WITHAM v MINISTER OF HOME AFFAIRS 1987 (2) ZLR 143 (H)

Flynote

Delict — vicarious liability — mentally unstable policeman shooting member D of public — whether acting in course of duty — negligence — foreseeability — danger foreseeable in allowing mentally unstable policeman to go on duty armed — duty of care of police to public — failure of police to warn public when aware that gunman at large in area.

Damages — loss of future earnings — extent to which husband can rely on E support from wife — expected income from wife's own business — whether can be taken into account — pain and suffering — quantum — assessment.

Headnote

A policeman, despite a known history of alcohol-related psychiatric problems, had been detailed to guard the residence of Government minister in a Harare suburb. He had been issued with a rifle and ammunition. He had deserted his post during the night and gone on a shooting spree, ending up in the servant's quarters at the plaintiff's house, which was not far away in the same suburb. The plaintiff and his wife, unaware that the policeman was in their servant's quarters, went out to the quarters early in the morning when their servant failed to appear at the arranged time. The policeman fired at the couple, killing the plaintiff's wife and severely injuring the plaintiff. The policeman was himself later shot and killed by other police details.

The plaintiff sued for damages on the basis that the defendant Minister was liable because the policeman was acting in the course of his employment; alternatively, he was negligent in allowing the policeman, who was known to have psychiatric problems, to be armed and assigned to guard duties; alternatively, he was liable for the negligence of his servants, members of the police, who, although aware that the deceased gunman was at large in the area, failed to take steps to warn the local residents or apprehend the gunman. He claimed special damages relating to his medical expenses and general damages for loss of income and pain and suffering.

Held, on the question of whether the Minister was vicariously liable for the acts of the policeman, that the policeman's digression from his appointed duty was so great in respect of space and time that it could not be reasonably said that he still exercised the functions to which he was appointed. His digression was a complete relinquishment or abandonment of his master's business in favour of some activity of his own. The situation might have been otherwise had the policeman fired accidentally at the premises he was meant to be guarding.

Held, further, that the danger created by putting the policeman, with his mental history, in charge of a weapon was foreseeable and as a result of the danger serious injury to a member of the public was foreseeable.

Held, further, that the police owed a duty of care to the public to protect them against either a gunman in general terms who is loose in the area, but more specifically against a fellow member of the police who was in uniform and using a police weapon.

Held, further, on the question of damages for loss of income, that although the plaintiff's late wife contributed to the upkeep of the matrimonial home through her own income, he was not her dependant and could not recover damages to which he had no legal claim. The Lex Aquilia traditionally did not allow for claims resulting purely from loss of monetary support; the claim must usually be for patrimonial loss only. While over the years the ambit of the Lex Aquilia had been widened, the courts had to be careful to observe the distinction between extending and creating law. Public policy played a part in the court's decisions in these matters, and an award based on the loss of income which would have accrued as a result of a business operated by the plaintiff's late wife would not accord with public policy. The projected profits from the company, which had only been in operation for a few months at the time of the plaintiff's wife's death, were purely speculative.

Held, further, on the question of damages for pain and suffering, that this was a matter notoriously difficult to quantify. Judgments from other countries, where the social and economic situations were different, were of little assistance. It was more relevant to base the assessment on local cases; and based on these, an award of $10 000 was appropriate.