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IN THE COURT OF APPEAL OF THE REPUBLIC OF BOTSWANA HELD AT LOBATSE
Court of Appeal No. CACLB-047-06
In the matter between:
GOMOLEMO MOTHUBA 1st Appellant
CHARLIE MOTSHWANE 2nd Appellant
and
ONNEETSE MOLEFI Respondent
For Appellant : Mr T. Joina
For Respondent Mr G. G. Komboni
JUDGMENT
CORAM: McNALLY JA
RAMODIBEDI JA
FOXCROFT JA
RAMODIBEDI JA:
[1] The respondent’s claim which has culminated in this appeal was couched in delict. The respondent, a teacher at Kediretse Primary School, brought an action in the High Court seeking damages against the appellants in the sum of P250 000-00 plus interest at the rate of 10% per annum a tempore morae as well as costs. The claim arose from a motor accident which took place on 8 July 1995 involving a Toyota Hiace registration No. BD 2379 F driven by the second appellant and in which the respondent was a fare paying passenger.
[2] The second appellant admittedly drove the motor vehicle in question acting within the course and scope of his employment by the first appellant. The vehicle burst a tyre and overturned at the bridge at a place called Groot-Marico-Swartruggens Road, North West, in the Republic of South Africa. The respondent sustained severe injuries.
[3] In her particulars of claim, the respondent alleged that the accident was caused solely by the negligence of the second appellant in one or more of the following respects:-
He drove at an excessive speed under the circumstances prevailing at the time.
He failed to keep the motor vehicle under proper control.
He failed to take reasonable steps to prevent the accident when it seemed imminent.
He failed to apply the brakes timeously when by so doing he might have avoided the accident.
[4] The appellants entered appearance to defend the respondent’s claim and in due course they filed a combined plea and special plea. In the plea, they made a bare denial to the respondent’s allegations contained in her particulars of claim. It is convenient, however, to first consider the special plea.
THE APPELLANTS’ SPECIAL PLEA
[5] In its amended form, the appellants’ special plea was in these terms:-
“(1) In law, the plaintiff’s claim lies against the Motor Vehicle Insurance Fund (Cap 69:02) of the Laws of Botswana and the claim having been instituted more than two years after the claim arose, the claim has prescribed.
(2) That the plaintiff’s declaration is contrary to Order 6 (4) (e) and Order 24 (1) in that the plaintiff’s marital status has not been disclosed and no proof of authority shown”.
[6] Meanwhile, the respondent sought and obtained the court’s permission to amend her declaration to include the fact that she was legally assisted by her husband in compliance with Order 6 (4) (e) and 24 (1) of the High Court Act (Cap 04:02). The declaration was accordingly amended. The court a quo, in turn, dismissed the appellant’s special plea on this issue.
[7] In their grounds of appeal, the appellants attacked the court a quo’s order dismissing the special plea in these terms:-
“3.1 It is our respectful submission that Justice Chinhengo, erred and misdirected himself in law in allowing Plaintiff to amend paragraph 1 of the Plaintiff’s declaration in that the issue at hand involved a breach of High Court rules and a matter of locus standi in judicio. It was not just an amendment”.
[8] Now, amendments of pleadings in the High Court falls under Order 32 of the High Court Rules. Rule 12 thereof provides as follows:-
“12. The Court may at any time, and on such terms as to costs or otherwise, as the court may think just, amend any defect or error in any proceedings, and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on the pleadings”.
[9] Rule 12 plainly confers a judicial discretion on the High Court to grant or refuse an amendment to pleadings. The Court of Appeal will ordinarily be disinclined to interfere with the High Court’s exercise of its judicial discretion in the absence of a material misdirection resulting in a failure of justice. No such misdirection has been shown to exist in this matter. More importantly, the appellants did not suffer any prejudice arising from the amendment in question. It follows that the special plea on this issue was correctly dismissed. In fairness to Mr Joina for the appellants, when this Court pointed out to him that this ground of appeal had no merit, he, quite understandably, did not press it.
NEGLIGENCE
[10] It is not disputed that on 8 July 1995, the second appellant drove a Toyota Hiace registration BD 2379 F acting within the course and scope of his employment by the first appellant. Nor is it disputed that the motor vehicle overturned at the bridge at Groot-Marico Swartruggens Road, North West in the Republic of South Africa. The second appellant testified that the cause of the accident was a combination of a tyre burst, a hump in the middle of the road and the vehicle’s trailer which caused the vehicle to veer from side to side after hitting the hump. This defence, however, was not pleaded in the appellants’ plea. The conclusion is inescapable in my view, therefore, that it was a mere afterthought.
