THE ADMINISTRATOR, HH THE AGA KHAN PLATINUM JUBILEE HOSPITAL V MUNYAMBU [1985] KECA 135 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed a hospital was negligent for a patient's pressure sore but slashed the damages award from Kshs 800,000 to 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.Whether Mr Justice Nyarangi erred when he found the hospital staff were negligent
- 2.Whether the award of general damages of Kshs 800,000 was manifestly excessive
- 3.Whether the award of general damages was manifestly low (the cross-appeal)
- 4.Whether the respondent's application to adduce additional evidence (Mr Beecher's medical report of May 24, 1983) should be allowed
Key legal issues
#Liability of the hospital for the pressure sore
The trial judge's finding that the negligent and inadequate nursing care caused the pressure sore was correct and unassailable.
The trial judge had the advantage of observing witnesses' demeanour and believed Munyambu and Mr Beecher rather than Mr Suleman, whom he found too anxious to shield the hospital. The hospital did not call its treating nurses, physiotherapist, Dr Katharu or Dr Mwinzi, leaving the judge to choose between competing expert accounts. Pressure sores were preventable, and the patient's immobility and loss of sensation made their prevention part of the nurses' duty, which the staff failed to discharge.
Causation - whether the subsequent operations flowed from the pressure sore
The nexus between the pressure sore and the operations subsequent to Mr Beecher's September 1976 operation was not established; those operations were too remote.
The sore delayed the first artificial hip joint operation by some six months, and the sore itself was compensable. But the later operations were occasioned by the loosening of the artificial hip joint, for which the evidence (including from the absent English surgeon) gave no clear causal basis. An appellate court is in as good a position as the trial judge to assess inferences from undisputed primary facts, and the judge's inference of a direct connection to eleven operations was incorrect.
Quantum - whether Kshs 800,000 general damages was manifestly excessive
The award was manifestly excessive and was reduced to Kshs 100,000 (Chesoni Ag JA would have reduced it to Kshs 200,000).
The judge assessed damages on the erroneous basis that the negligence caused eleven operations and their attendant expenses; the evidence pointed to at most seven hip operations, only five after the sore appeared, and even those when the sore had healed. The judge also took into account unproved loss of future career prospects. Since the judge misapprehended the facts, the appellate court was entitled to interfere and come down heavily against the sum attacked.
Special damages
The award of special damages had to be set aside because those damages (treatment in England) were not related to the negligent nursing and the basis for the award had gone.
The special damages claimed in this suit were only for medical and surgical expenses in England and flights between December 1978 and June 1979, items which depended on the causal chain between the sore and the later operations. That chain not having been established, the foundation for the award disappeared and the earlier settlement of the traffic accident suit covered the other expenses.
Additional evidence on appeal
The application to adduce Mr Beecher's report of May 24, 1983 was refused for want of exceptional circumstances and non-compliance with the court's practice.
Although the report was post-trial, relevant and credible, no assumption basic to both sides was falsified by subsequent events, and refusing it did not affront commonsense or justice. Counsel also failed to file the supporting affidavit attesting to the Ladd v Marshall conditions and did not file a proof of evidence. The once-for-all principle in damages weighs against reactivating quantum on appeal.
Expert evidence and independence
Expert evidence must be, and be seen to be, the independent product of the expert; the hospital's consultant, being part of the treating team, was not an independent expert witness.
Following Whitehouse v Jordan, the court noted that Mr Suleman had headed the treating team and so could not be divorced from the case. This supported the trial judge's preference for Mr Beecher's evidence on liability. But where the hospital's consultant physician was not called, the judge had to choose between the competing accounts of the alleged diabetes, and his acceptance of Mr Beecher was an unassailable finding of fact.
Legal principles established
#- An appellate court will not interfere with an award of general damages unless the judge acted on a wrong principle of law, misapprehended the facts, or made a wholly erroneous estimate of the damage; the scale must go down heavily against the figure attacked.
- 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 demonstrably acted on wrong principles.
- Where two respectable and responsible schools of medical thought hold opposing views on negligence, a court may prefer one body of opinion but that is no basis for a conclusion of negligence.
- The test for negligence in diagnosis or treatment is whether the practitioner has been guilty of such failure as no doctor of ordinary skill would be guilty of, acting with ordinary care.
- Leave to adduce additional evidence on appeal will only be granted exceptionally: where the evidence could not with reasonable diligence have been obtained at trial, would probably have an important influence on the result, and is apparently credible.
- An award of general damages is 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.
