IN THE HIGH COURT OF ZIMBABWE
PERSEVERANCE PHIDA and SELIBATSO NYALA
Versus
EAST VIEW HIGH SCHOOL
Delict – actio legis Aquiliae – claim for nervous shock – plaintiff not a witness to event – whether plaintiff can claim for nervous shock – such shock must be foreseeable
TAKUVA J
BULAWAYO 5 JUNE 2014 & 25 JUNE 2015
Mrs N. Dube-Tachiona for applicants
N. Ndlovu for respondent
TAKUVA J:
Plaintiffs issued summons against the defendant. Their claim is an order for the following:
“1. Payment in the sum of US$20 000,00 being damages for the emotional and psychological trauma endured by 1st plaintiff after the rape of 2nd plaintiff, her minor child and exposure to drugs which was negligently caused by the defendant on the 11th of October 2013.
2. Payment of US$ 20 000,00 for pain and suffering suffered by 2nd plaintiff as a result of the sexual assault and use of drugs on her by one of the students at defendant’s school which affected her emotional, physical and psychological integrity which was negligently caused by the defendant.
3. Payment of US$ 5 000,00 for future medical expenses in fees to be paid to psychologists and/or counselors as 2nd plaintiff deals with the aftermath of the rape and use of drugs on her.
4. Payment of costs of suit on attorney – client scale by defendant.”
In her founding affidavit, 1st plaintiff declared as follows:
“…
On 11th October 2013, the defendant issued a school day gate to 2nd plaintiff a minor child. Defendant acted negligently and unreasonably by allowing 2ndplaintiff a minor child to leave school premises without the authority of 1stplaintiff her mother, despite the fact that it was a standard and agreed policy known to both 1st plaintiff and defendant’s staff members that the 2nd plaintiff could only be released from school with 1st plaintiff’s verbal or a written authority and on condition that 1st plaintiff collects 2nd plaintiff from the school. As a result of the defendant’s gross negligence and failure to exercise its quasi-parental obligation to protect 2nd plaintiff, the 2nd plaintiff attended a sexual party where several other minor children from the school were and was drugged and raped by one of the form four boys attending at defendant’s school”.
Plaintiff alleged that as a result of defendant’s gross negligence, she suffered damages mentioned in paragraph 1 above and 2nd plaintiff suffered damages mentioned in paragraphs 2 and 3 above. Defendant entered appearance to defend on 29 January 2014 and on 17 February 2014 filed an exception to the claim. The exception is based on the following grounds:
“1. The 1st plaintiff has no cause of action against the defendant. She seeks damages for emotional and psychological trauma as a result of the alleged rape and drug use of her child who is a student at defendant. Under the law of Delict, damages cannot be claimed for nervous distress or emotional and psychological trauma when 1st plaintiff is not the one who suffered the injury nor did she witness the injury. The 1st plaintiff as the mother of the 2nd plaintiff cannot at law sue for damages in an injury case except as a guardian of the minor child. The claim by 1st plaintiff should therefore be dismissed with costs as it has no foundation in our law.
2. the claim of the 2nd plaintiff is vague and embarrassing. The 2nd plaintiff claims US$20 000,00 for pain and suffering. Damages for pain and suffering can only be claimed in bodily injury cases. The nature of the injury has to be pleaded. The summons is silent on the nature of injuries. The summons is silent on whether any medical treatment was sought for the bodily injury. Actually, no basis has been laid down for the claim for pain and suffering as no bodily injury has been alleged and its particulars thereof.
3. The claim for US$5 000,00 for future medical expenses is vague and embarrassing. The 2nd plaintiff has not made any claim for special damages and there is no basis for claiming future medical expenses when there are no medical expenses which have already occurred.
4. The defendant entered into a contract with one Perseverance Phida and not Perseverance Phidha. As such the 1st plaintiff has no cause of action against the defendant as she is not privy to the contract signed by the parties”.
In terms of O 21 R 137 (1) (b) of this Court’s Rules, a party may except to the pleadings or to single paragraphs thereof if they embody separate causes of action or defence as the case may be.
