Mathata Olefile Motswagole, a middle aged woman of Selibe Phikwe, last week lost over P10 million lawsuit against Selibe Phikwe Town Council (SPTC) for damages. The case was before Francistown High Court Judge, Phadi Solomon. According to her court documents, the plaintiff (Motswagole) had taken the town council to court for damages arising from an injury to her right knee which she claimed came as a result of her falling due to misaligned paving slabs at SPTC. The incident is alleged to have happened on the 1st of June 2007 at around 1600 hours when the plaintiff was walking to her car after a grocery shopping. She alleges that onlookers came to her assistance, two of whom were personally known to her, being one Segomotso Morebodi and Kate Ketabareng.
The plaintiff appeared in person while the defendant (SPTC) was represented by its legal advisor, Philip Mokone.
In her particulars of claim the plaintiff alleges that she continued to feel pain on her knee and that on the 6th of June 2007 she decided to seek medical attention and went to Tapologong Clinic which was under the administration SPTC(defendant). She said upon arrival she was told that the knee was well and may only be reacting due to arthritis which she could have inherited from her late mother. The plaintiff said she then believed this as her late mother had arthritis. In her declaration document, the plaintiff further alleges that SPTC (defendant) ‘s medical facilities misdiagnosed her medical problem and prescribed a wrong treatment. She also claims that the defendant’s medical authorities were acting within the scope of their employment by the defendant and that they owed her a duty of care.
“I hold the defendant liable for the negligent acts of its agents. My condition continued to deteriorate until I became totally incapacitated and had to consult a private medical practitioner,” she told court.
The plaintiff said the private medical practitioner then revealed to her that the treatment she got from the defendant medical facility was inappropriate. She contended that consequent to the wrongful diagnosis and treatment she suffered side effects which included sinusitis, hypertension and discomfort in her hip. She further claims that these complications exacerbated the pain and suffering and contributed to her total physical incapacitation.
“Prior to the injury I depended on my strength to run a variety of businesses, ploughing, cattle rearing, catering and real estate agency,” she told court in her evidence.
However, under cross examine, from the defendant’s lawyer(Mokone), the plaintiff agreed that visibility was good on the day she fell and that she was familiar with the part of the mall where she fell but she had never noticed the misaligned paving slab. After concluding her testimony, her only witness a certain Dr Ngoni Kamhuka(plaitiffs witness) who is the private medical practitioner who attended her in 2007, also gave testimony and tendered a medical report which was used as evidence in court. He said in part of his evidence that on the 27th of November 2009, he referred the plaintiff to the orthopedic sepecialists at Nyangabwe Referral Hospital in Francistown where medical experts indicated that she needs a knee surgery.
“They said that there has to be consultation with surgeons from South Africa and that the plaintiff would be informed when the operation would be done. To my knowledge, the plaintiff was still waiting for the operation,” said the witness.
He further testified that the plaintiff used to attend their clinic for other conditions like sinusitis, painful elbow and hip. He said she was also getting treatment for hypertension from local clinics. The doctor however said during cross examination that he is not an orthopedic surgeon or specialist. An orthopedic surgeon is a doctor who is more specialized to deal with injuries and diseases of bones and muscles
On the other hand the defendant’s only witness, one Edith Masole who works as a Social Welfare officer for the SPTC said before court that she heard about the plaintiff accident. She told court that she also learnt that the plaintiff had a livelihood before the accident.
“We made an assessment and at the time of the assessment, the plaintiff told us her manager had mismanaged her business until it was none existent whilst the plaintiff was temporarily incapacitated by ill health. At the time of the interview with the plaintiff, she was living with a church mate who was also unemployed,” said the defendant’s witness
Among some of the important issues raised by this witness was that in December 2011, they carried out a mass review of all destitute beneficiaries and realized the plaintiff was no longer staying in Selibe Phikwe and they decided to freeze her coupon as per policy. Another review was carried out in November 2013 and she had not come back to Selibe Phikwe and she was finally terminated from the programme.
However, in her ruling last week, Justice Solomon said the doctor called by the plaintiff is not qualified to testify about the alleged permanent damage to the knee. The judge also said the orthopedic surgeon who made the assessment at Nyangabwe should have been called to the dock to give evidence.
“The doctor who gave evidence said that the plaintiff condition could be caused by various things and can be inherited. He also testified that the symptoms of post traumatic arthritis are similar or the same as those of other conditions like osteon arthritis,” added the Judge.
The Judge however said there is no evidence from the doctor how hypertension and sinusitis are a complication of the knee injury. She further said the plaintiff has failed on a balance of probabilities to prove the casual link between the defendant’s wrongful act and the harm she suffered. Regarding the issue of damages, the Judge said the plaintiff has not placed any evidence to show cause how she arrived at damages totaling in excess of P10 million.
“The other aspect that I feel the defendant did not take into account is the possible contributory negligence of the plaintiff. In part of her evidence she said that she is familiar with the area of the mall where she fell and that she fell on a day when visibility was good. This means the plaintiff was able to see where she was going and should have been able to avoid the misaligned slab.For the forgoing reasons, I find that the plaintiff has failed to satisfy the legal requirements which have to be met before her claim can succeed. In the result the plaintiff’s claim is dismissed and she should pay the defendant’s costs of suit,” ruled Justice Solomon.