Q&A – 6 February 2017
Fall during wedding
My father was invited to a wedding in Moshi where he fell flat down due to the carpet not having properly been glued to the floor. He is very old and suffered a dislocated hip which is a very serious condition. We spoke to the wedding organisers who said that this hip dislocation would not have happened to younger people and they will not contribute for his medical bills. They also made a comment that my father was looking up at other women when he fell and that is what distracted him. My lawyer says we do not have a contract with the decorator and hence cannot sue them for recovery. What should I do?
JK, Dar
ou need not have a contract with the decorator or the wedding organisers to sue. Under law of tort principles you can sue anyone down the line. There is some form of negligence that is evident- it is a matter of proving it and you will be able to claim damages.
Assuming your father was invited and not a trespasser, the wedding organisers, decorator, perhaps even the owner of the premises all owed your father a duty of care. If the carpet is not properly glued to the floor, and your father tripped, the question you need to ask yourself is whether this duty was breached.
It does not matter that your father is old and others were younger- so long as he was invited, this duty of care is owed to everyone present notwithstanding age. Infact the law is clear that you take a person the way she or he is. If you can prove that there was breach of such a duty, you will be entitled to damages which can include your medical bills.
On the flip side, it is always advisable for event organisers to take specific insurance cover for the events to enable persons like yourselves to recover from the insurers. All in all, before you initiate Court proceedings, and considering that these might be your friends, you may want to engage with them to recover some contribution for the treatment.
As to the fact that your father may have been looking at women causing his fall, we are not sure if that is a good defence and it would depend on the facts.
Arbitration clause in consumer contract
Is it legal for a large entity to insert an arbitration clause in a consumer contract? Does that in itself not act as a deterrent for the potential claimant to proceed make a claim due to the expense and venue? Is there nothing that stops companies from inserting such clauses?
YY, Dar
It is true that arbitration is fast to complete but expensive to conduct and consumers might not have the same power compared to a corporate to fight such a case. Unfortunately there is no law in Tanzania that restricts corporates from inserting arbitration clauses in contracts so long as the parties agree to this. The arbitration clauses are also inserted by large corporates to limit the possibility of class actions as all claimants would need to get together and refer the matter to arbitration, something which might not make economic sense and hence limits the possibility of the corporate getting sued! There is a case in the US that challenged the insertion of such clauses because it reduces the possibility of class action suits, which are quite common in the US, and the Supreme Court ruled that the clauses are legal and can continue to be used.
Detention of directors for non-satisfaction of decree against company
I have won a case against a company and it has not paid me saying it does not have the funds. Can I imprison the directors as civil prisoners? That will force them to pay. Please guide.
HL, Dar
Section 44 of the Civil Procedure Code states that a judgment-debtor may be arrested in execution of a decree at any hour and on any day, and shall, as soon as practicable, be brought before the court, and the court may order his detention. In your case, unfortunately the Judgment Debtor is not an individual but rather a company which is distinct from its members or directors. Unless there are facts we are unaware of, it is very unlikely that you can get the directors arrested under section 44. Further the Law of Interpretation Act Cap 1 states in section 71 that an imprisonment term against a body corporate can be converted to a fine as follows:(a) where a term of imprisonment not exceeding six months is prescribed, a fine of two million shillings; (b) where a term of imprisonment exceeding six months but not exceeding one year is prescribed, a fine of three million shillings;(c) where a term of imprisonment exceeding one year but not exceeding two years is prescribed, a fine of five million shillings; (d) where a term of imprisonment exceeding three years is prescribed, a fine of ten million shillings.
HIV results to girlfriend
I have a boyfriend who went for a HIV/AIDS test. He does not want to disclose the results and says I should have faith in him. I would like to get the results. What can I do?
JJ, Moshi
Section 16 of the HIV & AIDS (Prevention and Control) Act of 2008 states that (1) The results of an HIV test shall be confidential and shall be released only to the person tested. However subsection of this Act states that (2) Notwithstanding subsection (1), the results of an HIV test may be released to- (a) in case of a child, his parent or recognized guardian; (b) in case of person with inability to comprehend the results, his spouse or his recognized guardian; (c) a spouse or a sexual partner of an HIV tested person; or (d) the court, if applicable. We believe subsection 2 may be used by you to get the results from the hospital. They might ask proof of your relationship with your boyfriend, which if you provide, will likely enable you to get the results even though your boyfriend has declined.