Herbstein and van Winsen, The Civil Practice of the High Courts of South Africa Fifth Edition Vol 1 at pages 630 – 1, define an exception in the following terms:
“An exception is a pleading in which a party states his objection to the contents of a pleading of the opposite party on the grounds that the contents are vague and embarrassing or lack averments which are necessary to sustain the specific cause of action or the specific defence relied upon … The aim of the exception procedure is thus to avoid the leading of unnecessary evidence and to dispose of a case in whole or in part in an expeditious and most – effective manner. Thus pleadings whose contents are so vague that it is impossible to determine the nature of the claim or defence and pleadings which are bad in law in that their contents do not support a discernible and legally recognized cause of action or defence are struck out.”
In Gweru Tourism Promotions (Pvt) Ltd v Sadler & Anor 2011 (2) ZLR 265 (H) GOWORA J (as she then was) held that an exception is taken in order to avoid the leading of unnecessary evidence.
See also Nyaguse v Skinners Auto Body Specialists & Anor 2007 (1) ZLR 296 (H).
In casu there are two real issues for determination, namely,
- whether or not a person who does not personally suffer injury or witness the injury can claim under the law of delict damages for emotional and psychological trauma?
- whether or not 2nd plaintiff’s claim is vague and embarrassing?
Jonathan Burchell in Principles of Delict 1st edition page 19 states:
“The foundation stones of the law of delict are the Aquilian action and the Actio injuriarum.
The Aquilian action is the general remedy for wrongs involving harm to a person’s bodily integrity (including a person’s emotional well-being and susceptibility to pain and suffering) and property (including a person’s financial sphere and goodwill. Damages under this action are for calculated pecuniary loss.
The Actio injuriarum provides the general remedy for wrongs to personality (including physical integrity, dignity, privacy and reputation). Damages under this action are for sentimental loss”.
Dealing with the issue of emotional and nervous shock, the same author states at page 59 that:
“In the early cases in South Africa liability for negligently inflicted nervous shock was restricted by two facts: The nervous shock had to result in physical injury and the plaintiff must have feared for his or her own safety. The first of these restrictions was based on the outdated distinction between mind and matter and based on the view that injury to the physical body was the subject of Aquilian liability and that damage to the individual’s nervous system on its own was not sufficient for such liability. The second factor was a way of limiting the scope of potential liability to someone who in fact ran the risk of being physically injured”.
The above approach to nervous shock cases has now been regarded as two restrictive – see Bester v Commercial Union van SA Bpk 1973 (1) SA 769 (A) where it was held that; “the brain or nervous system is just as much part of the physical body as an arm or a leg. Injury to the nervous system, therefore, constitutes bodily injury. The nervous shock in order to give rise to a claim for damages under the Aquilian action must be substantial and not of short duration and such shock must be reasonably foreseeable before the defendant can be held liable for causing such injury”.
As regards the problem of the person who is especially susceptible to nervous shock, Boberg in The Law of Delict Vol 1 p 24-26 suggested that “provided psychiatric injury of sufficient gravity to be actionable is foreseeable, the victim can recover more extensive psychiatric damage attributable to his pre-existing weaknesses”.
The law now is that fear for one’s own safety is no longer a pre-requisite for the recovery of damages for nervous shock, provided the other requirements of liability are satisfied – see Masiba v Constantia Insurance Co. Ltd 1982 (4) SA 333 (C).
In McLoaghlin v O’Brian (1982) 2 ALLER 298 (HL) the plaintiff’s husband and children had been injured, one fatally so, in a car accident. The plaintiff was not present when the accident occurred but, after being told of it, she rushed to hospital to find her husband and children still bloody from the accident and she was told of her daughter’s death. As a result of witnessing the aftermath of the accident she suffered severe nervous shock. The House of Lords granted her damages for nervous shock.
In these cases, what is critical is that there must be a particular relationship of proximity between the claimant and the party said to owe the duty. Proximity is not confined to particular relationships such as husband and wife or parent and child and the concept of proximity also includes proximity of the plaintiff to the accident in time and space.
