transport business with capacity to sue and be sued. The 3rd defendant is also a duly registered company in the insurance sector with capacity to sue and be sued. On the 22nd of July 2022 the plaintiff sued out summons out of this court seeking US$23 600-00 in damages against the defendants arising from a road traffic accident that took place at the 84km peg along the Harare Chirundu Road. The claim is broken down as follows, 1. US$ 10 800 -00 being replacement value of a damaged motor vehicle a Mercedes Benz C200. 2. US$1 800 -00 for medication and allied costs. 3. US$260-00 being cost of towing the motor vehicle incurred by the plaintiff. 4. US$6 000-00 for pain and suffering incurred by plaintiff. 5. US$5 000-00 for loss of earnings from farming activities. The plaintiff also prayed for costs of suit. HCC37/24 HC123/22 The 1st and 2nd defendants opposed the claim. The background to the case is as follows. On the 8th of February 2021 the plaintiff was driving his Mercedes Benz registration AEA1083 registered in Dorcas Yeukai’s name along the Harare Chirundu Road. He was driving from Harare. His pregnant wife, Praise Pesanai was seated on the front passenger seat. The 1st defendant on the same day was driving a Volvo Truck registration number AA Z6920 towing a trailer with registration number AAZ 2584 registered in the name of the 2nd defendant and insured by the 3rd defendant along the Harare Chirundu Road. The 1st defendant was driving to Harare. According to the plaintiff at the 84km peg the 1st defendant negligently encroached into the plaintiff’s lane and when the truck swerved back into its lane, the plaintiff collided with the trailer. As a result, he suffered damages as set out. The 1st and 2nd defendants opposed the claim. The 3rd defendant did not file any opposing papers. For convenience, reference to the defendants in this judgment shall be reference to the 1st and 2nd defendants. In opposing the claim the defendants denied liability, they challenged the quantum and also raised issue that the 2nd defendant is nonexistent. The plaintiff adduced evidence from himself and his wife Praise to prove his claim. At the close of the plaintiff’s case the defendant’s legal practitioner indicated his intention to file a written application for absolution. The application was duly file and it was opposed. The application It was submitted for the defendants that the plaintiff failed to make out a prima facie case. None of the essential elements of his claim were established. To prove quantum of damages the plaintiff is required to adduce evidence to prove each claim. In this case the plaintiff failed to place before the Court evidence to justify the claim for the replacement value of the motor vehicle. He also failed to justify the claim for the medical expenses incurred, the cost of towing the motor vehicle, for loss of earnings and pain and suffering. The defendant must not continue to defend the case and absolution must be granted. The HCC37/24 HC123/22 Court was referred to relevant cases in support of the application, l will revert the cases in course. In opposing the application, it was submitted for the plaintiff that the defendants have not raised issue on liability, that the 1st defendant negligently drove the truck which resulted in the accident which is the crux of the matter. Indeed that is so, but it was made clear by the defendants’’ counsel that liability has always been denied but that issue would be for the Court to decide after parties have closed their case. However the application is confined to the failure to prove the quantum claimed. For the purposes of this application the Court need not address the issue of liability. On the merits, it was further submitted that the plaintiff placed adequate evidence in the form of invoices and oral evidence to prove the claims. The court was also referred to relevant cases which l shall revert to in the judgment on addressing each claim. The law At this stage the Court is required to consider the plaintiff’s case and ask itself whether a prima facie case has been made such that a reasonable court might find for the plaintiff. Generally, Courts are slow to decide upon questions of fact without hearing all the evidence on both sides1. However, there are instances where the plaintiff fails to establish his or her case, such that it becomes unnecessary and a waste of resources for the defendant to continue to defend the case. The learned authors Herbstein & Van Winsen 2 opine that courts must take a very conservative approach to such applications and express themselves as follows, In view of the principles set out above, it is clear that a trial court should be extremely chary of granting absolution at the close of the plaintiff’s case. In deciding whether or not absolution should be granted, the court must assume that in the absence of very special considerations, such as the inherent unacceptability of the evidence adduced, the evidence is true. The court should not at this stage evaluate and reject the plaintiff’s evidence. The test to be applied is not whether the evidence led by the plaintiff establishes what will finally have to be established. When the plaintiff relies on an inference the court will refuse the application for absolution unless it is satisfied 1 Theron v Behr 1918 CPD 443, JUTA J at p 451 2 The Civil Practice of the High Courts of South Africa, 5th Edition, Vol 1 at p 923 HCC37/24 HC123/22 that no reasonable court can draw the inference for which the plaintiff contends. A court may grant absolution from the instance at the close of a plaintiff’s case if the plaintiff has failed to establish an essential element of the claim even though the defendant could have succeeded on exception or by way of special plea had the issue been raised by either procedure…” From that excerpt it follows