Patricia Singizi and Samuel Singizi vs Parirenyatwa Group of Hospital and Ministry of Health and Child Welfare and Edwin Muguti and Medical and Dental Practitioners Council of Zimbabwe

PATRICIA SINGIZI

and

SAMUEL SINGIZI

versus

PARIRENYATWA GROUP OF HOSPITAL

and

MINISTRY OF HEALTH AND CHILD WELFARE

and

EDWIN MUGUTI

and

MEDICAL AND DENTAL PRACTITIONERS COUNCIL

OF ZIMBABWE

HIGH COURT OF ZIMBABWE

MUZOFA J

HARARE,14 & 23 November 2018

Unopposed - damages

MUZOFA J: On 14 September 2016 the plaintiffs issued summons against the defendants jointly and severally the one paying the others to be absolved for the payment of                          a) US$40 750.00 and R328 900 for damages and losses suffered by the plaintiffs due to defendants’ negligence in their provision of medical services to the plaintiff.

Parties filed pleadings however in due course the third defendant’s plea was struck off and the matter was referred to the unopposed roll for the plaintiffs to prove the damages. Consequently the plaintiffs filed their affidavits of evidence and heads of argument. I will address the claims herein.

Where a claim for damages is unopposed it is not for the court to determine the liability of the defendant. The court will only concern itself with the quantum. The first plaintiff alleged that on 14 September 2015 she was admitted in ward B8 at Parirenyatwa Hospital. She was diagnosed with chronic chorecustitis due to gall bladder stones. She had abdominal pain for about 3 months. The third defendant with the assistance of other medical personnel conducted an operation called a laparoscopic cholescystectomy on her. Thereafter she was discharged from the hospital. A week later she returned to the hospital due to abdominal swelling. She was attended to and the diagnosis was that she had a bile leak the third defendant indicated that they had no facility to remedy the condition. The only option was to transfer her to South Africa for medical assistance. Pending the transfer she was given a prescription to buy a drug known as octentide which cost R2 500. She did buy the drug. She then went to South Africa. In South Africa she incurred medical expenses and filed the invoices. She also claimed for future medical services. The second plaintiff’s affidavit of evidence confirms what transpired. The plaintiffs’ claim is for both general damages and special damages.

Special damages

These are damages that the plaintiff has to prove by way of evidence. In Mbundire v Tyrono Sim Buttress SC 13/11 the court cited the dictum in Monumental Art Co v Kensten Pharmacy (Pvt) Ltd 1976 (2) SA 111 (C) at 1180, that,

“it is not competent for a court to embark upon conjecture in assessing damages where there is no factual basis in evidence or an inadequate factual basis….”

In the Mbundire case (supra) the court emphasized that where a party suffered actual loss but fails to produce evidence which is within its power, the court has no other option but to absolve the defendant from the instance.

In this case the first plaintiff said in South Africa she was attended by Doctor N R Ziady and was charged R3 624 and such invoice was produced. The full amount is granted. She was referred for further diagnosis at Radiological Services Inc. where she paid R8 130.70, the invoices were attached, the claim is granted. The diagnosis led to her referral to a specialist surgeon Doctor Lebos who operated her at a cost of R194 391.80 the invoice was also attached; there is no reason to disregard this claim. I note that the first plaintiff did not attach the actual receipt showing that she paid these amounts. In granting the claims based on invoices I considered that the medical procedures were conducted and by inference the amounts should have been paid.

Dr Lebos compiled a report to the effect that the operation by the third defendant was the direct cause of the complications the first plaintiff suffered. His opinion was that the corrective measure to prescribe the drug was absurd and a waste of money. He said she will require further management every 3 – 6 months. There was no evidence as to what exactly would be the further management. However I am satisfied that having established that she will need further management the claim of R12 000 for future medical expenses and R12 600 for future accommodation and meals and transport expenses in South Africa is justified. Three claims were not supported by invoices that is R2 500 for the drug prescribed by the third defendant and      $18 900 for accommodation for the plaintiff and R400 for transport. However I accept the first plaintiff’s evidence that she bought the drug. The fact that she was attended in South Africa obviously implies she needed accommodation and transport. In accepting these claims I am guided by the sentiments of the learned authors in The Quantum of Damages in Bodily and Fatal Injury cases, 3 ed by Corbett, Buchanan & Gauntlett, at p 99

The first plaintiff said she was accompanied to South Africa by her husband, the second plaintiff. They went abode the South African Airways at a cost of $630 per person. A claim for the air tickets at US$1 260 supported by an invoice was made. I have no reason to disallow the claim. A claim for the same amount was made for future travel expenses. No justification was made for the second plaintiff to accompany the first plaintiff considering that the future medical needs were not stated it maybe for review.. Accordingly $630 is awarded to the first plaintiff.

