|
|
Home
| Databases
| WorldLII
| Search
| Feedback
High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
Civil Action No. 88 of 2009
BETWEEN:
SEMI VOLITI
by his next of friend and guardian
LITIA VINAKA
of Waiqele, Labasa, Domestic Duties.
Plaintiff
AND:
THE PERMANENT SECRETARY FOR HEALTH
of Suva
1st Defendant
AND:
THE ATTORNEY GENERAL OF FIJI
2nd Defendant
Appearance : Mr A Sen of Maqbool and Company
Mr A Pratap with Ms S Ali of the Attorney General’s Chambers
Date of Judgment: 25th April 2014
JUDGMENT
1. Writ of Summons was filed with the Statement of Claim by the Plaintiff through his next friend and guardian Litia Vinaka against the Defendants and claimed the following reliefs:
i) Special damages in the sum of $2,500.00;
ii) General damages;
iii) Interest under the Law Reform (Miscellaneous Provisions) Act;
iv) Costs of this action;
v) Such other and further reliefs as this court may deem just and expedient.
2.1 The Plaintiff was born on 13th December 1988.
2.2 It was stated that all material time, the Plaintiff was a patient at Korovou Hospital and subsequently at CWM Hospital.
2.3 The 1st Defendant is the Permanent Secretary for Ministry of Health who is responsible for administration of various other hospitals.
2.4 The 2nd Defendant added under Crown Proceedings Act.
2.5 On 20th October 2007, the Plaintiff was a patient of Korovou Hospital admitted for an injury to right arm and it was not properly diagnosed, allowing infection to the injury to develop and the Plaintiff’s condition was deteriorated beyond treatment and he was subsequently transferred to CWM Hospital where Plaintiff’s right arm was amputated.
2.6 Due to the negligence of the servants/the agents of the Defendants, the Plaintiff underwent great pain and sufferings, his injuries were greatly aggravated and further injuries were suffered by the Plaintiff. Particulars of the injuries and particulars of the permanent disability were assessed at 70% loss of right arm at elbow level. Hospital staff at Korovou and subsequently at CWM Hospital negligently did not treat the Plaintiff negligently and unsuccessfully.
2.7 Particulars of negligence were detailed in paragraph 11 sub paragraph (a) to (k).
2.8 The Plaintiff’s condition was reviewed on several occasions and continues to attend clinics and as detailed in the preceding paragraphs the Plaintiff suffered loss and damages and claimed $2,500 as Special Damages for travelling and medication.
2.9 By reasons of the said injuries aforesaid, the Plaintiff suffered socially, psychologically, distress with pain, limitation in mobility and negative effect on social well-being and his education has been affected and claimed the relies stated in paragraph 1 of this Judgment.
3.1 The Defendant admitted the Plaintiff’s age, inter alia, that the Plaintiff was a patient at Korovou and CWM Hospitals.
3.2 The Defendants also admitted that they owed duty of care to the Plaintiff but did not admit as to the scope or content on the said duty.
3.3 It was admitted that the 1st Defendant employs the employees are Korovou and CWM Hospitals but denied the employees were negligent and as such denied the various liability of the Defendants.
3.4 Further it was stated whilst denying the paragraphs 6, 7 and 8 of the Statement of Claim and the Plaintiff was properly treated and placed the Plaintiff on strict proof of the allegations.
3.5 The Defendant also stated there was no injury suffered by the Plaintiff any injury due to the negligence of the Plaintiff.
3.6 The Defendants have further put the Plaintiff to strict proof of all the allegations and further stated that the Plaintiff’s injury was caused or contributed by his own negligence.
4. The Minutes of the Pre-Trial Conference, made the following facts were agreed in addition to the admissions in the Statement of Defence.
1. On 20th October 2007, the Plaintiff sustained a laceration on the right forearm after he punched a glass door. He was a patient at the Korovou Hospital admitted for treatment for injury to his right hand whereby his right forearm was heavily bandaged.
2. The Plaintiff was later transferred to CWM Hospital and was observed with foul smell from the right forearm.
3. At CWM Hospital it was noted that the Plaintiff had developed compartment syndrome to his right arm and cyanosis was noted.
4. At CWM Hospital wound exploration and decompression of Plaintiff’s right forearm was done.
5. On 24th October 2007, at CWM Hospital an above elbow amputation was done on Plaintiff’s right arm.
6. The Plaintiff was discharged on 3rd November 2007.
5.1 As to whether the Plaintiff’s health condition was deteriorated after admission of the Plaintiff at the Korovou Health Centre due to the negligence of the servants/agents of the 1st Defendant?