that a court faced with such an application can grant absolution where the plaintiff’s case is self-destructive or an essential element of the claim has not been proved. In this case the plaintiff’s claim is for both specific and general damages. Different principles are applicable in proving the damages. In NRZ v Stuart3 cited for the defendants the Court aptly distinguished these damages as follows, “Special damages are those damages that have occurred or have been incurred and can be calculated with precision. One way in which special damages are proved is by the production of invoices or receipts showing the expenses that were incurred. These are damages capable of precise proof as they are what the plaintiff will have incurred which is calculable. General damages on the other hand are those damages that naturally flow from the wrong and are of a non-pecuniary nature such as pain and suffering, duration and intensity of pain caused by the intentional infliction of harm. A court when determining the quantum for general damages is exercising a broad general discretion when considering what fair and adequate compensation would be. In considering such damages the court considers the facts and circumstances of the case and the injuries suffered by the plaintiff, including their nature, permanence, severity and impact on the plaintiff’s life. In the process the court considers the trend of awards in similar cases including the economic environment affecting such awards. Though these damages are not capable of precise calculation a plaintiff is still expected to speak to the quantum of the claim. The court is not expected to speculate on the quantum of damages to award where no quantum has been testified to’. It therefore follows that for a claim for damages , the plaintiff is required to adduce evidence firstly to establish the loss and to justify the quantum. In a claim for special 3 SC 70/21 @ p14-15 HCC37/24 HC123/22 damages the evidence must specially prove the precise amount so that the award is not based on conjecture. For general damages there must be evidence to assist the court to make a judicious assessment of damages. The court must not be seen to pluck a figure from the air. Analysis I will consider whether the plaintiff has made out a prima facie case under each claim as set out in the summons. 1. Replacement of the damaged Mercedes Benz C200 It was submitted that the plaintiff failed to call an expert on evaluation of motor vehicles, he did not attach any invoice or receipts of vehicles similar to his to justify his claim and that he departed from his initial claim. Further, that the motor vehicle he intends to replace actually cost US$ 8500-00 yet the claim is more than that amount, he could not prove that the motor vehicle was his and that his possession of the motor vehicle was in contravention of the law. In my view it was never an issue whether or not the plaintiff was the owner of the motor vehicle in question. The defendants cannot seek to raise the issue during trial. The issue referred to trial is on liability and the quantum thereof. There is no need for the court to apply itself on the issue of ownership. To prove his claim the plaintiff attached three quotations for the repair of the motor vehicle. The three quotations have different repair values, Heavy Duty Diesel Bay quoted US$17 370-00, Ashray Motors Panel Beaters (Pvt) Ltd quoted US$ 12 180-00 and Body Works quoted US$12 740-00. The quotations are not for the replacement of the motor vehicle, they are for repairs. Infact the plaintiff confirmed this in his evidence. He said the repair values were well above the purchase price which means the motor vehicle was beyond repair. This reasoning was even confirmed in the response to the application. If the invoices do not seek to prove the replacement value of US$10 800, but to show that the motor vehicle was beyond repair, they are therefore irrelevant in the determination of the replacement value. There are experts in this field that can competently assess a motor vehicle and come to an informed conclusion on whether the motor vehicle is beyond repair. HCC37/24 HC123/22 In this case the plaintiff chose to use the repair values to demonstrate that the motor vehicle was beyond repair. The difficulty that arises from the approach taken by the plaintiff is that the invoices then were not meant to prove the claimed US10 800-00. The plaintiff was required to adduce evidence to prove the amount claimed. His evidence, which was not supported by any documentary proof was that he bought the motor vehicle for US$8500-00 after negotiating from US$10 500-00. His claim was based on the value attached to the motor vehicle before negotiations. This statement was a bare averment. This is a claim for special damages and as succinctly stated in Mayisva v Commercial Union Fire and General Insurance Co. Ltd and another4. “It is an elementary proposition of law that a claim for special damages must not only be specially alleged and claimed, but must also be strictly proved.” The sentiments expressed in the case of Ebrahim v Pittman NO5 are apposite, that “It is not competent for a court to embark upon conjecture in assessing damages where there is no factual basis in evidence, or inadequate factual basis, for an assessment, and it is not competent to award an arbitrary approximation of damages to a plaintiff who has failed to produce available evidence upon which a proper assessment of loss could have been made.” The plaintiff did not even attach the agreement of sale to prove the purchase price. He did not even get prices of similar motor vehicles to lay a basis for his claim. It was just his word. The plaintiff must have produced sufficient evidence to enable the court to calculate the loss or replacement value. The court should not be left guessing. Failure to produce the evidence where the court would legitimately expect a documented and authentically calculated loss in an ascertainable amount will usually lead to absolution from the instance. It would appear the plaintiff was not candid with the Court in his pleadings and even in his evidence. It is trite that Courts loathe to come to the rescue of a litigant who withholds information to the Court. In his pleadings the plaintiff did not disclose that he received some payment from the 3rd defendant. 