KABAYIJUKA v. GOVERNMENT OF RWANDA (Minisanté)

# KABAYIJUKA v. GOVERNMENT OF RWANDA (Minisanté)

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2014-12-19 - Case/document no.: RADA 0054/12/CS - Collection: Supreme Court

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KABAYIJUKA v. Government of Rwanda (Minisanté) [Rwanda SUPREME COURT – RADA 0054/12/CS (Mukanyundo, P.J., Rugabirwa and Gakwaya, J.) 19 December 2014] Civil liability – Vicarious Liability – Employers’ Liability for Wrongdoing of Employee – The employer is vicarious liable for the negligent acts of his employuee committed in the course of their employment . Damages – Damages awarded basing on ex aequo et bono – Computation of pecuniary compasation – In the circumstances were the victim do not produce the evidence demonstrating what he spent but when its eminent that such action lead to some expenses , he is awarded damages ex aequo et bono – Pecuniary compensation are computed basing on the salary of ten months considering also the leverl of disability and the lucrative year. . – Itegeko ryo kuwa 30/07/1888 rigenga amasezerano cyangwa imirimo nshinganwa, ingingo za 258 n’iya 260. The daily minimum wage – Two thousand five hundrend Rwanda francs(2.500)is the daily minimum wage – Sixty thousands Rwandan francs is the minimum guaranteed wage (MGW) Facts: Kabayijuka went for the medical treatment at the Health centre of Nyarubuye and he was injected with an injection on the thigh by aperson resembling to be a doctor called Hakizimana and latter he felt excessive pain . The health centre transferred him to Kibungo hospital but in vain instead he got disabled . basing on that ground he sued the Ministry of Health in the High Court chamber of Rwamagana claiming for the damages because the disability was caused by tha injection which was injected by their employee. The Court ruled that the claim has no merit. Kabayijuka appealed in the Supreme Court on the ground that the Court disregarded the evidence and it held that the Ministry is not vicariously reliable that there is no evidence to show that the injection he was injected is the one which made him disable and moreover Hakizimana was an employee who pretended to be a nurse a with the help of his superiors and for his superiors at the health centre allowing a person without the competence to carry out the function of a nurse his employer should be vicariously reliable for the gross negligence The Ministry of Health adduce that it is not reliable because there is no evidence to demonstrate that the disability was caused by their employer and moreover he witnessed in the court that he was injected by a person who is not a doctor but putting on the clothes of a doctor, that is to say that he was not employee of Ministry of Health ,to say that he did it in the duties it attributed to him... . Summary of the ruling: 1. An employer is liable for the faults of the employee in case they were committed within his or her responsibility, during working hours, the Ministry of Health is liable because it was the faults of its employee that led to incapacity of Kabayijuka who was admitted in that hospital.

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2. In case the victim does not produce evidence to indicate the amount of money spent because of the damaging act yet it is clear that that act made him or her use a certain amount of money to remedy that damage he or she must be awarded in the discretion (ex aequo et bono) the adequate amount of money. 3. 2500 Rwf is the adequate daily wage that at least an ordinary employee basing on the structure of the prices on the market and the level of current wages in the country. Thus, 60,000 Rwf is the adequate minimum wage (SMIG in French acronym) 4. Compensatory damages are calculated basing on the 12 months salary and the level of incapacity and his or her her remaining lucrative period for him or her to reach 65 years. 5. The Court awards her moral damages, financial damages, medical expenses and transport. The appeal is founded; the Ministry of Health is liable of the faults committed by Hakizimana Sylvestre, its employee, It ordered the Ministry of Health to pay Kabayijuka moral damages pecuniary compesation , medical and transport expenses.

Statutes and statutory instruments referred to:Law of 30/07/1888 regulating contracts and obligation article 258 and 260. Cases referred to: Nyetera v. CORAR,RCAA 0202/07/CS , rendered by the Supreme Court on 0/4/2009.. Judgment BACKGROUND OF THE CASE I. SUMMARY OF FACTS [1] KABAYIJUKA Gaspard sued the Ministry of Health (Minisanté) before the High Court, the Chamber of Rwamagana asserting that she went to seek Medical Care at the Health Center of Nyarubuye on 12/12/2000, while he was waiting for the nurse, comes somebody seeming to be a nurse called HAKIZIMANA Sylvestre and injected him on the thigh and from then he felt extreme pain. The Health Center transferred him at Kibungo Hospital which did not yield anything and he became seriously incapacitated. Due to that reason he requested the High Court to condemn the Ministy of Health to pay him damages since the incapacity he has was caused by that injection and the person who injected him was its employee, that Court ruled on that case RAD 0003/12/HC/Rwg holding that his claim is not founded and the government of Rwanda (Ministry of Health) is not liable of any damage.