5.2 As to whether due to the negligence and/or failing to exercise of duty of care by the 1st Defendant’s servants/agents at Korovou Health resulted in the amputation of the Plaintiff’s right forearm?
5.3 As to whether Plaintiff suffered Compartment Syndrome of due to the negligence of the servants/agents of the 1st Defendant?
If the above issues are answered in affirmative:
5.4 As to whether Plaintiff has contributed to his injuries resulted in Compartment Syndrome?
5.5 As to whether the Plaintiff is entitled for General Damages for pain and suffering and other enjoyment of life and the amenities?
This case concerns the vicarious liability of the 1st Defendant in medical negligence by the Defendants servants/agents of CWM Hospital and Korovou Hospital: As pleaded in the Statement of Claim the negligence was detailed as below:
(a) Failing to properly diagnose or treat the Plaintiff of his ailment.
(b) Applying the said processes or one of the other of them to the Plaintiff’s right hand so to cause the injuries hereafter complained of.
(c) Failing to take any or any adequate or protective precautions when applying the said processes to ensure that the Plaintiff’s said right hand would not be harmed or injured.
(d) Failing to observe or heed or take any reasonable steps to investigate the complaints of the plaintiff as to his condition.
(e) Failing to observe or to act upon or to investigate properly or at all the steady and serious and obvious, deterioration of the condition of the Plaintiff while under the care of the hospital.
(f) Failing to take all reasonable and necessary measures to avoid damage/injury to Plaintiff’s right hand.
(g) Failing to review and revise diagnoses or to take any steps to have such diagnoses reviewed or revised when the condition of the Plaintiff did not improve but deteriorated.
(h) Failure to properly treat the Plaintiff.
(i) Allowing his right hand to be infected.
(j) Allowing infection to occur.
(k) Making his right hand non-functional.
The Defendants denied negligence and stated 1st Defendant’s servants and agents took all reasonable care and paid due attention in operation and treatment of the Plaintiff.
6. The above stated issues should be decided only after analyzing the evidence adduced in this case.
Evidence
7. On behalf of the Plaintiff, evidence was given by Semi Voliti, Dr. E D Taloga. On behalf of the Defendants, evidence was given by Ms Miriama Vere and Dr Josese Turagava.
7.1 Plaintiff Semi Voliti in his evidence stated interalia:
7.2 He was born on 13th December 1988 and at the time the injury was caused (20th October 2007) he was a Form 7 student of Ratu Kadavulevu School (RKS) in Tailevu. He punched a window glass and lower part of the right arm was injured. He was right handed. The cut was little more than one inch. Incident happened around 4.00pm on 20th October 2007. He was taken to the Korovou Health Centre after about 4 hours of the incident. He was attended by a doctor around 6.00pm. His wound was not cleaned and it was stitched and put a bandage very tightly on the upper arm. The pain he suffered was more when the bandage was put. He was kept at the Korovou Hospital for one night and taken to CWM at 6.00pm on the following day.
7.3. The witness stated after the wound was stitched and tight bandage was put on the upper arm the bandage was released only on the following day around 7.00am at Korovou Medical Centre. His wounded arm had turned into a purple in color. After releasing the bandage in the morning, once again the same bandage was put and tied tightly. The Doctor who stitched the arm saw the witness after 7.00am on 21st October 2007. The Doctor came and spoke to him and went away. No examination was done and told the Plaintiff will be transferred to CWM Hospital in the afternoon and he was suffering severe pain.
7.4 The witness stated he was transferred to CWM Hospital by an ambulance around 7.00pm on 21st October 2007 and was lying in the waiting room until 10.30pm. By 10.30pm the hand was black in color. Until 10.30pm his bandage was not released. At 10.30pm the witness was taken to the theatre before that the bandage was unwrapped and stitches were removed. When the stitches were removed black blood was sprouting out. He was told they are taking him to the theatre to wash his wound and he was under anesthesia. When he woke up it was 22nd morning and he was taken back to the ward. Pain was increasing.
7.5 Dr Josese Turagava told him at the theatre his hand will be amputated. The witness had told the Doctor he cannot allow the hand to be amputated because it is his dominant hand. Doctor further told the witness’s wound was infected and to save his life, hand should be amputated. The Plaintiff’s hand was amputated on 24th October 2007. Consent for amputation was given by the witness’s father. Above elbow hand was amputated witness said. When the witness came to know his hand was amputated, he felt sad and thinking he was crippled forever.
