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Tort – Vicarious Liability – Negligent act or omission of doctor or agent – Whether hospital’s potential liability depends on doctor or agent serving under contract of service or independent contractor
Tort – Joint tortfeasors – Meaning of joint and several liability
The 1st Respondent was an antenatal patient at Teba Hospital Centre Limited (“Teba Hospital”). She was being attended to by the Appellant who was a visiting consultant in Obstetrics Gynecology. On 23 March 2017 she reported to Teba Hospital in her 37th week of pregnancy complaining of abdominal pains. The nurse on duty found that she was not in active labour and advised her to go home. The 1st Respondent then mentioned that she had a history of precipitate labour (to mean short term labour) and the nurse referred her to the Appellant. The Appellant admitted the 1st Respondent overnight for observation and rest. The Appellant, before leaving the hospital, gave the nurse on duty instructions that she should be called if anything such as bleeding, contractions or draining arose. The Appellant also indicated that she might have to conduct a caesarean section on her the following day because the baby who was estimated at 4.9kg, was too big.
The same night the 1st Respondent went into active labour. At that time the earlier referred to nurse had knocked off and there was a new nurse on duty. The 1st Respondent fully dilated and she was moved into a delivery bed. The nurse on duty encouraged the 1st Respondent to push until the baby presented its head at 01:00hrs. She continued to push but the baby stopped moving because it was stuck at the shoulders. The general practitioner and midwives who were present in the maternity ward failed to dislodge the baby. The nurse on duty decided to call the Appellant but the hospital phone had no airtime. She then used the 1st Respondent’s phone to call the Appellant, who arrived at the hospital at 01:40hrs and delivered the baby at 01:45hrs but by then the baby was dead.
Aggrieved by this, the Respondents then sued the Appellant and Teba Hospital for medical negligence and causing the death of their baby. The trial court found that the Appellant and Teba Hospital were both negligent and in terms of liability, the trial court found that since the Appellant was an employee of the hospital, albeit part time, the hospital was vicariously liable for her acts. Further that the Appellant, as a servant, was also vicariously liable. The court awarded K50 000 as damages for mental anguish and pain. The liability was apportioned equally between the Appellant and Teba Hospital.The Appellant appealed.
1. A doctor who has been negligent may not be the only defendant in a medical negligence case. The hospital that retained the doctor on its staff can be held vicariously liable for the doctor’s negligence. Hospitals can also be held directly liable for their own negligence. Vicarious liability means party is held responsible not for its own negligence but for the negligence of another. The Appellant was a part time obstetric gynaecologist at Teba Hospital and in that capacity, she attended to the 1st Respondent. It follows, therefore, that Teba Hospital was vicariously liable for the acts or omissions of the Appellant (if any) and/or its servants or agents, committed in the course of their duties, irrespective of whether they were independent contractors or servants under a contract of service.
2. Joint tortfeasors are two or more wrong doers who contributed to the claimant’s injury and who may be joined as defendants in the same law suit. In many cases the joint tortfeasors are jointly and severally liable for the damage, meaning that any of them can be responsible to pay the entire amount no matter how unequal the negligence of each party was. The Appellant cannot be considered to have been a joint tortfeasor with the hospital as her actions did not contribute to the death of the baby. Her position was that had she been called, the baby would not have died and indeed, she dislodged the baby within minutes of her arrival.
Appeal allowed. Teba Hospital vicariously liable for actions of its nurse leading to the death of the baby and ordered to pay entire K50 000.
The deceased, Monica Mwanza and Grace Mwanza (not related) approached Petauke General Hospital for permanent contraception known as bilateral tubal litigation (BTL). The operations were conducted on the same day on 31 March 2005, under general anesthesia by Dr Mbinga Mbinga, a medical practitioner. When the two women regained consciousness, they were wheeled from the theatre to the recovery ward. The nurse on duty in the ward, a Mrs Beatrice Tembo Msoni, administered doses of injections allegedly prescribed by the doctor and almost immediately, both women stopped breathing. The doctor’s effort to resuscitate them failed and minutes later, the two women were pronounced dead. Post-mortem results and the forensic pathologist’s report indicated the cause of death as chemical poisoning. An analysis of the specimens, comprising urine, blood and stomach contents collected from the bodies of the deceased women detected an organo-chlorine pesticide identified as endosulfan.
The Respondents as personal representatives of the estates of the deceased sued Dr Mbinga, Mrs Msoni and the Appellant, on behalf of Petauke General Hospital and sought amongst other things, compensation for loss of life to the tune of ZMK 1 800 000 000; damages for professional negligence; breach of statutory duty; aggravated damages for unethical conduct. The learned trial Judge found that it was the nurse, Beatrice Tembo Msoni who was negligent. Having found that the Respondents had proved their case against the Appellant on the preponderance of probabilities, she awarded them all the claims save for interest. She ordered that all the claims for damages should be assessed by the Registrar. The Appellant appealed.