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[2] KABAYIJUKA Gaspard was not contended with the ruling and appealed before the Supreme Court on 25/10/2012, asserting that the High Court did not consider the testimonies of witnesses all affirming that he was injected by HAKIZIMANA Sylvestre, the employee of the Health Center of Nyarubuye and the incapacity was resulted from that injection. He explains that the High Court did not consider the admission of the State Attorney that he has to be awarded damages. [3] The public hearing was held on 23/9/2014 and on 12/11/2014, KABAYIJUKA Gaspard represented by Me KARANGWA Vincent and the Ministry of Health represented by Me UMWALI Claire, the State Attorney. II. THE ANALYSIS OF LEGAL ISSUES a. To know whether the Ministry of Health may be laible of the faults committed by HAKIZIMANA Sylvestre [4] Me KARANGWA Vincent, the counsel KABAYIJUKA Gaspard asserts that as indicated on page six of the judgment appealed against, the High Court ruled that the Ministry of Health should not be liable since there is no evidence to prove that the needle KABAYIJUKA Gaspard was injected was the cause of his incapacity, therefore he finds that it did not take into consideration the statements of witnesses who testifies that HAKIZIMANA Sylvestre who injected the needle in KABAYIJUKA Gaspard was the employee of the Health Center of Nyarubuye. [5] He explains that HAKIZIMANA Sylvestre was an employee who qualified himself as a nurse, which was endorsed his superiors and he therefore he finds that the fact that the directors of the health center accepted that the person without capacity to carry out nursing to carry it out, his employee has to be laible of his faults, since they are serious faults. [6] He also explains that though the medical doctor NGABONZIZA Adélard affirmed in his report of 4/9/2003 that it is not easy to know the cause that incapacitated KABAYIJUKA Gaspard, but in his written statement of 20/1/2003 by the time he transferred him at the hospital of CHUK, indicated the cause of his incapacitation is the needle he was injected in the thigh two years ago. He further asserts that the medical doctor Marc, a specialist in knesterapy also stated that the incapacity of KABAYIJUKA Gaspard was due to the needle he was injected and there a medical doctor he met on 12/12/2000 who affirmed in the French language that there has been “paralysie suspecte suite à une injection intramusculaire injectée par Sylvestre dans le nerf sciatique” [7] He concludes asserting that in her submissions at the first instance, the State attorney also affirmed that the State has to award reduced damages to KABAYIJUKA Gaspard as those he claimed were excessive and hed therefore finds that the High Court should have not refused to rule that the faults were committed the Health Centers employee.

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[8] KABAYIJUKA Gaspard explains that he went at the health center suffering from malaria, feeling pain in the stomach but able to walk alone, and after arriving there he was admitted and they brought serum mixed with drugs and injected him in vessels. He asserts that the person who injected him that serum told the nurses there present not to remove it from him, that he will remeove it from her the next morning, and when it reached at 1:00 pm he removed it from him and injected him a needle at 9:00 am, in the morning HAKIZIMANA Sylvestre who was their nurse injected him another needle and fell down. He also asserts that the senior nurse knew that HAKIZIMANA Sylvestre had to inject that needle, sicne he was the one who injected even other patients and it was not the first time he injected him and it is also indicated in his former medical booklet. [9] With respect to the pay indiating the employees of health center of Nyarubuye produced Me UMWALI Claire, Me KARANGWA Vincent asserts that there is no doubt that HAKIZIMANA Sylvestre was the employee of the Ministry of Health, since he was a health auxiliary, that is to say that he was an employee of the health center with capacity to inject a needle. The fact that they gave Me UMWALI Clsaire the pay roll of November 2001, that should be considered to be a sample because if she could ask the time HAKIZIMANA Sylvestre started his duties they would have told it to him. [10] Me UMWALI Claire, the counsel of the Ministry of Health asserts that there has not to be the liability on the side of the Ministry of Health, since the incapacity KABAYIJUKA Gaspard purports to have, there is no proof that it was caused by its employee, yet KABAYIJUKA Gaspard stated before the court that that needle was injected by the person who was not a nurse who wore the uniform of nurses. That means that even if that person has ever existed as he asserts, he was not the employee of the Ministry of Health and did that within the mandate it accorded to him. [11] He explains that with regard to HAKIZIMANA Sylvestre who is reiterated in this case, KABAYIJUKA Gaspard stated before the High Court that he was a cleaner at the health center of Nyarubuye, the reason he request the court to summon him and give the information since the employer is liable of the acts of the empoloyee when he gave him or her the mandate. [12] He also explains that the reportd of the medical doctor of 4/9/2003 which indicates the cause of the incapacity of KABAYIJUKA Gaspard is not clear, where it states in its conclusion as follow ‘‘steppage du pied droit dont la cause est difficile à préciser ce jour d’examen‘‘. [13] With regard to the payroll of employees requested by the court Me UMWALI Claire explains that it indicates that HAKIZIMANA Sylvestre was a health auxiliary. She further explains that the fact that KABAYIJUKA Gaspard was injected the needle in 2000 yet that list was drawn in 2001, there is no evidence that it is HAKIZIMANA Sylvestre who injected him that needle and there is no evidence to prove that it is that injection that caused him walking abnormality so that it be imputed to the Ministry of Health. COURT FINDINGS [14] Article 258 of the Civil Code Book III provides that the act of the person that causes damage to another compels the author of the fault arising therefrom to reapair the damage.

