Delictual Damages re: Professional Negligence

SC22-14 : MILDRED MAPINGURE vs MINISTER OF HOME AFFAIRS and MINISTER OF HEALTH AND CHILD WELFARE and MINISTER OF JUSTICE LEGAL AND PARLIAMENTARY AFFAIRS
Ruled By: GARWE JA, GOWORA JA and PATEL JA

DAMAGES FOR PAIN AND SUFFERING AND MAINTENANCE Having regard to the broad principles of delictual liability, and in light of the decisions in Administrator Natal v Edouard 1990 (3) SA 581 (AD) and Mukheiber v Raath Anor 1999 (3) SA 1065 (SCA), I do not not perceive any conceptual limitation to ...

DAMAGES FOR PAIN AND SUFFERING AND MAINTENANCE

Having regard to the broad principles of delictual liability, and in light of the decisions in Administrator Natal v Edouard 1990 (3) SA 581 (AD) and Mukheiber v Raath & Anor 1999 (3) SA 1065 (SCA), I do not not perceive any conceptual limitation to allowing a claim in general damages for foreseeable harm that eventuates from an unwanted pregnancy. Although the present claim is without precedent in this jurisdiction, its novelty does not involve any impermissible extension of Aquilian liability. In short, an unwanted pregnancy can, depending on the circumstances of its occurrence, constitute actionable harm. Accordingly, the appellant is entitled to proven general damages arising from the failure to prevent her pregnancy.

As regards the claim for maintenance, such a claim is ordinarily predicated on a relationship between the parties of such kind as to create a legal duty to support between them, viz. husband and wife, parent and child, grandparent and grandchild, and immediate collaterals. The liability of a third party outside any such familial relationship is traditionally confined to one who deprives a dependant of support by wrongfully causing the death or incapacitation of the person supporting the claimant. See BOBERG: The Law of Persons and the Family (1977)…,.. However, as was clearly recognised in Mukheiber v Raath & Anor 1999 (3) SA 1065 (SCA), there can be no objection, in principle, to a claim for delictual damages flowing from an unwanted pregnancy. This would apply not only to the costs of confinement and the physical pain of delivery but also to the expense of maintaining the child until it becomes self-supporting.

In paragraph 2 of her affidavit of evidence, dated 6 April 2010, the appellant sets out her claim for US$10,000= as general damages arising from her pregnancy. She avers that she went through physical and mental pain, anguish and stress. More particularly, she had to endure a pregnancy, which was the result of rape, for nine months, followed by the labour pains of delivery. She was stressed throughout that period and is now stressed with the reality of having a child who is the product of that rape. In paragraph 3 of the same affidavit, the appellant elaborates her claim for US$41,904= as damages representing the reasonable costs of maintaining her child until he attains the age of majority or becomes self-supporting. The claim covers food and clothing as well as medical and educational expenses.

The respondents' heads of argument do not attempt to controvert the appellant's averments as to the physical and mental anguish that she endured as a result of her unwanted pregnancy. Nor do they suggest that this harm was not foreseeable. Again, at the hearing of the appeal, counsel for the respondents did not proffer any submissions to counter the appellant's claim on the ground of unforeseeable harm.

In the instant case, it cannot be doubted that the appellant did suffer harm as a result of the failure to prevent her pregnancy. Moreover, on the facts before us, there is nothing to indicate that this harm was not reasonably foreseeable. It was manifestly clear, to both the police and the doctor, that the appellant was vehemently averse to falling pregnant. Consequently, they must have foreseen that, if she were to fall pregnant, she would inevitably undergo the mental anguish of an unwanted pregnancy. To this extent, the appellant's claim is factually and legally sustainable as having resulted from the negligence of the police and the doctor.

However, the chain of causation in this case cannot be extended beyond the period of one month after the appellant was raped, i.e. when her pregnancy was confirmed. As I have already concluded, the responsibility for taking steps to terminate her pregnancy fell squarely upon the appellant's shoulders, and, by the same token, the capacity to do so also lay within her hands. On that basis, the respondents cannot be called to account for any subsequent pain and suffering endured by the appellant, whether arising from her continued pregnancy or the delivery of her child or the period thereafter. The same must obviously also apply to any patrimonial damage incurred or to be incurred consequent upon the birth of the child. All of that angst and expense was of the appellant's own making and cannot be attributed to any negligence on the part of the respondents' employees. In short, the causal chain was broken by the appellant's own failure to institute the necessary proceedings to terminate her pregnancy. It follows that the appellant's claim for damages must be limited to the period between the date of her rape and the date of confirmation of her pregnancy.

