On 9 October 2012, the Appellant purchased a pair of slippers for K 86 from the 1st Respondent’s shop for use during his travel to Uganda as an advance party for the Football Association of Zambia in preparation for the 2012 AFCON qualifier game between Uganda and Zambia. Whilst the Appellant was at the 1st Respondent’s shop, he approached one of its workers, the 2nd Respondent, who directed him to the sportswear section where he found one slipper. The Appellant tried it on and found that it was a correct fit, after which the 2nd Respondent proceeded to the store room to collect the other slipper and returned with a box which he handed over to the Appellant, informing him that the slippers were the last pair of his size in stock. The Appellant then proceeded to the counter to pay for the slippers and left for the airport to board his flight. Whilst on the plane, he opened the box of slippers so that he could wear them only to discover that the slippers were both for the left foot. As a result, the slippers were never utilised for their intended purpose of refreshing his feet on the plane and at the hotel in Uganda. The Appellant also stated that because his feet were hurting he was compelled to walk bare footed on the plane. He, however, admitted that the floor on the plane was smooth and clean. It was also the Appellant's evidence that he was laughed at on the plane by his friend Silwamba, when he informed him that he bought slippers which were both for the left foot.
The Appellant subsequently went to the 1st Respondent’s shop to complain but did not carry the slippers, he had the purchase slip instead. He was requested to return the slippers to the store so that they could exchange them with another pair or refund him but the Appellant refused to do so and instead demanded the sum of K80,000,000 (now K80,000) as damages.
On 21 December 2012, the Appellant issued a writ of summons against the Respondents claiming, among other things, damages for negligence in the sum of K100 000, and aggravated damages for lack of remorse and costs. The Court found that the time on the receipt showed that the Appellant made the purchase at 11:09 hours when he was rushing to the airport to board a plane to Uganda whose departure time as reflected on his ticket was 11:05. The Court held that although the Appellant claimed that he had suffered embarrassment, ridicule, humiliation, pain and anguish, he had failed to prove the claims or to show that he suffered physical injury or damage to sustain an action for negligence. It was however ordered that the Appellant should return the defective slippers to the Respondent with the purchase slip or receipt for a refund of the K86 that he paid to buy the slippers. The Appellant appealed.
Held
1. The Supreme Court can only reverse findings of fact made by a trial judge where it is shown that such findings were either perverse or made in the absence of any relevant evidence or upon a misapprehension of facts. In so far as grounds 1 to 4 of the appeal attacked findings of fact, the trial judge’s findings could not be faulted as they were based on evidence before her and were neither perverse nor made in the absence of relevant evidence or upon a misapprehension of facts. The Judge relied on the purchase slip issued to the Appellant when he purchased the slippers and his air ticket. Under normal circumstances, a prudent purchaser would have checked to verify that he was buying the right pair of slippers before paying for them. This was not possible in the case of the Appellant because he had no time. The learned trial judge was apt in concluding that the Appellant did not check the contents of the box because he was in a hurry. Communications Authority v Vodacom Zambia Limited (2009) ZR 196 followed.
2. The Appellant failed to show proof of the duty of care he was owed by the Respondents. He should have adduced evidence showing the duty of care the Respondents owed him in the transaction, how that duty was breached and the damage he suffered as a consequence of such breach.
3. The Appellant also failed to show the injury he suffered as a result of buying slippers for the same foot. Even though he claimed that he suffered psychological and social injury, these injuries are not recognised by the tort of negligence. Albeit the Appellant could have been inconvenienced for not wearing the slippers on the plane or at the hotel and for being laughed at by his friend, such inconvenience cannot amount to injury capable of being compensated in damages. For an action for negligence to succeed, one must prove actual damage. Michael Chilufya Sata MP v Zambia Bottlers Limited (2002) ZR 1 (SC) followed.
4. The general rule is that costs follow the event, that is, that an unsuccessful party must pay the costs of the successful party. The only exception to this rule is where the evidence shows that the successful party was in some way blameworthy in the conduct of his case. The lower court’s order that the Appellant should return the defective slippers for a refund of the purchase price does not suggest, impliedly or otherwise, that the Appellant had partially succeeded.
