Injury damages: Some scoping viewpoints

The Constitution also provides for compensation in the event of constitutional breaches. Litigants must couch their lawsuits in a manner that clearly address claims for constitutional breaches.

TO ANYONE who understands the thought and spirit of the Constitution, on which constitutional rights such as personal liberty, dignity and security are based, nothing is more significant than the way in which these rights are framed and have come to stand for what so many people would simply call “the benefits of individual sovereignty”.

Our national courts are obliged in terms of the Constitution to ensure that justice is effectively and promptly accessed by all citizens. Lady Justice may be presented as blind but at all material times she is depicted as having very sophisticated listening devices.

When someone’s person is injured by private persons or public office functionaries, he or she can approach the national courts to seek redress. The courts can exercise their jurisdiction in the matter and may decide to award the injured party what are known as damages - which can either be general or special.

Need it be mentioned that damages have to be quantified on an estimative basis. The court determining the matter can exercise its jurisdiction but usually follows certain criteria on the quantification of damages. By jurisdiction it is simply means the power vested in a court by law to adjudicate upon, determine and dispose of a matter (Pistorius, 1993: 1).

An individual may be injured in an accident that involves a vehicle or some other forms of machinery. Alternatively, injuries may be occasioned by the commission of an assault on the person of the complainant.

In contractual breaches, the injured party is compensated, not for the loss incurred but for the possible gains from the contract had it been that the parties had properly fulfilled their contractual obligations.

There is still to be seen instances where our courts award damages for constitutional breaches other than those where the injured parties claim damages for unlawful arrest, or malicious prosecution using the right to liberty and dignity as protected by the Constitution.

Although a plethora of cases exists in South Africa where citizens institute claims for constitutional breaches (Fose v Minister of Safety and Security, Minister of Police v Mboweni, etc.), the Goussard case illustrates instances where courts may resort to meanings and intention of the legislature to invoke the doctrine of constitutional avoidance.

In 2012, in the case involving Peter Goussard and Impala Platinum Limited, the applicant sued for constitutional damages arising from a breach of contract.

The claim was dismissed on the basis that the applicant could not avoid dispute resolution mechanisms provided for in the Labour Relations Act (LRA) of 1995 by alleging a violation of a constitutional right in the Bill of Rights.

The Johannesburg Labour Court found that a labour dispute in terms of the LRA should not be labelled a violation of constitutional rights simply because the issues raised could also support the conclusion that the conduct of the employer amounts to a violation of a right entrenched in the Constitution.

In some instances, Zimbabwean courts have also refused to exercise their jurisdiction in certain matters. In Makoni v The Cold Chain (Pvt) Limited, t/a Sea Harvest, HH197/15, Chigumba J, dealing with the question of currency nominalism also dealt with the issue on whether courts are courts of law or of justice.

Because courts apply the law in the interests of fairness and justice, the learned judge made a finding that in a case where “accident damages” were assessed and awarded as special damages and general damages, under the law of delict, the court could not “convert” a 2008 judgment made in Zimbabwe currency, to United States dollars. There was no factual or legal basis that was laid before the court to engage in that exercise.

The court may also act in the interests of justice in damages cases by refusing to grant punitive costs against the losing party. Again the Makoni case cited above is instructive. Justice Chigumba simply dismissed the application but chose not to exercise her discretion to grant punitive costs.

Under general damages, victims of assault are obliged to itemise general damages claimed and particularise any claim what is called contumelia. They must lead evidence on it as was laid down in the M’pangabuwe case, HH-11-91.

In that case, a middle-aged hospital employee was severely assaulted with pipes, ropes and hands by members of the CID (sometimes one needs to state whether open hands or clenched fists were used). The assaults took place on four occasions over a weekend.

The assault aggravated his existing hearing problems and he sustained facial and foot injuries. The itemised claims saw him being awarded: (i) $1 500 for pain and suffering at the time and for the permanent injury to his foot; (ii) $4 000 for aggravation of his hearing disability and continuing pain and infection in his ear; (iii) $1 500 for contumelia for the humiliation, discomfort and the considerable fear that caused a respectable man to admit a crime he had not committed.

For accident damages, injured parties need to know that jurisdiction of a court under the common law also includes the public power of deciding cases, both civil and criminal. Traffic offences are usually first decided in criminal courts. The injured party may then approach a civil court to sue the offending party for damages.

One reason for the need to understand the importance of an award of damages is steeped in the need to develop the constitutional jurisprudence on entrenched rights.

That is why I have to give scoping viewpoints on some cases that have been decided by our courts of law to provide guidelines on the assessment of damages. For starters, an understanding of the broad principles governing the assessment of damages for personal injury cannot escape scrutiny.

In the case of Minister of Defence and Another v Jackson 1990 (2) ZLR (1) SC, seven salient points are noticeable. These points are still relevant today by way of judicial precedent. Firstly, damages are not a penalty but compensation. Put simply, both the prosecutor, acting on behalf of the complainant, and the complainant must be alive to this fact.

Secondly, compensation must be assessed as to place the injured party, as far as possible, in the position he would have occupied if the wrongful act that caused him the injury had not been committed. Put simply, although the award of damages is not punitive in nature, the court is obliged to ensure that the award is largely victim-centred.

Thirdly, the quantum of compensation for pain and suffering can be determined only by the broadest general considerations. Here the need for cooperation amongst the important stakeholders in the justice delivery system becomes loudly clear. For instance, the pain can be estimated using medical evidence.

It is important for the complainant, or his relatives, to understand that he has to approach the Zimbabwe Republic Police to lodge a complaint. Particulars of the negligence of the faulty party may be considered together with the medical affidavit on the extent of the injuries on the complainant.