Corbett, Buchanan and Gauntlett in Quantum of Damages in Bodily Harm and Fatal Injury Cases 3rd ed at pp 51 – 2 state the legal position in the following terms:
“A claim for damages in respect of pain and suffering strictly constitutes more than a head in a general Aquilian action; it is in original a separate remedy. It aims at compensating the victim for all pain, suffering, shock and discomfort suffered by him as a result of the wrongful act. It includes both physical and mental pain and suffering and both past and future pain and suffering … (my emphasis).
Professor G. Feltoe in A Guide to the Zimbabwean Law of Delict (second edition) pp 23-24 also states:
“Whereas damages can be claimed for pain and suffering, damages are never recoverable for transient nervous distress which does not lead on to a recognized psychiatric complaint requiring treatment”. (my emphasis).
On the issue of whether a person or relative who does not personally witness an accident but is shocked by the aftermath, the author states,
“Over the years a wide variety of fact situations have come before the English and South African courts wherein the psychiatric harm has occurred when one person has been shocked about what has happened to another person. These situations include cases where persons have suffered nervous shock when they have witnessed their close relatives being killed right in front of them, cases where the witness is a stranger to the person who dies or is injured and cases where a relative has not seen the accident but is shocked when he is informedabout it sometime later.
The present position in both South Africa and the United Kingdom as a result of decisions by the highest courts in these two countries is that liability in all such cases is to be determined simply by applying the ordinary test for negligence, namely reasonable foreseeability …. There is no leading Zimbabwean caselaying down definitively what approach is to be adopted in this sort of situation and if such a case comes before our courts a decision will have to be made as tohow we should tackle these sort of cases”. (my emphasis)
In casu, counsel for the defendant referred me to the case of Delta Beverages v Onismo Rutsito SC-42-13. In that case GARWE JA dealt on appeal with two questions firstly, whether the respondent had developed a medical condition following his consumption of a beverage he alleged contained “a rusting iron nail and blackish foreign substances”, and secondly, whether or not negligence was proved. In respect of the 1st issue the learned JA held that;
“Clearly, whatever distress or anxiety or nervous shock he may have experienced was transitory and no psychiatric or other medical condition requiring treatment eventuated”.
As regards the second issue, he held that in an “Aquilian action in which a plaintiff claims damages whether for patrimonial or non- patrimonial loss, it is, I believe, incumbent upon such plaintiff to plead negligence on the part of the defendant and to set out the particulars of such negligence. Where such particulars are not set out, the defendant is embarrassed in his defence as he cannot know the basis on which liability is claimed. It is not enough to allege negligence and fail to give particulars of such negligence.
This case did not decide the crisp issue referred to by Professor Feltoesupra.
In casu, defendant’s counsel seems to have taken issue with the fact that “there is no claim on the pleadings that the 1st plaintiff’s claim is for nervous shock, neither is there any allegation that such condition required medical treatment.” The 1st plaintiff’s claim in the summons is described thus; “Payment in the sum of US$20 000,00 being damages for emotional and psychological trauma endured by 1st plaintiff after the rape of 2nd plaintiff her minor child and exposure to drugs which was negligently caused by the defendant on the 11th of October 2013”. (my emphasis)
Defendant seems to be making a distinction between “nervous shock” and “emotional and psychological trauma”. In my view it is not a question of nomenclature but one of substance. There is no real difference between “nervous shock” and a “trauma” arising from emotional or psychological disturbance in that both affect a person’s mental condition. For these reasons, the exception relating to the 1st plaintiff’s claim is without merit and is hereby dismissed.
As regards the second basis for the exception, the defendant contends that; “the claim for 2nd plaintiff is vague and embarrassing. The 2nd plaintiff claims US$20 000,00 for pain and suffering. Damages for pain and suffering can only be claimed in bodily injury cases. The nature of the injuries has to be pleaded. The summons is silent on the nature of injuries. The summons is silent on whether any medical treatment was sought for the bodily injury. Actually, no basis has been laid down for the claim for pain and suffering as nobodily injury has been alleged and its particulars thereof”. (my emphasis)
In Jowell v Bramwell-Jones 1998 (1) SA 836 (W) at 899 – 903 HEHER J stated the following general principles relating to an exception taken on the ground that a pleading is vague and embarrassing:
“1. The object of all pleadings is that a succinct statement of grounds upon which a claim is made or resisted shall be set forth shortly and concisely and the pleading is thus merely required to plead a summary of the material facts.