[11] The evidence established that on the day in question, the second appellant, a taxi driver on the route between Gaborone and Johannesburg, was driving a fully loaded taxi which was for that matter towing a trailer carrying passengers’ luggage. He was driving along a familiar road which he had traversed no fewer than 5 times per month since 1989. He knew its curves, bridges and general condition. On his own version, there was a downward slope just before getting into the bridge. Despite knowing these conditions full well, he admitted that he drove at the speed of 110 km per hour. Furthermore, credible evidence established that there was a curve just before the bridge. The appellant testified that when he approached the bridge in question, he had a tyre burst of the rear wheel. He then hit the hump and the trailer caused the vehicle to veer from side to side. The vehicle finally overturned, throwing most of the passengers including the respondent out of the windows.
[12] It is, in my view, a measure of the second appellant’s negligence that while this was going on he never attempted to stop the vehicle by applying gentle brakes as he ought to have done. Nor did he take any reasonable steps to prevent the accident occurring. But, more importantly, he conceded that he did not reduce the speed when approaching the bridge in these tricky conditions.
[13] As was laid down some eighty-five years ago in the case of Cape Town Municipality v Paine 1923 AD 207 at 225, the test of liability in a case such as this is culpa, namely, the failure to observe a requisite standard of conduct. In this regard, negligence is judged by the standard of a reasonable man, the question being what a diligens or bonus paterfamilias would have observed under the same circumstances.
[14] Not surprisingly in the circumstances outlined above, the learned trial Judge made the following findings:-
“On the evidence before me, the balance of probabilities favours the Plaintiff’s version and I find that the 2nd Defendant drove at a speed excessive in the circumstances and that speed caused him to lose control of the vehicle. If he had been driving at a respectable speed, having regard to the slope, the bridge and the curve and if he had slowed down as he ought to have, when approaching the bridge, he would have been able to keep the vehicle under control, the tyre burst and the hump notwithstanding”.
[15] In my view, these findings are fully justified both on the facts and on second appellant’s own version. Similarly, there can be no valid criticism to be made of the court a quo’s finding that the injuries suffered by the respondent resulted from the second appellant’s negligence. I am satisfied on the facts that the second appellant ought reasonably to have known that he was doing a dangerous thing driving a fully loaded taxi downhill at a curve and into the bridge at the speed of 110 km per hour. This, in circumstances where he knew or ought reasonably to have known that there was a hump in the middle of the road. Furthermore, the second appellant knew or ought reasonably to have known that the loaded trailer would add to the risk of an accident occurring in those conditions. In a nutshell, I am satisfied that the second appellant failed to exercise that degree of care which a diligent or careful man, the diligens paterfamilias, would have exercised under the circumstances. Nor is it disputed that he had such a duty of care. See Cape Town Municipality v Paine (supra).
[16] Thus, for example, the second appellant failed to reduce the speed when approaching the bridge and the hump in question before the tyre burst. He failed to apply gentle brakes to stop or slow down the vehicle. He failed to control the vehicle altogether until it overturned. On his own version, he had had several tyre bursts before. This factor alone ought reasonably to have put him on guard under the circumstances. Nor can anyone seriously dispute the proposition that a motorist driving under the conditions outlined above ought reasonably to drive with a degree of special care and vigilance. I turn then to quantum.
QUANTUM
[17] The respondent was awarded P90, 000-00 for pain and suffering. The appellants complain that this award is “excessive”. It will be observed at the outset, however, that they do not make the case that no reasonable man could have granted this amount.
[18] In the Court of Appeal of Swaziland, in Ntombifuthi Magagula v The Attorney General CA 11/06, I had occasion to state the following remarks which are apposite to the instant matter, if I may quote from my own judgment:-
“[14] I turn now to that most difficult part of the case, namely, the measure of general damages. Difficult in the sense that there are no scales by which pain and suffering can be measured in monetary terms. I commence this exercise by pointing out that the principles which should guide a court in the assessment of general damages are well established. Essentially the question of the assessment of such damages is a matter pre-eminently within the discretion of a trial court. An appellate court will generally be disinclined to reverse an award of general damages given by a trial court unless there is a misdirection. This is so because, firstly, a trial court is steeped in the atmosphere of the trial. It is as such in a better position than an appellate court to gauge the extent of a plaintiff’s disability. Secondly, a finding on general damages comprising pain and suffering, disfigurement, permanent disability and loss of amenities of life, as here, is essentially a matter of speculation and estimate. Having said this however, it is right to say that, besides a misdirection, this court will interfere in an appropriate case if the figure which it considers to be appropriate quantum differs substantially from the figure awarded by the trial court.
See for example Sandler v Wholesale Coal Suppliers Ltd 1941 A.D. 194; A. A. Mutual Insurance Association Ltd v Maqula 1978 (1) S.A. 805 (A) at 809.”
[19] In this jurisdiction, this Court has repeatedly stressed the above principles in such cases as Botswana Insurance Company (Pty) Ltd v Goulding (1987) BLR 529 (CA) at 534; Chicole v Chatsama (1995) BLR 485 (CA) at 494; Seletlo v The Attorney General (2005) 1 BLR 96 (CA); Botswana Motor Vehicle Accident Fund v Kneutell (2006) 1 BLR 7 (CA).