Loss of Earnings

First plaintiff claimed $3 500 and second plaintiff’s claim was for $2 500. It was submitted that second defendant is entitled to such damages because he accompanied the first plaintiff. No evidence was filed of record to support the earnings allegedly lost by the plaintiff. Counsel conceded that there was no such evidence. This claim is disallowed.

Pain and suffering

The first plaintiff’s claim was for US$14 000 and the second plaintiff claimed USD $6000.

In a determination of such damages the key considerations are the duration and intensity of the pain see Dziwa v Magaisa and Another HH 93/17. Counsel also relied on comments in Boberg in The Law of Delict Vol 1 1984 at p 516 that

“Compensation may be awarded not only for actual physical pain, but also shock, discomfort 	and mental suffering, disfigurement loss of amenities of life and disability and loss of 	expectation of life. For convenience, we speak of “pain and suffering” but the concept 	embraces all these non-pecuniary misfortunes-past and future of an injured person. Nor is the 	list a closed one.”

A reading of that quotation to my mind relates to the injured person. No reference is made to pain and suffering caused to third parties as in the second plaintiff which is really collateral damage. No case was made for him by his legal practitioner. In the ordinary course of life where an injury is precipitated on a person his or her close family members to a extent also go through some form of suffering psychological or otherwise. To extend such damages to third parties might open floodgates of claims. However no proper case was made for this claim in respect of the second plaintiff, the claim is dismissed.

The first plaintiff did not disclose how long she stayed in hospital, the second plaintiff said in paragraph 10 of his affidavit;

“Form 7th December 2017 to the 16th of January 2018 when I was in South Africa we were 	staying at a hotel and we paid the sum of $18900 for the 40 days we were there….”

There is no indication that the first plaintiff stayed in hospital. In the plaintiffs’ heads of argument there is an indication that the first plaintiff was in hospital for close to 5 months suffering from the physical pain. A simple computation as per the 2nd plaintiff’s evidence shows that the plaintiffs did not stay in South Africa for five months. In any event heads of argument are not meant to sanitize the facts but are meant to set out the law in support of the claim. The first plaintiff said she felt pain and still has pain in the abdomen. Dr Lebos said her bile duct was cut and the right hepatic artery was damaged. Also that she suffered loss of the right lobe of the liver with its sequelae viz hapatic absess biliary cirrhosis and possible portal hypertension. She would need further medical management in a specialized unit for life. Clearly the first plaintiff would live with the pain for life as a direct result of the third defendant’s negligence .

A comparative analysis for damages awarded for pain and suffering is helpful. In Ngarande v Gumede HH 377/16 in a road traffic accident the plaintiff sustained a raptured colon, an artificial colon had to be inserted, a claim of $20 000 was reduced to $5000. In Nyoka v Nyamwedza Bus Service and Another HH 148/15 where the plaintiff fractured her bones in an accident, an award of $10 500 was made. It is expected that medical practitioners exercise a high degree of care in the execution of their duties to avoid unnecessary medical complications arising from their negligence. It is my view that an award of $7000 for pain and suffering is justified in the first plaintiff’s circumstances.

Accordingly the following order is made;

3rd defendant be and is hereby ordered to pay to the plaintiffs the sum of R252 546.50 being compensation for all expenses incurred and to be incurred by the 1st and 2nd plaintiffs as a result of 3rd defendant’s negligence as follows: R206 146.50 for medical expenses in South Africa, R18 900 for accommodation expenses in South Africa, R12 000 future medical expenses in South Africa, R12 600 future accommodation, meals and transport expenses in South Africa and R2 500 for the drug that was prescribed to the 1st plaintiff by the 3rd defendant.

3rd defendant be and is hereby ordered to pay to the plaintiffs US$1 260 for travelling expenses for both plaintiffs to and from South Africa for medical assistance and US$630 for 1st plaintiff for future travelling expenses to and from South Africa.

3rd defendant be and is hereby ordered to pay US$20 000 for pain and suffering as follows:- US$7 000 for the 1st plaintiff and 2nd plaintiff no award.

3rd defendant be and is hereby ordered to pay US$6 000 as follows:- US$3 500 being loss of earning for the 1st plaintiff and US$2 500 being loss of earning for the 2nd plaintiff.

3rd defendant to pay to the plaintiffs interest on the above sums at the prescribed rate of interest from the date of judgment to the date of full and final payment.

3rd defendant to pay costs of suit.

S. Makonyere Legal Practitioners, 1st and 2nd plaintiffs’ legal practitioners

Kachere Legal Practitioners, 3rd defendant’s legal practitioners