[2022] KEHC 15891 (KLR)

Wroe v AAR Health Services Limited (Civil Case 979 of 2006) [2022] KEHC 15891 (KLR) (Civ) (11 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15891 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Case 979 of 2006

JK Sergon, J

November 11, 2022

Between

John Kenneth Wroe

Plaintiff

and

AAR Health Services Limited

Defendant

Judgment

1. John Kenneth Wroe, the plaintiff herein, filed this suit by way of the plaint dated 14th September, 2006 against AAR Health Services Ltd the defendant whereof he sought for judgment as follows:i.A declaration that the defendant be liable to pay for all medical expenses due on account of the plaintiff’s treatment in South Africa.ii.In the alternative, the injuries and condition of the plaintiff having arisen as a consequence of the defendant’s negligence a declaration that the defendant is liable to meet all the resultant costs for the proper management of the plaintiff’s medical condition.iii.Refund of all monies paid as a consequence of the subsequent hospitalization of the plaintiff.iv.Special damages of kshs.920,000/=.v.General damages for pain and suffering and for loss of earning and or earning capacity.vi.Interest on (a) (b) (c) (d) and (e).vii.Such further or other orders as to this court may deem just.

2. The defendant filed its defence on 11. 10. 2006 which was further amended on 17. 11. 2015 upon enjoining a Third Party and raised a counter-claim against the third party for ksh.1,455,509/= interest plus costs. In response, the plaintiff filed a reply to the defence and counter-claim.

3. The plaintiff (PW 2) testified and also called Col. Dr. Andari George (PW 1) to testify in support of his case. Dr. Andari George, an orthopaedic surgeon presented a medical report on the two operations he performed on John Kenneth Wroe. PW 1 stated that he relied on the patient’s chronicled account and images plus the radiologists report by Dr. L. Podgietor and Dr. Haagensen and Lurie Incorporated in South Africa.

4. It is the evidence of PW 1 that the MRI done on the plaintiff (PW 2) was not the proper tool of investigation in the background of a huge metallic implant within the knee since the MRI magnet is more than 30,000 times the force of gravity.

5. According to PW 1, there was an element of professional negligence in the management of the complications following the index knee arthroplastly that appears to have been successfully performed in India. The plaintiff testified and detailed the ordeal he underwent under the hands of AAR (defendant)

6. PW 2 stated that he was made to undertake an MRI examining while having a huge metallic implant which caused him a lot of pain and discomfort necessitating a second surgery. PW 2 also explained how the defendant demanded ksh.920,000/= that was paid under duress as the plaintiff was in hospital in a foreign country and downgrading him from Gold to Silver after it had already received the premium done in bad faith.

7. Suresh C. Repanelia, the Third Party testified and supported the plaintiff’s case and gave the chronology of events that led to the filing of the instant suit. The Third Party denied that it owed the defendant ksh.1,803,439/10 or any money at all. The Third Party urged this court to dismiss the counter-claim and order the defendant to refund the sum of ksh.920,000/= paid to the defendant under duress. The 3rd party also pointed out that the defendant’s claim against him was time barred.

8. AAR Health Services Ltd, the defendant herein, summoned Dr. Jared Osoro (DW 1) to testify in support of its defence. DW 1 stated that the plaintiff was a silver member and had exhausted his limit at the material time. Dr. Osoro (DW 1) further stated that the plaintiff was not entitled to the amount on Gold status. The defendant urged this court to dismiss the plaintiff’s suit and allow the counter claim.

9. The following issues were identified for determination:i.Whether the plaintiff was covered by the defendant as a Gold member or silver member under the medical cover.ii.Whether the plaintiff was attended to by the defendant and or its agents during the surgery in India and after coming from India.iii.Whether the defendant was negligent thereby causing the plaintiff to undergo further surgery and whether the defendant is responsible for the loss of earning capacity as a fire fighter and whether the plaintiff is entitled to damages.iv.Whether the plaintiff is entitled to a refund of kshs.920,000/=.v.Whether the plaintiff and the Third Party are liable to pay for the sums settled by the defendant in excess of the cover limit sought in the counter-claim.

10. On the first issue as to whether the plaintiff was covered as a Gold member or silver member under the medical cover by the defendant, I have already set out the positon taken by each party. It is the plaintiff’s view that he applied for Gold card cover in 1999 and in 2004 when brokers applied for renewals and upgrade from Silver to Gold and that he paid premium to the defendant through his company known as Nimrod Africa Ltd.

11. It is the plaintiff’s averment that the amount of premium was never refunded and this court was urged to find that the plaintiff was covered under Gold card. The defendant aver that the premium was refunded.

12. Having considered the competing evidence plus the rival submissions, I have come to the conclusion that there is no evidence presented to support the defendant’s assertion that it refunded the amount paid as premium for Gold card. I am persuaded by the plaintiff’s argument that the defendant could not purport to make a refund of the premium when the plaintiff sought cover. I find and hold that the plaintiff was covered under Gold membership which had a limit of ksh.10,000,000/= and not Silver membership which had a limit of ksh.2,000,000/=.

13. In respect of the second issue as to whether the plaintiff was attended by the defendant and or its agent during the surgery in India and after coming back from India. It is the plaintiff’s case that through the defendant and by its guidance on treatment of his right knee which was causing him a lot of pain recommended replacement of the knee at Apollo Hospital Hyderabad, India.

