Runako Punungwe v Halsteds Builders Express and Old Mutual

### Preamble
1
HH 481-25
Case No HC 5953/21
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RUNAKO PUNUNGWE

versus

HALSTEDS BUILDERS EXPRESS

and

OLD MUTUAL

HIGH COURT OF ZIMBABWE

MUSITHU J

HARARE: 5, 6, 7, 25 March & 21 August 2025

Civil Trial- Damages for physical injury

Mr A Nyamukondiwa, for the plaintiff

Mr S  Bhebhe & M Nyathi, for the 1st defendant

MUSITHU J: The plaintiff’s claim is for damages arising from an automated door accident which occurred on 13 March 2021 at the first defendant’s shop in the Borrowdale area of Harare where the plaintiff was hit on her left foot by an automated sliding door. The plaintiff claimed that the accident was caused by the first defendant’s negligence because of its failure to maintain a functional door at all material times, the failure to put a notice or disclaimer of the possibility of the door malfunctioning and or failure to notify patrons of the nature and status of the automated sliding door. The accident occurred during the COVID 19 period, when people were required to observe social distancing in public places at all material times. The first defendant had installed a sanitizing point at the entrance of the shop. The plaintiff averred that the sanitizing point was too close to the automated electric sliding door such that customers invariably stood in the way of the door risking their limbs.

The second defendant was cited as the first defendant’s insurer. The claim against the second defendant was withdrawn along the way but persisted with as against the first defendant. Any reference to ‘defendant’ hereafter shall mean the first defendant.

The plaintiff claimed damages in the sum of US$35, 000.00, under the following heads:

Pain and suffering 				US$15, 000.00

Loss of amenities 				US$13, 000.00

Mental anguish 				US$2, 000.00

Disfigurement				US$500.00

Medical expenses incurred			US$2, 130.46

Future medical expenses			US$5, 000.00.

In its response to the claim, the defendant denied that it was negligent and that it was liable to the plaintiff. The defendant averred that this was not the plaintiff’s first visit to its Borrowdale shop. She was aware that the doors at the shop were automated. The automated door that bumped into the plaintiff’s foot was operating as required and was not faulty, and neither did it fail. The defendant also denied that the sanitizing point at the building exposed patrons to any form of harm. Its location was such that patrons could wait outside the sliding door for their turn to enter the building and get sanitized.

The defendant argued that it was the plaintiff who did not observe social distancing protocols and regulations which required a person to stand at least one metre away from the next person. It was further argued that had the plaintiff observed the social distancing protocols, she would not have been bumped into by the automated door.

The defendant also averred that even if it was found liable, the plaintiff’s alleged injuries were exaggerated and were not a result of the accident that occurred at the defendant’s premises. The defendant denied that the plaintiff was injured in the manner and to the extent alleged in her claim. The defendant also averred that the quantum of the plaintiff’s claim was exaggerated. The plaintiff had a duty to mitigate her losses, which she had not done.

The court was urged to dismiss the claim with costs.

The Issues

The matter was referred to trial on the following agreed issues as recorded in the joint pre-trial conference minute signed by the parties:

Whether or not the plaintiff’s accident that occurred at the defendant’s premises was a result of the defendant’s negligence.

Whether or not the plaintiff is entitled to the damages and the quantum thereof.

Whether or not the plaintiff is entitled to any costs and the scale thereof.

The Plaintiff’s Case

The plaintiff was the first witness, and her evidence was as follows. She is a 61-year-old unemployed widow. At the time of the accident, she was 57 years old and engaged in chicken rearing. On 13 March 2021, the plaintiff visited the defendant’s shop and discovered for the first time that a sanitizing machine had been installed at the corner of the sliding door inside the shop. The sliding door was wide open, and she did not know whether it was working properly or not. There were two adult males in front of her when she joined the que to the sanitising point. After the two adult males got into the shop, she also moved towards the sanitising point. It was at that point that the sliding door moved and hit her on the ankle slightly above the foot. The plaintiff averred that the sanitising point was not properly positioned at it was right at the corner of the sliding inside the shop

After the incident, the plaintiff requested to see the branch manager, but she was told that he was not available on the day. She informed two of the defendant’s employees who were seated in the shop that she had been hit by the door and they confirmed that they had witnessed the incident. The lady who was sanitizing the customers had also witnessed the incident. The plaintiff proceeded with her shopping but could not finish as she was now experiencing severe pain. She decided to go home. The pain got worse during night and the foot got swollen. On 14 March 2021, the plaintiff proceeded to Westend Hospital where a doctor ordered an x-ray to be done on the leg. After the X-ray, the examining doctor concluded that there was no fracture, but the leg remained swollen. She was given some tablets to manage the pain.

The plaintiff went back to the defendant’s premises and retrieved a CCTV video which she took with her to Dr Mangwiro, her personal doctor. Dr Mangwiro prescribed that an MRI scan be performed on the injured ankle. The scan revealed that she had suffered internal injuries, and Dr Mangwiro referred her to a general practitioner, since he specialised in diabetic patients. The general practitioner, a Dr Chirume recommended another MRI scan. She approached the defendant for financial assistance with these medical procedures, but her request was turned down. It was at that stage that she approached her legal practitioners for assistance.

The plaintiff also engaged a Dr Nyarambi who recommended that she purchases a leg brace guard to ease the pain. Dr Nyarambi eventually recommended surgery after realising that the pain was getting worse. She consulted her legal practitioners with instructions to engage the defendant for assistance to enable her to undergo the surgery. The defendant referred her to a Dr Govha who recommended that she undergoes ten physiotherapy sessions. The leg remained swollen and Dr Govha referred her back to the defendant with an undertaking to prepare a report with his own recommendations. Nothing came out of the engagements with Dr Govha and the plaintiff went back to Dr Nyarambi who advised her that the injury could only cured through surgery.

