Kenneth Ncube and Others v Sithandazile Mpofu and Another

On 8 September 2012, a road traffic accident occurred at the 97km peg along the Bulawayo-Gwanda highway. The first defendant was driving negligently without a driver's licence at excessive speed, failed to keep a proper lookout and drove without due attention. As a result of the accident, the second plaintiff (Precious Ncube), third plaintiff (Nombulelo Ncube, a minor) and Thabo Ncube (the deceased son of the first plaintiff Kenneth Ncube) were injured on the side of the road. Thabo Ncube later died at Gwanda district hospital from injuries sustained in the accident. The plaintiffs sought damages totaling $25,000 for funeral and medical expenses ($5,000), general damages for pain and suffering ($15,000), special damages for medical expenses for second and third plaintiffs ($5,000), and interest. While the defendants initially disputed liability in their plea, they did not challenge liability during trial and only challenged the quantum of damages claimed, insisting on documentary proof for all claims.

• Whether documentary proof is required for a plaintiff to succeed in a claim for special damages or whether oral (viva voce) evidence is sufficient
• How damages should be assessed where the best available evidence has been produced but documentary proof is not available for all claims
• The appropriate quantum of damages for funeral expenses, pain and suffering resulting from death of a family member, pain and suffering from physical injuries, and special damages for medical expenses

The court granted judgment in favor of the plaintiffs as follows: (1) First plaintiff awarded $3,690 for funeral expenses; (2)(a) All three plaintiffs awarded $12,000 total for general damages for pain and suffering from loss of Thabo Ncube; (2)(b) Second plaintiff awarded $500 for general damages for pain and suffering from bodily injury; (3) First plaintiff awarded $335 as special damages for medical expenses for second plaintiff; (4) Interest on all sums awarded at the prescribed rate from date of summons to date of payment; (5) Costs of suit.

In civil damages claims, proof on a balance of probabilities does not require documentary proof alone. Where viva voce evidence is given on costs incurred and such costs are not unjustifiable or clearly inflated, and where such evidence is not substantially challenged or rebutted, the plaintiff will have discharged the onus of proving the claim on a preponderance of probabilities. Where the best available evidence has been produced, even if it does not permit mathematical calculation of damages, the court must use that evidence and arrive at a conclusion based on it. A defendant's mere insistence on documentary proof, without substantively challenging the reasonableness or justifiability of the claims through rebuttal evidence, does not constitute a strong defense sufficient to defeat a plaintiff's claim supported by credible oral testimony.

The court observed that the plaintiffs' claim was not properly crafted in that they lumped together under one head both damages for pain and suffering resulting from injury and damages for pain and suffering resulting from the loss caused by the accident. The court noted that a properly drafted claim should have separated these two categories for easier quantification: all three plaintiffs should have claimed damages for pain and suffering from the loss of Thabo through death at a certain amount, and then the second and third plaintiffs should have claimed further separate damages for pain and suffering resulting from their own physical injuries sustained in the accident. The court also observed that the plaintiffs appeared distraught rather than vindictive, rejecting the defendants' submission that plaintiffs were seeking punitive damages.

This case is significant in Zimbabwean law for its clarification of the standard of proof required for damages claims, particularly special damages. It reinforces the principle that documentary proof is not the only means of establishing damages claims on a balance of probabilities. The judgment affirms that credible, unchallenged viva voce evidence can suffice to prove damages where documentary evidence is unavailable, provided the claims are reasonable and justified in the circumstances. The case provides guidance on how courts should assess damages where the best available evidence falls short of mathematical certainty, emphasizing that courts must endeavor to award damages that meet the justice of the case based on available material. It also demonstrates the proper approach to assessing different heads of damages (general damages for emotional distress from death of a family member, general damages for physical injuries, special damages for expenses) and the need for plaintiffs to provide sufficient detail to justify awards under each head.