CIV/T/252/2006
IN THE HIGH COURT OF LESOTHO
In the matter between:
THABENG RATEFANE PLAINTIFF
AND
LEJONE SEFALI 1st DEFENDANT
SETENE SESINYI 2nd DEFENDANT
JUDGMENT
Delivered by the Honourable Mr. Justice G.N. Mofolo On the 17th January, 2007
The plaintiff issued summons against the two defendants claiming: -
Medical expenses in the sum of M15,000.00
Emotional shock in the sum of M25,000.00
General damages in the sum of M85,000.00
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Interest at the rate of 18.5%
10% collection commission
Costs of suit and
Further alternative relief.
In his declaration plaintiff alleges at paragraph 4 that defendants assaulted plaintiff with swords and fighting sticks and as a result of the assault, plaintiff sustained injuries on his head, forehead and left jaw losing consciousness for about eight (8) hours. Plaintiff was admitted to hospital and to date his jaw is still painful and as a result plaintiff is unable to support his family. He says he is subsistence farmer. Though served defendants have not entered appearance to defend matter. After giving evidence in support of his claim, plaintiff handed in Exh. "A" being X-Ray request/report form and a report on plaintiffs medical condition. The court not being fully satisfied with the reports ordered that a medical report from a government hospital where plaintiff was admitted be produced and it has been produced.
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Exh. "A" shows mandible head injury and the fact that plaintiff lost consciousness. The private doctor Dr. Bulane in this report shows "a fracture of the left mandible" and that plaintiff was sent to Mafeteng Hospital and he has recurrent headaches and decreased vision.
On examining the patient the doctor found:-
Healed laceration over occipito - media region head lambola shaped scar 4cm x 5cm x 4cm x 4cm. Renal acuity normal both eyes 20/50, Bp 140/80 mmhg, weight 42kg, skull X-ray normal, Brain Scan normal.
Diagnosis shows assault on the head with fracture left mandible which was surgically repaired but no residual brain damage.
No obvious complications anticipated.
Plaintiff appears to have paid of the doctor M 190.00.
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The police medical form shows plaintiff to have been "assaulted all over the body and on the head".
Medical opinions report shows:-
"Laceration over the region of the forehead and check".
"Abrasions on hands".
It being alleged assault was with a sword
Degree of force inflicted: Considerable
Danger of injury to life: Moderate
Degree of immediate disability: Moderate
Degree of long term disability: Long/Partial/Total
Duration of HOSPITALIZATION: From.........To...........
Treated as out patient: Yes
Dated 29.01.2004
Signature of Examining Doctor
Name in full: Dr. F.I. Rathebe - MBS - London
It will be seen that plaintiff was treated as an out patient and there was no degree of immediate disability. Actually Dr.
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Bulane has recorded "there are not obvious complications anticipated" and, in any event, there is proof plaintiff paid M190.00 medical fees. Undoubtedly the plaintiff suffered injuries though they seem to be of minor nature. The doctor has confirmed that plaintiff lost consciousness after the injury.
It has been said pain associated with physical injury is compensable - see Union Government J. Warneke 1911 and AD 657 at 667-6 though damages have to be proved what the plaintiff is called upon being to prove pecuniary loss or pain and suffering and damage not proved judgment is to be ' entered in favour of the defendant - see Stoffberg v Elliot 423 CPD 148. There is also authority for the proposition that in deciding the amount of damages to plaintiff the court is not to use or align itself with damages awarded in other cases for this could well restrict the court's discretion having regard to the fact that cases are not the same and so is the circumstances of each particular person for indeed in this case while the plaintiff was injured, apart from payment of medical fees in the sum of M190.00, there is no proof whatsoever that
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plaintiff suffered pecuniary loss of any kind for even the fact that he is a subsistence fanner it has not been shown how and to what extend money-wise the injury sustained interfered with or accounted for primary loss to plaintiff. Indeed the plaintiff was also listed as an out patient pointing to the fact that he was not seriously injured. Medical evidence is also to the effect that there are "no obvious complications anticipated". In the result the court is of the view, taking all circumstances into consideration, that were this a criminal case, defendants would have been found guilty of assault common.
The court is also of the view plaintiff exaggerated his claim as is amply demonstrated by him claiming M15,000.00 medical expenses when proved medical expenses are in the order of M 190.00 and may amount of M200.00 considering plaintiff was treated at government hospital. Apart from medical expenses in the order of M190.00, the court has decided to award cumulative damages in the sum of M2000.00 jointly and severally, the one paying and the other to be
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absolved. The court has also decided to award costs notwithstanding that the action is not defended for the reason that plaintiff has incurred costs to come of count.
Consequently, it is ordered defendants jointly and severally the one paying and the other to be absolved pay plaintiff:-
M 190.00 medical expenses
Damages in the sum of M2,000.00
Costs of suit.
JUDGE
For the Plaintiff : Adv. T. Maieane
For the Defendants : No appearance
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