The plaintiff claims that she went back to her legal practitioners and instructed them to engage the defendant. The defendant referred her to a Dr Mageza, as it was still unconvinced with her claims and the extent of her injury. Dr Mageza recommended that an operation be performed after making his own diagnosis of the extent of the injury. His diagnosis was that she was developing arthritis because of an accumulation of fluids in the leg caused by the injury. Dr Mageza gave her some quotations which she forwarded to the defendant, but the defendant refused to assist. The plaintiff retreated to her home and managed the pain through painkillers, antibiotics and some ointments.

In 2023, the plaintiff visited the United States of America, and ended up being admitted into hospital where doctors advised that the leg had developed arthritis. The plaintiff claimed that she was no longer able to drive manual vehicles because she felt pain each time, she used the leg to engage gears of a manual vehicle. She could no longer wear high heeled shoes after the operation as these caused her pain.

The plaintiff averred that her claim for damages for pain and suffering in the sum of US$15, 000.00, was justified in the circumstances. She had revised her claim to US$50, 000.00 as there was a likelihood of further medical attention in the future. The plaintiff defended her claim for loss of amenities in the sum of US$10, 000.00, because she could no longer perform those functions she used to do before the injury. She justified the claim for US$2,000.00 for mental anguish and embarrassment because of the extreme pain that she had to endure as a result of the injury. The US$500.00 for disfigurement was justified on the basis that the plaintiff’s leg had become deformed as a result of the incident.

The plaintiff also averred that she paid some of the bills directly in cash, while others were covered by medical aid. In some instances, she would get a refund from medical aid for payments made out of pocket. An amount of US$ 2 130.00 was claimed as damages for medical expenses.

The plaintiff dismissed the defendant’s defence that her injuries were exaggerated asserting that at any rate it was their own doctor who operated on her. She also denied that her claims were exaggerated insisting that she only claimed what was commensurate to the injury that she sustained as a result of the defendant’s negligence.

Under cross examination, the witness admitted that the incident occurred during the Covid 19 pandemic where it was a requirement that people must maintain a social distance of at least one metre or more from the next person. She was not aware whether the distance between her and the next person was more than one metre. The plaintiff told the court that she was standing by the side of the door and not exactly at the entrance. The door hit her as she was entering the shop.

The plaintiff was shown the video footage of the incident which revealed that she was hit by the door at the 23 second mark.  At 24 seconds, the door started to retract backwards and she continued walking into the shop.

The plaintiff admitted under cross examination that before the accident she had other medical conditions such as hypertension, diabetes and backache for which she was already on medication. She was operated upon after she had instituted the present proceedings. The operation was carried out in May 2024 by Dr Mageza. The operation was paid for by CIMAS and PSMAS, and partly from her own pocket. The defendant did not contribute anything towards her operation. After the operation, she could still not drive a manual vehicle. She could also not wear high heeled shoes anymore. She however no longer needed to wear the ankle guard.

The plaintiff was not employed and she made a living through rental income, and income from her late husband’s pension. She also received financial support from her children who lived outside the country.

She justified he claim for US$50,000.00 in respect of pain and suffering on the grounds that she was likely to have another operation in the future because of the metal plates inserted in the leg. As regards the claim for US$10,000.00 in respect of loss of amenities of life, the plaintiff justified it on the basis that she was no longer able to do those things that she used to do. She had to close her shop in the Kuwadzana suburb. Her chicken project also collapsed, and she could no longer drive long distances on holiday. As regards her claim for disfigurement, her justification was that she now had metal plates in her leg, something that she was not born with.

The evidence of Dr Akimu Chiwamba Mageza

His evidence was as follows. He is registered with the Medical and Dental Practitioners of Zimbabwe as a specialist Orthopaedics and Trauma surgeon. He qualified to practice medicine in 2007, and as a specialist surgeon in 2016. He assessed the plaintiff on 1 June 2022, at the request of the defendant. He carried the assessment about one year after the ankle injury. At the time he attended to her, she was complaining of pain on her left ankle. The foot had no scars or active wounds, but just a swelling around the ankle area.

From his examination, the doctor made the following findings which are captured in his report dated 2 June 2022. The plaintiff had a minor antalgic gait which was observed as she walked into his surgery. On inspection of the foot, there was a sausage like swelling along the extensor digitorum longus tendon which was about 3x1cm. He also observed a tenderness over the calcaneofibular ligament (CFL), the Anterior Tibio-Fibular ligament (ATFL) and mild tenderness over the deltoid ligament. The ankle drawers test was weakly positive. Ankle stress test elicited marked tenderness in both the CFL and ATFL areas. The ankle was moderately swollen by the end of the examination. According to the doctor, the findings were consistent with the failure of non-operative management considering the duration of the symptoms.

Further, according to the doctor, the MRI scan procedure revealed the following: a complete tear of the Anterior Talo-Fibular Ligament; partial tear of the Calcaneo-Fibular Ligament; Tenosynovitis of the Extensor Digitorum Longus; that the Deltoid ligament and the spring ligaments were normal.

As regards the nature and extent of the injuries sustained, the doctor’s conclusion was that the patient sustained a left ankle sprain after being hit by an automatic sliding door. She sustained torn ligaments, that is, the ATFL and the CFL and tenosynovitis (inflamed tendon) of the extensor digitorum longus.

Commenting on the plaintiff’s condition at the time of the preparation of the report, the doctor concluded that she continued to experience pain and swelling in the left ankle. Examination findings confirmed that the torn ligaments had not healed. He noted that acute ankle sprains were among the most common musculoskeletal injuries, and up to 70% of individuals who sustained an acute ankle sprain could develop residual physical disability, which would include chronic ankle instability.

