[2011] UGHC 195

## THE REPUBLIC OF UGANDA

IN THE HIGH. COURT OF UGANDA AT GULU

## CIVIL SUIT N0.070/2008

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KINYERA DENISH. PLAINTIFF

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VRS **5**

GULU INDEPENDENT HOSPITAL DEFENDANT

BEFORE HON. JUSTICE REMMY K. KASULE

### JUDGEMENT

The plaintiff, filed this suit against the defendant seeking general damages for negligence and interest thereon. The defendan: denied all the claims. IO instead, through a counter claim, the defendant claimed general damages and Shs.26,829,720/= medical fees against the plaintiff for failure to pay the said hospital charges for the treatment provided to him.- -

The background to the case is that the plaintiff, a soldier employed in the UPDF was involved in ^a road traffic accident as he was travelling along the f Gulu-Lira road in February 2006. He sustained severe injuries where upon he was admitted to the defendant hospital for treatment on 07.02.06.

During the course of his stay in the hospital, the plaintiff was diagnosed with dry gangrene on two of his left digits, the index and middle, which required amputation. The amputation was accordingly done by the *0* defendant. Consequently, the defendant suffered permanent disability.

rhe plaintiff contends that the defendant was negligent during the course of reating him which led to the loss of two of his left digits. It is the plaintiffs Jaim that he lost use of his left hand and he cannot actively perform his luties as he is deployed in the artillery section of the army. He further sstified that he was a lieutenant in the army, but because of the disability e has Ibst his opportunities for promotion due to inactivity.

he defendant denied being negligent' and liable. Instead defendant ounter-claimed against the defendant for failure to pay for the medical eatment extended to him.

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ne agreed upon issues are:- **IO**

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- *1. Whether the defendants administered any reactive substance to the plaintiff in the course of treatment.* - *2. If so, whether the plaintiff developed gangrene as ^a result of the said act by the defendant's employees.* - *3. Whether the plaintiff suffered disability by reason of the 15 gangrene as a result of the negligence of the defendant's employees.*

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- *4. Whether the defendant is vicariously liable. \* ^A* - *5. Whether the parties are entitled to the reliefs sought.*

*to the first issue:*

hether the defendant administered any reactive substance to the aintiff during the course of treatment.

rom the evidence of either party, court finds that both parties agree that n anti-biotic called cloxicyclin was administered to the plaintiff. There is o evidence that suggests that the plaintiff suffered from allergies which rould cause any of the side effects mentioned by DWI. The fact that the ame drugs were first administered on the plaintiff's right hand and nothing appened to it further suggests that the medication is not a reactive substance. The defence argued that the drugs administered were regular antibiotics, tested and approved by the National Drug Authority for use in $+0$ accidents. Defence submitted medical forms that indicated the drugs administered included cloxicyclin listed therein. The plaintiff himself testified that he inquired about the medication being administered and he was told it was cloxicyclin. Court finds that the drugs given to the plaintiff in the course of his treatment were in no way reactive substances but rather regular anti-biotics

#### The second issue is:

## If so, whether the plaintiff developed gangrene as a result of the said act by the Defendant's employees.

The medical report on the plaintiff, Exhibit P7, does not indicate anywhere 20 that the plaintiff had any prior serious injuries with his left hand where the gangrene infection developed. Both the evidence of the plaintiff and that of the defendant is agreed that the plaintiff was diagnosed with dry gangrene during his stay in the hospital. This court therefore finds that the plaintiff got the gangrene infection, within the time he was admitted in the

defendant hospital and while receiving treatment for the motor accident injuries. 🛒

