Runako Punungwe v Halsteds Builders Express and Old Mutual

On 13 March 2021, during the COVID-19 period, the 57-year-old plaintiff visited the first defendant's Borrowdale shop in Harare. As she approached the sanitizing point located near an automated sliding door inside the shop, the door moved and struck her left ankle/foot. The plaintiff claimed the accident resulted from the defendant's negligence in failing to maintain a functional door, failing to post notices about the door's operation, and positioning the sanitizing point too close to the door. The plaintiff sustained injuries including torn ligaments (complete tear of Anterior Talo-Fibular Ligament, partial tear of Calcaneo-Fibular Ligament) and tenosynovitis. She underwent multiple medical consultations and eventually had surgery in May 2024 performed by Dr Mageza. The defendant denied negligence, arguing the door was functioning properly, the plaintiff failed to observe COVID-19 social distancing protocols (required 1 meter distance), and that the plaintiff was familiar with the automated doors from previous visits. The second defendant (insurer) was removed from the proceedings.

• Whether the defendant was negligent in its operation and maintenance of the automated sliding door
• Whether there was a causal link between the defendant's conduct and the plaintiff's injuries
• Whether the plaintiff was entitled to damages and the quantum thereof
• The proper heads of damages in personal injury claims arising from the Aquilian action
• Whether claims for mental anguish, humiliation and embarrassment are separate from pain and suffering in negligence cases
• The appropriate currency for damages awards

Judgment granted in favor of the plaintiff against the first defendant for: (1) US$100 or ZIG equivalent at prevailing interbank rate for special damages; (2) US$3,500 or ZIG equivalent for pain and suffering; (3) US$1,500 or ZIG equivalent for loss of amenities. Claims for mental anguish, humiliation, embarrassment and disfigurement dismissed. Each party to bear own costs.

A commercial establishment owes customers a duty to warn of operational characteristics of automated systems that pose foreseeable risk of harm, even when those systems are functioning properly. Negligence is established where the defendant knew the door sensors could not detect stationary objects in the doorway but failed to warn customers of this hazard. In Aquilian actions for physical injury caused by negligence, claims for mental anguish, humiliation and embarrassment are subsumed under the head of pain and suffering and do not constitute separate claims for contumelia. Pain and suffering damages encompass both physical and mental suffering, including pain from surgical operations reasonably undertaken to treat injuries. Assessment of damages in personal injury cases requires individualized evaluation; past cases provide guidance but should not unduly restrict the court's value judgment.

The court observed that the positioning of the sanitizing point close to the automated door left much to be desired and created an environment that could lead to crowding. The court noted that while the defendant argued the plaintiff failed to observe COVID-19 social distancing protocols, the defendant itself had not posted its own warning signs requiring customers to maintain social distance at its premises. The court commented that the door should have closed when the plaintiff stood stationary behind it at the 21-second mark if functioning as the defendant's witness described, suggesting possible inconsistency in the door's operation. Musithu J emphasized that courts should not take an "armchair approach" in assessing damages by simply restricting awards to amounts granted in previous cases, as each case involves pursuit of a value judgment in the absence of mathematical formulae. The judgment noted that many of the plaintiff's medical expenses could not be recovered because they were incurred after summons were issued but the pleadings were not amended - described as "clearly an oversight" by her legal practitioners.

This case provides important guidance on occupier's liability and duty of care in Zimbabwe regarding automated systems in commercial premises. It establishes that proprietors of commercial establishments have a duty to warn customers of non-obvious operational characteristics of automated systems that could cause harm, even if those systems are functioning as designed. The judgment clarifies the distinction between various heads of damages in Aquilian actions, particularly that mental anguish claims in negligence cases are subsumed under pain and suffering rather than constituting separate contumelia claims (which are reserved for defamation and intentional dignity violations). The case also addresses the currency issue in damages awards, requiring courts to provide defendants with election to pay in local or foreign currency in compliance with Zambezi Gas Zimbabwe v N.R. Barber. It demonstrates judicial reluctance to be bound strictly by previous quantum awards, emphasizing that each case must be assessed on its own merits.