The witness concluded that in light of the continued pain and swelling, he had made a diagnosis of a failure of non-operative treatment and the patient had now developed Chronic Ankle Instability. He recommended ankle arthroscopic examination and modified Brostrom procedure with internal brace augmentation as the treatment of choice for the patient.

The doctor’s overall prognosis was that if the patient was not operated on to fix her torn ligaments, she would continue to experience pain and swelling of the ankle. He further stated that there was substantive literature which suggested that if the ankle instability was not appropriately treated, the patient could progress to developing Ankle osteoarthritis. The abnormal gait could cause aggravation of her backache and worsen the symptoms of the pinched nerves. The doctor noted that if the plaintiff got to be operated, he expected her symptoms to improve and her gait would normalise and she would be able to perform her daily activities with minimum to no pain. He expected her to continue experiencing on and off swelling which would get better as she continued to use the ankle.

As regards plaintiff’s present disability at the time of preparing the report, the doctor assessed her foot and ankle disability score at 48.1, which confirmed that she now had chronic ankle instability. The doctor concluded that the plaintiff had moderate limitation due to the ankle instability which made her disability level to be 10%. The witness anticipated the future medical costs to be as follows:

Hospital deposit				US$ 3 600.00

Surgeon 					US$ 1 032.00

Anaesthetist 				US$ 770.00

Assistant					US$ 103.00

Total					US$ 5505.00

Rehabilitation 				US$ 300.00 (10 Sessions)

Post operative reviews and medication 	US$ 500.00 (estimate)

According to the doctor, when the plaintiff visited him, she had already obtained reports from other doctors. The reports confirmed that she had sustained injuries to her ankle, and they recommended non operative management. The reports also confirmed that the probable cause of the injury was her being hit by the door. The plaintiff visited the witness a year after the injury, and from the doctor’s assessment of the reports, no significant improvement had occurred to the injury. The swelling had slightly reduced to about 3 x 1 centimetres.

Further, according to the witness, the success or failure of the non-operative management procedure was dependant on the nature of the ankle sprain.  Ankle sprains ranged from Grade 1 to Grade 3. Grade 1 was made up of minor injuries, while Grade 2 accounted for injuries increased in length and more torn fibres. Grade 3 involved a complete tearing of the ligaments, with the ends of the ligaments separated. The non operative management procedure was mostly suited for Grade 1 and 2, because ligaments were not torn at that level. Torn ligaments in Grade 3 injuries were not likely to heal through the non operative management procedure. The witness concluded after surgery that the injury was a Grade 3 sprain, which could not be healed through non operative management. Before surgery, his diagnosis was that it was between Grade 2(b) and Grade 3 category.

The doctor recommended that the injury be operated upon as the non operative management procedure had failed to achieve the desired result. The plaintiff however disappeared and only resurfaced some months later complaining of pain. Another MRI scan was done which recommended other non operative solutions but still, she did not heal.

The doctor eventually carried out the surgery on the plaintiff in 2024. The costs of the surgery were borne partly by the medical aid, and the plaintiff herself.

When asked to comment on the video footage and whether the injury sustained was consistent with what happened, the witness maintained that the footage showed contact between the plaintiff’s leg and the door leading to the twisting of the ankle. The injury caused ankle instability which made it impossible for the plaintiff to go up and down the stairs. She could no longer walk properly and may not be able to run. It could also cause chronic pain leading to arthritis. The plaintiff was actually developing arthritis. Under cross examination, the witness confirmed that the arthritis was caused by ankle instability. The risk of knee and hip arthritis was high for people above the age of 50. Such risk was however not prevalent in respect of ankles. The risk of having ankle arthritis would have been reduced if the witness had gone for surgery immediately after his earlier recommendations.

When asked to comment on whether the injury was caused by the twisting of the ankle or the impact of the contact with the door, the witness stated that one could not separate the impact from the twisting of the ankle. What caused the twisting of the ankle was the impact. The two were therefore corelated.

The witness had also attended to the plaintiff after the surgery as part of a routine follow up to check on the effectiveness of his intervention. He observed that she was walking well even on uneven ground. The pain was also next to minimum.

The witness confirmed that the plaintiff had pre-existing medical conditions such as sugar diabetes and blood pressure. Sugar diabetes affected tissue healing, but the difference in the healing timelines was marginal. A person with sugar diabetes could encounter a delay of about 2 to 4 weeks in healing. The age of a person did not have an effect on the healing period.

According to the witness, his assessment of disability at 10% was based on his evaluation of the plaintiff’s injury before surgery. After surgery, his assessment of disability was between 3 to 5%.

The Defendant’s Case

The defendant led evidence from Sandy Ncube, its branch manager at the Borrowdale shop. As at the time of giving her testimony, she had been in the employ of the defendant as its branch manager for the past 8 years. The incident was reported to her by a security guard and the plaintiff also came to see her the same day. The plaintiff told her that she had been hit by the sliding door and injured her ankle. She did not notice the plaintiff limping at the particular time.

According to the witness, there were three sliding doors at the front of the shop. The first one was only an entrance door which opened from outside. The other two were for both entrance and exit. The plaintiff used the entrance and exit sliding door. The door automatically opened on its own accord from inside or outside as a customer approached. The door automatically retracted once it sensed an object. Further, according to the witness, the sensors only detected a body approaching the door, but not a body in the middle of the door. The door would attempt to close if the body was in the middle of the door. The door retracted after it made contact with the plaintiff’s ankle. From her own experience, this was how these doors were programmed to work everywhere. The witness averred that there was nothing else that the defendant would have done to avoid the door coming into contact with the plaintiff’s leg.

