Regarding
costs, it is my view that the plaintiff's approach to court was
reasonable and was prompted by a desire to be compensated for damages
flowing from alleged professional negligence. Tested against a
reasonable man, the plaintiff's case has merit. No one expects to
have their jaw broken when they request for a tooth extraction ...
Regarding
costs, it is my view that the plaintiff's approach to court was
reasonable and was prompted by a desire to be compensated for damages
flowing from alleged professional negligence. Tested against a
reasonable man, the plaintiff's case has merit. No one expects to
have their jaw broken when they request for a tooth extraction from a
dentist, and, where this occurs, there should be redress.
Unfortunately, the law does not allow the judge, using the test of
the paterfamilias, to substitute his or her own standards for those
of a reasonable professional such as a dentist.
The
stringent test for establishing the negligence of a professional
requires that the allegedly defaulting professional be judged by the
standards set by his or her peers.
Cases
of professional negligence are, in my view, difficult to successfully
prosecute in this jurisdiction where most professions are still small
and closely knit and members of the profession know each other on
personal levels. Testifying against a fellow professional is still
frowned upon as being in itself unprofessional, and, thus, evidence
of negligence is difficult to come by.
From
the above, I am not suggesting that Professor Chidzonga chose not to
testify against the defendant as he is personally known to her. He
was simply not led on the critical issues of negligence and I do not
know what his responses would have been. The testimony of Dr Lewis
Chidzambwa, on the other hand, was clearly meant to absolve the
defendant from all professional liability.
While
he is not succeeding, I see no reason to mulct the plaintiff with an
order of costs on the basis of the above observations….,.
1….,.
2.
Each party shall bear its own costs.