14. The plaintiff further averred that he was admitted to the aforesaid hospital on the supervision, authorization and control of the defendant and instructed on an arthopaedic surgeon at the hospital to attend him. In other words the plaintiff is categorical that the defendant recommended medical facilities to which he would receive treatment.

15. The defendant denied prescribing or carrying out any surgery or procedure on the plaintiff. It is not in dispute that the defendant recommended and referred the plaintiff to some facilities and specialists at which he got the services he required.

16. It is also apparent from the evidence presented that the plaintiff relied on the advice of the doctors and management of his condition and was operated on and knee replacement done. It is also apparent that the plaintiff came back to Kenya from India and continued with follow up and attended to by the defendant’s doctors, nurses and health professionals at the defendant’s clinic. It is clear from the evidence presented by the plaintiff that the defendant’s doctors ordered the plaintiff to undergo an MRI which the plaintiff obliged.

17. In my humble view, I am satisfied that the plaintiff was attended to by the defendant and or its agents during the surgery in India and in Kenya after coming back from India.

18. In regard to the third issue which is whether the defendant was negligent thereby causing the plaintiff to undergo further surgery and whether the defendant is responsible for the loss of earning capacity. According to the plaintiff, the defendant was negligent when he made the plaintiff undergo an M.R.I examination thus causing complications following a successful surgery in India.

19. The defendant is of the submission that the plaintiff had failed to discharge the burden of proof of professional negligence on its part. It is clear from the medical report presented by Col. Dr. Andari George (PW 1) that the MRI is 30,000 the force of gravity and was likely and indeed loosened the implant interface leading to implant failure.

20. I am convinced that the defendant and or its agents are guilty of medical negligence in the management of the complications.

21. The fourth issue is whether the defendant is responsible for loss of earning capacity as a fire fighter and whether he is entitled to damages. The plaintiff has averred that he was running a successful fire fighting company as the executive director engaged in fire surveys and consultants earning a sum of ksh.300,000/= per month and that as a result of the negligence on the part of the defendant, the plaintiff could not continue working.

22. He stated that he is unable to undertake surveys and therefore his earning capacity disminished. I am convinced that the defendant is responsible for the loss visited upon the plaintiff by the defendant’s and or its agent’s negligence.

23. I am also satisfied that the plaintiff has tendered evidence showing that due to his ailment he is unable to climb places and undertake surveys as required by his profession as a fire fighter and as a result, his earning capacity diminished. The plaintiff is therefore entitled to damages for loss of earning capacity.

24. The fifth issue is whether the plaintiff is entitled to a refund of kshs.920,000/= being the sum paid by the Third party towards the plaintiff’s treatment in South Africa. According to the defendant, the fact that the plaintiff’s silver card was never upgraded to Gold in 2004, he remained covered under the silver cover limit of kshs.2,000,000/=

25. Having found that the plaintiff is entitled to damages for loss of earning capacity, I am satisfied that the damages proposed by the plaintiff is reasonable. The plaintiff could have worked upto the age of 64 years hence he could have worked for 5 years since he was 59 years old at the time. Consequently he should be awarded ksh.21,600,000/= tabulated as follows ksh.300,000x12x5=21,600,000/=

26. The defendant averred that the defendant covered the first surgery in South Africa in Millpark Hospital where the defendant agreed to cover ksh.1,300,000/= but the plaintiff utilized kshs.1,990,672/19 leaving a balance of ksh.9,327/= on his cover. It is the defendant’s averment that by the time the plaintiff was being re-admitted he had already exhausted his medical cover and that the defendant was under no obligation to continue payment of his medical costs.

27. The plaintiff has averred that he is entitled to a refund of the aforesaid amount since the same was paid under duress. Having considered the rival positions taken by the parties, I find that the plaintiff has demonstrated how he attended hospital in South Africa and that in the middle of treatment, the defendant demanded payment of ksh.3,295,900/= as the cost of treatment in South Africa.

28. It is not disputed that the plaintiff through a Third Party paid ksh.920,000/= under pressure being in a foreign country and in the middle of a treatment. I find the demand of kshs.920,000/= was not justified after receiving premiums for Gold cover. The plaintiff is therefore entitled to a refund.

29. The final issue for determination is whether the plaintiff and the Third party are liable to pay the sums settled by the defendant in excess of the cover limit sought in the counter claim. It is the submission of the defendant that by virtue of their conduct, the plaintiff and the Third party cannot escape liability from what the undertook to pay.

30. The defendant further averred that the duo are liable for the expenses incurred over the limit as claimed in the counterclaim. The plaintiff is of the submission that the defendant’s claim set out in the counter-claim lacks no basis. It is apparent that the defendant’s basis in the counter-claim is on the plaintiff’s and Third party’s conduct.

31. The defendant averred that the duo pledged to settle the claim. The defendant did not tender any credible evidence to support the claim brought out in the counter-claim therefore the same must fail.

32. In the end judgment is entered in favour of the plaintiff and against the defendant as follows:i.The defendant to pay the plaintiff as a refund the sum of ksh.920,000/=.ii.A declaration is hereby made to the effect that the defendant is liable to pay all medical expenses due on account of the plaintiff’s treatment in South Africa.iii.Damages for loss of earning capacity of ksh.21,600,000/= tabulated as follows 300,000x12x5=21,600,000/=iv.The plaintiff is awarded costs.v.The defendant’s claim by way of a counter-claim against the Third party is dismissed with no order as to costs.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 11TH DAY OF NOVEMBER, 2022. J. K. SERGONJUDGEIn the presence of:……………………………. for the Plaintiff……………………………. for the Defendant