1. It is trite that a medical practitioner, a nurse or a hospital owe a duty of care to patients who submit themselves to their treatment and care. If this duty is breached and a patient suffers injury or death, the medical practitioner, nurse or indeed the hospital could be found liable in negligence.
2. The position of the law in an action for the tort of negligence is that in order to determine whether an act is negligent, a claimant should not only prove that he or she is owed a duty of care, he or she must also prove that duty was breached resulting in damage. It is relevant to determine whether any reasonable person would foresee that the act would cause damage. The first question is whether there was duty of care owed to the plaintiff, and the test of duty depends, without doubt, on what you should foresee. There is no duty of care owed to a person when you cannot reasonably foresee that he might be injured by your conduct. The second question is whether the neglect of duty was a “cause” of the injury in the proper sense of that term…the chain of causation is broken when there is an intervening action which you could not reasonably be expected to see. Roe v Ministry of Health and Others  2 ALL ER 131 followed
3. There is no duty of care owed to a person if you cannot reasonably foresee that he could be injured by your action. Foreseeability can be disregarded when negligence is the immediate or precipitating cause of the damage. Looking at the facts of this case, the sequence of events show that the time between the administering of the injection of the drugs and the deceased being pronounced dead was very short. It was a matter of minutes. Clearly, there was no intervening act to break the chain of causation. The only plausible conclusion that can be drawn from these circumstances is that the dose of injections administered by Mrs Msoni must have contained the chemical poison which caused the death of the 2 women. The action of Mrs Msoni was the immediate and precipitating cause of death. Foreseeability in such circumstances can be disregarded.
4. The fact that there was no evidence of the drugs and syringes being tested entitled the trial court to conclude that had that evidence been adduced, it would have been favourable to the Respondents. Where the evidence relating to negligence is particularly within the control of a defendant, little affirmative evidence may be required from a claimant to establish a prima facie case which it will be for the defendant to rebut. Thus, while the legal burden of proving negligence rested on the Respondents, there was an evidential burden to rebut the assumption that had the drugs and the syringe, which were in the possession and control of the Appellant’s servants been tested, the evidence adduced would have been in favour of the Respondents. It is not necessary for a plaintiff to eliminate every possibility of how the accident may have happened without the fault on the part of a defendant but what is adduced in evidence, on behalf of a plaintiff, must go further than pure guesswork and reach the field of legal inference. The evidence adduced by the Respondents needed only to show or enable the Court to draw an inference that the negligent act was a probable consequence of the Appellant’s servants’ act or omission.
5. When dealing with the evidence of an expert witness, a court should always bear in mind that the opinion of an expert is his own opinion only, and it is the duty of the court to come to its own conclusion based on the findings of the expert witness. The purpose of expert evidence in establishing negligence in the realm of diagnosis and treatment is not necessarily to pit one professional opinion against another, but to guide the Court. At the end of the day, the Court still has to make its own conclusion based on all the evidence before it. Fawaz and Chelelwa v The People (1995-1997) ZR 3 followed.
6. When considering the evidence, the Court is entitled to draw inferences based on the facts and circumstances surrounding the case. In this case, the events leading to the death of the two women were cardinal. The Court below was faced with a situation where two women, from totally different backgrounds, both certified fit to undergo a BTL operation for permanent contraception, underwent the operation on the same day and within a short space of time thereafter, their health deteriorated drastically and both of them died at the exact same time. Where the professional analysis is not capable of withstanding logical analysis, the Judge is entitled to hold the body of opinion as not reasonable or responsible. Bolitho (Administratrix of the Estate of Bolitho (Deceased)) v City and Hackney Health Authority  4 ALL ER 781 approved.