7.6 After that he was discharged he didn’t go to school (he was going to RKS in Korovou) after the incident in 2007 and started his schooling in 2008 at Labasa. The witness stated he is still suffering pain. After the amputation he went back to Labasa for schooling where his parents were living and normal errands of the day was done with difficulty without the right hand. He had to go through much hardship to train himself to use his left hand. Form 7 exam he failed in 2008 because he was handicapped and could not attend classes. He had to quit from the subject of Technical Drawing due to the disability caused by amputation. His ambition to become an Aircraft Engineer was shattered.
7.8 Now the witness is following a degree in Bachelor of Science and losing his right hand was an impediment for the studies. He was playing rugby and represented the school team. After amputation he had to stop all that. He cannot assist his parents in farming activities. Before the trial he was examined by Dr Taloga at Suva Private Hospital and obtained a report. The Plaintiff tendered the medical report and medical folder marked P1 and P2. He had attended 3 clinics at CWM hospital after his discharge from the hospital and travelled in his uncle’s car for clinics. At Labasa he travelled from his residence at Nasekula to Labasa Hospital for clinics 2 times per month in 2008. It was $4 return trip. If he gets an artificial hand (Prosthesis), it would cost around $50,000.00. Witness also said he may be awarded damages for pain and suffering and losing amenities in life, special damages, cost and interest. His expectation was to become an Aircraft Engineer and to complete his studies at the age of 23-24 years which was affected by the impediment. Now his parents are spending all the monies on him.
7.9 Answering in the cross examination, the Plaintiff stated whilst the students were playing in the hostel he punched a window glass and the glass broke. When he pulled out his hand there was a cut, small cut but the cut was deep and blood was coming out. The other students took him to the matron, wound covered with a white used bed sheet. Matron had inspected the wound and once again covered it with a different bed sheet and taken him to Korovou Health Centre. The Doctor at Korovou Hospital said that he cannot stop the blood and he stitched the wound, no cleaning was done. He was given an injection after the stitching. A tight bandage was put. He also said he was given a drip. After he was admitted one nurse came in the night, and attended to him at the Korovou Hospital, only one time in the night. He told the nurse that his hand was paining severely. Time to time he was sleeping, but with the pain he was awakened, most of the time.
7.10 He cannot say whether nurse and doctor came and attended to him. In the morning, around 7.00am the nurse washed the wound since there was a blood clot on the surface, but stitches were still there. She would have applied some medicine around the wound. Doctor would have come and seen him around 11.00am, he was not aware. The witness said the Doctor came only on 21st morning not 20th night and he had complained to the Doctor about the pain. At the CWM Hospital the witness came to know Dr Josese Turagava had told his father his hand should be amputated. Dr Turagava had told the witness that they were waiting for a Doctor to treat my wound. Dr Turagava had brought a computer and showed some photographs of my hand. In the photos he showed bone was exposed although the fingers were functioning slightly. The photos were taken when the Plaintiff was in the theatre (Photographs were marked P3, P4 and P5).
7.11 Amputation was done on 24th October 2008. In between, a nurse had attended to him during the night. Hourly he was visited by the nurse and given medication. The witness admitted that at CWM Hospital he was attended by the Doctors and nurses. During the re-examination witness admitted that once the stitches were cut and opened at CWM Hospital he was relieved and feeling better. At Korovou Hospital after stitching the wound by the Doctor, the Doctor visited him only on the following day morning. Bandage which was put tightly was removed at CWM Hospital on 21st around 10.30pm. Within 3 days of the injury, hand was amputated.
Dr. E. D. Taloga’s Evidence
8. Dr Taloga is the Head of the Surgical Department and consultant at Suva Private Hospital Orthopaedic surgeon. He had obtained his M.B.B.S at Fiji School of Medicine in 1988 and further qualified in Newcastle in Australia and in New Zealand and a member of Orthopaedic Association of Australia. Dr Taloga stated he examined the Plaintiff Semi Voliti on 20th May 2013 and prepared the medical report dated 21st May 2013 and explained the repot and stated he was made available with the following reports:
1. Dr Josese Turagava’s report dated 21/02/2008 of the CWM Hospital.
2. Sister Maata Turaga’s report dated 12/01/2008 of Korovou Hospital.
9. In his report dated 21st May 2013 Dr Taloga stated that the Plaintiff had sustained a lacerated wound over the distal right forearm from glass louver on 30th October 2007. The Plaintiff was first admitted to Korovou Hospital the limb was amputated at the CWM Hospital due to severe sepsis.
