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Court name
Supreme Court of Zambia
Case number
Appeal 203 of 2014

Attorney General v Mwanza & Another (Appeal 203 of 2014) [2017] ZMSC 140 (22 August 2017);

Law report citations
Media neutral citation
[2017] ZMSC 140
Case summary:

Negligence - Whether duty of care owed to patients by medical practitioners, nurses or hospitals
Negligence – Proof that breach of duty of care resulted in damage – Requirement that damage should have been foreseeable
Negligence – Foreseeability to be disregarded where negligence is the immediate or precipitating cause of damage
Negligence – Burden of proof – Evidence relating to negligence in the particular control of a defendant – Little affirmative proof required from plaintiff – Court may draw inference that negligent act a result of defendant’s omission or act

Headnote and holding:

The deceased, Monica Mwanza and Grace Mwanza (not related) approached Petauke General Hospital for permanent contraception known as bilateral tubal litigation (BTL). The operations were conducted on the same day on 31 March 2005, under general anesthesia by Dr Mbinga Mbinga, a medical practitioner. When the two women regained consciousness, they were wheeled from the theatre to the recovery ward. The nurse on duty in the ward, a Mrs Beatrice Tembo Msoni, administered doses of injections allegedly prescribed by the doctor and almost immediately, both women stopped breathing. The doctor’s effort to resuscitate them failed and minutes later, the two women were pronounced dead. Post-mortem results and the forensic pathologist’s report indicated the cause of death as chemical poisoning. An analysis of the specimens, comprising urine, blood and stomach contents collected from the bodies of the deceased women detected an organo-chlorine pesticide identified as endosulfan.

The Respondents as personal representatives of the estates of the deceased sued Dr Mbinga, Mrs Msoni and the Appellant, on behalf of Petauke General Hospital and sought amongst other things, compensation for loss of life to the tune of ZMK 1 800 000 000; damages for professional negligence; breach of statutory duty; aggravated damages for unethical conduct. The learned trial Judge found that it was the nurse, Beatrice Tembo Msoni who was negligent. Having found that the Respondents had proved their case against the Appellant on the preponderance of probabilities, she awarded them all the claims save for interest. She ordered that all the claims for damages should be assessed by the Registrar. The Appellant appealed.

1. It is trite that a medical practitioner, a nurse or a hospital owe a duty of care to patients who submit themselves to their treatment and care. If this duty is breached and a patient suffers injury or death, the medical practitioner, nurse or indeed the hospital could be found liable in negligence.

2. The position of the law in an action for the tort of negligence is that in order to determine whether an act is negligent, a claimant should not only prove that he or she is owed a duty of care, he or she must also prove that duty was breached resulting in damage. It is relevant to determine whether any reasonable person would foresee that the act would cause damage. The first question is whether there was duty of care owed to the plaintiff, and the test of duty depends, without doubt, on what you should foresee. There is no duty of care owed to a person when you cannot reasonably foresee that he might be injured by your conduct. The second question is whether the neglect of duty was a “cause” of the injury in the proper sense of that term…the chain of causation is broken when there is an intervening action which you could not reasonably be expected to see. Roe v Ministry of Health and Others [1954] 2 ALL ER 131 followed

3. There is no duty of care owed to a person if you cannot reasonably foresee that he could be injured by your action. Foreseeability can be disregarded when negligence is the immediate or precipitating cause of the damage. Looking at the facts of this case, the sequence of events show that the time between the administering of the injection of the drugs and the deceased being pronounced dead was very short. It was a matter of minutes. Clearly, there was no intervening act to break the chain of causation. The only plausible conclusion that can be drawn from these circumstances is that the dose of injections administered by Mrs Msoni must have contained the chemical poison which caused the death of the 2 women. The action of Mrs Msoni was the immediate and precipitating cause of death. Foreseeability in such circumstances can be disregarded.

4. The fact that there was no evidence of the drugs and syringes being tested entitled the trial court to conclude that had that evidence been adduced, it would have been favourable to the Respondents. Where the evidence relating to negligence is particularly within the control of a defendant, little affirmative evidence may be required from a claimant to establish a prima facie case which it will be for the defendant to rebut. Thus, while the legal burden of proving negligence rested on the Respondents, there was an evidential burden to rebut the assumption that had the drugs and the syringe, which were in the possession and control of the Appellant’s servants been tested, the evidence adduced would have been in favour of the Respondents. It is not necessary for a plaintiff to eliminate every possibility of how the accident may have happened without the fault on the part of a defendant but what is adduced in evidence, on behalf of a plaintiff, must go further than pure guesswork and reach the field of legal inference. The evidence adduced by the Respondents needed only to show or enable the Court to draw an inference that the negligent act was a probable consequence of the Appellant’s servants’ act or omission.

5. When dealing with the evidence of an expert witness, a court should always bear in mind that the opinion of an expert is his own opinion only, and it is the duty of the court to come to its own conclusion based on the findings of the expert witness. The purpose of expert evidence in establishing negligence in the realm of diagnosis and treatment is not necessarily to pit one professional opinion against another, but to guide the Court. At the end of the day, the Court still has to make its own conclusion based on all the evidence before it. Fawaz and Chelelwa v The People (1995-1997) ZR 3 followed.

6. When considering the evidence, the Court is entitled to draw inferences based on the facts and circumstances surrounding the case. In this case, the events leading to the death of the two women were cardinal. The Court below was faced with a situation where two women, from totally different backgrounds, both certified fit to undergo a BTL operation for permanent contraception, underwent the operation on the same day and within a short space of time thereafter, their health deteriorated drastically and both of them died at the exact same time. Where the professional analysis is not capable of withstanding logical analysis, the Judge is entitled to hold the body of opinion as not reasonable or responsible. Bolitho (Administratrix of the Estate of Bolitho (Deceased)) v City and Hackney Health Authority [1997] 4 ALL ER 781 approved.

7. Before an appeal court can properly interfere with damages, it must be satisfied either that the Judge in assessing the damages applied the wrong principle of law or if he did not err in law then that the amount awarded was either so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage. Orman Corrigan (suing by next friend Albert John Corrigan) v Tiger Limited and Abdi Jumale (1981) ZR 60 followed

8. Damages for loss of expectation of life are in all cases represented by a small conventional sum, taking some but not much account of the prospect of a healthy and happy life as opposed to an unhappy one, some account of the age of the sufferer, and account of the degree of the shortening of life. Damages for loss of expectation of life should be moderate, taking into account the value of the Kwacha and inflationary trends. The amount awarded to the Respondents of K1 800 000 000 (K1 800 000 rebased) representing individual claims of K900 000 000 (K900 000 rebased) for each estate was not only wrong in principle but also inordinately high

Mambilima, JS
Kaoma, JS
Kajimanga, JS