Court orders
#- 1.Appeal against the finding of liability dismissed; the hospital's liability for the negligent nursing causing the pressure sore is affirmed
- 2.Appeal allowed against quantum: general damages reduced from Kshs 800,000 to Kshs 100,000 with interest thereon from March 9, 1982 until payment in full
- 3.The award of special damages of Kshs 78,147.00 and interest set aside (in part) / eliminated
- 4.Cross-appeal dismissed with costs
- 5.The respondent Munyambu to pay the costs of the motion on notice for leave to adduce further evidence and of the cross-appeal
- 6.The hospital to get one third of its costs on the main appeal
- 7.Application to adduce additional evidence refused
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 trial judge's finding that the hospital's nursing staff were negligent, causing the pressure sore, but held that the award of Kshs 800,000 general damages rested on a misapprehension of the facts (attributing many subsequent operations to the sore) and was manifestly excessive, substituting Kshs 100,000. Would set aside the special damages award in part, dismiss the cross-appeal, refuse the additional evidence, and award the hospital one third of the costs of the main appeal with Munyambu paying the costs of the motion and cross-appeal.
So, in my opinion, the answer to the question of whether or not the award of Kshs. 800,000.00 was too low is, in the the light of the earlier part of this judgement, clearly "no".p. 8
Wrote the judgment
Agreed with Kneller JA on liability, the appeal, cross-appeal and costs. Held that the pressure sore was caused by negligent nursing (a primary fact the appellate court would not disturb) but that the nexus between the sore and the operations subsequent to Mr Beecher's September 1976 operation was not established; the subsequent operations were too remote. Would substitute Kshs 100,000 general damages and make no award of special damages as the basis for that award had gone.
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. 15
Wrote the judgment
Agreed with Kneller JA on liability, the cross-appeal, the additional evidence application and costs, but partially dissented on quantum: he held the award of Kshs 800,000 was manifestly excessive because the judge took into account unproved loss of career prospects, but would reduce general damages to Kshs 200,000 rather than 100,000, and would not interfere with the special damages award.
I would for this reason allow the appeal and reduce the award to Kshs. 200,00.00. I have no reason for interfering with the special damages and would not do so.p. 17
- On appeal from
- High Court at Nairobi
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court in the exercise of its original jurisdiction (Court of Appeal Rules, rule 29(1)(b) engaged on the additional evidence application)
Relief refused
#Leave to adduce additional evidence (Mr Beecher's medical report dated May 24, 1983)
No exceptional circumstances constituting sufficient reason: the evidence could not falsify an assumption common to both sides, proper practice was not followed, and an award of general damages is a once-for-all sum
The cross-appeal contending that the award of general damages was manifestly low
Once the award was reduced, there was no basis for saying it was too low
The hospital's appeal against the finding of negligence on liability
The trial judge, having seen and heard the witnesses, correctly found the nursing staff negligent and the pressure sore attributable to that negligence
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 hospital to get one third of its costs on the main appeal (none of the costs orders is 'each party to bear their own costs')
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.
In a civil appeal, except on grounds of fraud or surprise, generally leave will only be granted if the evidence could not, with reasonable diligence, have been obtained for use at the trial, if it will probably have an important influence on the result of the appeal, and is apparently credible
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.
The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to have been guilty of such failure as no doctor of ordinary skill would be guilty of it acting with ordinary care.
I would therefore allow the appeal by reducing the general damages to Kshs. 100,000.00 and by eliminating the award of special damages. I would for the reasons that appear in this judgment, dismiss the cross appeal with costs.
For these reasons I would dismiss the appeal from Mr Justice Nyarangi's finding that the hospital was liable, allow it from the award of special damages and interest which must be set aside in part from the award of Kshs. 800,000.00 general damages which should be reduced to Kshs. 100,000.00 with interest thereon from March 9, 1982 until payment in full and I would dismiss the cross-appeal.
Issues in the judgment
#The judgment contains internal inconsistency on the reduced quantum of general damages: the majority (Kneller and Hancox JJA) substitute Kshs 100,000 while Chesoni Ag JA would reduce it to Kshs 200,000; the orders of the Court as carried reflect Kshs 100,000.
The judgment gives inconsistent spellings and figures in places (e.g. 'Lukenyara Ranching Ltd. v Kavoloto' in the case list versus 'Lukenya Ranching and Farming Cooperative Society Ltd v Kavoloto' in the text; 'Kshs. 200,00.00'; 'Kshs 4,000.00 would do' for a damages submission in the cross-appeal, which appears anomalous).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "THE ADMINISTRATOR, HH THE AGA KHAN PLATINUM JUBILEE HOSPITAL V MUNYAMBU [1985] KECA 135 (KLR)", Case Analysis (1985). Civil Appeal No 18 of 1983. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1985/135/eng@1985-02-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.