The doors were occasionally serviced for wear and tear, especially the wheels. The service had been done twice since installation. No similar incidents had ever occurred in the 8 years that the witness had been at the shop. When the plaintiff came to see the witness, she made threats of litigation, and claimed US$50,000.00 as damages. The witness referred the plaintiff to her regional manager. From her recollection, the plaintiff was referred to Dr Govha, by their insurer, Old Mutual. Dr Govha generated a report on 11 November 2021 after examining her. After examining the plaintiff’s ankle, Dr Govha observed that it looked slightly swollen on the dorsolateral surface. It was also tender to palpitation on the site.

According to Dr Govha’s report, the plaintiff brought with her X-ray pictures and an MRI scan which had been ordered by a Dr Nyarambi. These showed that: there was a tear of the anterior talofibular ligament of the left foot and flexor hallucis longus tenosynovitis. Dr Govha’s own diagnosis was that of a sprain and he sent her for physiotherapy. According to the doctor, sprains could take a while to heal and given her age, a minimum of one month would be a reasonable estimate. He however noted that the plaintiff’s injury delayed in healing. His percentage assessment of her injury was 15%, and this was based on the NSSA disability assessment guide. It was made up of the following: pain 5%; limping and gait changes 5% and MRI confirmation of injured ligament 5%.

Under cross examination, the witness admitted that at the time of the accident, there were no signs warning customers of the possibility of being bumped into by the door. The witness stated that it was not necessary to put warning signs because there were already arrows which showed how the sliding door operated.

THE CLOSING SUBMISSIONS

At the conclusion of the trial, the court in consultation with the parties’ counsel directed that closing submissions be filed in writing. The parties appeared before the court on 25 March 2025 for purposes of making further clarifications on the filed submissions and to note the reserving of judgment. In his final address to the court, Mr Nyamukondiwa advised that the plaintiff’s claim had been reduced to US$14, 000.00. In her closing submissions, the plaintiff averred that her claim was grounded in the Aquilian action. The requirements of that action were set out as follows:

There must have been some conduct on the part of the defendant in the form of an act or an omission;

The conduct must have led to physical harm to person or property and thereby causing financial loss or pain and suffering;

The harm must have been inflicted intentionally or negligently (the fault requirement); and

There must be a causal link between the defendant’s conduct and the loss suffered.

The plaintiff submitted that from the evidence placed before the court, the defendant’s conduct pointed to negligence for the following reasons. The defendant maintained an automatic sliding door, but it did not place any signs to inform the customers on how the door operated. The defendant was aware that the door did not sense an object that was standing in its way. It could only sense something that was approaching. The defendant’s branch manager was aware that the door could bump into objects as she gave an example of the door bumping into a trolley. The plaintiff submitted that despite having this knowledge, the defendant and its branch manager had not taken cautionary measures to warn customers of the status of the door, when it was reasonably foreseeable that the door could bump into a customer and cause injuries.

The plaintiff dismissed the defendant’s argument that the plaintiff was not observing the social distancing requirement of maintaining a one metre gap from the next person. According to the plaintiff, the video evidence demonstrated that at the time that she was bumped into, she was actually in motion entering the shop. Contrary to the defendant’s averments, the plaintiff denied that she was standing in the way of the door when she was bumped into. The plaintiff also argued that it would require a scientific demonstration to show that from the position of the sanitiser if someone was keeping a distance of one metre, one would not step onto the rail of the door as one entered the shop.

The plaintiff submitted that once it was established that the defendant was negligent, it followed that its conduct was wrongful. The defendant was alive to the hazards paused by the sliding door in the event that it bumped into objects. The injuries suffered by the plaintiff were a direct result of the incident. This was also confirmed by the evidence of the medical doctor.

As regards damages, the plaintiff admitted that the claim for future medical expenses was no longer competent.  This was because of the testimony of the medical doctor which confirmed that the surgery was a success and the plaintiff’s condition had significantly improved. Concerning medical expenses, the plaintiff’s position was that most of these were covered by medical aid. The plaintiff conceded that these amounts were no longer recoverable on the strength of the Tsodzai v Mageza & Anor judgment. The actual amounts she paid out of pocket were shortfalls which amounted to US$952.00.

The plaintiff persisted with her claim for pain and suffering. The plaintiff averred that even after surgery, she continued to suffer pain. Her leg had to be sculpted. She had to walk with an ankle boot, and was also required to keep her leg elevated. Dr Mageza told her that she would feel pain on standing on even ground for long periods, on going up and down the stairs, and that her back ache was worsened by the injury. The plaintiff submitted that from a reading of case law in the jurisdiction, damages for pain and suffering hovered between US$3,000.00 and US$8,000.00. It was further submitted that taking into account the age of the plaintiff, the period that it had taken for her to heal and the changes in the modes of treatment, an amount of US$5,000.00 would be justifiable under the circumstances.

As regards the claims for loss of amenities, mental anguish, humiliation, embarrassment and disfigurement, the plaintiff insisted that these properly fell under the pain and suffering head. It was averred that a claim for US$5, 000.00, was justifiable in respect of loss of amenities of life because the plaintiff was having difficulties wearing shoes, driving a manual transmission vehicle, and because she also had to quit her chicken rearing project. The plaintiff had since mitigated her damages by having to borrow an automatic transmission vehicle.

For disfigurement, the plaintiff persisted with her claim for US$500.00. The plaintiff relied on the assessment by Dr Mageza that after surgery, he estimated her disability to be between 3-5%. It was submitted that even though the surgery was a success, her life and limp was no longer the same.

