Tinos Muzeya (in his capacity as father and guardian of minor child Tapuwa Melissa Tasiyana) v Donna Jayne Marais and AIG Zimbabwe Limited (formerly Unity Insurance Co. Ltd)

On 20 May 1999, Tapuwa Melissa Tasiyana, an 8-year-old Grade 2 pupil at Avondale Primary School in Harare, was knocked down by the first defendant's motor vehicle while crossing Aberdeen Road in Avondale. She suffered severe injuries including closed head injury, cerebral contusions, subdural hygroma, fracture of right clavicle, bruised pelvis and fracture of the right hip. She spent extensive time in intensive care at Parirenyatwa Hospital, was transferred to Avenues Clinic, and later admitted to St Giles Rehabilitation Centre. The accident left her 100% disabled - unable to talk, sit without support, walk, feed herself, or control bowel or bladder functions. The first defendant was prosecuted and convicted under the Road Traffic Act, fined $1,000 or 3 months imprisonment in default. The plaintiff, as her father and natural guardian, brought this claim for damages. The defendants admitted liability but disputed quantum. The claim was amended three times and eventually totaled $754,064,402 (with $685,574,642 in Zimbabwe dollars and US$30,865).

• Whether the plaintiff is entitled to claim past expenses adjusted to today's money value to compensate for inflation and loss of purchasing power
• Whether the principle of nominalism of currency applies to claims for past expenditure in delict
• Whether future expenses were properly calculated with appropriate discount factors and contingencies
• Whether it is permissible to use the unofficial parallel market exchange rate (1 US$ to Z$6,000) in calculating Zimbabwe dollar equivalents
• Whether a court can make an award in foreign currency (US dollars) in a delictual claim
• The proper approach to calculating loss of future earning capacity for a minor
• Whether the entire family should accompany the injured child for overseas medical treatment (HBOT)
• Whether the plaintiff is entitled to interest from the date of accident on general damages
• Whether the plaintiff is entitled to costs on a legal practitioner and client scale

The defendants were ordered to pay jointly and severally: (a) $9,000,000 for pain and suffering and loss of amenities; (b) $4,000,000 for past transport costs; (c) $37,000 for wheelchair purchased April 2003; (d) $1,462,577 for past medical expenses including nurse-aid; (e) $5,214,000 for future operations in Zimbabwe; (f) $808,330.40 for adaptive appliances; (g) $884,090 for future consultations; (h) $1,450,475 for future therapies at St Giles; (i) $693,630 for future nurse-aid expenses; (j) $39,332,475 for loss of future earning capacity; (k) $1,612,212 for wheelchair replacement and repairs; totaling $60,894,789.40 with interest at prescribed rate from judgment date. The defendants were also ordered to pay US$19,402.52 (or Zimbabwe dollar equivalent at lawful exchange rate) for HBOT treatment in Florida. Defendants to pay costs of action except costs of postponement on 28 November 2003 which were awarded to defendants. Claim for actuarial fees dismissed with costs.

The binding legal principles established are: (1) The principle of nominalism of currency applies to all monetary obligations in Zimbabwean law including delictual claims - a debt sounding in money must be paid at its nominal value irrespective of fluctuations in purchasing power of the currency; past expenses cannot be adjusted upward to compensate for inflation (applying SA Eagle Insurance Co Ltd v Hartley 1990 (4) SA 833 (A)); (2) Courts have jurisdiction to grant judgment in foreign currency even where the claim arises in delict, where the loss will be felt in that foreign currency (applying Standard Chartered Bank of Canada v Nedperm Bank Ltd 1994 (4) SA 747 and Makwindi Oil Procurement (Pvt) Ltd v National Oil Co. of Zimbabwe 1989 (3) SA 191 (SC)); (3) Courts cannot use or accept illegal parallel market exchange rates in making awards; only the official lawful exchange rate is permissible; (4) When assessing damages for loss of future earning capacity separately from general damages, courts should apply appropriate discount factors and make deductions for contingencies and vicissitudes of life, exercising broad discretion (applying Southern Insurance Association v Bailey NO 1984 (1) SA 98 (A) and Minister of Defence v Jackson 1990 (2) ZLR 1 (SC)); (5) Awards for future medical treatment must be based on credible expert medical evidence and should only cover reasonably necessary treatment and associated costs.

Chinhengo J made several obiter observations: (1) The court expressed sympathy for plaintiffs affected by high inflation but noted that departure from the nominalism principle would create unworkable uncertainty, with monetary obligations depending on when the plaintiff sought payment or when judgment was delivered; the solution lies with the Minister of Justice adjusting the prescribed interest rate to account for inflation; (2) The court noted that claims for catastrophic injury to minors should properly be brought partly in the parent's personal capacity (for past expenses) and partly in representative capacity as guardian (for future expenses and loss of earning capacity), though the court did not take issue with the improper formulation in this case; (3) The court criticized the plaintiff's legal practitioner for poor case preparation, including failure to maintain receipts, reliance on actuarial calculations based on wrong legal principles, use of illegal exchange rates, and causing delays through multiple amendments; (4) The court observed that the actuarial evidence was unhelpful and caused confusion, lacking source documents and adopting inconsistent assumptions about life expectancy for different heads of claim; (5) The court noted that in assessing loss of future earning capacity for the child, a 30-year working life based on life expectancy of 53 years would have been more logical than the 7-year period ultimately used, but the court was constrained by the manner in which the plaintiff presented his case.

This case is significant in Zimbabwean law for: (1) Affirming the application of the principle of nominalism of currency in delictual claims, rejecting attempts to adjust past damages for inflation and loss of purchasing power; (2) Establishing that courts can award damages in foreign currency in delictual claims where the loss will be felt in that currency, even where the delict occurred in Zimbabwe; (3) Rejecting use of illegal parallel market exchange rates in judicial awards; (4) Providing guidance on calculating loss of future earning capacity for minors who suffer catastrophic injuries; (5) Demonstrating judicial discretion in making global awards for proven expenses where receipts are unavailable; (6) Addressing the assessment of damages for catastrophic personal injury in an inflationary economy; (7) Establishing that interest runs from date of judgment rather than earlier dates where claims remain unliquidated due to multiple amendments. The case also illustrates the courts' approach to evaluating competing expert medical evidence and determining reasonable future medical treatment, including overseas treatment.