What remains is to quantify the appellant's entitlement to damages.

This task is rendered somewhat difficult by the appellant's failure to identify any comparative awards in similar cases. Nevertheless, this omission should not preclude the computation of such damages as might be deemed just and equitable on the facts in casu, commensurate with the indisputable anguish and stress that the appellant was subjected to during the period alluded to above. In any event, this is a matter for determination by the court a quo after due inquiry into the appellant's personal, social and economic circumstances….,.

DISPOSITION

In the result, this Court makes the following order:

1. The appeal is partially allowed to the extent that the dismissal of the appellant's claim for damages for pain and suffering, arising from the failure to prevent her pregnancy, be and is hereby set aside.

2. The claim for damages for pain and suffering is remitted to the court a quo for the grant of default judgment in such amount as the court may assess and determine after due inquiry, together with the question of costs.

HH16-08 : CAVIN CHIFAMBA vs NORBERT MUTASA and GUARANTEE TRUST (PVT) LTD and M V CHIZODZA
Ruled By: MAKARAU JP

The plaintiff is resident in the United Kingdom.

Sometime in 2003, he telephoned one Simbarashe Sagonda and Thomas Makwangudze, relatives of his, to proceed to view a property that was being offered for sale through the agency of the second defendant.

The property, whose description and location in Ruwa was known to the second defendant's property negotiator, “Nyasha”, is owned by the first defendant who holds freehold title to the land.

It is common cause that the instructions to sell the property did not emanate from the first defendant but from a fraudster, still at large, who was making out to be the first defendant and not only had with him a forged copy of the Deed of Transfer in respect of the property bearing the first defendant's name, but also a driver's licence and a passport with the names of the first defendant but bearing his picture.

It is further common cause that the two plaintiff's relatives viewed the property in the company of Nyasha, the property negotiator, and were satisfied with its condition in relation to the asking price. They accordingly, but separately, recommended to the plaintiff that he purchases the property.

An Agreement of Sale was duly drawn up and the plaintiff cautioned that he wanted the transaction to be supervised by a lawyer. Debut the third respondent in her capacity as a conveyancer and one who was well known to the second defendant and had done work for the second defendant previously.

On the date that the Agreement of Sale was signed, the fraudster, still making out to be the first defendant, attended at the third defendant's offices and not only did he sign the agreement as seller and first defendant, he also collected the deposit of the purchase price that had been paid in the sum of 8,000 pounds sterling. It is at this meeting that the fraudster exhibited the identity documents that he used to commit the fraud. The documents were inspected by all who were present, including the plaintiff's representative, who did not find anything amiss with the documentation.

A further payment in the sum of 6,000 pounds sterling was made some months thereafter.

Soon after the payment of the balance of the purchase price, transfer fees were called for in anticipation of transferring the property into the plaintiff's name. It was at this stage that the fraud was discovered as the Registrar of Deeds raised issues with the authenticity of the Deed of Transfer tendered with the transfer papers and advised that the matter be reported to the police.

Efforts to trace the purported seller of the property to obtain vacant possession of the property by the plaintiff's agent were in vain.

On 21 April 2004, the plaintiff issued summons claiming against all defendants, an order compelling them to transfer the property in dispute to him. In the alternative, the plaintiff sought an order against all the defendants jointly and severally for the payment of damages to be calculated as the purchase price of a similar stand in Ruwa at the time of payment less the Zimbabwe Dollar equivalent of 14,000 pounds sterling, $2,7 million, and interest a temporae morae on the two amounts at the prescribed rates.

The action was defended by all three defendants.

The first defendant denied that he ever put up his property for sale or connived with the fraudster to defraud the plaintiff. The second defendant denied conniving with the fraudster or misrepresenting any facts to the plaintiff. The third defendant also denied conniving with the fraudster or misrepresenting any facts to the plaintiff.

