The High Court has ordered a fresh assessment of damages for a woman who was knocked down by a municipal truck in Mutare, ruling that a magistrate wrongly rejected her claims for transport, maid, food and medication expenses simply because she had no receipts.
Masiiwa Senga, 45, was struck by an Eicher Pro 5025T heavy truck at a robot-controlled intersection in Mutare's central business district on April 13, 2022.
The truck belonged to the City of Mutare and was being driven by Vincent Mupfigo in the course of his employment. Mupfigo was later convicted of negligent driving.
Senga sued for US$33,720, including US$26,500 in general damages for pain and suffering, disfigurement, permanent disability and the loss of a boyfriend who, according to her claim, rejected her because of her facial injuries.
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The magistrates' court awarded her US$6,000 in general damages but rejected US$7,220 in special damages covering transport, maid services, food and medication because she had not produced documentary proof of the expenses.
The High Court, however, found that the magistrate had already accepted that Senga had incurred the expenses and had provided evidence about them, but stopped short of assessing their value.
Justices Sijabuliso Siziba and Isaac Muzenda said the absence of receipts did not automatically extinguish a claim for special damages.
"There is nothing in the principles governing special damages which supports the view that these damages can never be awarded where there is no documentary evidence," the court said.
The judges said the purpose of documentary evidence was to establish precision, rather than create an absolute rule that receipts were the only acceptable proof.
They were particularly critical of the magistrate's treatment of transport and maid-service expenses, noting that such expenditure is not always accompanied by formal records.
"One wonders how many people even in the sophisticated urban communities of our post-modern era prepare pay slips for their house maids on a monthly basis or let alone sign contracts of employment with them," Siziba said.
The court said that where oral evidence provides sufficiently precise figures and a clear basis for calculating expenses, a court must assess that evidence rather than simply reject the claim.
"If a court makes a finding that the figures claimed for these services are proven to its satisfaction in terms of exact and precise figures presented to it with a clear formula of how such figures were arrived at, it cannot then fold its hands and say that the absence of documentation means that the special damages have not been mathematically proven."
The court said the magistrate had effectively abandoned the assessment after finding that Senga had suffered inconvenience and incurred expenses.
"It appears that in the case at hand, the trial magistrate allowed herself to freeze up and give up and she abandoned the decision-making process midway," the judgment said.
The High Court said the proper approach was first to determine whether the expenses had actually been incurred and, if so, whether the evidence allowed their value to be established with sufficient precision.
It therefore allowed Senga's appeal and remitted the matter to the magistrates' court for computation of the special damages.
The dental claim, however, will not be reconsidered because Senga had only produced quotations ranging from US$4,180 to US$4,500 for proposed treatment, rather than proof that the money had already been spent.
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The judges also raised a separate concern about the original proceedings, saying the first respondent had been granted a default judgment for the full US$33,720 after the trial had already commenced.
The court described the resulting position as "an injustice" because Mupfigo and the City of Mutare, who were liable for the same accident, were left facing different damages awards.
"A judicial officer who is faced with a default judgment application or an unopposed claim for damages must never be tempted to grant it for the mere asking," the court warned.
The High Court said damages must be properly assessed even where a defendant is in default, rather than automatically awarding whatever amount a claimant has demanded.
Senga's appeal was consequently allowed, with no order as to costs, and the case sent back for determination of the recoverable special damages.
