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The Respondent was involved in a road traffic accident after his car plunged into a trench that was dug by the Appellant. The Respondent and his passengers sustained serious injuries and suffered permanent disability. Additionally, the Respondent’s vehicle was damaged beyond repair. The Respondent accordingly claimed the sum of K854 960 as refund for medical and travel costs to India, K 110 000 as compensation to replace the damaged motor vehicle, K 360 000 as compensation for permanent disability as well as costs. On the balance of probabilities, the Respondent proved his case and it was found that the Appellant had been negligent and judgment was entered for the Respondent. The matter was referred for assessment to the Deputy Registrar for the assessment of medical bills and travel costs. The Court also awarded the Respondent special damages in the sum of K 110 000 for the replacement of motor vehicle.
The Appellant appealed being dissatisfied with the lower Court’s judgment.
1. There were no warning signs and the failure by the Appellant to erect the same amounted to a breach of a duty of care.
2. The absence of expert evidence on the estimated speed of the Respondent’s motor vehicle means that the trial court cannot competently come to a conclusion about the speed of a vehicle. The Appellant contended that there was sufficient evidence on record to satisfy the trial judge that the Respondent travelled at high speed and contributed to the accident. We do not find this evidence on record. The case of Litana v Chimba and Another (1987) ZMSC 21 approved.
3. The Appellant raised an argument that the Respondent ought to be held liable in contributory negligence, however, it was not pleaded and was only raised for the first time by the Appellant’s counsel in submissions.
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.