The plaintiffs were the parents of a 23-year-old geology student who died on 24 April 2015 at Mpilo Hospital during a bilateral polypectomy procedure. The deceased was asthmatic and had developed a nasal blockage. During preparation for surgery, the 1st and 2nd defendants (medical personnel) administered anaesthetic. The deceased died at approximately 0930 hours on the same day. The plaintiffs alleged that the death was caused by negligence of the 1st and 2nd defendants, including: lack of experience (1st defendant had one year experience, 2nd defendant had four months), failure to assess side effects of drugs on the asthmatic condition, failure to check for gastric contents before administering anaesthetic, administering drugs without supervision, and failure to timeously call for senior doctors. The matter proceeded as unopposed after defendants' defence was struck out for default at trial. Plaintiffs claimed USD100,000 for shock, pain and suffering arising from their son's death.
Plaintiffs' claim dismissed with no order as to costs
In Zimbabwean law, a plaintiff is only entitled to recover damages for nervous shock caused by a defendant's negligence where the nervous shock has directly impaired and injured the plaintiff's bodily health and strength; in other words, where it has affected the plaintiff's physical organism. There is no redress in delict for grief and distress at the suffering or death of another, standing alone. Pain and suffering, to be actionable, must be associated with the plaintiff's personal bodily injuries. Damages for shock unaccompanied by physical injury or illness to the plaintiff cannot be awarded in an action founded on negligence. The plaintiff bears the burden of proving through evidence (including medical evidence) that the shock caused actionable harm to their health.
The court commented that research must precede the issuance of summons and not the other way round, criticizing that legal research in this case was only done after the matter was referred to the unopposed roll. The court also observed that it could not consider developing the common law where (1) the need for such development was not pleaded and was raised for the first time in heads of argument, and (2) the real issue was not a deviation of common law from constitutional values but rather the absence of evidence to support the claim. The court expressed sympathy with the plaintiffs' loss, noting that "I do not think any person can be unmoved by the death of plaintiffs' son," but emphasized that at law plaintiffs must establish their entitlement to damages claimed.
This case clarifies the requirements for claiming damages for shock, pain and suffering arising from the death of another person in Zimbabwean law. It establishes that such claims require evidence that the shock has directly impaired and injured the plaintiff's bodily health and physical organism - mere grief and distress at the death of a loved one, without resulting personal injury to the claimant, is not actionable in delict. The case also emphasizes the importance of proper evidence, including medical evidence and expert testimony, to establish actionable harm in such claims. It demonstrates the distinction between establishing negligence (which was accepted) and establishing actionable harm to the plaintiff (which failed).