For mental anguish, humiliation and embarrassment, the plaintiff persisted with her claim for US$2,000. Her justification was that she was no longer able to wear high heeled shoes as she used to do. She also had to go through the mental anguish of seeking medical attention without any assistance from the defendant. The plaintiff also claimed that at some point she had to wait until her CIMAS medical aid facility was able to provide cover for her surgery, as PSMAS did not provide such cover and also disbursed funds in local currency, which some providers of medical services did not accept.  The plaintiff also relied on the case of Nyandoro v Minister of Home Affairs & Anor, where the plaintiff was awarded US$1, 500.00 for contumelia.

DEFENDANT’S CLOSING SUBMISSIONS

The defendant persisted with its defence that it was neither negligent nor did it cause the alleged injuries. It further averred that the alleged injuries were exaggerated and the damages claimed were too excessive. It was submitted that a defendant’s liability under the Aquilian action was only established if all the elements of that action were proved.

The defendant submitted that knowledge was fundamental to liability for negligence. This was because the concept of negligence presupposed that the actor either foresaw a reasonable risk of injury or could foresee it if he conducted himself as a reasonably prudent man. It was further submitted that in the present circumstances, a reasonable person could not have foreseen that the automatic door would pose any danger to anyone and that it would cause injury to persons when it opened or closed.

The defendant averred that it could not be held to have been negligent and responsible for the plaintiff’s injuries for the following reasons: the door was working perfectly on the day of the incident, and it continued to do so thereafter; it could not be reasonably foreseen that patrons, instead of entering when the door was open, would stand in line at the door rather than enter the premises; the defendant could not have reasonably foreseen that patrons would breach the Covid 19 protocol which required individuals to stand one metre apart and also that they should wait outside for their turn to be sanitised; it could not be reasonably foreseen that the arrows on the door explaining the door movement would be ignored by the customers; the door was properly functioning, as it quickly retracted upon making contact with the plaintiff.

It was also submitted on behalf of the defendant that even assuming that it ought to have foreseen the possibility of harm, it took measures to guard against the possibility of such harm. Such measures were reasonable under the circumstances as they sought to inform the patrons of the nature of the door. Reliance was placed on the case of Blyth v Birmingham Waterworks (1856) 11 EXCH 781, where it was held that a reasonable man should not foresee all harm and take all measures. The circumstances of that case were that the plaintiff’s property was flooded because of a failure in very cold weather, of a valve in the defendant’s main water pipes. The court held that to avoid liability for negligence, the defendant was not required to take every possible precaution to avoid flooding from its pipes but to do as much as ‘a reasonable man….would do’. Since the cold snap was unprecedented, the defendant was not negligent in having failed to prove the valve against it. (foresee that the valves may be affected by extreme changes in weather).

The defendant contended that it could not have foreseen injury being caused by the automatic door in circumstances where no such injury had ever been caused by such door or any other door of similar function. That this was the first case of its nature in our jurisdiction was testament enough of its unprecedented nature. It was further contended that if at all there was negligence, it was because the plaintiff did not keep a proper lookout and also failed to adhere to the Covid-19 order. Relying on the case of Standard Chartered Bank Zimbabwe Limited v Matsika 1996 (1) ZLR 123 (S), it was also submitted that the plaintiff could not benefit from her own wrongful act in defying the law.

The defendant submitted that assuming a finding was made that it was negligent, the next question was whether there was a causal connection between the defendant’s negligence and the plaintiff’s damages. The defendant’s contention was that the labelling of the door as an ‘automatic door’, as contended by the plaintiff, would have made no difference as the plaintiff visited the shop regularly and was therefore aware of the door and how it operated. No suggested changes, save for breaching of the Covid-19 order by not sanitising the patrons, would have made her not to stand where she stood.

It was further submitted that even if the plaintiff had known on the day of the incident that the door was automatic, she would most likely not have behaved differently. She would still have violated the Covid-19 order and stood close to the door. The door would have attempted to automatically close because it would not have been able to sense her. There was therefore no causal connection between the damages suffered by the plaintiff and the conduct of the defendant.

As far as damages were concerned, the defendant noted that the plaintiff significantly reduced her claims in her closing submissions. The defendant insisted that the plaintiff’s claims remained exaggerated, duplicated and bore no relation to awards made in the jurisdiction in respect of more severe injuries. For special damages, the defendant made the following observations on costs that were incurred after summons were issued on 28 October 2021. The summons and declaration had not been amended to include the said claims.

Claim for US$562.00 (p 99 of the record), the record showed that the costs were incurred on 10 May 2024;

Claim for US$50.00 (p105 of the record), the receipt attached showed that the costs were incurred on 6 December 2021;

Claim for US$40.00 (p106 of the record), the receipt attached showed that the costs were incurred on 8 December 2021;

Claim for US$30.00 (p107 of the record), the receipt attached showed that the costs were incurred on 26 March 2024;

Claim for US$30.00 (p108 of the record), the receipt showed that the costs were incurred on 27 September 2023;

Claim for US$20.00 (p109 of the record), the receipt showed that costs were incurred on 6 December 2023;

Claim for US$20.00 (p110 of the record), the receipt showed that the costs were incurred on 22 January 2024;

Claim for US$100.00 (p111 of the record), receipt showed that the costs were incurred on 8 April 2024;

The defendant submitted that the essence of a case was found in the pleadings, and a claim that was not pleaded could not be granted by the court. The defendant further submitted that the plaintiff had only managed to special damages in the sum of US$70.00. This amount was made up of US$30.00 paid to Doctor Sirdar on 18 March 2021, and US$40.00, paid by way of short fall to Orthocare on 17 May 2021.

