The Administrator, HH The Aga Khan Platinum Jubilee Hospital v Busan Munyambu [1985] KECA 74 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed a hospital was liable for negligent nursing but sharply cut the patient's damages from Kshs 878,147 to Kshs 100,000.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Did Mr. Justice Nyarangi err when he found the hospital staff were negligent?
- 2.Was the award of general damages of Kshs 800,000 manifestly excessive?
- 3.Was the award of general damages manifestly low (the cross-appeal)?
- 4.Whether leave to adduce additional evidence (Mr. Beecher's report of May 24, 1983) should be granted
- 5.What causal nexus existed between the pressure sore and the subsequent operations, and what is the correct quantum of damages
Key legal issues
#Whether the hospital staff were negligent in nursing the plaintiff
The finding of negligence as to the pressure sore was affirmed; the staff knew or ought to have known of the risk to an immobilised patient with loss of sensation and took no adequate preventive or monitoring steps
The trial judge, who saw and heard the witnesses, disbelieved Mr. Suleman as partisan and believed the plaintiff and Mr. Beecher. The plaintiff's direct evidence of inadequate nursing was uncontradicted because the treating nurses and physiotherapist were not called. The presence of the sore itself was evidence of inadequate nursing for an immobile patient. An appellate court respects findings of primary fact based on demeanour.
Whether the later operations were caused by the pressure sore
The majority held the judge's inference that the pressure sore caused eleven subsequent operations was wrong; causation extended only to the six-month delay in the first Beecher operation, later operations being too remote
This was a matter of inference from primary facts on which the appellate court was as well placed as the trial judge. The evidence did not show why the later operations were necessary, whether they could have been done in Kenya, or the nexus to the sore. Hancox JA found the later operations were due to loosening of the artificial hip, not the sore. Chesoni Ag JA dissented, finding at least three later operations attributable to the delay.
Quantum of general damages
The award of Kshs 800,000 was manifestly excessive because it was premised on eleven operations not shown to be caused by the negligence; the majority substituted Kshs 100,000; Chesoni Ag JA would have substituted Kshs 200,000
Damages must be confined to the consequences actually attributable to the negligence: the extra pain, delay and worry from the pressure sore and the six-month delay, not all later operations. The judge also wrongly took into account unproved loss of future promotion. The court applied the principle that it may interfere where the judge misapprehended the facts or made a wholly erroneous estimate.
Special damages
The award of special damages was set aside because the claim related to treatment in England not shown to be caused by the negligence
The special damages claimed were only for medical and surgical expenses in England and flights between December 1978 and June 1979. Since the majority found no causal nexus between the pressure sore and the need for treatment in England, the basis for the award fell away. Hancox JA would make no award of special damages; Chesoni Ag JA would not have interfered with them.
Leave to adduce additional evidence on appeal
Refused; the Ladd v Marshall pre-conditions were not satisfied and no exceptional circumstances existed
Although the report post-dated the decision below and was relevant and credible, no assumption common to both sides was falsified by subsequent events, refusal did not affront commonsense or justice, and counsel did not comply with the court's practice requiring a supporting affidavit and proof of the evidence. General damages are a once-for-all sum not to be reactivated.
Adequacy of particulars of negligence in the plaint
Hancox JA held the plaint's particulars of negligence did not cover an injury to the sciatic nerve, which he found was caused at the accident, and that averring mere aggravation by negligent treatment cannot cover a fresh separate injury
Proper and reasonably precise particulars are incumbent on a party alleging that the hospital caused the sciatic nerve injury by lack of nursing skill rather than vicariously through its surgeons. Merely averring aggravation by negligent and unskilled treatment does not cover alleged responsibility for a fresh and separate injury. The plaint contained no averment as to the sciatic nerve.
Legal principles established
#- A court on appeal will not normally interfere with a finding of fact by the trial court unless it is based on no evidence, on a misapprehension of the evidence, or the judge acted on wrong principles
- Where two respectable and responsible schools of medical thought hold opposing views on negligence, the trial judge ought not to choose between them
- The test for negligence in diagnosis or treatment is failure such as no doctor of ordinary skill would be guilty of acting with ordinary care, applicable equally to nurses and other hospital staff
- An appellate court may interfere with findings which are inferences from primary facts, where it is in as good a position as the trial judge, even though findings of primary fact based on witness credibility command respect
- An appellate court will interfere with a damages award only where the judge acted on a wrong principle, misapprehended the facts, or made a wholly erroneous estimate; the scale must go down heavily against the figure attacked
- Fresh evidence on appeal will be admitted only in exceptional circumstances constituting sufficient reason, including that it could not with reasonable diligence have been obtained at trial, is credible, and would probably have an important influence on the result
- An award of general damages is a once-for-all sum fixed at trial and cannot be reactivated save in exceptional circumstances
- Expert evidence must be, and be seen to be, the independent product of the expert uninfluenced by the exigencies of litigation
Court orders
#- 1.The appeal on liability is dismissed; the finding that the hospital staff were negligent stands
- 2.The award of Kshs 800,000 general damages is set aside and substituted with Kshs 100,000 with interest thereon from March 9, 1982 until payment in full
- 3.The award of special damages of Kshs 78,147 and the interest awarded on it are set aside
- 4.The cross-appeal is dismissed with costs to be paid by Munyambu
- 5.Munyambu to pay the costs of the motion on notice for leave to adduce further evidence
- 6.The hospital to receive one third of its costs on the main appeal
The bench
#Judges wrote separately. A dissent does not bind; a concurrence may narrow the ratio.
