20191212 TZHC Dar es Salaam

JI IN THE UNITED REPUBLIC OF TANZANIA THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM CIVIL APPEAL NO. 250 OF 2017 (Originating from the Judgment of the Resident Magistrate's Court of Dar es Salaam at Kisutu in Civil Case No. 88 of 2005) RAMADHANI I.S.K KAFUNGO ------------------------------ APPELLANT VERSUS THE AGAKHAN HOSPITAL--------------------------------- RESPONDENT JUDGMENT MUTUNGI, J. The appellant herein has raised three grounds of appeal after was dissatisfied with the Judgment and Decree of the Resident Magistrate's Court of Dar es Salaam at Kisutu. The same are as hereunder: - ( 1) That the trial Magistrate erred in law and fact by disregarding the evidence adduced by the appellant and his witnesses. r j ,, (2) That the trial Magistrate erred in law and fact by not evaluating the evidence adduced by the appellant and his witnesses. (3) That the trial Magistrate erred in law and fact by passing the judgment in favour of the respondent despite the weak evidence adduced by the respondent. WHEREFORE, the appellant prays before this honourable court for: - ( 1) To quash the decision of the trial court and pass decision in favour of the appellant and the prayers in the plaint. (2) Costs of the appeal be borne by respondent. (3) Any other relief (s) this honourable court may deem just and fit to grant. The appellant herein was dully represented by Mr. Taslima, learned counsel, whereas the respondent was advocated by Mr. Michael Chahe, learned Advocate. 2 Before venturing into the merit of this appeal it is imperative to lay down the historical facts leading to the filing of the same. The appellant had before the lower court filed a suit against the respondent claiming for the sum of Tshs. 50,000,000/= as damages resulting from the respondent negligence in HIV blood screening test conducted upon the ~ap_p_ellant._ T_he _ sarne was asEsu!t__Qf the_ app~llant _and _the would - be wife (Hadija Karunga) having gone to the respondent for HIV blood screening. The same was 1n determination of whether the two could get married. Despite the respondent knowing that the blood test must be done with great care, the respondent negligently gave the appellant results which showed that he had tested HIV positive. In view thereof, the wedding ceremony was disrupted and the marriage was never consummated. The appellant incurred losses for the preparation of the anticipated marriage. The appellant confused went to Muhimbili National Hospital on the following day 19/10/2003 to cross check the respondent's results and the outcome was that he tested negative. On 20 th day of October, he cross 3 checked with ANGAZA and was still found to be negative. Still not satisfied he checked with AMREF and the results were once again negative. The appellant went back to the respondent ordering the same to make an apology in the newspaper but the respondent refused. The respondent proceeded to request the appellant to retest for confirmation of the original results but the appellant dis -- - --a~peeree-iA-s-teed-i-nst-it-ut-e-d-t-t:le-cas.e ir:t-the .tr:i.al _court. ______ _ Having synthesized the evidence adduced before it, the court found the respondent was not negligent as alleged despite having a professional/fictuary duty towards the appellant. Further, the court found the appellant had failed to prove or account for the alleged loss suffered by the respondent's acts. In support of the appeal the appellant's counsel submitted having consolidated the first and third grounds that, the trial Magistrate did not consider the appellant's evidence wholistically. The appellant's witnesses PWl, PW3 and PW4 had gone at length to narrate the circumstances under which wrong results may be obtained from screening. Among these was the use of different protocols, the use of 4 I' expired kits and sample mislabeling. All this testimony did not feature anywhere in the trial court's judgment. As regards the second ground of appeal, the counsel submitted that all the witnesses had agreed that sometimes wrong results may occur but were not at one with the circumstances leading to the wrong results. Had the trial Magistrate properly evaluated the evidence would have found, wrong results may occur but this is caused by human negligence. The respondent's act of declaring the appellant HIV positive while he was not, was sheer negligence which was not in accordance with good medical practice as per the case of CASSIDY V. MINISTRY Of HEALTH (1951) 2 KB and the case of THEODELINA ALPHAXAD (MINOR) SUING BY NEXT FRIEND V. MEDICAL OFFICER INCHARGE, MKINGA HOSPITAL [1992] TLR 235. In response the respondent's Advocate submitted what the appellant' witnessed had emphasized, that wrong results can occur due to the different instruments used or expertize error but not