By Mary Taruvinga
THE High Court has ordered leading retail outlet, OK Zimbabwe (OK), to pay US$51 000 as compensation to a family whose child’s legs were injured after a grocery shelf in one its Harare supermarkets collapsed on her in 2015.
Justice Ephraim Tagu ordered the company to compensate the minor who sustained permanent disabilities following the unfortunate incident, through her father, Tizai Chiswanda.
Chiswanda sought legal recourse after OK’s senior staffers ignored his plea.
It emerged that the shelf in question had long malfunctioned and was being supported by a farm brick at the time it gave in.
OK had tried to shift the blame on the father, stating that he did not monitor his child when they were in the shop.
The retailer had argued that the little girl was fascinated by some balls which were on display and tried to climb up the shelf, which resulted in it collapsing.
But the father insisted that the shelves were not serviced and were corroded.
Another shopper who testified also said it was impossible for the girl to climb the shelf because it had a small wire mesh.
The girl was wearing shoes that could not fit into the wire mesh holes.
Chiswanda told the court that he rushed to check what was happening after hearing his daughter crying.
He found the girl under the shelf, but no shop assistant came to the scene.
Chiswanda said he was helped by three shoppers to lift the shelf up and retrieve his daughter, who was crying in pain.
The court heard Chiswanda rushed the girl to hospital using his own vehicle.
After his daughter was admitted, he went back to the supermarket and that was only when he was attended to by two men who introduced themselves as section managers.
“With the two gentlemen, he visited the broken steel shelf that was propped by a farm brick. Having failed to get an explanation, he proceeded to make a police report at Rhodesville Police Station and returned with a policeman,” the court papers read.
Chiswanda then claimed special damages for medical expenses, disposable diapers, transport costs, pain and suffering, permanent disability, disfigurement, loss of amenities of life, future medical and transport costs all totaling to US$51 982,93.
He blamed OK for failing to provide a safe shopping environment.
In coming up with his judgement, Tagu said there was no evidence to support the argument by shop authorities that the girl climbed on the shelf because no witness saw her doing so.
The court confirmed that the shelf was corroded and not mounted to the ground.
“Chiswanda therefore proved all requirements of an aquilian action that incorporates harm, which are that there was an unlawful conduct by the respondent….OK created a dangerous environment by displaying a monstrous shelf which was not mounted at all,” Justice Tagu said.
“The conduct of the defendant, therefore, led to physical harm to the minor child, thereby to financial loss, caused pain and what is called external rotation of limb which he said was permanent,” said the judge.
The company also tried to avoid paying the compensation US dollars, but the court ruled that the claim was made prior to the adjustments, as such, the currency should remain as claimed.
“In the present matter, the claim was expressed in United States dollars as at March 26 2015, some four years before the effective date. OK’s liability has been established some six years after the effective date. On the date the summons were amended it sounded in ZW dollars by operation of the law and cannot be subject to any further conversion. OK be and is hereby ordered to pay to the plaintiff a total sum of US$51 982 at the rate of 1:1 as damages,” Tagu ruled.
OK is ordered to pay interest on the amount at the prescribed rate from April 1 2015 to date of full payment as well as costs of suit,” ruled the judge.