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[15] Article 260 paragragh 3 of the Civil Code Book III provides that the masters and employers are liable of the damage caused by their employees while discharging their duties [......]‘‘. [16] The Supreme Court finds that as indicated in his medical booklet KABAYIJUKA Gaspard went to the Health Center of Nyarubuye on 8/8/2000 to seek medical treatment of malaria, nausea, diarrhea and gastrite but on 12/12/2000 had the paralysis as affirmed by the written statements of Medical Doctor GAFURAMA Claude in that booklet where he states as follow: ‘‘paralysie suspecte suite à une injection intramusculaire injectée par Sylvestre dans le nerf sciatique‘‘. [17] The Supreme Court finds that from that time KABAYIJUKA Gaspard continued to seek medical treatment for that paralysis in different hospitals including the hospital of Kibungo, Rwamagana and CHUK. [18] The Supreme Court finds that though there is time when KABAYIJUKA Gaspard asserted that HAKIZIMANA Sylvestre was a cleaner at the Health Center of Nyarubuye and the other time he said that he was a nurse, but as indicated by the payroll produced by UMWALI Claire, HAKIZIMANA Sylvestre was the assistant nurse at the Health Center of Nyarubuye by the time KABAYIJUKA Gaspard encountered the problem of paralysis he has and he is the one who injected the needle that led to that problem as affirmed by the medical doctor GAFURAMA Claude. [19] The Suprme Court finds that on the explanations given in the previous paragraph, HAKIZIMANA Sylvestre was one of the employees of the Health Center in charge of treating patients (medical corp), which is the reason why he injected the needle KABAYIJUKA Gaspard for the purpose of treating him using the instruments of the Health Center of Nyarubuye. [20] With respect to the arguments of the Ministry of Health that according the medical report (report of medico-legal expertise) of NGABONZIZA Adélard of 4/9/2003, there is no proof that the paralyisis of KABAYIJUKA Gaspard was caused by the needle injection as he purports, since that report states in its conclusion as follow: ‘‘steppage du pied droit dont la cause est difficile à préciser à ce jour‘‘, the Supreme Court finds that it cannot base on that report established three years after from the time of appearance of that paralysis, yet the medical doctor GAFURAMA Claude after consulting KABAYIJUKA Gaspard affirmed that on 12/12/2000, the that problem raised, that the needle he was injected by HAKIZIMANA Sylvestre was the root cause of the paralysis as explained under paragraph 16 of this judgment. [21] With respect to the liability of the Ministry of Helath for the faults of HAKIZIMANA Sylvestre, who was its employee by that time, the Supreme Court finds that according to the provisions of article 260, paragraph 3 f the Civil Code Book III stated above, the employer ios liable of the faults of his employee in case they were committed within his or her duties and during working hours, therefore the fact that the acts of HAKIZIMANA Sylvestre harmed KABAYIJUKA Gaspard while he was discharging his duties, during working hours and using the instruments of the health center of Nyarubuye in its interests, the Ministry of Health must be