As regards the claim for pain and suffering, the defendant argued that the plaintiff had failed to disclose the pain that she experienced during and after the incident to any helpful degree, other than merely asserting that she could not stand for long periods and that she could no longer drive a manual transmission vehicle. The defendant also argued that the sum of US$5, 000.00 was excessive regard being had to awards made in Zimbabwe. Reliance was placed on the case of Matongo v Catesbury Trading Company & Anor, where the plaintiff suffered a 27% permanent disability, and was awarded compensatory damages for pain and suffering in the sum of US$1, 000.00.

With respect to the claim for loss of amenities of life, the defendant submitted that the plaintiff had failed to substantiate the activities that she claimed she could no longer perform, other than that she could no longer do her business or travel long distances or drive a manual car. It was also argued that the plaintiff’s inability to perform some of the activities was a result of her advanced age and as such she could not be compensated for those activities she could no longer perform owing to her advanced age.  The court was urged to dismiss the claim.

Concerning the claim for mental anguish, humiliation and embarrassment, it was the defendant’s argument that these were duplicated as they fell under the head of pain and suffering. Reference was made to the case of Delta Beverages v Rutsito, where the court held that a claim for pain and suffering constituted more than a head in a general Aquilian action. It was intended to compensate the victim for all pain, suffering, shock and discomfort suffered by him as a result of the wrongful act. It covered both physical and mental pain and suffering and both past and future pain and suffering.

With regards to disfigurement, the defendant argued that the plaintiff was not disfigured and this was confirmed by doctor Mageza, who considered the operation a success. The plaintiff could walk on uneven surfaces. She did not have a limp and could now stand for lengthy periods. She could also wear reasonably heeled shoes.

THE ANALYSIS

As noted already, the trial proceeded on the basis of three agreed issues, which I shall related to hereunder in the analysis of the evidence.

Whether the defendant was negligent

It is common cause that the plaintiff’s claim is grounded on the Aquilian action. The key elements of an Aquilian action can be summarised as follows: patrimonial loss, which can be in the form financial loss or physical injury; wrongful act or omission; fault which can be intentional or negligence; the causal link between the defendant’s conduct and the loss suffered.  While the Aquilian action is predominantly the cornerstone of delictual claims, it does not necessarily follow that every form of harm or injury will automatically result in liability for damages. The nature of the claim imposes on a plaintiff the herculean task of demonstrating the existence of these essential elements, relative to the evidence at hand.

The plaintiff’s case was that the defendant operated a sliding door which paused danger to its customers who were not privy to how it was operated. According to the plaintiff, the defendant ought to have placed warning signs concerning the operations of the door to avoid exposure to injuries. The door operated on the basis of sensors. It opened on its own accord the moment it detected movement from an approaching customer. According to the defendant’s witness, the door automatically retracted the moment a customer entered or exited the shop. Further, according to the witness, the sensors did have the ability to detect an object that was in the door’s way. It meant that if a customer stood in the doorway while it remained opened, the door sensors would not be able to detect the presence of the customer and the door would automatically close on its own.

The defendant’s conduct must be evaluated based on the foreseeability of harm to customers if for some reason the door malfunctioned or as in the circumstances of this case, the door suddenly closed when the customer was walking into the shop. What is clear from the evidence is that the plaintiff was aware that the door would open on its own accord after detecting movement from the approaching customer. What the plaintiff was not aware was that the sensors did not detect an object that was in the door’s way. The defendant’s witness explained how the door operated in greater detail. This vital information, more specifically, that the door sensors did not detect an object in the door’s way was known to the defendant’s staff, but not to the customers.

It follows that if for whatever reason a customer stood in the door’s way, then there was a likelihood of getting hit with the door as it could not detect the presence of the customer in its way. The possibility of a customer being injured by the door was therefore not remote. In the court’s view, the defendant owed its customers the duty to warn them of the dangers of standing in the doorway.  The video evidence that was placed before the court attests to the importance of imparting this information to customers. The door hit the plaintiff’s foot at roughly between 22-23 seconds mark, just as she was walking into the shop. Prior to that incident, the door remained open when three customers walked into the shop before the plaintiff appeared and stood slightly behind the door at exactly 21 seconds. The door only moved and had contact with the plaintiff’s foot as she was entering the shop towards the sanitising point.

I must also observe that the sanitizing point was close to the front end of the door in its opened state leaving a gap of less than half a meter between the edge of the door and the customer being sanitised. That space could hardly accommodate two people. I agree with the plaintiff’s submission that the location of the sanitising point left a lot to be desired. The defendant argued that the defendant was negligent to the extent that she failed to observe the one metre distance from the next person as required by the Covid-19 protocols. I still find that argument unsatisfactory. Firstly, the defendant did not suggest that it placed warning signs of its own that required customers to maintain the social distance at its premises. It created an environment which inevitably could lead to some crowding at the sanitising point. Further it also had one of its staff members sanitising the customers. That staff member could also have conscientized customers about the need to maintain social distancing.

Secondly, and as l have already observed, the plaintiff approached the door and stood behind it at the 21 second mark. At that point, the door should have closed on its own accord if it was functioning properly, at least going by the version given by the defendant’s witness. This was because the plaintiff was not standing in its way, and neither was she in motion. The door only moved and hit her foot as she was entering the shop from her stationery position slightly outside the entrance of the shop. The door would still have hit her foot whether or not she was maintaining social distance, because it was not about the distance, but the unexpected movement of the door at the time that the plaintiff was entering the shop.

In the court’s view, the fact that the door moved towards the centre at a time that the plaintiff was walking into the shop created a potentially harmful environment, which imposed an extra duty of care on the defendant to take cautionary measures that would mitigate the occurrence of incidents that would lead to injuries. Indeed, the defendant’s own witness even alluded to occurrences where the door would bump into objects such as trolleys. I therefore find the defendant’s submission that harm to its customers was not reasonably foreseeable unsatisfactory. Given the unpredictable manner in which the door moved, a diligens pater familias would have taken steps to warn its customers of the need to exercise caution and watch the movement of the door when entering or exiting the shop.

