CIMAS Medical Aid Society v Caroline Nyika

### Preamble
1
HH 622-22
CIV “A” 91/22
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CIMAS MEDICAL AID SOCIETY

versus

CAROLINE NYIKA

HIGH COURT OF ZIMBABWE

TSANGA & MAXWELL JJ

HARARE, 28 June and 15 September 2022

Civil Appeal

H Mutasa, for the appellant

C.T Tinarwo, for the respondent

MAXWELL J:  This is an appeal against the judgment of the Magistrate Court for the Province of Mashonaland sitting at Harare handed down on 14 March, 2022.

BACKGROUND

The plaintiff (respondent herein) instituted summons against the defendant (appellant herein) seeking payment of ZW$ 1000 000.00 (one million dollars) for medical expenses and damages for pain and suffering caused to her by the defendant’s wrong medication. She also sought interest thereon at the prescribed rate from the date of issuance of summons to the date of payment as well as costs on a legal practitioner and client scale.

Pleadings were exchanged and after the pre-trial conference, the following issues were referred to trial;

When did the plaintiff realise that an incorrect drug had been erroneously dispensed to her?

Whether or not the plaintiff had already been experiencing health problems relating to her kidneys before the incident forming basis of these proceedings?

Whether or not the drug that the plaintiff erroneously received from the defendant can and caused the alleged health problems to the plaintiff?

Whether or not the defendant is liable for any damages to the plaintiff arising from the incident forming the basis of these proceedings?

If the answer to 1-4 is in the affirmative, what is the quantum of those damages?

The matter went to trial and the lower court found in favour of the plaintiff.

JUDGMENT OF THE LOWER COURT

The lower court was of the view that the allegation that plaintiff’s health deteriorated as a result of taking wrong medication cannot be disputed without any contrary evidence from the defendant. It observed that defendant admitted liability and that the plaintiff wanted to be treated for breast cancer and not hair loss. It dismissed the defendant’s claim that there were no side effects on the basis that there was no evidence that the medication is safe for women as the box clearly indicated that it was to be taken by men only. The lower court found the defendant liable to pay the damages for the pain and suffering that the plaintiff went through because of its negligence. It made reference to the case of Minister of Defence & Another v Jackson 1990 (2) ZLR 1 (S) for the position that general damages are not a penalty but compensation. It took guidance from the case of Mkhwananzi v Totamirepi and Another HB 118/16 in which the court remarked that in assessing damages for pain and suffering one must make prime considerations to the duration and intensity of pain. It considered that the plaintiff took the wrong medication for a period of two weeks or more. It did not grant the claim for the medical expenses. It however granted plaintiff half of the amount she claimed with interest from the date of the issuance of summons to date of payment as well as costs on an ordinary scale.

Appellant was aggrieved and noted an appeal.

GROUNDS OF APPEAL

The following are the grounds on which appellant approached this Court.

The court a quo erred in law when it failed to find that the respondent had not established that she had suffered the alleged health complications apart from her known chronic condition of breast cancer.

The court a quo erred in law when it failed to determine that no causal link had been established by the respondent between the appellant’s alleged wrongful action and the respondent’s alleged illness.

The court a quo misdirected itself when [it] determined the matter on the erroneous basis that the appellant bore the burden of proving that the respondent did not suffer any health problems as a result of taking the wrong medication.

The court a quo grossly erred when it determined that the respondent had taken the incorrect medication for more than two weeks.

The court a quo misdirected itself when it determined the matter on the mistaken basis that the respondent was claiming damages for trauma when it was clear that her claim was for alleged pain and suffering.

Appellant prayed for the setting aside of the judgment of the lower court and its substitution with an order dismissing plaintiff’s claim with costs.

SUBMISSIONS BY THE PARTIES

Appellant submitted that the claim respondent brought in the lower court is an acquilian action under the law of delict and she failed to establish its requirements and therefore she was not entitled to any compensation. The requirements appellant alleged had not been established are, firstly, that she suffered patrimonial loss, and secondly, that such loss was a result of the appellant’s wrongful actions. Appellant also accused the lower court of missing fundamental self-contradictions that were apparent in respondent’s case. The contradictions were alleged to be that although she pleaded that she suffered side effects which include kidney failure, she did not make any reference to kidney failure in her evidence in chief, but alleged that she suffered health complications in the form of a swollen heart and endless coughing. Appellant argued that the departure from her pleaded case ought to have weighed heavily against the Respondent as it points to lack of bona fides on her part.  Appellant further argued that the lower court erred when it proceeded on the premise that it was the appellant who had the burden of proving the effects of Finasteride in women. Appellant prayed for the appeal to succeed with costs.

Respondent argued that she satisfied all the requirements of an aquilian action therefore the decision of the lower court cannot be faulted. She pointed out that the appellant admitted to dispensing a wrong drug to her and that during trial appellant also admitted that she was traumatized by the realization that she was taking wrong medication. She also pointed out that during trial, the appellant’s Pharmacy Manager admitted that her health had deteriorated as a result of the wrong medication. Respondent submitted that appellant was recklessly abusing court process and should therefore be made to pay costs on an attorney and client scale.