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liable of those acts, since the faults of its employee was the cause of the paralysis of KABAYIJUKA Gaspard who was admitted therein. 1 [22] The Supreme Court finds that the statements above are underpinned by the scholarly legal writings, where they explain that the employer is liable for the damage caused by his employee when among the acts he or she committed; at least one of those acts is related to his or her duties.2 [23] In light of the foregoing legal provisions and explanations, the Supreme Court that ground of appeal of KABAYIJUKA Gaspard is founded. b. To know whether KABAYIJUKA should be awarded damages he claims [24] Me KARANGWA Vincent asserts that KABAYIJUKA Gaspard request the court to award him moral damages equal 5,000,000 Rwf , he also requests financial damages equal 60,000 Rwf a month equal to his estimated salary in his daily business that have to be calculated starting from 12/12/2000, he also requests another amount of 200,000 Rwf which includes the medical expenses and transport going to attend court proceedings, which is in total 13,480,000 Rwf until June 2012. [25] Me UMWALI Claire asserts that all damages KABAYIJUKA Gaspard claims should be awarded them, since it is not the Ministry of Health that has to be liable. COURT FINDINGS [26] Article 258 of the Civil Code Book III provides that “any personal act that causes damage to another person compels the author of the fault arising therefrom to reapair the damage.” [27] According to the provisions of article 258 of the Civil Code Book III stated above, the compensation of the loss (damage) has to be effected in an intergral or complete way but for that to be possible that loss has to be proven. [28] [29] The Supreme Court finds that in case the victim does not produce evidence proving the maount of money spent due to the harmful act yet it is clear that that act incurred him or her some expenses for redressing that damage as indicated in this case it is obvious that KABAYIJUKA Gaspard has to spend his money for medical treatment, payment of medicines, 1‘’ La jurisprudence décide que la responsabilité du commettant existe dès que l’acte dommageable a été accompli pendant la durée du service, et en relation avec ce service’’ in Henri De Page Traité élémentaire de droit civil Belge, tome deuxième, Les incapables-Les obligations Bruylant, Bruxelles, 1964, P. 1019. 2 ‘’On peut se contenter d’un simple lien de connexité entre l’acte dommageable du préposé et ses fonctions, pour pouvoir engager la responsabilité du commettant. L’auteur continue en disant que’’ lorsque l’acte du préposé consiste en un exercice défectueux de ses fonctions, le rattachement est manifeste: tel est le cas d’un chauffeur livreur qui commet un accident de la circulation du fait d’une vitesse excessive… CH. Larroumet, note sous cass. Com.12 oct. 1993, Dalloz.1994.124, séc.p. cité par Françoise BENAC-SCHMIDT. This is also the position held in RPA 0210/10/CS rendered by this Court on 18/7/2014, the Prosecutor v MUNYANKUMBURWA Valens, MANIRARORA Rosette, its four children and Burera District.

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transport, meals, he has to be awarded, within the discretion (ex aequo et bono) the adequate amount indeed. 3 [30] Though there is no evidence produced by KABAYIJUKA to prove the salary of 60,000 Rwf that he asserts that he estimated for himself a month and there is no law put in place yet establishing the minimum wage (SMIG) the Supreme Court finds that 60,000 Rwfs is adequate , as even this court in the case RCAA 0202/07/CS rendered on 9/4/2009, it held that 2, 500 Rwf is the adequate salary for an ordinary worker per day basing on the market price structure and the lavel of wages in the country, therefore 60,000 Rwf is the basis in calculating financial damages to be awarded to KABAYIJUKA Gaspard, taking into consideration the level of his incapacity and the lucrative survival for him to reach 65 years. [31] With regard to moral damages equal to 5,000,000 Rwf requested by KABAYIJUKA Gaspard, the Supreme Court finds that he should be awarded it due to the pain he suffered after the injury of thigh nerve by the needle he was injected as explained above and the entire period he spent in illness, but the amount he claims is excessive and it in its discretion awards him 1, 500,000 Rwf. [32] With regard to financial damages, KABAYIJUKA Gaspard he is owed, the Supreme Court finds that such amount is calculated as follow: 60.000 Frw x12 (amezi) x15 (taux d’incapacité) x 5 (lucrative survival) -----------------------------------------------------------------------= 540.000 Frw. 100 [33] With regard to 200,000 rwf of medical expenses and transport fees spent while attending court proceedings, the court finds that he should be awarded this amount, since it is adequate. [34] The Court finds that KABAYIJUKA Gaspard is awarded 1,500,000 Rwf of moral damages, 540,000 Rwf of financial damages and 200,000 Rwf of medical expenses and trnasport fees, 540,000 Rwf of financial damages which totals at 2, 240,000 Rwf. III COURT DECISION [35] It holds that the appeal of KABAYIJUKA Gaspard is founded. [36] It holds that the Ministry of Healh is liable of the faults committed by HAKIZIMANA Sylvestre, its employee who caused harm to KABAYIJUKA Gaspard. [37] Orders the Ministry of Health to give Kabayijuka Garspard KABAYIJUKA Gaspard 1.500.000 Frw for moral damages , 540.000 Frw and pecuniary compensation 200.000 Frw medical fees and transport cost all amounting to 2.240.000 Frw. 3 ‘’L’évaluation du dommage ex aequo et bono ne peut être adoptée ;par le juge comme mode d’évaluation que si, d’une part, il donne la raison pour laquelle une autre base d’évaluation, proposée par une des parties, ne peut être admise en l’espèce, et si, d’autre part, l’évaluation ne peut, à défaut d’éléments plus sûrs, se faire qu’ex aequo et bono’’, in Henri De Page, Traité élémentaire de droit civil Belge, tome deuxième, Les incapables-Les obligations Bruylant, Bruxelles, 1964, P. 1070.