Tizai Chiswanda (In his capacity as father and guardian of Chidochashe Chiswanda) v OK Zimbabwe Limited

On 15 February 2015, the plaintiff, a father acting as guardian of his minor daughter Chidochashe Chiswanda, was shopping at the defendant's OK Mart shop in Hillside, Harare, accompanied by his wife and daughter. While at aisle 8, the plaintiff momentarily turned away from his daughter (approximately 3 meters away) to break open a carton box. A display shelf containing balls collapsed and fell on the minor child, trapping her underneath. The plaintiff and two other men lifted the shelf off the child. The child sustained serious injuries, including fractures to both femurs (thigh bones). The plaintiff returned to the shop later that day with police and observed that one leg of the shelf was broken, rusty, and corroded, and the shelf had been propped up with a farm brick. The shelf was described as approximately 2.5-3 meters high, made of steel frame and wire mesh, with 4 legs that were not fixed to the floor. After the incident, the defendant replaced the shelf with a safer 'basket-like' display unit. The plaintiff sued for damages totaling US$51,982.93, comprising special damages (medical expenses, diapers, transport) and general damages (pain and suffering, permanent disability, disfigurement, loss of amenities, future medical costs).

• Whether the defendant breached its legal duty of care to provide a safe shopping environment for customers
• Whether the display shelf collapsed due to the defendant's negligence in: (i) failing to properly secure/mount the shelf; (ii) failing to regularly service or maintain it; (iii) overloading it; (iv) using weak/cheap materials for the legs; or (v) the shelf giving in to the child's weight
• Whether the defendant is liable in delict for damages arising from injuries to the minor child
• The quantum of damages if liability is established
• Whether the plaintiff's claim expressed in US dollars before 22 February 2019 was converted to RTGS/ZWL at 1:1 by operation of S.I. 33/2019 and section 22(1)(d) of the Finance Act No. 2 of 2019

1. The Defendant is ordered to pay to the Plaintiff a total sum of US$51,982.93 at a rate of 1:1 as damages. 2. Interest on the above amount at the prescribed rate from 1 April 2015 to date of payment in full. 3. Costs of suit.

1. In aquilian actions based on negligence, all four elements must be proved: wrongful conduct, harm resulting in loss, fault (negligence), and causation. 2. A retailer/occupier owes a legal duty of care to customers to provide a reasonably safe shopping environment. 3. Failure to properly secure or mount display shelves, particularly those containing items attractive to children, constitutes a breach of the duty of care owed to customers. 4. The 'but for' test (conditio sine qua non) applies to establish factual causation in delictual claims. 5. The reasonable person test (diligens paterfamilias) requires that a reasonable person in the defendant's position would have foreseen the possibility of harm and taken steps to guard against it. 6. Subsequent remedial measures (such as replacing unsafe equipment with safer alternatives) are relevant evidence that the original setup was unsafe and that the defendant recognized this. 7. For purposes of section 22(1)(d) of the Finance Act No. 2 of 2019 and S.I. 33/2019, claims/liabilities expressed in US dollars before the effective date of 22 February 2019 are converted to RTGS/ZWL at a rate of 1:1 by operation of law, regardless of when liability is ultimately determined by the court, and such claims cannot be subject to further conversion at prevailing exchange rates.

The court made several non-binding observations: (1) While noting that no mathematical measure of pain exists, the court accepted the medical evidence classifying the child's injuries as severe; (2) The court observed that the absence of back injuries in the child was consistent with the shelf falling onto the child while standing, rather than the child falling from a height while climbing the shelf; (3) The court commented that the defendant's failure to have employees present or respond immediately to the incident was noteworthy, though not determinative of liability; (4) The court noted the distinction between when cause of action arises versus when liability is determined, though ultimately this distinction did not affect the currency conversion outcome in this case; (5) The court distinguished the case of Loveness Chiriseri HH450/20 which had allowed judgment in US dollars, implicitly suggesting that case may have been decided differently or on distinguishable facts; (6) The court noted that circumstantial evidence and probabilities are appropriately relied upon where direct evidence of how an accident occurred is unavailable.

This case is significant in Zimbabwean law for several reasons: (1) It reaffirms the classical requirements for aquilian actions based on negligence and applies them to occupier's liability in a retail context; (2) It establishes that retailers owe customers a duty to provide a safe shopping environment, including properly securing display shelves and using appropriate fixtures for items that may attract children's attention; (3) It demonstrates the application of the 'reasonable foreseeability' test to retail premises liability; (4) It addresses the important monetary law issue arising from Zimbabwe's currency transition, clarifying that claims expressed in US dollars before the effective date of S.I. 33/2019 (22 February 2019) are converted to local currency at 1:1 by operation of law, even where liability is determined after the effective date; (5) It distinguishes between when a cause of action arises and when liability is determined for purposes of currency conversion; and (6) It shows that subsequent remedial measures (replacing unsafe equipment) can be relevant evidence of prior negligence.