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PW2 explained that gangrene is the total death of the muscles caused by an interference with blood flow into that particular affected area. Amongst other causes, he explained that, when an injection is administered poorly, 5 that is, into the artery and not the intended vein, then it may cause gangrene. He further explained that as a result of maladministration, the drugs either burn the blood vessel or irritates it, thus resulting into body tissue damage. That, once there is pain and a swelling, then there is a problem with the injection. Court finds this evidence corroborating the $\mathbf{Q}$ plaintiff's testimony that he felt pain during and after the administering of DWI, Dr. Okia's testimony that after treatment had been the injection. administered to the plaintiff on 14.02.06, there was localized swelling and pain on his left fore arm around the wrist also supports the plaintiff's version. This swelling and pain was due to vein rupture according to DWI. $\mathbf{f}$ The defendant did not present a plausible explanation of what caused the gangrene the plaintiff got, in the course of undergoing treatment, given by the defendant's authorized staff. The defence evidence explained the causes of gangrene and how the medical team in the defendant hospital mitigated the damage. This however did not explain how the gangrene $\gamma$ occurred to the plaintiff in this particular case. The plaintiff on the other hand, asserted with medical evidence as this basis, that maladministration fof the drug injection was the cause of the dry gangrene, in that, the injection was administered in an artery instead of in the vein. This resulted in the "death" of the body tissue resulting into gangrene. Though DWI 🛬 5 stated that the injection was administered in the vein, he provided no basis

*Jy'^c'* ^ls assertion, as he did not personally administer the injection Indeed t - he had. not yet even become ^a staff of the Defendant at the time the J incident happened. Court therefore finds that, the finding by this court on . the first issue notwithstanding, the plaintiff's development of gangrene was a result of the act of the defendant's employees. 4^

# **5** . *The third issue:*

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*Whether the plaintiff suffered disability by reason of the gangrene as ^a result of the negligence of the defendant's employees.*

This issue calls for determination of whether these was (a) negligence on **/ •** the defendant'^s employees, and (b) the extent of the disability of the **IO** plaintiff.

The issue of negligence also covers the fourth issue of whether the de.dunt is vicarious!'' f<?r wh^t hpooAneci tn

Negligence is simply neglect of some care which is bound to be exercised towards someone. Every person must take reasonable care to avoid acts or omissions which can reasonably be foreseen to be likely to injure such a one's neighbour. A neighbour is, in law, a person who is so closely and ; directly affected by one's act that such a one ought reasonably to have him/her, in contemplation, as being so affected when such a one is directing his/her mind to the acts or omissions which are called in question: See: *DONOGHUE VS. STEVENON, [1932] A. C at P.580.*

The degree of care is that which is reasonable in the circumstances of the particular case. The standard is the foresight and caution of the ordinary or average prudent person. A person professing a special skit! must use such a care as is usual with persons professing such a skill.

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The burden of proving negligence is on the plaintiff who alleges it. Damage must be reasonably foreseeable for there to be liability in negligence: See: *The WAGON MOUND [1961] A. C. 388.*

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As regards negligence, the evidence adduced to court, is that the nurse who administered the drug did not ensure the vein in the -eft arm of the plaintiff was for the injection. The result was that the injecfor was done in | *O* the artery instead of the drug being injected in the vein. This particular fact, coupled with the testimony of PW2, that the commonest cause of gangrene is during administration of medication,- and the plaintiffs testimony that he . felt pain during and after injection; plus the medical evidence of DWI that ; there was swelling on the plaintiffs left forearm around the wrist, all create a prima facie case against the defendant for negligence. In *HALL & WIFE* VS *LEES & OTHERS (1904) 2 KB 602:* It was held that a master is liable for the negligent acts of the servant because the servant has been put by the master in a situation to do what the master undertook or intended to do. *\fvHillyer Vs The Governors of St. Bartholomew'^s Hospital [1990] 2:* /7O *KB 820,* it was held that a public body bears legal responsibility for the negligent acts and omissions of its professional staff. In case of *Cassidy Vs Ministry of Health [1951] 2 KB 343,* whose facts are that the plaintiff IfA **b**

en erea a hospital with a condition on his left: hand that necessitated operational treatment and at the end of the treatment, he found that his entire left hand had been rendered useless, the court held, inter alia, that the onus lay on the hospital authority to prove that there had been no negligence on its part or on the part of anyone for whose acts or omission it was liable, and once the onus had not been discharged, then the hospital was liable.

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acts When the principles laid down in the above cases, are applied to the facts Of this case, court finds that the plaintiff has established. on a balance of probabilities, ^a prima facie case in negligence by the defendant'^s *\O* employees/staff against the defendant, which case the defendant has adduced no evidence to rebut. Court therefore holds the defendant vicariously liable- to the plaintiff for the acts cr the defendant's servants/staff.