ANALYSIS

The question that needs to be answered first is whether or not the respondent satisfied the requirements of the aquilian action. The record of proceedings shows that she did. In Nyaguse v Skinners Auto Body Specialists & Another HH 32/2007, it is stated that the Plaintiff in an aquilian action must establish that; -

“the defendant committed a wrongful act;

the plaintiff suffered patrimonial loss, viz. actual loss capable of pecuniary assessment;

the defendant’s act caused the loss suffered by the plaintiff and that the harm occasioned was not too remote from the act complained of;

responsibility for the plaintiff’s loss is imputable to the fault of the defendant, either in the form of dolus (intention) or culpa (negligence).”

That the appellant committed a wrongful act cannot be in dispute as it is common cause that wrong medication was dispensed. The ruling by the lower court states on page 5 of the record that; -

“It should be noted from the onset that defendant admits dispensing the wrong drug to the plaintiff.”

The first requirement of the aquilian action was therefore established. The second requirement that plaintiff suffered patrimonial loss is established on page 18 of the record where respondent testified that she had to visit doctors regularly and was paying cash for their services. On p 6 of the record, the lower court was satisfied that the third and fourth requirements were established. It was its finding that the plaintiff managed to prove her case on a balance of probabilities as she managed to prove that there was a link between the defendant’s wrongful act and the pain that she suffered.  It went on to state that the plaintiff was traumatized by the defendant’s negligence and that she had trusted it to provide her with the correct medication. The lower court pointed out that the appellant did not dispute that the plaintiff was traumatized by its negligence. On the basis of the above, there was no error on the part of the lower court in finding that respondent had satisfied the requirements of an aquilian action.

The next issue that arises from the grounds of appeal is whether or not the lower court determined the matter on the erroneous basis that the appellant bore the burden of proving that the respondent did not suffer any health problems as a result of taking the wrong medication. The record of proceedings shows that the lower court was satisfied that on a balance of probabilities the plaintiff managed to prove that there was a link between the defendant’s wrongful act and the pain that she suffered. This is coupled with the fact that the Pharmacy Manager testified that she could not dispute that the respondent’s health deteriorated as a result of the wrong medication and that she was traumatized. It is trite that what is not disputed is taken as admitted. Faced with the fact that respondent’s averments were not disputed, the lower court cannot be faulted in its approach.

Appellant also alleged that the lower court erred when it determined that the respondent had taken the incorrect medication for more than two weeks. In the ruling, the lower court stated on p 7 of the record; -

“In casu the plaintiff took the wrong medication for a period of two weeks or more as per the cross examination.” (Underlining for emphasis)

On pp 21 to 22 of the record, respondent was asked as to when she started taking the wrong medication.  Her response was, from mid-February 2021. She was asked until when and her response was beginning of March. On page 24 she confirmed that position. The lower court did not err on that aspect.

Lastly, appellant faults the lower court for determining the matter on the basis that respondent was claiming damages for trauma when it was clear that her claim was for pain and suffering. There were no submissions made in support of this ground of appeal. In any event, throughout the ruling, the lower court was referring to a claim for pain and suffering even though it referred to plaintiff’s experience as traumatising. The award it made was for pain and suffering. Pain and suffering incudes physical discomfort, severe emotional or mental distress, also referred to as emotional trauma, caused by an experience. Visser & Potgieter Law of Damages, 3rd ed, state that pain and suffering  means all pain, physical and mental suffering and discomfort caused by bodily injury, emotional shock or the medical treatment necessitated by the injuries. It would have been a question of semantics if the award had been made for trauma instead of pain and suffering. This ground of appeal shows that appellant is desperately clutching at straw in an effort to reverse the lower court‘s decision. The appeal has no merit at all and it cannot succeed.

COSTS

A successful party is entitled to costs and there is no reason to depart from that general rule in the present case. Respondent prayed for costs on a higher scale on the basis that she was being unnecessarily put out of pocket through unnecessary litigation. She submitted that the intention of the appellant is not to test the correctness of the decision of the lower court but rather a reckless abuse of court process. In her heads of argument, reference is made to Rubin L, Law of Costs in South Africa (1949) as well as the case of Nel v Waterberg Landbouuwersko-operative Vereeniging 1946 AD 597 for the position that such costs are awarded where the proceedings are found to be malicious, vexatious, reckless and/or frivolous, and where the court considers it just that the successful party should not be put out of pocket in respect of the expenses caused by the litigation. No contrary submissions were made for the appellant. Accordingly, costs are awarded against the appellant on an attorney and client scale.

DISPOSITION

The appeal fails and the following order is made.

The appeal be and is hereby dismissed with costs on an attorney and client scale.

TSANGA J………………………………Agrees

Gill, Godlonton & Gerrans, appellant’s legal practitioners

Zimudzi & Associates, respondent’s legal practitioners