Attorney General v Kafusha (SCZ Appeal 45 of 1995) [1999] ZMSC 79 (22 June 1999)

IN THE SUPREME COURT OF ZAMBIA SCZ APPEAL NO. 45 OF 1995 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN : THE ATTORNEY GENERAL APPELLANT AND WINSTON KAFUSHA RESPONDENT Coram: Chaila, Muzyamba, Lewanika, JJS 18th September, 1997 and 22nd June, 1999 For the Appellant : Mr. D. K. Kasote, Principal Senior State Advocate For the Respondent : Mr. A. M. Kasonde, Kasonde & Company JUDGMENT Chaila, JS, delivered the judgment of the court. This is an appeal and cross-appeal against an award by the High Court of damage for personal injuries. The respondent sustained injuries when he was assaulted by the appellant's agent or employee during the Judo instructions on or about 20th July, 1979. The respondent was attending a course at Lilayi Police Training School on or about 20th July, 1979. The respondent was feeling unwell and was unable to attend Judo instructions. The respondent was attacked by the instructor, an employee of the appellant and the respondent sustained personal injuries which made his suffer loss and - J2 - damage on his ear. Injuries included central traumatic perforation of the left ear-drum and some impairment of hearing capacity in both ears. The matter first came before the High Court and later Supreme Court and a retrial was ordered. After the second trial, the respondent was awarded K10 million as general damages and K2 million exemplary and punitive damages. The respondent after the assault attended U. T. H. where he was treated. The appellant has relied on trwo grounds. These grounds are: "1. The awards made by the learned trial Judge in respect of the two heads of damages are most excessive and are on the highest side in that it is an entirely erroneous estimate of the damages to which the plaintiff is properly entitled. 2. The learned trial Judge misdirected himself on facts when he completely ignored the evidence of the doctors who attended to the plaintiff throughout his illness." Mr. Kasote informed the court that he was going to argue the two grounds together. He submitted that K12 million awarded was too excessive. He drew our attention to what the learned trial Judge said in his judgment that he was awarding K10 million for torture and humiliation when the claim was for assault and battery. For humiliation the learned Principal State Advocate argued that there was no evidence as to how the respondent was humiliated. He relied on the case of Mwaba vs The Attorney General (1974) ZR 177. He drew our attention further to the case of The Attorney General vs Paul Mulenga Kayula (1993) ZR 7 where the plaintiff was unlawfully imprisoned and assaulted . He was awarded K3,000 for particial loss cf hearing, pain and suffering J3 - and that award was upheld by the Supreme Court. Mr. Kasote argued that in the case of The Attorney General vs Felix Chris Kaleya (1982) ZR 1 where the respondent was assaulted by many policem , The Supreme Court awarded the respondent K300,000 for assault and battery. In the present case, the Advocate argued that the award of K10 million was very excessive, even taking into account the fall of the Kwacha since 1978. On inflation, Mr. Kasote drew our attention to the case of Paul Roland Harrison vs Hie Attorney General. SCZ Judgment NO. 15 of 1993 at page 4 where we said:- "Although awards of damages must obviously be increased to reflect the severe inflation, it would be quite unrealistic simply to multiply former awards by the figures produced by the statistical office. We must, in the same way as those who award salary increases, attempt to arrive at figures that are both reasonable and fair to all parties in the circumstances prevailing today." Mr. Kasote urged us to apply this case to the present case. He further drew our attention to the case of Mary Musambo Kunda vs The Attorney General, SCZ Judgment No. 1 of 1993; The Bank of Zambia vs Caroline Anderson and Andrew Anderson, SCZ Judgment No. 13 of 1993, now contained at page 47 of the ZLR of 1993 - 1994 and The Attorney General vs Alick Mwanatete, SCZ Judgment No. 57 of 1994 where, according to Mr. Kasote there were more injuries than in the present case and yet the damages were not excessive. He urged the court to follow the principles already mentioned in the above cases. On Mwaba's case, Mr. Kasote argued that in that case there was evidence of torture, whereas in this this case there was nothing. On medical reports, the learned Advocate argued that the injury had been healed. At first the injury was put at 15% then 15 years later it came to 30%. There must be, according to him, a limit. He then moved to the exemplary damages. Mr. Kasote argued - J4 - that the appellant should not have been made to pay exemplary damages since this amounts to punishment. He complained that in making the award of K2 million, the learned trial Judge was influenced by outside factors when the Judge said: "I am alert to damages awarded against the policemen due to constant violation of human rights and it should be fit for me to award exemplary damages considering the suffering plaintiff has had since 1978 and travels to and from U. T. H. whilst he was in Solwezi and Chilanga." Mr. Kasote argued that that statement by the learned trial Judge appeared to suggest that the K2 million damages award were influenced by the previous conduct of policemen and not necessarily in this particular case. Mr. Kasote complained that the Judge misdirected himself on the facts since the record at page 44 shows that the respondent attended U. T. H. on 16th October, 1978 and no more because he was transferred back to Lusaka in January 1979. Mr. Kasote argued that he was of the view that the exemplary and punitive damages