Online Reporter
Fidelis Munyoro
Chief Court Reporter
A PEDESTRIAN injured by a council truck has won a fresh chance to recover thousands of dollars in medical and other expenses after the High Court faulted a magistrate for effectively abandoning the assessment of her special damages.
Ms Masiiwa Senga (45) was knocked down by a heavy truck, an Eicher, at a robot-controlled intersection in Mutare’s central business district on April 13, 2022.
Four years later, her battle for compensation took an unexpected turn when the High Court ruled that the magistrate had correctly found she had incurred several expenses but wrongly rejected them because she did not produce receipts for every dollar claimed.
The High Court, sitting as a bench of Justices Isaac Muzenda and Sijabuliso Siziba, allowed Ms Senga’s appeal and sent the matter back to the magistrate to assess the special damages.
The ruling could prove significant for accident victims whose genuine expenses are difficult to document, particularly everyday costs such as transport and domestic assistance.
Ms Senga had sued Mr Vincent Mupfigo, the driver, and the City of Mutare, seeking US$33 720 in damages.
The claim included compensation for pain and suffering, disfigurement and permanent disability, as well as special damages for transport, a maid, food and medication.
She also claimed damages for losing a boyfriend who, according to the judgment, had become unhappy with her appearance after her injuries.
Mr Mupfigo had already been found guilty of negligent driving in a criminal case arising from the accident.
The trial court found the City of Mutare vicariously liable for his negligence and awarded Ms Senga US$6 000 in general damages.
But it rejected her claims for US$620 in transport expenses, US$600 for maid services, US$1 500 for food and US$900 in medication costs because there were no sufficient documentary records supporting the amounts.
Ms Senga challenged that decision.
The High Court found that the magistrate had accepted that the expenses had actually been incurred.
The problem, Justice Siziba said, was that the magistrate stopped there instead of going on to determine whether the amounts claimed could be established with sufficient precision.
In a particularly striking passage, Justice Siziba said: “The court must not allow itself to be spellbound or immobilised in assessing special damages.”
The judge added that a court “must remain alive, active, functional, participative, useful and involved” and must use the best evidence available to reach a decision.
The court said documentary evidence such as receipts and invoices was important because special damages must normally be proved with precision.
But the absence of receipts did not automatically mean that a claim could never succeed. That distinction proved decisive in Senga’s case.
The judge pointed to the practical reality of expenses such as domestic help and local transport, where formal contracts, payslips and receipts may not ordinarily exist.
Justice Siziba observed that courts must consider the circumstances surrounding each claim rather than applying a rigid receipts-or-nothing approach.
“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,” the judge said, “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 was particularly critical of the magistrate’s approach because she had already accepted that Ms Senga had suffered inconvenience and incurred expenses.
The High Court said the magistrate had effectively stopped the assessment process halfway.
Justice Siziba put it more bluntly: “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 High Court stressed that once a court is satisfied that a loss was actually incurred, it must move to the next question — how much should be awarded.
It can accept the amount claimed, award a lesser amount, or reject the claim where the evidence is inadequate. What it cannot do, the court said, is simply abandon the assessment because documentary proof is missing.
Ms Senga’s dental claim, however, remained out of reach.
The High Court agreed with the magistrate that quotations from dentists did not prove that the dental expenses had actually been incurred. The quotations represented proposed expenditure rather than money already spent.
There was also another troubling issue that emerged from the case.
The High Court questioned how Mr Mupfigo had been saddled with liability for the full US$33 720 claimed after a default judgment, while the City of Mutare, which was liable for his negligence, was ultimately ordered to pay only US$6 000 in general damages.
Justice Siziba described the position as an injustice.
The court reminded magistrates that even where a defendant is in default, damages cannot simply be granted for the asking.
They must still be assessed in accordance with the law.
The appeal was, therefore, allowed without an order as to costs, and the matter was remitted to the trial court for the computation of the special damages.
For Mr Senga, the ruling does not automatically put thousands of dollars into her hands. But it reopens a door that had appeared firmly shut.
The magistrate must now return to the evidence, determine which of the claimed expenses were actually incurred and, where properly established, calculate the appropriate amount.
The case also sends a wider message from the High Court: where a genuine loss has been proved, the absence of a receipt should not make a court give up its duty to assess it.
