Misheck Kwaramba v Elliot David Crough

On 30 January 2010, the plaintiff and defendant were driving their motor vehicles along Borrowdale Road near Celebration Centre when they were involved in a collision. The collision was caused by the defendant's negligence as he drove without due care and attention to other road users. The defendant paid a fine as an admission of guilt. As a result of the collision, the plaintiff sustained an open fracture dislocation of his left ankle and underwent surgery for removal of the talus bone to stabilize the ankle. He was hospitalized for two months, suffering extreme pain in the first two weeks. His left foot is now shortened and will most probably have to be amputated. He suffers severe intermittent pain involving his lower back. His disability was assessed at 35% by an orthopedic surgeon. The plaintiff, aged 33, is now permanently disfigured and can only engage in sedentary duties. The defendant's insurer paid all medical expenses up to the date of instituting the action. This was an unopposed application.

• How to assess quantum of damages for pain and suffering in personal injury cases
• Assessment of special damages for future medical expenses
• Assessment of damages for disfigurement and loss of amenities of life

The defendant was ordered to pay the plaintiff: (a) $15,000 being general damages for pain and suffering; (b) $5,000 being special damages; (c) $5,000 being damages for disfigurement and loss of amenities. The defendant was also ordered to pay the plaintiff's costs.

In assessing delictual damages for personal injury: (1) For pain and suffering, the prime considerations are the duration and intensity of pain, applying a substantive test. The quantum can only be determined by the broadest considerations as there is no scale to measure pain and suffering. Courts must consider the nature of injuries, medical evidence, general circumstances, and the effect on future awards. (2) Special damages for future medical expenses may be awarded based on medical evidence of anticipated costs. (3) Damages for disfigurement and loss of amenities compensate for "diminution in the full pleasure of living" and must consider the plaintiff's age, degree of disability, permanent physical changes, and impact on ability to engage in normal activities and employment. Awards should be assessed with reference to comparable cases decided in similar economic conditions.

The court observed that considerations of awards in other jurisdictions such as Britain and South Africa might not be an appropriate guide since conditions in those jurisdictions, both political and economic, are so different from Zimbabwe. The court noted the importance of examining cases decided after the introduction of the multi-currency regime as more appropriate comparators for quantum assessment. The court also observed that the concept of loss of amenities is not an exact concept, and includes such diverse matters as impairment or loss of ability to engage in sport, recreation, social commitments, sexual impotence, sterility, loss of marriage opportunities, loss of general health, change of personality and the general handicap of a disability.

This case provides guidance on the assessment of quantum of delictual damages for personal injury in Zimbabwe in the multi-currency era (post-dollarization). It demonstrates the application of established principles from Minister of Defence v Jackson and shows how Zimbabwean courts use comparative case law to determine appropriate compensation levels. The case is significant for illustrating how courts assess different heads of damages (pain and suffering, future medical expenses, disfigurement and loss of amenities) separately and apply a substantive test based on duration and intensity of suffering. It also shows the court's consideration of the plaintiff's age, disability assessment, and long-term impact on quality of life in determining fair compensation.