At the pre-trial conference of the matter, four issues were identified for trial. These were;

(i) Whether or not there was misrepresentation on the part of the defendants that led the plaintiff to lose his money;

(ii) The quantum of damages;

(iii) From whom such damages were recoverable; and

(iv) Who should bear costs of suit.

At the trial of the matter, the plaintiff called Simbarashe Sagonda and Thomas Makwangudze as witnesses. The testimonies of the two witnesses were to narrate what is essentially common cause in this trial.

It was Simbarashe Sagonda's testimony, that, when he went to view the property in the company of the property negotiator from the second defendant, Nyasha, they were shown around by a lady of middle age. Also present were a gardener who opened the gate for them, a maid who was busying herself in the kitchen, and some other young man. From the visit, he got the impression that Nyasha had been to the property before and knew all the faults and uncompleted details in the structure.

The witness gave his evidence well and I have no reason to disbelieve him.

As indicated above, his testimony was a narration of facts that are not in dispute as between the parties.

Thomas Makwangudze also testified as to how he went to view the property in the company of Nyasha and one Lovemore Hombarume who was held out to be the nephew of the seller of the property. He also testified as to how an Agreement of Sale was then drafted and that at the time of signing the agreement and paying the deposit, he met the fraudster, who produced a driver's licence and passport all bearing the names of the first defendant. He inspected the documents together with the third defendant, Nyasha, and a friend he had brought along to witness the transaction.

All four of them did not notice anything irregular with the identity documents and were duped into believing that they were dealing with the first defendant, the owner of the property.

He further testified as to how he paid the balance of the purchase price and transfer fees for the property.

Again, in my view, the witness gave his evidence well. I gained the impression that he is honest and reliable.

He found it difficult, on his observations, to categorically hold that the defendants were conniving with the fraudster. He only assumed there may have been connivance between the first defendant and the fraudster but had no basis for making this assumption save the fact that he and Nyasha freely viewed the first defendant's property in the presence of his maid and gardener.

After leading these two witnesses, the plaintiff closed its case.

At the close of the evidence, the plaintiff withdrew his claim against the first defendant, tendering costs. It is therefore unnecessary that I deal with the evidence led by the first defendant in his defence.

The second and third defendants applied for absolution from the instance arguing that the plaintiff had not established a prima facie case that the defendants had misrepresented to him any fact.

I granted the application and indicated that my reasons would follow. I now set them out.

Before I proceed to deal with the application for absolution from the instance, there are two issues that I wish to remark on. These relate to the standard of pleadings exhibited in this matter and the need for legal practitioners at pre-trial conferences to assess the cogency of the evidence they intend to adduce at the trial of the matter.

The purpose of pleadings is not only to inform the other party in concise terms of the precise nature of the claim they have to meet, but, pleadings also serve to identify the branch of the law under which the claim has been brought. Different branches of the law require different matters to be specifically pleaded for a claim to be sustainable under that action.

Thus, for example, in a divorce action, the allegation of irretrievable breakdown is imperative while in a delictual claim for bodily injury, fault has to be averred against the defendant.

This may appear trite but a number of matters coming before the courts seem to indicate that legal practitioners have abandoned the need to plead a cause of action by making the necessary averments to sustain such an action: see S Pilime v B Chisvo HH10-07.

In casu, the plaintiff's legal practitioner appears to have simply rehashed the instructions he had received from his client in the declaration without making an attempt to precisely and concisely lay out the cause of action and the averments necessary to sustain such. I gain this impression from the wording of the concluding paragraph of the declaration which is framed as follows:

“All the defendants were either conniving together or misrepresented facts to the Plaintiff in order to deprive the plaintiff of the said Stand and money.”

The defendants' legal practitioners did not fare any better in the matter.

Instead of seeking clarification of the claim and its basis by either a request for further particulars or an appropriate exception, the defendants were advised to file pleas to the merits which pleas read no better than the declaration as they seek to deny the statements made in the declaration (Mr Nhemwa was not representing the second defendant at the time the pleadings were exchanged).

In my view, the exchange of pleadings between the parties is what may pass as conversation at a social gathering between disagreeing parties but bears not the slightest resemblance to pleadings in a court of law.

Legal practitioners are urged to read on the law before putting pen to paper to draft pleadings in any matter so that what they plead is what the law requires their clients to prove to sustain the remedy they seek.