negligence. The instruments used were capilas and Bitamine and results could differ if different protocols are used. The witnesses did not explain whether they tested 5 further in the main laboratory so as to use other instruments apart from capilas and Bitamine. On the other hand, the respondent's witnesses testified that they used all the instruments after getting contradictory results from the two instruments from the rapid test (capilas and Bitamine). The third test they used was approved by the Ministry which can discover HIV infection acquired within 7 days. This is why they -ne-ver- got-e-ny-c~0mp-loiflt-fr0m-tt"le-a~pellont. -They_ were_ surprised to find a case against them in court. It is thus clear that the instruments used were not suggesting any negligence on the part of the responding what they did is they used a different protocol. What the respondent used was not out of choice but as per the health guidelines of 2003. What matters is the use of protocols and instruments which can result to different results but this is not out of negligence. The counsel concluded by praying to the court to dismiss the appeal. Having summarized the submissions from the rival camps, the issue is whether there was negligence on the part of the respondent in line with the appellant's evidence adduced 6 before the trial court. The appellant was of the view that had the trial Magistrate evaluated the evidence on his side would have found indeed the respondent was negligent. More so, the respondent had very weak evidence. I will now deal with the appeal generally. On the outset, I would like to register by observations that, the matter in dispute involved professional medical expertise. - - --- ·- - ---- -- - - ·- - - ·---- - --- -- ·-· -- --- --- - - --- - -- One was to be appraised by the procedure and instruments used in conducting the HIV tests and the health guidelines to conclude whether there was negligence in testing the appellant HIV positive. The trial Magistrate findings and as per the appellant's witnesses did confirm that in testing HIV depending on the protocol used and instruments, results could differ and these could be subject to further methods as per the health guidelines. Given such explanation no wonder, this could have happened in the case of the appellant. The appellant's witnesses did not rule out this possibility. It can thus be concluded as did the trial Magistrate that it is not all about negligence but instruments and protocols (procedures). The appellants side testified that by then were using the rapid test which too had to undergo a 7 further test in case there are conflicting results at the main laboratory at AMREF. This is why, this court finds that it is all about medical procedure and instruments and not negligence. No wonder the respondent's side came up with the narration that they had already been using the third generation procedure which was very modern. When testing the appellant having found that the RAPID testing was giving -contra di ctory-festJlt-s-;--they res-er-t-ee-t-0--the third gener:et-i-en---- tes t and got the positive result. To the contrary the appellant's side did not mention if at all they too opted to carry out a test on the appellant using the same method used by the respondent. In such given circumstances, it was right for the trial court to rule out that there was no evidence to disclose there was negligence on the respondent's side. The trial court had properly evaluated the evidence and came to the proper conclusion. The cited cases of CASSIDY and THEODELINA (SUPRA), these relate to the negligence of the staff in that: - "if a man goes to a doctor because he is ill, no doubts that the doctor, must exercise reasonable care and skill, in his treatment, of him". 8 -·----·--------·----~ or • "where in a hospital, the doctor engaged, has seen tt him and the patient, established the doctor and patient relationship by accepting him/her for treatment purposes, the said doctor has a duty of care, and has to exercise the same with skill attendant to modern medicine and surgery, under - permitting or circumstances''. - -- - -- --- -- - - - -- In the present case, the respondent was carrying out a blood test which was subject to laid down protocols and instruments. These were at variance depending on the specific institution. These were the determining factors not the respondent's staff. In the upshot, I find no merit in the appeal and the same is dismissed with costs. B. ~t--R.-M-U_T_U_N_G--rr JUDGE 12/12/2019 9 CT ... ------,..,- - - - - , Read this day of 12/12/2019 in presence of appellant, Mr. France Mkinga the appellant's Advocate and Miss. Lillian Mdemi for the respondent. 4= cl B. R. MUTUNGI JUDGE 12/12/2019 Right of appeal explained. ~- B. R. MUTUNGI ~ . JUDGE 12/12/2019 10 II Ill- m,::W11■ ■ rm