9.1 Dr Taloga had also stated in his report that the Plaintiff complained pain over the arm stump during cool weather and it was covered in an elasticized bandage to prevent accidently bumping into objects which will result in pain.
9.2 Dr Taloga had stated the amputated of the arm below the level of the deltoid insertion has a ruling of 57% impairment of the sole person.
9.3 Dr Josese Turagava’s report dated 21st February 2007 was shown to the witness with attached notes and on Page 3 of the report which states injury was below the level of elbow 3cm long and 1cm deep will go through up to the muscle. To reach the artery it should be more than 3cm deep since there was no threat to the artery or limb it’s not a serious injury. Dr Taloga stated in the report of the CWM Hospital at 10:30p.m., it was stated there was compartment syndrome. Page 19 of the medical report was shown to the witness and it was stated that wound was sustained by blue surface. The witness stated it’s not good practice to stitch up to control the bleeding. Pressure should be applied to control the bleeding and every one hours time bandage should be released to ensure the supply of blood. When injury is caused by blunt surface the wound would be washed before stitched. If washing was not done, infection will set in and sepsis will develop. If tight bandage is put blood supply beyond that point will cut off and result in dying everything beyond that point.
9.4 Referring to page 21 the witness stated that gangrene developed in the fingers. First the pain will be severe disproportion to the injury and the injured organ will become purple and then become black.
9.5 Referring to page 19 of the report Dr Taloga stated Compartment Syndrome and gangrene in right forearm and increased pressure will compromise the blood supply and muscles being affected. Tight bandage will cause it. It was diagnosed early it could be cured. At the time the Plaintiff was admitted to CWM Hospital it was incurable and amputation was imminent. When the Compartment was opened, blood will sprout out and wound should not have closed. Even if artery was cut after putting pressure, artery would have clipped and put a dressing which process would have taken 15 minutes.
9.6 Page 13 of the Medical Report dated 12th January 2008 Sister Maata Turaga had issued a letter stating that Semi Voliti admitted at Korovou Hospital on 20th October 2007 complain of right forearm laceration after being seeing and examined by medical officer on call Dr Vishal and physical examination was done. The arm amputated was the dominant arm. If artificial forearm is to be fixed, it will cost around $70,000.00. If the scale of pain is 0-5 it would be 5 the Plaintiff would have suffered. That is the maximum pain. After amputation bone and muscles would have recovered around 2 weeks time. The Plaintiff would have affected socially and psychologically. The medical report dated 21st February 2008 and the medical report dated 21st May 2013 were tendered in evidence marked P1 and P2.
Cross Examination
10. Mr Pratap cross-examined Dr Taloga and he stated that he considered three Medical Reports before issuing his Medical Report tendered as P2. He was questioned about the length of the wound and stated length of the wound will not have any bearing on damaging the artery what matters is the deepness of the wound. He further said that he cannot say how much pressure was applied by putting the pressure bandage.
10.1 In reply in re-examination Dr. Taloga said according to the diagram wound have been 3cm deep. Report says bleeding which shows wound was profusely bleeding.
Defence Witnesses
11. Before commencing the case it was brought to the notice of the court the defence witness was in the court room when the Plaintiff was giving evidence from 9:30 am to 11:20 am and it was stated by the court will take this matter into consideration after hearing the evidence of the witnesses.
Evidence of Miriama Vere
12. The witness is a nurse by profession qualified in 1985 from Fiji School of Nursing at Tamavua having 28 years experience as a nurse. She is currently working at Korovou Health Centre at the time relevance to this case she worked at Ratu Kadavulevu School (RKS) as a District Nurse in the position of a Matron. Her duties at the school were to look after the health of the students and referring cases to hospitals which cannot be managed by herself as a nurse. The witness said she can remember the date of the incident i.e. 20th October 2007. The Plaintiff came to see her around 6:30p.m with a cut in his right forearm. Cut was around 7cm but deepness she didn’t know.
12.1 Witness said her assessment was that she could not do anything and applied a pressure bandage by some clothes. The Plaintiff’s wound was bleeding. She had no idea what time the injury happened. The Plaintiff said he punched a glass door. The witness was told the Plaintiff was drunk at the time. She didn’t find any debris and saw only the cut. It had taken 45 minutes to go to the Korovou Heath Centre. It was stated she went with some other students and it may be after 8.p.m when they reached the Korovou Health Centre. The Plaintiff was seen by a doctor immediately. It was Dr Vishal Bhindi who examined the Plaintiff. The wound was stitched by Dr Vishal under local anesthesia witness said she was not aware whether any medication was given she was there for one hour.