4 1984(2)ZLR 181 at 191H 5 1995(1) ZLR 176H @187H -188D HCC37/24 HC123/22 It is only under cross examination that he confirmed that he received US$3200-00 and therefore was now claiming US$7 300-00. Obviously, the plaintiff did not become aware of the payment while on the witness stand, he deliberately claimed the US$10 800-00 with full knowledge of the part payment and chose not to disclose to the court. Even if he had received the part payment after the summons were issued, he could have amended his pleadings but still chose to proceed with the claim. Under cross examination he said he submitted the quotations for repairs and the replacement values to his legal practitioner however the quotations were not before the Court. The evidence on this claim therefore remained the plaintiff’s word with no supporting evidence. Damages are by nature a function of proof, where there is no proof adduced there can be no award. In the absence of any proof to support the claim it is unnecessary for the defendants to continue to defend this claim. The plaintiff in his words confirmed that the evidence for the replacement value was not before the court. The 1st and 2nd defendants are therefore entitled to absolution on this claim. 2. US $6000-00 for Medical Expenses According to the plaintiff this amount is for both himself and his wife at US$3000 each. His wife gave evidence and narrated how they visited the hospital and the examinations she went through to check if she and the foetus were affected by the accident. The plaintiff also gave evidence. From the plaintiff’s bundle of documents produced by consent an invoice from Banket Family Clinic was attached. It was submitted that the plaintiff failed prove his claim. He did not attach any receipts or bills for the actual medical expenses paid or incurred. Further to that, that he claimed medical expenses on behalf of his wife which is not competent even if he paid for the bills. Two issues arise for determination, whether the plaintiff could claim medical expenses he incurred for the treatment of his wife and secondly whether there was proof of the medical expenses incurred. The first issue is a point of law that the Court must determine and this can only be done after hearing both parties. On the second issue of quantum l have no doubt that the HCC37/24 HC123/22 plaintiff placed some evidence to prove his case. The defendants must respond. The plaintiff attached an invoice from Banket Family Practice where the plaintiff and his wife were attended and an affidavit by the person who was hired by the plaintiff to transport them to the hospital. From the documentary evidence placed before the Court, the plaintiff made out a prima facie case. Absolution cannot be granted. 3. Cost for towing the motor vehicle Despite conceding that the plaintiff could not get an invoice or other documentary proof from the service provider, the plaintiff insisted that there was proof that the motor vehicle was towed for US$260-00. The proof was his viva voce evidence before the Court. In Venture Capital Co of Zimbabwe Ltd v Chirovero Investments (Pvt) Ltd6 the court noted that at times the court may be aware that some loss has been suffered and it is bound to make an award, even if that be only an estimate subject to the available evidence. It seems a claimant is bound to produce evidence that is available to him to prove his or her case. There is no doubt that the motor vehicle was transported from the scene of accident. It was not disputed that it was towed. This is a fact. The plaintiff is required to produce evidence that is available to him. The plaintiff explained why he could not produce the best evidence. At this stage the issue turns on the credibility of the plaintiff and whether there could be other evidence to prove his case. That in my view can only be properly assessed at the close of both parties’ case. Accordingly, absolution cannot be granted. 4. Pain and suffering There is a high likelihood that the plaintiff suffered some pain as a result of the accident. The pain and suffering as explained by the plaintiff was not supported by any expert evidence from a medical practitioner. In opposing the application for absolution, the plaintiff referred the Court to the case of Minister of Defence v Butress7 in particular what the Court said at page 11 of the judgement that, 62000 (2) ZRL 30 (HC) 7 1990 (2) ZLR 1 (SC) HCC37/24 HC123/22 “What is essential is for a trial court to draw on its experience in making an assessment of damages, an exercise which is necessarily dependent upon some degree of surmise, conjecture and imagination, for general damages are not capable of exact arithmetic calculations.” Had the legal practitioner read the whole judgment he could have realised that the statement does not support the plaintiff’s case. That statement should be understood in its context. That case is not authority that a plaintiff should not adduce evidence and that a bare averment that he suffered some pain entitles him to damages. The case is authority that for such a claim there must be medical evidence of the nature of injuries and the extent of pain that the plaintiff has endured or will endure as a result. A fortiori, in that case there was evidence from a neurologist and other medical experts who examined the plaintiff and set out the extent