are necessary in cases where wrong doers are personally answerable for their torts and not in cases where the defendant is sued because the law so provides and there will be no means of recovering from the wrong doer. This stand taken by Mr. Kasote in our view is contrary to the cases of Ka >we vs The Times of Zambia and Zambia Publishing Company (1973). Mr. Kasote maintained that in this case the exemplary damage should have not been awarded. On the two grounds, Mr. Kasonde for the respondent has argued that there was nothing erroneous in the assessment of damages to which the plaintiff was entitled. He submitted that the authorities referred to by the State supported the finding of the learned trial Judge because of the high inflation and the devaluation of the Kwacha. He argued further that the Supreme Court should take into consideration its decision in The Bank of Zambia vs Caroline Anderson and Andrew Anderson. - J5 - He argued that the present case arose in 1979 and that the respondent has been subjected to a lot of suffering and should be adequately compensated. He urged the court to dismiss the appeal and uphold the awards of the learned trial Judge. On cross-appeal the respondent has advanced the following grounds: 1. That the award of K10 million as general damages and K2 million as exemplary damages was, and still is, on the lower side and inadequate and the same was, and still is, an entirely erroneous estimate of the damages to which the plaintiff was, and still is, properly entitled, having regard to the whole of evidence on record and the same ought to be varied by being increased to the sum of K50 million as general damages and K20 million exemplary damages. 2. The respondent in the present case has been subjected to pain and suffering and loss of amenities since 20th July, 1978 when the case arose to the present day which includes the 28th February, 1995 when Judgment No. 1990/HP/512 was made in Court below and it is now established as per said Judgment herein that the respondent's injury to his left ear will, in fact, remain incapacitated at 30% permanently. 3. The learned trial Judge erred in point of law in that he failed or neglected or ignored the proper classification of the general damages and was only content to award general damages in a block award thereof at K10 million. - J6 - 4. The respondent ought to have been awarded an extra and distinct amount plus interest on special damages as specifically pleaded in paragraph 7(1) of the Amended Statement of Claim. 5. Interest upon the General Damages, Special Damages and Exemplary damages or any one of these heads of damages were entirely disregarded and omitted. This was clearly erroneous and entirely in disregard of authorities. 6. The learned trial Judge erred in omitting the incidence of taxation which should have been expressly taken into account and included or provided for in his Judgment No. 1990/HP/512 dated 28th February, 1995. 7. The learned trial Judge erroneously did not expressly consider in his judgment or expressly take into account that the respondent did remain in his employment in this award of both general damages and exemplary. In support of the grounds, Mr. Kasonde has strongly argued that because of the inflaion and the devaluation of the Kwacha, the award of K12 mil.licn was on the lower side. He has maintained that the learned trial judge should have awarded K50 million. He has complained further that the learned trial Judge did not award any interest on the award given and he urged us to consider the authorities referred to in favour of his client. Mr. Kasote for the appellant has relied on the heads or arguments submitted on 17th January, 1997. In a nutdnell, Mr. Kasote's arganaits is that the ajard of J7 - K12 million is on a higher side. He has referred to the learned author Clerk and Lindsell on Tort, 13th Edition which states as follows: "It has been pointed that no one is answerable indefinitely for the consequences of his actions, but that at the time he may well be saddled with responsibility of great injury that he expects. Somewhere a line has to be drawn between the consequences for which a wrongdoer is liable and those for which he is not, but it is something like having to draw a line between night and day, there is a great duration of twilight when it is neither night nor day; but though you cannot draw the precise line you can say on which side of the line the case is." He has argued that the appellant cannot be held answerable for something that the medical experts are unable to know the cause of it. His other argument and this is in response to ground 2 in the cross-appeal, is that the injury and the pain and suffering the respondent seems to suffer from does not seem to be connected to the assault and it was wrong to attribute the respondent's deafness to the assault. In response to ground 3 in the cross-appeal, Mr. Kasote has urged us to distinguish the case of Roger Scott Miller vs The Attorney General (1983) ZR 66. In the present case, the respondent, he has argued, has remained in employment since 1978, whereas Roger Scott Miller became a vegetable. The learned counsel has argued that the respondent lost nothing. The counsel has further argued that the respondent's witnesses, his fellow policemen who were his classmates at Lilayi were still Constables during the trial and the respondent cannot, therefore, be held to say he lost in promotions or earnings when he is still in employment on government pay-roll. The learned Advocate has maintained that promotions are not automatic but they are made or earned on merit. In response to ground 4 on interest and special damage, the learned counsel has submitted that special damages are specifically