7. Before an appeal court can properly interfere with damages, it must be satisfied either that the Judge in assessing the damages applied the wrong principle of law or if he did not err in law then that the amount awarded was either so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage. Orman Corrigan (suing by next friend Albert John Corrigan) v Tiger Limited and Abdi Jumale (1981) ZR 60 followed
8. Damages for loss of expectation of life are in all cases represented by a small conventional sum, taking some but not much account of the prospect of a healthy and happy life as opposed to an unhappy one, some account of the age of the sufferer, and account of the degree of the shortening of life. Damages for loss of expectation of life should be moderate, taking into account the value of the Kwacha and inflationary trends. The amount awarded to the Respondents of K1 800 000 000 (K1 800 000 rebased) representing individual claims of K900 000 000 (K900 000 rebased) for each estate was not only wrong in principle but also inordinately high
The Appellant, sometime in January 2011 at about 09h00, bought a castle lager beer from Titanic Bar in Riverside, Kapiri Mposhi. The bar attendant opened the bottle of beer in his presence and gave him to drink. The Appellant consumed part of the contents and noticed that there were some particles floating in the drink. Thereupon, he immediately informed the bar attendant who sent someone to buy milk, which he drank. The bar attendant also referred him to the Respondent's agent, Santa Flo, from where the whole consignment of beer was bought. The Appellant explained that when he went to the Santa Flo container, the manager denied any responsibility for the contamination but offered to replace the bottle of beer. The Appellant stated that he turned down the offer because he was worried about the particles he had consumed. He thereafter reported the matter to the Police who furnished him with a medical report and he was treated for abdominal pains at Kapiri Mposhi hospital.
The Appellant took his complaint to Kapiri Mposhi Municipal Council who sent the bottle of beer to the Food and Drugs Control laboratory in Lusaka for analysis. The findings issued by the Public Analyst on 10 February 2011, some twelve days after the incident, confirmed that there was foreign matter in the contents of the bottle. The foreign matter was identified as fungal growths. Armed with these findings, the Appellant sued the Respondent claiming damages for personal injuries and consequential losses, damages caused by negligence and breach of statutory duty of care by the Respondent in the manufacturing and bottling of the Castle Lager beverage, amongst other things. During trial, the Respondent's witness, Allan Bwalya (DW1), a Quality Trade Manager, admitted that they received a complaint from the Appellant over the incident, but that the Appellant did not produce the beer bottle to enable the Respondent to identify whether the Castle beer was their product and determine the substances alleged to have been found in the bottle. According to DW1, there were several countries in Africa that manufactured the castle lager brand and some of these products were normally smuggled into the country resulting in many counterfeit products on the market. DW1 also told the Court that they visited Titanic bar and found foreign brands of castle beer. They also found counterfeits of castle beer in various parts of Kapiri Mposhi. The learned trial Judge held that while she did not dispute the findings of the Public Analyst's report, the analyst did not state that the product was that of the Respondent. In her view, the Appellant's failure to go with the bottle to the Respondent made it difficult for the Court to conclude that the product was manufactured by the Respondent. At the end of the day, the learned trial Judge concluded that while all the elements of negligence had been established, the Appellant had not established that the Respondent had manufactured the castle beer in question. This was more so, in the light of DW1's evidence that he had visited Titanic bar where the Appellant had bought the beer and found that some of the products were imported while others were counterfeit. She said that the failure by the Appellant to establish the person who manufactured the beer in question worked in the Respondent's favour. On that basis, she held that the Appellant had failed to prove his case on a balance of probabilities and she accordingly dismissed his action. The Appellant appealed.
1. The Supreme Court has always been slow to interfere with findings of a trial court that has had the benefit of hearing and seeing the witnesses, unless, of course the Supreme Court is satisfied that the trial court, in its evaluation of the evidence, was wrong in principle or did not take into account certain evidence or did in fact take into account evidence it ought not to have. Wilson Masautso Zulu v Avondale Housing Project Limited (1982) ZR 172 followed.
2. It is trite that for an action in negligence to succeed, it must be shown that the defendant owed a duty of care to the plaintiff; that that duty had been breached; and, that the plaintiff had suffered damage by that breach. The law of negligence also places a duty on a manufacturer of products to take reasonable care.
3. The law of negligence places the burden on the claimant to prove every element of the tort. During the course of a trial, whilst the state of the evidence as to some particular issue was to impose a provisional burden of proof on the defendant to rebut an inference or presumption to which the evidence gives rise, the legal burden of proof continues to rest throughout upon the claimant as the person alleging negligence. This means that the evidence led must allow the court to proceed beyond pure guesswork so as to reach an appropriate legal inference. This provisional burden was properly discharged by the Respondent. In the circumstances, the legal burden still rested on the Appellant to prove that he suffered injury as a result of the Respondent's breach of duty. This burden was not discharged by the Appellant.
4. The findings of foreign matter in the castle beer notwithstanding, the absence or failure by the Appellant to produce the actual bottle containing the fungal matter and the resultant failure to establish if the beer was a product of the Respondent were fatal to the Appellant's case, as these went to the root of the claim. This is more so in the light of uncontroverted evidence by the Respondent that they found foreign brands of castle lager beer in Titanic Bar from which the beer was bought and counterfeit castle lager on the market in Kapiri Mposhi.