The circumstances of the present case are distinguishable from those in the Blyth v Birmingham Waterworks case cited in the defendant’s closing submissions. The cause of the flooding in that case was down to a faulty valve that was triggered by bad weather. It was not a condition that the defendant created in the circumstances. The defendant could not be expected to control weather conditions and its impact on the operation of its equipment. In the present case, it is the defendant that installed the sliding door. The defendant was privy to the manner in which that sliding door was operated and the likely defects if not well maintained. That information was unknown to its customers.

The court concludes that the defendant was negligent in that it failed to take reasonable steps to guard against the occurrence of harm despite being privy to the erratic manner in which the door moved.

Related to the question of the defendant’s negligence is whether there was a causal link between the defendant’s conduct and the injuries suffered by the plaintiff.  The evidence of Dr Mageza confirmed that the proximate cause of the plaintiff’s injury was the contact of the door and the foot which led to the twisting of the plaintiff’s left foot. The witness also stated that one could not separate the impact of the contact with the door and the twisting of the ankle. What caused the twisting of the ankle was the impact. The two events were therefore corelated.

Dr Mageza’s evidence also debunked the defendant’s evidence that the plaintiff’s injuries were exaggerated. He is the same doctor who carried out the surgery on the injured foot and was therefore best placed to comment on the extent of the injuries. The defendant, on the other hand, did not place before the court evidence in rebuttal of the version given by Dr Mageza.

Whether or not the plaintiff is entitled to the damages and the quantum thereof.

Once the court determined that on the evidence placed before the court, the defendant’s negligence was the proximate cause of the injury suffered by the plaintiff, the next issue related to the plaintiff’s entitlement to damages and the quantum thereof. It is not in dispute that the plaintiff was injured as a result of the incident and that she suffered some damages which entitles her to some form of compensation. I will proceed to deal with the respective heads of damages hereunder.

Special Damages: Medical Expenses

These relate to out of pocket expenses that the plaintiff had to incur and in respect of which she did not get a refund from her medical aid. As correctly submitted on behalf of the plaintiff, the out of pocket expenses are confined to those expenses that were incurred prior to the issuing of summons on 28 October 2021. Most of the medical expenses identified by the plaintiff in her bundle of documents were incurred well after summons were issued.

The plaintiff did not amend her pleadings to incorporate these as part of her claim. That was clearly an oversight on the part of her legal practitioners, because these would have been incontestable had they been formerly made part of her claim. The only amounts that were incurred prior to the issuing of summons are in respect of the following: US$30.00 paid to Dr Sirdar on 18 March 2021; RTGS 8,400.00 paid to Dr Sirdar on 19 March 2021; RTGS 1,200.00 paid to Dr Sirdar on 19 March 2021; US$40.00 paid to Orthocare by way of shortfall on 17 May 2021; and US$30 paid by way of review on 21 September 2021.

In her closing submissions, the plaintiff computed her out of pocket expenses in the sum of US$952.00. That amount did include the two amounts of RTGS 8,400.00 and RTGS 1,200.00 paid in local currency. The decision to drop these two amounts may have been influenced by the demonetisation of the RTGS currency and its replacement with the ZIG currency at the time the trial of this matter commenced. It follows that the only out of pocket medical expenses that the plaintiff can legitimately claim amount to US$100.00, which amounts were incurred prior to the institution of these proceedings on 28 October 2021.

Pain and suffering

It is not in dispute that the plaintiff suffered immense pain after the incident. Dr Mageza gave a detailed account of his experiences before and after surgery. Prior to the surgery, the doctor had noted that the injury caused ankle instability which made it impossible for the plaintiff to go up and down the stairs. She could no longer walk properly and could not be able to run in future without surgery. It could also cause chronic pain leading to arthritis. The plaintiff was actually developing arthritis. In recommending surgery, the doctor noted that if the plaintiff was not operated on to fix her torn ligaments, she would continue to experience pain and sweeling of the ankle.

Dr Mageza attended to the plaintiff after surgery as part of a routine follow up to check on her recovery progress. He observed that the plaintiff’s condition had significantly improved as she was walking well even on uneven ground. The pain was also next to minimum. In Delta Beverages (Cited as a division of Delta Corporation Limited) v Rutsito, the court cited the following remarks from Quantum of Damages in Bodily and Fatal Injury Cases, 3 ed by Corbett, Buchanan and Gauntlett, at pp 51-2

“A claim for damages in respect of pain and suffering strictly constitutes more than a head in a general Aquilian action; it is in origin 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.  Moreover account must be taken not only of the pain and suffering suffered as a direct consequence of the infliction of the injuries but also of pain and suffering associated with surgical operations and other curative treatment reasonably undergone by the plaintiff in respect of such injuries....” (Underlining mine for emphasis)

The pain that a victim endured as a result of injuries cannot be measured with precision. Each case must be considered on its own merits. The court must be careful not take an armchair approach and make an assumption based on other decided cases that the damages to be awarded must be restricted to those awarded in those decided cases. While past cases provide a useful guideline, they should not in my view, unduly restrict the court’s assessment of damages to what was awarded in those cases. After all, an award of damages involves the pursuit of a value judgment in the absence of a mathematical formula that can be relied upon to calculate the precise value of the award.

The plaintiff claimed US$5, 000.00 for pain and suffering. As already noted, the medical evidence placed before the court do confirm that the plaintiff has had to contend with a considerable amount of pain before and after the operation. Circumstances differ from case to case. I find an award of US$3, 500.00 reasonable under the circumstances.