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165 x170 As to the extent of disability suffered, the plaintiff testified that he was|^ readmitted in the defendant hospital with the purpose of undergoing an operation to remove the dry gangrene by amputation of his fingers of the left arm. According to the medical report of Dr. Kitara who examined the plaintiff after the amputation, the left index finger was amputated at proximal phalanx, while the left middle finger was amputated at middle phalanx. The report classified the amputation as gross permanent disability.

**¹56** ⁷ **y**The defence has argued that the two digits were not fully removed and that there is no evidence to show that the plaintiffs left hand does not function. ⁴¹ According to the testimony of DWI,.it is only necessary for the thumb and two fingers to be present for a hand to function.

**1** This court finds that the medical report classifying the amputation of the *£* plaintiffs two fingers, as gross permanent disability, is genuine and not an exaggeration. In the view of this court, the loss of two fingers is not easy to ^Lcope with.. The medical report - evidence of Dr. Krtara is expert evidence ^and the same has not been discredited in any way. This court accepts it as truthful. This court therefore finds in favour of the plaintiff as regards this ^| *0* 2J part of the issue.

*The fourth issue*

*Whether the defendant is vicariously liable has already been answered in the affirmative while resolving the third issue.*

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*L-JThe fifth issue is* **II'**

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ⁱ • *Whether the plaintiffis entitled to the reliefs sought.*

**4** ^it is ^a matter of law that when one causes injury to another party, one is liable to pay damages to compensate the victim in the case. See: *KIMANI* VS *ATTORNEY GENERAL [1969] EA 522;* and *ROBERT COUSSENS VS A TTORNEY GENERAL [1999] I EA 40.*

The plaintiff testified that he lost opportunity for promotion and that he cannot handle a gun well or perform other personal activities.

This court received no medical evidence as to the degree of incapacity, permanent or temporary, that the plaintiff suffered. The medical report, exhibit P7, is silent about this. So too is the evidence of PW2. From the 5 nature of the injuries of amputation of the left index finger at proximal phalanx and the left middle finger at middle phalanx. court infers that the plaintiff must have lost some grip in the left hand and this affected his work as an artillery soldier in the army i.e. UPDF. Court also infers that the plaintiff's left hand palm lost some of its beauty by reason of the 10 amputation. The plaintiff's assertion that he suffered pain and suffering as a result of this injury is also accepted by court.

Court observes, however, that the plaintiff is still retaining his job and rank in the army i.e. UPDF, and no credible evidence was adduced before the court that the plaintiff has missed any promotion in the army because of $\mathbf{r}$ this injury.

In D. Byaruhanga Vs Uganda Blanket Manufacturers Ltd: H. C. C. S No.6043 of 72, unreported, the plaintiff, a machine operator had the three fingers of the left hand crushed leaving behind a gross deformity of the left The High Court of Uganda awarded him Shs.35,000/= general 21 hand. A sum of Shs.40,000/= was awarded by the High Court of damages. Uganda to a plaintiff whose right index, middle and ring fingers were


**1** crushed-and had to be amputated, at inter phalangeal joints, leaving the | plaintiff with 8% reduction in grip: See: *Petero Wairo* Vs *Uganda Blanket Manufacturers Ltd: [1973] HCB 189.* The plaintiff in *H. C. C. S No.* 1 *1450/86: NANYANZI AGENESI VS UGANDA METAL PRODUCTS & ENAMELLING CO. LTD,* while working on a drilling machine, had a crush injury of her left thumb. It was amputated at the level of matecarpot phalangeal joint. She lost effective power of grip by 60% and the hand function of pinch. Her permanent capacity was 30%. She was no longer able to do domestic work and felt embarrassed because of loss of her ©thumb. Her marriage prospects became remote. She retained her |O nil employment, but had now to work in the packing section. Court awarded her Shs.70,000/= general damages.

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The cases referred to above are quite old decisions and therefore do not reflect the current economic conditions. However, they provide some guide to this court as regards the amount of damages to be awarded. Doing the **IS** best possible, having been guided by the above case authorities, and taking into account the current economic, conditions, with inflation eating into thej value of the Uganda shilling, this court awards Shs.35,000,000/= general damages to the plaintiff.