The duty of a legal practitioner to precisely and concisely draw up pleading is closely related to the duty to establish and assess the evidence necessary to sustain each important averment made in the pleadings.

This should be done before or at the pretrial conference stage when the summaries of evidence are drawn up. Gaps in the evidence should be identified at this stage and brought to the attention of the party who may thus avoid the loss occasioned by a dismissal or absolution from the instance at the close of the plaintiff's case at trial.

All too often, legal practitioners are heard in a pre-trial conference to whisper to their clients asking how many witnesses they will call at the trial of the matter. Preparedness is the hallmark of a good legal practitioner. It is no use for a legal practitioner to concede, at trial, that his client does not have sufficient evidence when pleading that the matter should not be dismissed but that absolution from the instance be granted.

It is my view, that, had the plaintiff's legal practitioner in this matter assessed the cogency of the evidence that he had, he may have avoided a trial in this matter and legal costs for his client as none of the plaintiff's witnesses testified as to a misrepresentation made to them, and, the second witness in particular, denied that there was any connivance by the defendants to deprive the plaintiff of his money. His testimony was to the effect, that, because the second and third defendants were professionals, they should have guarded against the loss. This, in my view, suggests a claim based on negligence rather than on misrepresentation or fraud.

Litigation in the High Court is serious business and the standard of pleadings in the court must reflect such.

In view of the evidence adduced on behalf of the plaintiff, it was clear, at the close of the plaintiff's case, that there was no need to call upon the defendants to testify.

Even if I were to be overly generous and hold that the plaintiff had pleaded misrepresentation as a cause of action against the defendants, the evidence adduced by the plaintiff revealed that it was the fraudster who misrepresented to both the plaintiff and to the defendants that he was the registered owner of the property that he was selling.

It is this fraud that induced the sale between the parties.

The fraudster went to the extent of producing cleverly forged documents to support his fraud. The defendants did not assist him in this fraud and were also the victims of the fraud.

In any event, it was not specifically pleaded in the papers whether the alleged fraud by the defendants was innocent, negligent, or fraudulent.

Having alleged that he was induced into the contract by misrepresentation, the plaintiff proceeded to pray for transfer of the property into his name.

I am not clear how the remedy of specific performance was pleaded after the alleged misrepresentation.

I may mention, in passing, that, the Rules require that particulars of any misrepresentation be stated in the pleading: see Rule 103 of the High Court Rules, 1972.

The Rule is often overlooked in drafting summons and declarations.

It is on the basis of the above that I granted absolution from the instance at the close of the plaintiff's case.

HH147-15 : TENDAI MANGWIRO vs CO-MINISTERS OF HOME AFFAIRS and COMMISSIONER-GENRAL OF POLICE and OFFICER IN CHARGE CID SUSPECTS HARARE CENTRAL POLICE and DETECTIVE INSPECTOR MUKAMBI
Ruled By: MUSAKWA J

In this application for default judgment, the plaintiff seeks an order to the effect that -

“1. The respondents, jointly and severally, pay the applicant the sum of US$78,900.

2. The respondents, jointly and severally, pay the applicant the sum of US$1,537,833=33 being the United States Dollar equivalent of ZW$46,135,000,000.

3. Interest at the prescribed rate (from the 25th January 2013) being the date applicant demanded return of exhibits.

4. Costs of suit on the legal practitioner and client scale.”

The claim by the plaintiff arises from his prosecution before the Regional Court on a charge of theft. He was acquitted on 18 January 2013. He gave notice, in terms of the State Liabilities Act [Chapter 8:14], on 18 March 2013.

Following the acquittal, it is contended that police unlawfully, and unprocedurally released US$78,900 and ZW$46,135,000,000 which had been seized from the applicant to one Andre Nsaka Nsaka.

It is evident that the cash in question, together with some motor vehicles, were not exhibits before the Regional Court.

It is common cause that the plaintiff was arrested on 16 February 2008 on allegations of theft of US$3,000,000 from Andre Nsaka Nsaka. The following items were seized from the plaintiff -

1. US$78,900.

2. ZW$46,135,000,000.

3. Isuzu double cab LX300 vehicle, registration number ABD 4926.

4. Toyota Vista vehicle, registration number ABC 0347.

The two motor vehicles were subsequently released. Trial commenced in November 2008 and was finalised on 25 April 2012.