of the pain and suffering which of course included the medical expenses. It was not an issue before the appeal court that the plaintiff suffered the damages, the issue was on quantum based on the available evidence, hence the sentiments as expressed. Having referred us to that passage, the plaintiff then submitted that the claim of US$6000-00 was a starting point and the court must use its experience and precedent to come to an appropriate figure. In my view assessment of the quantum is the second of the two-stage approach. The first stage is to ascertain the extent of pain and suffering. This is proved through medical evidence after the examination of the plaintiff immediately after the accident. The plaintiff did not adduce any medical evidence to show the extent/degree of pain and the extent to which the accident incapacitated him and related issues. He gave evidence on how his back, leg and head were affected by the accident. The accident took place in February 2021, he gave evidence before the Court in March 2024. Anything could have happened in between. My decision is not based on that inference but on the fact that there is no medical evidence( which is the expert evidence) to show that the plaintiff suffered any pain immediately after the accident. The attached Invoice from Banket Family Clinic only shows the amount charged for consultation and the prescribed medication. That evidence does not show what injuries and pain the plaintiff suffered. It becomes difficult at this stage to surmise what he suffered more so to even assess a figure. HCC37/24 HC123/22 In the final then, even if the Court has to come up with a figure to compensate the plaintiff for the pain and suffering, the estimation is not abstract, it must be a guided approximation. For instance, where there is medical evidence of injuries on the back and the extent of incapacitation the court is then able to refer to like cases to come up with the most suitable assessment. In this case there is no factual basis placed before the Court. Since pain and suffering is more of a specialised area medical evidence is indispensable. Without such the plaintiff would have failed to prove his case even at this stage. Under cross examination, the plaintiff conceded that no documentary evidence was produced to show the degree of pain and suffering. Accordingly, absolution must be granted. 5. US$5 000-00 for loss of earnings In his evidence the plaintiff said he was a farmer. The accident took place around February during the farming season. As a result of the accident, he failed to work on his farm or even monitor the farming activities. This compromised his output. The plaintiff had no evidence of how much he used during the farming season since he was on a Government funded programme commonly referred to as Command Agriculture. He said he expected a maize harvest of about 100 tonnes but he harvested 50 tonnes. These figures were not supported by any agricultural expert. In terms of costs, he said he expected between US$20 000 and US$28 000 but he got about US$10 000. Asked why he claimed US$5000 only he said it was an estimate and they settled for the least figure. From his evidence the plaintiff obviously did not have figures, his claim was an estimate. By one statement the plaintiff ably undid his case under cross examination, where the following exchange took place, ‘Q How much did you expect that season? A Q A It was contract farming I have no figures. You have not produced evidence for this claim? Yes but it is there’ That exchange confirms that there was no evidence at all to prove the claim placed before the court. The evidence may well be somewhere but it was not produced. The Court is HCC37/24 HC123/22 placed in a very invidious position to be expected to award damages without any evidence. There can be only one result. I can do better than associate with the sentiments in the case of Arendse v Maher8 cited by the defendants, where the Court had this to say about paucity of evidence in the assessment of damages, “It remains, therefore, for the Court, with the very scanty material at hand, to try and assess the damage. We are asked to make bricks without straw, and if the result is inadequate then it is a disadvantage which the person who should have put proper material before the Court should suffer. . .” Without evidence to support the claim, it is unnecessary for the defendants to continue to defend the case. Absolution must be granted. Disposition The application for absolution was not based on liability that issue has to be decided at the close of the case. The application was based on the plaintiff’s failure to make a prima facie case at the close of his case on the quantum. To prove a claim for damages, the plaintiff must lay a foundation firstly to demonstrate that he suffered some loss then evidence to show the extent of loss. Evidence is therefore indispensable. For specific damages there must be clear proof for the amount claimed. The plaintiff’s claims for the replacement value of the motor vehicle, being specific damages had no supporting evidence. The claim for pain and suffering then the claim for loss of earnings had no assessments for the loss suffered. For the loss of earnings there was no assessment from an expert on the extent of loss. On costs since the application partially succeeds it is convenient that the issue of costs be determined at the when the matter is finalised.. The application therefore partially succeeds and the following order is made, 1. Absolution from the instance be and is hereby granted on the 1st ,4th and 5th claims . 2. The matter shall proceed in respect of the 2nd and 3rd claims. Costs be in the cause. 81936 TPD 162 @165 HCC37/24 HC123/22 Antonio & Associates, plaintiff’s legal practitioners Ahmed & Ziyambi 1st & 2nd defendants’ legal practitioners.