With regard to the defendant's counter-claim, there is no doubt that the s treated in the defendant hospital and as such he incurred bills for the medical treatment he received. Whether or not, the UPDF is supposed to pay for these bills, this is a matter between the plaintiff and his plaintiff wa

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employer, the UPDF. By receiving treatment from the defendant, the plaintiff became liable, to pay the bills incurred, to the defendant.

250 There are two profoma invoices issued to the plaintiff: Exhibits 4(a) dated 31.10.08 for the treatment period 07.02.06 to 11.03.06 and 4(b) for the treatment period 27.03.06 and 02.05.06. The second bill is for treatment 5 for gangrene of which the defendant has been held to be the author through a negligent act. The plaintiff cannot thus be responsible for the second bill. It is the holding of this court that the plaintiff is liable to pay the 255 bills of the first admission medical treatment, exhibit $4(a)$ , minus the interest charged which is exorbitant, in the view of this court. It ought not to be $\bigcirc$ charged since apart from being too excessive, the defendant failed to explain why he never invoiced the plaintiff before the suit was filed. The plaintiff was perfectly entitled to take it, in the absence of any 260 communication from the defendant, that his employer, the UPDF, had settled the bill pursuant to a previous arrangement between the UPDF and [5] the Defendant. No interest is thus awarded. Court further holds that the plaintiff is not to pay the bills for his readmission for gangrene, Exhibit, 4(b), as it was caused by the hospital's negligence. 265

In conclusion, judgement is entered for the plaintiff for:-

a) Shs.35,000,000/ $=$ general damages.

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$270$

b) interest on the sum in (a) above at the rate of 20% p.a. from the date of judgement till payment in full.


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c) As to the defendant's counter-claim, the sum of Shs.8,335.000/= is awarded to the defendant as the cost of medical treatment of the plaintiff for the injuries sustained in the motor-vehicle traffic accident. For the reasons already given, this sum is not to carry any interest.

The result is that the defendant is to pay to the plaintiff Shs.(35.000,000/= -8,335,000/=) = Shs.26,665,000/= plus the interest awarded in (b) above.

Since the plaintiff has been successful in the main action, and the defendant never invoiced him with the sum awarded in the counter-claim, until the plaintiff filed this suit in court, it is only fair that the plaintiff be and is hereby awarded the costs of the suit.

Remnt **JUDGE**

06.01.2011.

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## THE REPUBLIC OF UG ANDA IN THE HIGH COURT OF UGANDA AT GULU **CIVIL SUIT NO.070/2008** 我们 计

| KINYERA DENISH | <b>PLAINTIFF</b> | |----------------------|------------------| | VS | | | INDEPENDENT HOSPITAL | DEFENDANT |

## DECREE

THIS SUIT coming for final disposal, before His Worship DIDAS MUHUMUZA, DEPUTY REGISTRAR, in the presence of Mr. PARTRICK DOII Esq. holding brief for Mr. GODFREY HIMBAZA Esq, Counsel for the Plaintiff, and in the presence of Mr. AKENA KENNETH FRED Esq Counsel for the Defendant and in the presence of the Plaintiff;

## IT IS HEREBY ORDERED that;

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- a) The Defendant pays to the Plaintiff Shs 26,665,000= (Twenty Six Million Six Hundred and Sixty Five Thousand only) being the balance of Shs 35,000,000/=, (Thirty Five Million Only) awarded to the Plaintiff as General Damages less Shs 8,335,000= (Eight Million Three Hundred and Thirty Five Thousand Only) that was allowed on the Counterclaim. - b) The Plaintiff pays Interest on the said amount at the rate of 20% p.a from the date of Judgment till payment in full. - c) The Defendant pays the costs of the suit.

GIVEN under my Hand and the seal of this honorable Court this .................................... $\dots$ day of

## **DEPUTYREGISTRAR**

EXTRACTED BY O. N OSINDE& CO. ADVOCATES GREENLAND TOWERS, 4TH FLOOR P. O BOX 27289 KAMPALA.