pleaded and supported by documentary evidence. He has relied on the cases of Mary Musamba Kunda vs The Attorney General SCZ Judgment No. 1 of 1993 and Sam Amon Mumba vs J8 - The Attorney General (1984) ZR 14. The learned counsel argued that the statement of claim was amended after the respondent and his witnesses had testified and there was therefore no evidence led to support his special damages. On interest, Mr. Kasote argued that the issue is discretionary and the learned Judge could not therefore be questioned for having not awarded interest. The learned Judge was free to include the element of interest in the damages. Mr. Kasote summed up by urging this court to dismiss the appeal and to uphold the State's appeal. We are greatly indebted to the counsel for the authorities brought to our attention. We are further indebted to the well though tout submissions presented to us. We have read the authorities and we shall take them into consideration in our judgment- From the submissions of both counsel, there are two major issues which have emerged. The State contends that the award of K10 million was excessive, having regard to the facts of the case and the authorities of this court. The second issue by the State is that the learned Judge misdirected himself in awarding exemplary damages of K2 million. For the respondent, the main issue is that the learned trial Judge was on the linient side on awarding the sum of K2 million as exemplary. They would want this court to set aside this award and give K50 million as general damages. They would also like the court to give interest which they were denied by the lower court. On the facts, it can be seen that this case occured in 1978. The Writ was issued in 1980. The matter went to trial, it later went to Supreme Court which ordered a retrial in 1989. The record shows that the retrial suffered a lot of adjournments, particularly on the side of the plaintiff, respondent now. At one time the case was truck out for want of prosecution. In a normal situation, the case should be completed within 6-7 years. The dalay will undoubtedly affect the damages. It would be unjust for the respondent to be awarded damages J9 - in 1995 for a case which should have been completed before 1990. The relevant authorities brought to our attention show that before 1993, the awards for a case of this nature did not exceed K300,000. In the case of The Bank of Zambia vs Caroline Anderson and Andrew Anderson, this court awarded about K4.5 million for geneal damages but the facts in that case are very different. The injury suffered were more than what the respondent has suffered in this case. The facts of the present case show that the respondent after the injury proceeded to join the Police Force and at the time of the trial, he was still a member of the Zambia Police. It would not therefore be said that he lost the opportunity to earn income in future. The learned trial judge was perfect and on firm ground ben he refused to award anything to the respondent on that claim. he State has vigorously argued that the learned trial Judge erred in a arding exemplary damages of K2 million. We have read the princ .pies laid down in the Rookes vs Banaid1 s case and Times of Zambia vc Kapwepwe1 s case. We are satisfied that the learned trial Judge pre perly followed the principles laid down in these cases and was prope.'ly justified in awarding exemplary damages against the agents of the St;, te. The State has a point on the quantum of K2 million. As we have said earlier on, this case should have been completed before 1990 and damages should have assessed at that time. We will allow the appeal against the quantum of K2 million. That figure is set aside, in its place we award a figure of K500,000. On general damages, the State has strongly argued that even taking the inflation or the devaluation of the Kwacha into account, the award of K10 million was to excessive taking the facts of the case into consideration. As we have observed, this case is different from the case of The Bank of Zambia vs Caroline Anderson. This case is J10 - almost on all fours with The Attorney General vs Paul Mulenga Kayula (1993) case where the plaintiff suffered partial loss of hearing and pain. In that case we confirmed the award of K3,000. We have further taken into account the case of The Attorney General vs Felix Chris Kaleya (1982) where the Supreme Court awarded an amount of K300,000 for assault and battery. Having regard to these authorities, we are in complete agreement with the submissions of the learned Principal State Advocate that the award of K10 million was excessive. The appeal would succeed on this ground. We set aside the award of K10 million and in its place we award a sum of K300,000. We have considered the question of interest and we are in agreement that these awards will carry interests. The cross-appeal, for the reasons we have given, is dismissed, except as to the interest we will impose on the awards we have just given. The appeal by the State of K10 million is allowed. The appeal again by the State of K2 million quantum is allowed. We award the following figures: General Damages K300,000 Exemplary Damages K500,000 We uphold the argument by the State that special damages were not proved and we uphold the learned Judge1s decision in not awarding any special damages. These awards we have just given will carry interest at an average short term bank deposit rate from the date of the Writ of Summons to the date of judgment in the lower court and 6% from the date of judgment •to the date of payment. As regards costs, we order that each party pays his own costs. JU - M. S. CHAILA SUPREME COURT JUDGE W. M MUZYAMBA SUPREME COURT JUDGE D. M. LEWANIKA SUPREME COURT JUDGE