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NGULUBE, C.J.: delivered the Judgment of the Court.
For convenience, we will refer to the respondent as "the parents" and the appellant as "the defendants". It was not in dispute that on 8th October 1995 the mother, the second plaintiff in the case, gave birth to a bouncy and health baby boy. This was in the defendant's hospital. On account of certain complications, the mother had to undergo an operation and to be hospitalised. The baby boy was kept by the defendant in a special baby care Nursery Unit to which access was limited so that only the nursing staff specifically assigned to the unit and mothers who had babies there were allowed into the unit. The authorised nurses would take the babies to their mothers for breast feeding and return them to the unit.
On 10th October, 1995 at about 16:40 hours, the nurse in charge of the special unit discovered that someone unknown to date had stolen the child. Efforts by the defendant's security officers and the Zambia Police failed to locate the baby who has never been recovered to date. The parents were devastated. When it was clear that the child would not be located, the sued in negligence to recover damages for the nervous shock and distress arising from the disppearance of the baby.
By their pleadings, the parents alleged that the defendants negligence consisted of their failure to provide adequate nursing and security personnel in the nursery and their failure to devise an effective security system. There was evidence that at the time of the disappearance, the nurse in charge had remained alone to take charge of the unit. It is also common knowledge in Zambia that babies do occasionally get stolen from hospitals and other places. This would explain the special measures attempted to be put in place by the defendant who in their letter of regret and sympathy to the parents advised:
''The regulations regarding the security of the Nursery Unit prohibit entry by non-hospital employees and employees of the hospital who have not specific duties to perform there.''
The defendant pleaded that the loss of the child must have been due to a criminal act beyond its control or because of the contributory negligence of the parents in failing to secure the newly born baby. The learned trial judge found that the defendant was wholly to blame, invoking the doctrine of res ipsa loquitur and awarded the parents a sum of K40 (forty) million Kwacha as damages.
The first ground of appeal was against the finding of liability in negligence. Mrs. Kunda argued that it was wrong to invoke res ipsa loquitur when the parents had alleged specific particulars of negligence; that the defendant had put in place an adequate security system and adequate staff; and that the loss of the baby could only be due to the criminal act of someone beyond the defendants control. She submitted that because the doctrine of res ipsa loquitor was not pleaded, the learned Judge should not have even considered it. In reply to this last part, Mr. Chilandu who represented the parents pointed out that Order 18 rule 8 in the White Book provides that the doctrine need not be specifically pleaded. We observe that Mr. Chilandu was on firm ground. Note (44) to Order 18/8/16 of the 1995 Edition of the White Book reads:
Res ipsa Loquitur The doctrine of res ipsa loquitur need not be expressly pleaded (Bennett v Chemical Construction (G.B.) Ltd (1971) 1 W.L.R. 1571; (1971) 3 All E.R. 822. C.A). It is in essence no more than a common sense approach, not limited by technical rules, to the assessment of the effect of evidence in certain circumstances (per Megaw,L.J., in Lloyde v West Midlands Gas Board (1971) 1 W.L.R. 749, p.755; (1971) 2 All E.R. 1240, p.1247). In the case before us, the learned trial Judge equally did no more than adopt a common sense approach to this sad case where the defendant lost a baby who was in their special care and custody. We also agree with Mr. Chilandu that on the evidence adduced, the learned trial Judge could equally have grounded liability on the negligence pleaded which was established. In truth, there is no ground for interfering with the finding of liability.
The second ground of appeal was against the quantum awarded, as damages, which it is contended were excessive. Of course, we do not accept the suggestion that the damages be awarded as if the child had died and as if this were a claim in that respect. As Mr. Chilandu pointed out, the trauma and anguish associated with grieving for a dead child can not compare to that of not knowing what has become of the child and whether the child is not even now alive somewhere with a person who does not deserve to have him. The parents, it should be noted, had based their claim on nervous shock. The shock theory is now too well established to require debate; see for instance, paragraph 10 10 et.seq. Of Clerk and Lindsell on Torts, 16th Edition for an adequate discussion of the subject. In the case of Acropolis Bakery Ltd v ZCCM (1985) Z.R. 232 we declared, from p. 235 to 236, that the law should be responsive saying:
In a proper case, we do not see why an established principal cannot be extended to cover a novel situation: We would not hesitate to do justice on the merits of the case where a new situation arises for which there is no precedent but where it plainly appears that the legitimate rights of one person have been unfairly or wrongfully injured by another, since the recognition of those rights would presuppose the availability of remedies for their enforcement and protection.
It seems to us that the now well-established principal of awarding damages for nervous shock can and should be extended to cover the novel situation where the shock resulted from the negligent loss of the baby. The damages should be for the shock and in this regard Mrs. Kunda was right to complain against the basis proposed by the learned trial judge. It is necessary to quote what the learned judge said:
The loss of a child is not only a great loss but also a traumatic experience. The loss is even the more painful where like in the present disappears in thin air, so to say. What is more painful is that the plaintiff will always live with the memory that their baby may be alive with some one who does not deserve even a bit to have the baby.
In such circumstances compensation will not be adequate to compensate for the loss. The damages to be awarded can only go to console the Plaintiffs rather than to compensate them for the loss and disappearance of their baby boy from a well secured baby care unit.
Taking into consideration all the circumstances of the case, I find that damages at K40,000,000.00 would fairly console them. I would award that amount.
From the passages we have quoted, it is clear that instead of compensating the parents for the severe and lingering traumatic shock, they were to be compensated or consoled for the actual loss of the baby. We do not believe that a value can be placed on the baby nor that this was a proper approach to damages for shock. In recognizing that the parents suffered shock, the court recognizes that each one of them suffered injury though not of the physical type. It is for the shock that they fell to compensate, not for the loss of a baby. We do not accept Mr. Chilandus submissions that there was aggravation or such conduct by the defendant that the damages had to be punitive. It follows from all this that we consider the award to have been made on a wrong principle and to have been, in any event, inordinately high. We set it aside.
We are at large. We bear in mind the facts and the circumstances and accept that the parents suffered in the extreme; they probably continue to suffer. We are alive also to the absence of any medical evidence regarding the shock inflicted upon the parents. However, the circumstances leave no room for doubting but that this was a serious case of unimaginable proportions. We must emphasize that the damages are for the shock suffered and not the loss of the child suffered as such. No amount of money could ever compensate for loss of a child. Doing the best we can, therefore, we consider a global award of K10 (ten) million Kwacha as appropriate for the shock suffered as a result of the defendant negligently losing the parents baby.
The appeal succeeds to the extent indicated. Costs follow the event and they are to be taxed in default of agreement. Appeal partly allowed | 