It is also common cause that although the defendants filed a special plea to the claim they were subsequently barred for not pleading over to the merits.

It is surprising that those who legally represent the State, and those personnel presiding over State institutions, are lax when it comes to litigation. A simple act of filing a defence to a claim that has serious financial implications to the fiscus went begging by failure to adhere to court rules.

The money being claimed was booked under entry 09/08 (Exhibit Book 34) with CID Suspects. As stated previously, it was never booked with the trial court.

When demand was made for its release, the defendants claimed prescription.

The plaintiff sought confirmation, from the Reserve Bank of Zimbabwe, to the effect, that, as at 11 February 2008, the rate of exchange between the US$ and the ZW$ was US$1 to ZW$30,000. The ZW$46,135,000,000 amounts to US$1,537,833=33.

Although the plaintiff's counsel, in his heads of argument, submits this is vindicatory action, this is essentially a claim for damages.

This is because, in his supporting affidavit, the plaintiff claims that the money seized from him was wrongfully released to Andre Nsaka Nsaka - the complainant in the criminal matter. Essentially, the plaintiff is seeking to be placed in the same position he would have been had the money not been released.

He cannot and is not seeking to recover the exact money seized from him because that money is no longer available. Hence the computation of the US$ equivalent of the ZW$46,135,000,000.

The claim for US$78,900 poses no problem. That is the loss the plaintiff suffered when the money was seized from him.

It is the claim for the US$1,537,833=33 that I find a problem with.

In the first place, it does not follow that when an article is seized by police, it is inevitably going to be used as an exhibit at the intended trial. Even the legality of the seizure, just like an arrest, may be challenged. Therefore, the plaintiff's claim of the seized money was not dependent on the outcome of a criminal prosecution.

Having made those observations, this does not excuse the police from conducting themselves in an unacceptable manner. Section 59(1) of the Criminal Procedure and Evidence Act [Chapter 9:07] provides that -

“Subject to subsection (2), if in connection with any article referred to in paragraph (c) of section fifty eight —

(a) No criminal proceedings are instituted; or

(b) It appears that such article is not required at the trial for purposes of evidence or for
purposes of an order of court; or

(c) Criminal proceedings are instituted and the accused admits his guilt in accordance with section three hundred and fifty-six; the article shall —

(i) If the person from whom it was seized may lawfully possess the article, be returned to that person; or

(ii) If the person from whom it was seized may not lawfully possess the article, be delivered to the person who may lawfully possess it; or

(iii) If no person may lawfully possess the article, or if the police officer concerned does not know of any person who may lawfully possess the article, be forfeited to the State.”

There is nothing to show how it was determined who may lawfully possess the seized cash.

It looks like an arbitrary decision to release the money to Andre Nsaka Nsaka was made. It is not clear if this was motivated by the fact that the plaintiff acknowledged owing Andre Nsaka Nsaka US$145,000.

During the criminal proceedings, there was an indication that the police officer who released the money had criminal charges preferred against him. It was not indicated what the outcome of that process was.

It is also not clear why the plaintiff did not join Andre Nsaka Nsaka in the present suit.

It is well established that delictual damages are calculated as at the date of the delict. In this respect see Parish v King 1992 (1) ZLR 216 (S).

The plaintiff justifies his second claim on the conversion of the economy to multi-currency due to the diminution in value of the local currency.

I have already pointed out that there was no legal impediment to the plaintiff challenging the seizure of his money at the earliest opportunity. It seems the plaintiff chose to await the outcome of the criminal proceedings in order to demand the release of the money.

What if he had been convicted?

Commenting on currency nominalism, GROSSKOPF JA, in S.A. Eagle Insurance Co. Ltd. v Hartley 1990 (4) SA 833, had this to say…, -

“This result seems to me to be in conflict with the principle of nominalism of currency which underlies all aspects of South African law - including the law of obligations. Its essence, in the field of obligations, is that a debt sounding in money has to be paid in terms of its nominal value irrespective of any fluctuations in the purchasing power of currency. This places the risk of a depreciation of the currency on the creditor and saddles the debtor with the risk of appreciation. See FARLON and HARTHAWAY Contract: Cases Material and Commentary, 3rd ed, at 719, note 2; HJ DELPORT, Inflation and South African Law (1982) 4 Modern Business Law 115 and A SPANDAU, Inflation and the Law 1975 SALJ 31.”