Loss of amenities

The plaintiff claimed US$5, 000.00 for loss of amenities. She could no longer drive a manual transmission vehicle, and had to contend with driving an automatic transmission vehicle. She also claimed to have quit her income generating projects. She also no longer felt comfortable wearing high heeled shoes. The concept of loss of amenities of life was explained in Chinembiri v ZETDC as follows:

“The concept of loss of amenities of life has been tersely but aptly defined by LORD DEVLIN in H West and Son Ltd v Shepherd 1963 (2) ALLER 625 HL at 636 G - H as ‘a diminution in the full pleasure of living’’’. Factors that can influence the amount to be awarded include the age and sex of the injured person and the disfigurement and its influence on the plaintiff’s personal and professional life.  For instance how many of the activities he was able to do or participate in is he still able to do or has he been in capacitated for and what did those activities mean in his life?”

The defendant urged the court to dismiss the claim on the basis that the plaintiff’s failure to perform some of the activities was down to her advanced age. It was also argued that her leg had fully healed after surgery and as such she could continue to enjoy her life as she pleased.

Although the doctor certified the plaintiff’s surgery as a success, he still acknowledged that the plaintiff would have to contend with some pain, which he described as next to minimum. The doctor however maintained that he assessed the plaintiff’s disability at between 3-5% after the surgery. That on its own is an acknowledgment that she could no longer find gratification in those things she used to take pleasure in. I consider an award of US$1, 500.00 to be appropriate in the circumstances.

Disfigurement

The plaintiff justified the claim under this head on the basis that the doctors had described this head as disability before and after surgery. The defendant on the other hand dismissed the claim on the basis that the surgery was a success. The plaintiff could walk without a limp.

The plaintiff appeared to have conflated the two claims, which in the eyes of the law are distinct. In the circumstances of the present case, disfigurement would envisage some permanent physical change in the appearance of the plaintiff’s leg or ankle as a result of the incident. The plaintiff would have been disfigured if for instance she walked with a limb or had to use crutches for the rest of her life. Disfigurement could also be manifest through visible permanent scars or some nerve damage which impaired the functionality of her leg.  No evidence of such disfigurement was placed before the court. Disability on the other hand would entail the impairment of the use of the leg as a result of the incident. Such impairment would affect the performance of daily her tasks, which at any rate would have been subsumed under loss of amenities head, considering the manner in which that claim was pleaded.

The doctor certified the surgery a success such that the plaintiff could walk without difficulties on uneven surfaces. I therefore agree with the defendant’s submission that the claim was unjustified.

Mental Anguish, Humiliation and Embarrassment

The plaintiff insisted that the claim under this head was competent, and should not be subsumed under pain and suffering head as argued by the defendant. The plaintiff relied on the case of Nyandoro v Minister of Home Affairs and Anor, where a claim for embarrassment was characterised as contumelia. The Nyandoro case is distinguishable from the present case in that the plaintiff in that matter was assaulted by members of the Zimbabwe Republic Police when he was arrested and detained. In assessing damages under the claim for contumelia, the court considered that the assault occurred in full view of members of the public. His picture was also published in a local newspaper. The plaintiff felt humiliated and embarrassed in the manner in which the damage to his reputation was inflicted.

The claim for contumelia is ordinarily common in claims for defamation and adultery damages as it seeks to compensate the victim for emotional distress and damage to reputation where the harm is inflicted in degrading manner. I agree with the defendant’s submission that in cases of physical injuries sustained through the negligence of the perpetrator as was the case herein, such damages for mental anguish, humiliation and embarrassment would be incorporated under the pain and suffering head. This is also clear from the dictum in the Delta Beverages v Rutsito matter.  The court determines that the claim is clearly misplaced and ought to be dismissed.

Future Medical Expenses

The claim was abandoned in the plaintiff’s closing submissions. The plaintiff conceded that Dr Mageza’s evidence all but confirmed that the surgery was a success and her condition had improved significantly thereafter.

Conclusion

From the foregoing, the court’s assessment is that the defendant is liable to the plaintiff to damages in the sum of US$5,100.00, made up of special damages for medical expenses incurred in the sum of US$100.00, and general damages in the sum of US$5, 000.00. There is a related legal issue concerning the currency in which the claim was made. Neither party addressed the issue in their closing submissions, but the position of the law is trite that this court cannot grant judgment or an order that sounds exclusively in United States dollars, save for those exceptional cases where the law permits that financial obligations ought to be discharged in foreign currency. The least the court can do is to give the defendant an election to pay the damages in the currency of choice to attune with the position of the law.

Costs of suit

The general rule is that a successful party is entitled to costs of suit at a scale determined by the way litigation was conducted and the level of success amongst other factors. The plaintiff was partially successful in her claims and the defendant was also partially successful in its defence. In the premises I find it befitting that each party be ordered to bear its own costs of suit.

Resultantly, it is ordered that:

Judgment is granted in favour of the plaintiff as against the defendant for the payment of:

US$100.00 or the ZIG currency equivalent payable at the prevailing interbank rate on the date of payment, being special damages for medical expenses incurred.

US$3,500.00 or the ZIG currency equivalent payable at the prevailing interbank rate on the date of payment, being damages for pain and suffering.

US$1,500.00 or the ZIG currency equivalent payable at the prevailing interbank rate on the date of payment, being damages for loss of amenities

The claims for mental anguish, humiliation and embarrassment and disfigurement are hereby dismissed.

Each party shall bear its own costs of suit.

Musithu J:…………………………………………………

Ingwani Chipetiwa Group, legal practitioners for the plaintiff

Kantor & Immerman, legal practitioners for the first defendant