12.2 In cross-examination the witness said she can recall the Plaintiff. She was there when the wound was stitched one didn’t know what time the medical report was written and Dr attended to the Plaintiff before report was written. At the time of the admission to the Korovou Health Centre the wound was not infected.
12.3 In re-examination the witness said she cannot remember what time the witness went and left the Korovou Medical Centre.
Dr Josese Turagava’s Evidence
13. The witness studied at Fiji School of Medicine from 1995 to 2000. He did his Master’s during the period of 2005 to 2010 at Fiji School of Medicine. He had his training in New Zealand. There are four other general surgeons and the witness is presently the general surgeon and in charge of all aspects of surgery. Witness said he had attended to the Plaintiff on 22nd October 2007. The Plaintiff was referred to Dr. Oteu Bwabwa. Dr Oteu had recovered hospital records from Korovou Hospitals. The Medical report in the agreed bundle of documents was shown to the witness. The witness admitted that page one was his report. Page 3 was not seen by him. Page 19 is the notes written by the nurse at the emergency section. The witness read out notes on page 19 “severe pain, large laceration” laceration is around the fore arm. The witness stated he cannot say it is deep or not. He is not in a position to say drawing of the right forearm was done by the Doctor or Nurse. Drawings are done differently he stated.
13.1 Page 3 of the Medical Report shows and witness stated it is noted laceration 8cm long and 1cm deep in right forearm. Witness stated laceration was 5cm from the vicinity of the elbow (demonstrated through court clerks arm). Witness doesn’t know how 1cm deep was measured. If he was there he would have taken him to the theatre wash it and explore the wound’s position and then treat the patient. 1 cm deep wound may injure the veins and nerves.
13.2 The witness stated on an emergency patient is treated first and then the notes are taken. The witness stated it must be severe bleeding blood pressure was low as 87. The witness stated he met the Plaintiff on 22nd October 2007 at CWM Hospital. His wound appears to be very bad Dr Oteu had opened up the wound and washed. The wound and it was done on 21st night. The witness had taken the patient to the operating theatre and taken photographs under anesthesia. It was to confirm Dr Oteu’s findings and to show to other Doctors. One bone was exposed. Infection was so bad and it was at stage 3. The patient was having high fever. The photo graphs were tendered in evidence Mark P3, P4 and P5. The witness’s boss Dr. Semesa also came to the theatre. The witness had informed the Plaintiff and he had told he was stabbed. The Plaintiff was the witness’s cousin’s nephew. The witness found out the body was going through sepsis. It was a bacterial infection.
13.3 Respiratory rate was very high and high pulse rate. The infection was to spread out to the whole body system (refer to the medical report) which would have caused death. The witness had told the Plaintiff his hand should be amputated and he didn’t agree. His father reluctantly agreed. It was decided to save the Plaintiff’s life. The Plaintiffs muscle in forearm was decomposed.
13.4 Under cross examination Doctor Josese was shown P3, P4 and P5 and witness stated it shows the bone muscles were decomposed beyond repair. Page 3 of the Medical Report shown and witness stated it is noted laceration 8cm long and 1cm deep in right forearm. Witness stated laceration could be 5cm from the vicinity of the elbow, (demonstrated through court clerks arm) witness doesn’t know how 1cm deep was measured. If he was there he would have taken him to the theatre wash it and explore the wound’s position and then treat the patient. 1cm deep wound may injure the veins and nerves. Page 3 of P2 was shown and he witness stated the length of the cut although he stated 8cm could be 5cm. No note to say wound was cleaned. Blood pressure had to be taken every 4 hours. The witness stated that he cannot say whether the wound is a stale injury. The witness stated there is difference between a laceration wound and an incised wound.
13.5 The witness stated exploration is done to find the severity of the wound and the artery can be clipped. If the witness was treating the Plaintiff he would have done it. If the bandage is put tight and if it’s not removed time to time it will affect the blood supply and create complication and the witness stated he agrees with the Plaintiff’s witness Dr. Taloga. If the bandage is not released, blood supply will be not there and will create complications and the compartment syndrome will develop in such a situation and it blows up the veins and everything worn out to be liquid. The witness stated if compartment syndrome would have avoided if bandage was released time to time ensuring blood supply and he agreed with the evidence of Dr. Taloga.