Nominalism is the norm in the common law of Western States with similar systems to our own. Thus, in Humphrey (1962) 272 US 517…, the United States Supreme Court said:

“An obligation in terms of the currency of a country takes the risk of currency fluctuations and whether creditor or debtor profits by the change the law takes no account of it. Obviously, in fact, a dollar or a mark may have different values at different times, but, to the law that established it is always the same. If the debt had been due here and the value of dollars had dropped before suit was brought, the plaintiff could recover no more dollars on that account.”

A person claiming damages, in whatever form, must prove that they suffered loss in the amount claimed: see Kwindima v Mvundura 2009 (1) ZLR 168 (H).

In so awarding such damages, the court exercises its discretion. In deserving cases, the courts have made awards in foreign currency notwithstanding the cause of action having arisen during the era of the local currency.

I am therefore satisfied that the plaintiff's claim cannot be granted in its entirety. In the result, it is ordered as follows -

(a) That the defendants, jointly and severally, the one paying the other to be absolved, pay the plaintiff the sum of US$78,900.

(b) That the defendants jointly and severally, the one paying the other to be absolved, pay interest at the prescribed rate from the 25th of January 2013.

(c) That the defendants, jointly and severally, the one paying the other to be absolved, pay the costs of suit.

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Law Portal
Zimbabwe

Delictual Damages re: Professional Negligence

SC22-14 : MILDRED MAPINGURE vs MINISTER OF HOME AFFAIRS and MINISTER OF HEALTH AND CHILD WELFARE and MINISTER OF JUSTICE LEGAL AND PARLIAMENTARY AFFAIRS
Ruled By: GARWE JA, GOWORA JA and PATEL JA

HH16-08 : CAVIN CHIFAMBA vs NORBERT MUTASA and GUARANTEE TRUST (PVT) LTD and M V CHIZODZA
Ruled By: MAKARAU JP

HH147-15 : TENDAI MANGWIRO vs CO-MINISTERS OF HOME AFFAIRS and COMMISSIONER-GENRAL OF POLICE and OFFICER IN CHARGE CID SUSPECTS HARARE CENTRAL POLICE and DETECTIVE INSPECTOR MUKAMBI
Ruled By: MUSAKWA J

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Law Portal Zimbabwe

Delictual Damages re: Professional Negligence

SC22-14 : MILDRED MAPINGURE vs MINISTER OF HOME AFFAIRS and MINISTER OF HEALTH AND CHILD WELFARE and MINISTER OF JUSTICE LEGAL AND PARLIAMENTARY AFFAIRS Ruled By: GARWE JA, GOWORA JA and PATEL JA

HH16-08 : CAVIN CHIFAMBA vs NORBERT MUTASA and GUARANTEE TRUST (PVT) LTD and M V CHIZODZA Ruled By: MAKARAU JP

HH147-15 : TENDAI MANGWIRO vs CO-MINISTERS OF HOME AFFAIRS and COMMISSIONER-GENRAL OF POLICE and OFFICER IN CHARGE CID SUSPECTS HARARE CENTRAL POLICE and DETECTIVE INSPECTOR MUKAMBI Ruled By: MUSAKWA J

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SC22-14 : MILDRED MAPINGURE vs MINISTER OF HOME AFFAIRS and MINISTER OF HEALTH AND CHILD WELFARE and MINISTER OF JUSTICE LEGAL AND PARLIAMENTARY AFFAIRS
Ruled By: GARWE JA, GOWORA JA and PATEL JA

HH16-08 : CAVIN CHIFAMBA vs NORBERT MUTASA and GUARANTEE TRUST (PVT) LTD and M V CHIZODZA
Ruled By: MAKARAU JP

HH147-15 : TENDAI MANGWIRO vs CO-MINISTERS OF HOME AFFAIRS and COMMISSIONER-GENRAL OF POLICE and OFFICER IN CHARGE CID SUSPECTS HARARE CENTRAL POLICE and DETECTIVE INSPECTOR MUKAMBI
Ruled By: MUSAKWA J