Wrote the judgment
Delivered the leading judgment. Upheld the finding of negligence on the pressure sore, interfered with the consequential findings on causation of later operations, reduced general damages to Kshs 100,000, set aside the special damages award, refused the application to adduce additional evidence, dismissed the cross-appeal, and proposed that the hospital receive one third of the costs of the main appeal.
February 22, 1985, Kneller JA delivered the following Judgment.p. 1
Wrote the judgment
Wrote separately. Agreed the hospital was liable for the pressure sore but held the judge's inference that it caused eleven subsequent operations was incorrect; the only reasonable inference was causation of the six-month delay in the first Beecher operation. Would substitute Kshs 100,000 general damages and make no award of special damages; agreed the cross-appeal and additional-evidence application be dismissed and with Kneller JA's orders on interest and costs.
I would therefore allow the appeal by reducing the general damages to Kshs. 100,000.00 and by eliminating the award of special damages.p. 14
Wrote the judgment
Agreed liability for the pressure sore was established and that at least three subsequent operations were attributable to the delay it caused, and agreed the cross-appeal and additional-evidence application be dismissed and with the proposed costs order. However, he would reduce general damages only to Kshs 200,000, finding the judge wrongly took into account unproved career ill-effect, and would not interfere with the special damages award.
I would for this reason allow the appeal and reduce the award to Kshs 200,000. I have no reason for interfering with the special damages and would not do so.p. 17
- On appeal from
- High Court at Nairobi
- not stated in judgment
- Jurisdiction invoked
- First appeal from the High Court in its original jurisdiction under the Court of Appeal Rules (Rule 29(1)(b) cited on additional evidence)
Relief refused
#Application for leave to adduce additional evidence (Mr. Beecher's medical report of May 24, 1983)
No exceptional circumstances justified receiving it; the pre-conditions including that refusing it would affront commonsense or a sense of justice were not met, and the prescribed affidavit practice was not followed
Cross-appeal contending general damages were too low
In light of the reduction of the award there was no basis for saying the award was too low
The hospital's appeal against the finding of liability
The trial judge did not err in finding the hospital staff negligent in nursing the plaintiff, leading to the pressure sore
Costs
The respondent Munyambu to pay the costs of the motion on notice for leave to adduce further evidence and of the cross-appeal; the appellant hospital to receive one third of its costs on the main appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
A court on appeal will not normally interfere with a finding of fact by the trial court unless it is based on no evidence, or on a misapprehension of the evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching the findings he did.
If there are two respectable and responsible schools of medical thought holding different or opposing views of what is or is not negligent in the circumstances of the case the trial judge ought not to choose between them.
The scale must go down heavily against the figure attacked if the appellate court is to interfere, whether on the ground of excess or insufficiency.
an inference from undisputed primary facts, where the appellate court is in just as good a position as the trial judge to make the decision.
An award of general damages is limited to a once for all sum fixed by the trial court and parties may not have the issue reactivated from time to time save in exceptional circumstances.
It is necessary that expert evidence presented to the court should be, and should be seen to be the independent product of the expert, uninfluenced as to form or content by the exigencies of litigation.
Costs normally follow the event, so the respondent Munyambu should pay the costs of the motion on notice for leave to adduce further evidence and of the cross-appeal, which failed.
I feel, accordingly that the hospital should get one third of its costs on the main appeal and I would so order.
Issues in the judgment
#Conflicting quantum positions within the court: the majority fixed general damages at Kshs 100,000 while Chesoni Ag JA would have fixed Kshs 200,000 and declined to disturb the special damages award
The judgment inconsistently describes the number of subsequent operations attributed to the pressure sore - eleven, seven, five, and four are mentioned at different points
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "The Administrator, HH The Aga Khan Platinum Jubilee Hospital v Busan Munyambu [1985] KECA 74 (KLR)", Case Analysis (1985). Civil Appeal No 18 of 1983. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1985/74/eng@1985-02-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.