[20] According to Dr Opio, an Orthopedic surgeon at Gaborone Private Hospital, the respondent had sustained horrific multiple injuries. She had fractured bones on the back, a fracture on the left collar bone, an open fracture of the right ulna with dislocation of the upper radio-ulna joint, a fracture of the neck right radius, a fracture of the left clavicle, multiple lacerations and abrasions on both the right and left forearms as well as on her face and a spinal fracture which was treated with bed rest and thoracic lumber corset. She was advised to wear the corset at all times. She had an extensive scar on the posterior arm. All these injuries were consistent with the accident of 8 July 1995.
[21] As a result of these injuries, the respondent felt severe pain as if there were some needles in her spine. She suffered from an inability to use her right arm. She also complained of inability to engage in normal sexual activity. She could not do chores like washing and writing on the blackboard as these activities resulted in pain. She was unable to stand for a long time. Nor could she move her elbow joint since the arm was fixed in a certain position.
[22] The respondent underwent several surgeries. She was initially admitted at Leratong Hospital in the Republic of South Africa where she had a plaster of Paris. She was hospitalised from 8 July to 19 July 1995, a period of 11 days. She was then transferred to Nyangabgwe Hospital in Botswana from 20 July to 1 September 1995. As can be seen, the respondent was hospitalised for a total of 43 days. But her ordeal was not over since even after her discharge she continued to receive medical attention due to pain in her back and arm.
[23] In 1997, the respondent spent a whole month at Gaborone Private Hospital where she underwent an operation to her back. She had a metal wire inserted to support the back. Later it was removed.
[24] The respondent testified that her back was still painful at the time of the trial. She has throughout suffered excruciating pain to date. She can no longer engage in sports despite the fact that it is part of her job.
[25] After seeing the witnesses, hearing their evidence and observing their demeanour, the trial court made the following findings regarding pain and suffering:-
“There can be little doubt that the Plaintiff has undergone serious suffering, excruciating pain and disfigurement. She will continue to suffer pain for the rest of her life. Her quality of life has been impaired as has been her ability to perform numerous functions that she could perform before she suffered the injuries”.
These findings are fully justified on the facts.
[26] As mentioned previously, the trial court awarded the respondent the sum of P90, 000-00 for pain and suffering. It is not disputed that the court arrived at this figure after taking into account comparable awards in Botswana and neighbouring countries. Thus, for example, the court’s attention was drawn to an award in a substantially similar case in Kneutell v Botswana Motor Vehicle Insurance Fund [2002] 2 BLR 478 (HC). That was a case in which the plaintiff had been knocked down by a motor car. He suffered injuries to his knee, cervical spine and tendons. He also suffered from dizziness and headaches. He was awarded a sum of P300, 000-00 as general damages for pain and suffering as well as loss of the amenities of life. As can be seen, the only factors which distinguish the instant case from Kneutell’s case are that the plaintiff in the latter case suffered from dizziness and headache. It is important to recognise, however, that this award of P300, 000-00 was reduced on appeal to this Court to P175, 000-00 in Botswana Motor Vehicle Accident Fund v Kneutell (supra).
[27] When all was said and done, the trial court in the instant case was of the opinion that the respondent’s claim of P90, 000-00 was “on the low side”. I can find no valid criticism to be made of that opinion in the circumstances of this case and having regard to the case of Botswana Motor Vehicle Accident Fund v Kneutell (supra).
[28] As can be seen from the foregoing, the respondent, a young woman of 38 years of age at the time of the accident, and a teacher by profession, has suffered horrendous injuries. It is not disputed that she has suffered excruciating pain and suffering and that she will continue to do so for the rest of her life.
[29] It is important to emphasise at this stage, as all the authorities referred to above show, that the assessment of damages for pain and suffering is a matter which lies within the discretion of the trial court. Put differently, it is largely a matter for the opinion of the individual judge. As pointed out earlier, an appellate court will ordinarily not interfere with such an award in the absence of a misdirection. Nor will it interfere merely because it considers that it would have made a different award if it had sat as a court of first instance. There being no misdirection in the instant matter, there is no lawful basis upon which this Court should interfere with the award of the trial court.
[30] In the light of the aforegoing considerations I am, therefore, of the opinion that, upon the facts as correctly found by the trial court, the appeal should be dismissed with costs. It is so ordered.
DELIVERED IN OPEN COURT AT LOBATSE THIS 25th DAY OF APRIL 2008.
-----------------------
M. M. RAMODIBEDI
JUDGE OF APPEAL
I agree --------------------------
N. J. McNALLY JUDGE OF APPEAL
I agree -------------------------
J. G. FOXCROFT
JUDGE OF APPEAL
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