13.6. Answering in re-examination witness stated exploration of the wound will depend on the Doctors training.
13.7 As I stated in paragraph 11 of this Judgment, the presence of the Defence witnesses in the court room at the time of the Plaintiff giving evidence had no bearing on the evidence of other witnesses.
14. Now, I deal with preliminary issues raised by the Defendants’ counsel.
15. The Defendants’ counsel pleaded contributory negligence. In limine this position of the Defendants does not carry any merits. The issue is as to whether the Defendants’ servants/agents were negligent in the process of treating the Plaintiff medically and as to whether such negligence resulted in amputation of the Plaintiff’s forearm and not to find how the injury caused. If so as to whether the Defendants are liable for the negligence of the servants and/or agents. The Plaintiff who was admitted to the hospital after the injury was caused and the claim by the Plaintiff was that the 1st Defendant was negligent of the treatment. There is no evidence before this court that the Plaintiff was negligent, subsequent to the admission to the hospital and when he was under the care of the servants and/or agents of the 1st Defendant. The Plaintiff had not done any act to contribution to aggravate his injury. The Defendants’ claim that the Plaintiff’s contributory negligence fails.
16. 16.1 The Defendants’ counsel also submitted in his written submission Compartment Syndrome suffered by the Plaintiff was not pleaded in the Statement of Claim and it is in contravention of Order 18 Rule 11(1) of the High Court Rules 1988 which states:
“11- (1) Subject to paragraph (2) every pleading must contain the necessary particulars of claim, defence or other matter pleaded including, without prejudice to the generality of the foregoing words –
(a) particulars of any misrepresentation, fraud, breach of trust, willful default or undue influence on which the party pleading relies; and
(b) where a party pleading alleges any condition of mind of any person whether any disorder or disability of mind or any malice, fraudulent intention or other condition of mind except knowledge, particulars of the facts on which the party relies.”
16.2 Considering facts of this case it is important to understand what Compartment Syndrome is? As explained by Dr Taloga and Dr Jessese the witnesses it is a condition which affects the muscles due to non supply of blood. More precisely Compartment Syndrome is a condition that occurs when injury causes generalized painful swelling and increased pressure within a compartment to the point that blood cannot supply the muscles and nerves with oxygen and nutrients. If left untreated, muscles and nerves fail and may eventually die. Both Doctors gave evidence on behalf of the Plaintiff and the Defendant had confirmed this position.
16.3 The Plaintiff had suffered Compartment Syndrome was undisputed. The witnesses Dr Taloga for the Plaintiff and Dr Jessese for the Defendants who gave evidence admitted when the Plaintiff was admitted to the CWM Hospital and after exploration of the wound on 22nd October 2007 it was found Compartment Syndrome was developed which is noted in page 21 and 22 of the medical report marked P2 and amputation was recommended. The court had the opportunity to see the photographs taken by the Dr Jessese which shows the bone and muscles being loosen and the color of the forearm had changed to black. The photographs were marked as P3, P4 and P5 in evidence.
16.4 Having observed the above, this court had to decide as to whether there was a necessity to plead Compartment Syndrome in the pleadings. The Plaintiff’s claim was that the Defendants were negligent specifically referring to paragraph 11 under the heading “Particulars of Negligence”, it was stated:
“(c) Failing to take any or any adequate or protective precautions when applying the said processes to ensure that the Plaintiff’s said right hand would not be harmed or injured;
(d) Failing to observe or heed or take any reasonable steps to investigate the complaints of the Plaintiff as to his condition.”
16.5 The above clearly explains the negligence and it’s my view there is no necessity to specifically plead the Compartment Syndrome. I have already described how the Compartment Syndrome can occur and the Plaintiff had pleaded the negligence of the treatment at the hospital. The proposition of the Defendants that the Plaintiff acted in contravention of Order 18 Rule 11(1) carries no merit as such I conclude the Plaintiff’s pleadings are in line with Order 18 Rule 11(1) and the Defendants’ submissions fail.
Analysis of Evidence
17. The evidence in this case establishes the following:
17.1 The Plaintiff was a student at Ratu Kadavulevu School and he had punched a glass door which caused him the injury. The Defendants’ counsel’s position was the injury cannot be caused by punching a glass. How the injury was caused is not an issue in this case. The relevant issue once he was admitted to the hospital at Korovou and CWM whether proper treatment was given and whether such treatments led to amputate his arm. Further there was no note by the Doctor at Korovou Hospital with regard to the wound neither he gave evidence. The Doctor had made notes in page 3 of the medical report marked P2:
“patient was playing football in the corridor at RKS Hostel when accidently his right forearm got injured with glass of a door.”
