On 27 March 2011, a motor vehicle owned by the 2nd Appellant and being, at the material time, driven by the 1st Appellant was involved in a collision with the Respondent’s motor vehicle. On 9 May 2011, the Respondent commenced an action against the Appellants claiming the sum of K500 000 000 (unrebased) being the cost of repair to his motor vehicle, and damages for loss arising as a result of the accident. The Respondent set out particulars of the special damage that he claimed to have suffered and these were the cost of repairs to his motor vehicle which he pegged at K500 000 000. Judgment was entered summarily in favour of the Respondent. The quantum of damages was referred to the Deputy Registrar for assessment. At assessment, the Respondent advanced three heads of claim including a claim for K2 500 (rebased) as towing charges, K60 775 (rebased) for hiring an alternative vehicle, and K24 717. 72 being the excess insurance premium that his insurance company had charged him as a result of having declared him an insurance risk after this particular accident. The Deputy Registrar apportioned the claims for hiring an alternative vehicle and excess insurance premium at fifty-fifty, resulting in this appeal.
Held
1. The necessary and immediate consequence of the collision would be the damage to the Respondent’s motor vehicle; and personal injuries, if any, to the Respondent or any other person who may have been in the motor vehicle. Any other damage would be considered as special damage and that damage must be specifically pleaded. Damages for hiring of an alternative vehicle and for the higher charge slapped on the Respondent for being an insurance risk were not the necessary and immediate consequence of the collision. Therefore, they were special damages. These damages having not been pleaded, it was a misdirection for the Deputy Registrar to have received evidence on them and proceed to award them. A-G v Mpundu (1984) ZR 6 followed.
2. The judgment in this case was a summary one. It granted the Respondent his claim, as pleaded. Since the special damages that the Respondent claimed at assessment were not pleaded, they could not have been in the contemplation of the judgment when it referred the quantum to the Deputy Registrar for assessment