2. it is therefore incumbent upon a plaintiff only to plead a complete cause of action which identifies the issues upon which he seeks to rely and on which evidence will be led, in intelligible and lucid forum and which allows the defendant to plead to it.
3. where a statement is vague, it is either meaningless, or capable of more than one meaning. It is embarrassing in that it is also something which is insufficient in law to support in whole or in part the action or defence.
4. The test whether a pleading is vague and embarrassing has also been stated to be whether an intelligible cause of action (or defence) can be ascertained.
5. An exception that a pleading is vague and embarrassing may only be taken when the vagueness and embarrassment strikes at the root of the cause of action or the defence.
6. An exception that a pleading is vague and embarrassing strikes at the formulation of the cause of action/or defence and not its legal validity. Minor blemishes are irrelevant and pleadings must be read as a whole no paragraph may be read in isolation.
7. A distinction must be drawn between the facta probanda, or primary factual allegations which every plaintiff must make, and the facta probantia, which are secondary allegations upon which the plaintiff will rely in support of primary factual allegations. Generally speaking, the latter are matters for particulars for trial and even then are limited. For the rest they are matters for evidence. Only facts need to be pleaded; conclusions of law need not be pleaded.
8. An exception that a pleading is vague and embarrassing ought not be allowed unless the excipient would be seriously prejudiced if the offending allegations were not expunged …”
Applying these principles to the present case, it is difficult to comprehend how 2nd plaintiff’s pleadings can be labeled vague and embarrassing. The 2ndplaintiff has mentioned the nature of the assault as sexual. Not only that, she has explicitly stated that she was raped. This in my view, sufficiently informs the defendant of the nature of plaintiff’s claim. It is not necessary at this stage to state the extent of the physical harm by producing a medical report as this constitutes the facta probantia which should be reserved for the trial.
Here the facta probanda are that:
- the minor child was raped
- the child suffered emotionally, physically and psychologically
- the defendant owed 1st plaintiff a duty of care as the parent to the minor child
- 1st plaintiff suffered emotionally as a result of the rape.
In Jowell’s case supra, it was stated that: “The plaintiff is required to furnish anoutline of its case. That does not mean that the defendant is entitled to a frame work like a cross word puzzle in which every gap can be filled by logical deduction. The outline may be asymmetrical and possess rough edges not obvious until actually explored by evidence. Provided the defendant is given a clear idea of the material facts which are necessary to make the cause of action intelligible, the plaintiff will have satisfied the requirements”. (my emphasis)
For these reasons, I find that the 2nd plaintiff’s claim of pain and suffering is not vague and embarrassing. This ground has no merit and is hereby dismissed.
Defendant also excepted to the plaintiff’s claim on the basis that the claim for US$5 000,00 for future medical expenses is vague and embarrassing in that there is no basis for claiming future medical expenses when there are no medical expenses which have already occurred. In my view whether or not 2ndplaintiff can sufficiently allege that she is entitled to damages for future medical expenses and whether she suffered any pain is an issue of evidence. This pleading is lucid and logical in that the cause of action appears clearly from the factual allegations made. Therefore this ground lacks merit and is dismissed.
The last ground is that the plaintiff’s name is put as Perseverance Phidha when the name that appears in the contract is Perseverance Phida. As such the 1stplaintiff has no cause of action against the defendant as she is not privy to the contract signed by the parties. Apparently the defendant wants to rely on a spelling error by the 1st plaintiff’s legal practitioner. Now the position of the law on spellings is clear. It is that as long as the claim is sufficiently articulated to the extent that defendant knows who he is dealing with, a spelling error in a name is immaterial. In casu defendant knows who Perseverance Phida is and hence is cannot claim that she is not privy to the contract signed by the parties.
Accordingly the defendant’s exception is dismissed in its entirety with costs.
Dube-Tachiona & Tsvangirai applicant’s legal practitioners
Cheda & Partners respondent’s legal practitioners
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