Doctor had not made any other observation in the medical report or not called to give evidence by the defence. The only evidence before the court is the Plaintiff’s evidence which is undisputed and I believe his evidence that injury was caused by punching a glass. The Defendants’ counsel also draws the attention of this court whether the glass or a stab injury. There was evidence by Dr Jessese that the Plaintiff had told him he was stabbed. However, in the cross-examination Dr Jessese stated he cannot say whether it’s a stab injury or not. It is also an agreed fact at the pre-trial conference...... “The Plaintiff sustained a laceration on the right forearm after he punched a glass door.....”. Although, it’s not relevant to decide on this case, I observe the Defendants’ counsel cannot raise an issue against the agreed fact. What matters in this case is as to whether the Defendants were negligent in treating the Plaintiff and whether the Defendants exercised duty of care.
17.2 The Defendants also submitted that there was a delay in seeking medical care and the infection had manifested in the wound which was beyond control of the 1st Defendant which led to amputation of the arm. There is no evidence before me for such conclusion. Once the injury was caused he was taken to the Nurse In-charge Ms Miriama Vere at the school who gave evidence in this case. There was a cut which was around 7cm long as she stated and depth she didn’t know. Medical report says it was laceration 8cm (Dr Jessese later said it could be 5 cm) long and 1cm deep (page 3 of Medical Report P2). Laceration (as describe in Black’s Medical Dictionary) is a wound to the skin or surface of an organ which results in a cut with irregular edges. The Plaintiff in his evidence stated his wound was around 1 inch long which tallies with the Korovou Hospital notes in the Medical Report. In the circumstances the fact that the laceration was caused is established. If it was a stab injury it is incise wound. The Defendant’s counsel stated that the wound was covered with a dirty bed sheet. There is no evidence of a dirty bed sheet. It was a used bed sheet. If there is an accident and if someone is bleeding the people around, they will not look for clean clothes to cover it. Whatever is available will be used to cover and stop the bleeding once he was taken to the hospital it will be the duty of the hospital to clean the wound. As such the argument by the Defendants counsel is unacceptable even if the wound is covered with dirty clothes, at the hospital it should be cleaned by antiseptics. The evidence before this court is the wound was stitched without cleaning, and no evidence to say antiseptics were used.
17.3 Considering all the evidence led before this court, my findings are:
2. The evidence establishes there was no negligence by the CWM Hospital staff who attended to the Plaintiff and by the time the Plaintiff was admitted to the CWM Hospital, Compartment Syndrome was developed beyond treatment.
(a) No exploration of the wound being done and wound was not washed. By stitching the wound and applying the tight bandage and without releasing it at intervals, blood supply to the right forearm was stopped. As suggested, by both Dr Turagava and Dr Jessese the proper treatment would have been firstly to do the exploration of the wound, and if the artery was cut to clip it and then to apply medication to the wound. It was established, in the evidence none of the said processes were followed;
(b) If the pressure bandage was applied, no action had been taken to release bandage in intervals to ensure the supply of the blood to the right forearm. Failure of this had led to tangerine in the fingers and developing sepsis;
(c) By stitching the wound without washing, wound was infected and at the time the Plaintiff was admitted to CWM Hospital Compartment Syndrome was developed beyond treatment. The CWM Hospital Medical staff was left with no alternative other than to prevent the infection spreading over the body which would have caused death as explained by the Defence Witness, Dr Jessese in his evidence;
(d) If the Korovou Hospital Medical staff were not competent enough to treat the patient they would have transferred the Plaintiff to the CWM Hospital which was delayed resulting the CWM Hospital Medical staff leaving with option to amputate the right forearm to avoid the danger to the life of the Plaintiff. As such Korovou Hospital staff had not exercised its duty of care.
18. The Defendants’ counsel cited the case of Bolam v. Friern Hospital Management Committee [1957] 2 ALL ER 118 to state that the standard of care given to the Plaintiff was the accepted standard which would have been given to any patient under same or similar circumstances. The Defendants’ counsel submitted there was delay in seeking care and not revealing the real cause and circumstances of the injury escalated what could have been successfully treated into a tragic event. The counsel also cited Hoston v. East Berkshire Area Health Authority [1957] 1 All ER 210 and submitted even correct diagnosis and treatment would not have prevented the disability from occurring thus the Plaintiff had failed on the issue of causation and submitted the said principles should be applied in this case. The evidence before this court led by the Defence did not contradict the version of the Plaintiff. There was no evidence led that the delay was caused seeking treatment or thereby the condition of the Plaintiff was aggravated. The well established fact was that failure of the Korovou Hospital staff to extend their duty of care which resulted in the amputation of the right forearm of the Plaintiff. There was no evidence led by the Defence proper duty of care was exercised by the Korovou Hospital Medical staff. In fact, this was corroborated by the Defence witness Dr. Jessese agreeing with the evidence given by Dr Taloga. As such the Defendants submission lacks merits.
