Nyahuma v Corporate Twenty Four Hospital Group (Pvt) Ltd & Ors (HC 9477 of 2014) [2015] ZWHHC 483 (26 May 2015)

1 HH 483-15 HC 9477/14 GLORIA NYARADZO NYAHUMA versus CORPORATE TWENTY FOUR HOSPITAL GROUP (PRIVATE) LIMITED and MALVERN NYAMUTORA and TSITSI MAPURANGA HIGH COURT OF ZIMBABWE MATHONSI J HARARE, 21 and 27 May 2015 Exception T. Nyamucherera, for the plaintiff E. Jena, for the 3rd defendant MATHONSI J: Alleging professional negligence, the plaintiff has sued the defendants for damages for shock, pain and suffering in the sum of $120 000-00, future medical expenses of $10 000-00, medical expenses of $4 252-83, transport and communication costs of $101-20 and costs of suit. The first defendant is a medical institution at whose premises the second defendant, a medical doctor, and the third defendant, a radiographer, performed certain medical procedures on the plaintiff who was pregnant, in July 2014. The plaintiff alleges that the defendants did not perform their duties in a professional manner or performed the duties negligently resulting in a wrong diagnosis and unnecessary surgery as a result of which she lost her pregnancy and sustained the aforesaid damages. All the three defendants are contesting the claim. In her plea the third defendant made what is patently a bare denial parroting the averment: “Third defendant denies each allegation in this paragraph and puts the plaintiff to the strictest proof thereof”. She stated the same in respect of every paragraph in the plaintiff’s declaration. The plaintiff did not lodge a complaint for the third defendant to remove her source of disquiet as provided for in r 140(1) of the High Court of Zimbabwe Rules, 1971. Instead she promptly field an exception in the following: HH 483-15 HC 9477/14 “The plaintiff hereby excepts to the 3rd defendant’s plea as vague and embarrassing on the following grounds: 1. Plaintiff cannot tell by reading 1st defendant’s plea what the defence is. 2. The defendant’s plea is a bare denial”. The third defendant may have realised the folly of her plea because, purporting to act in terms of r 140(1), she immediately filed an amended plead in which she admitted having performed an ultra sound scan on the plaintiff. She averred that she had undertaken to perform medical tests on the plaintiff with such professional skill as is reasonable and expected of a radiographer of her academic qualifications and professional experience. The third defendant denied being negligence in the performance of the medical tests conducted on the plaintiff asserting that she discharged the task professionally relying on the cooperation of the plaintiff and the condition of her bladder. She denied the averment that she had asked the plaintiff to empty her bladder before the scan was completed or during the scan. She denied that the scan caused the plaintiff to suffer damages in the amount claimed or at all. The plaintiff would have none of that quickly setting the matter down arguing that the amendment is a nullity. Mr Nyamucherera for the plaintiff submitted that the third defendant has not revealed any facts forming a defence and therefore has not discharged the onus resting upon her “to lay bare every facet of (her) defence”. Mr Nyamucherera submitted that the plaintiff was not obliged to submit a written complaint to the third defendant because r 140(1) uses the word “may” as opposed to “shall”. Therefore the provision is not peremptory but merely directory. The plaintiff having elected not to send a letter of complaint, it was not open to the third defendant to file an amendment. For that reason the amendment is a nullity and the exception should be upheld. On the other hand, Mr Jena for the third defendant submitted that the plaintiff failed to comply with r 140(1) which forced the third defendant to respondent to the exception by seeking to amend the plea. The amended plea sufficiently discloses a defence and is therefore competent. Rule 140 provides: “(1) Before – (a) making a court application to strike out any portion of a pleading on any grounds; or (b) filing any exception to a pleading; HH 483-15 HC 9477/14 the party complaining of any pleading may state by letter to the other party the nature of his complaint and call upon the other party to amend his pleading so as to remove the cause of the complaint. (2) The costs of any such necessary letter and of any matters incidental to it, including any necessary conferences with another legal practitioner, shall be allowed on taxation. (3) In dealing with the costs of any motion to strike out or of any exception, the provisions of this rule shall be taken into consideration by the court”. While it is true that r 140(1) is a directory provision, a practice has evolved in this jurisdiction for legal practitioners to first dispatch a letter of complaint to the other legal practitioner calling upon him to remove the source of complaint and putting him on terms to do so, before filing an exception. Professional etiquette therefore demands that it be done and r 140(1) lays the foundation for such conduct to be adhered to. This is particularly so bearing in mind that in the majority of cases, an exception does not dispose of the matter but would, if upheld, invariably result in the offending pleader being given an opportunity to amend the offending pleading to bring it in line with the attendant order for costs of course. Where an exception of this nature is upheld, the party whose pleading is complained of would be allowed to amend the pleading. The remedy available to the excipient is not an outright dismissal of the claim or defence but an order for the amendment to be effected within a fixed period of time: Zimbabwe Manpower Development Fund v Muza & Nyapadi & Ors HH 500/14; Auridiam Zimbabwe (Pvt) Ltd 1993(2) ZLR 359 (H) 373 C-D; Adler v Elliot 1988(2) ZLR 283 (S) 292B; Trope & Ors v SA Reserve Bank 1993(3) SA 264 (A) 269 G-I. The mistake counsel for the plaintiff has made is to think that he can race to judgment against the third defendant merely on the basis of an exception. This explains the zeal and vigour with which Mr Nyamucherera has pursued the exception even after an appropriate amendment was made in recognition of the complaint raised in the exception. In doing so, a lot of time has been wasted in the filing of pleadings when this matter should have progressed to pre trial conference and indeed to trial by now. It must be appreciated that the purpose of pleading is to inform the other party in concise terms of the precise nature of the claim or defence which they have to meet and to also identify the area of law forming the subject of the dispute: Chifamba v Mutasa & Ors HH 16/08 (unreported). HH 483-15 HC 9477/14 The third defendant has filed an amended plea in which she admits having conducted the scan but denies professional negligence in doing so. She denies that the plaintiff sustained damages as a result of the scan. She cannot be expected to do more. She has pleaded with sufficient clarity to inform the plaintiff of the nature of her defence. What remains now is for the plaintiff, who bears the onus of proof, to put together evidence to prove its case. She cannot expect the third defendant to help her in that exercise. Having elected not to send a letter of complaint against the original plea, the plaintiff cannot expect to profit from her failure to follow the procedure set out in r 140(1). She is the one who left the third defendant with little option but to introduce an amendment after the exception. That amendment should be allowed. In the result, it is ordered that: 1. The plaintiff’s exception is hereby dismissed. 2. The amendment of the 3rd defendant’s plea filed on 8 January 2015 is hereby allowed. 3. The costs shall be in the main cause. Lawman Chimuriwo Attorneys at Law, plaintiff’s legal practitioners Jena and Associates, 3rd defendant’s legal practitioners