19. In the circumstances, I conclude, by the Plaintiff had proved the medical negligence of the Korovou Hospital staff who were the servants/agents of the Defendants and they failed to exercise duty of care on treatment of the Plaintiff and further conclude that the Defendants are liable for negligence of the medical staff at Korovou Hospital who acted as the servants/agents of the Defendants.
Damages
20. I have considered the submissions on damages made by the counsel for both parties. In my view the case calls for a substantial amount by way of damages for pain, suffering and loss of amenities in life. The Plaintiff cannot use his dominant arm. His studies were affected. At the time of the amputation of the arm, he was a 19 years old boy in his youth facing a life time of deprivation of his normal sports activities, visible deformity of as a one arm person which will differentiate from the society and which will cause him severe psychological pain.
21. In assessment of damages, the task of the court is to award damages in line with the principles established by the case authorities.
21.1 Lord Blackburn’s statement in Livingstone v. Ram Yards Coal Company (1885) App. Case 25 at 39:
“compensation should as nearly as possible put the party who has suffered injury in the same position as he would have been if he had not sustained the wrong.”
21.2 The said principle was applied after 80 years in case of Fletcher v. Autocare and Transporters Ltd [1968] 2 Q. B. 322 Salmon L. J’s statement at pp. 363-364:
“On the other hand, the full amount of perfect compensation manifestly cannot be given for pain and suffering or loss of amenities for simple reason that, in the nature of things, there can be no perfect compensation in relation to such matters........ To my mind the damages awarded should be such that the ordinary sensible man would not instinctively regard them as either mean or extravagant, but would consider them to be sensible and fair in all circumstances.”
21.3 The awarding damages is based on the principle of restitution in integrum which means claimant is entitled for full compensation for his losses.
21.4 I also cite the statement of Singleton L.J. in case of Waldon v. War Office (1956) 1 WLR 51 at 55 which was cited by Byrne J. in the case of Paul Praveen Sharma v. The Attorney General and Dr Hubert Elliot [1993] 39 FLR 228 at p. 245:
“A judge in assessing damages draws up his own experience where does he get that experience? From knowledge of other judges decisions as to amount; from knowledge of what is said in this court and in the House of Lords; and from his ordinary experience in life.”
it is further said
“The judge realizes that his task is to assess damages in the particular case before him, and upon the evidence before him and upon nothing else. If he can get help from decisions of other judges, or from this court, I am inclined to think that in his discretion he might well accept it. It is for him to judge.”
21.5 The statement made in the above cases and other similar cases well establish the damages should be awarded keeping in mind the injury suffered, the pain sustained and loss amenities in life. More specifically the damages should somewhat compensate for the Plaintiff to lead his normal life. In the present case the Plaintiff losing his right forearm which was his dominant arm, having suffered pain and furthering of pain and disability for his life time warrant for adequate damages as compensation. I believe in the evidence of the Plaintiff with regard to the pain he suffered, set back in his education, mental trauma undergone, isolating in the society in the activities, and obstructing his future aspirations and ambitions.
Special Damages
22. The Defendant submitted the special damages claimed by the Plaintiff in the sum of $2,500 is excessive and quoted the case of Paul Praveen Sharma v. the Attorney General and Another. This case does not support the contention of the Defendant. In the said case, Byrne J. had awarded the special damages without any receipts being produced. I believe in the testimony of the Plaintiff and conclude a sum of $2,500 is reasonable. He had to visit Labasa Hospital for clinics more than a year and when he was in Suva had to visit clinics at CWM for approximately two months. He had to spend for the medicine. No evidence placed before me by the Defendant to the contrary. Accordingly, I award $2,500.00 as special damages, medication and travelling expenses which is a reasonable claim.
General Damages
23. The Defendants submitted possibility of gangrene was not ruled out by the Plaintiff’s witness. However, the Plaintiff’s medical witness and the Defendants medical witness both agreed that applying tight bandage would stop the blood supply for the forearm and gangrene will develop. It was undisputed evidence that by the time the Plaintiff was admitted to the CWM Hospital the tissues were dead. It is also note worthy to understand the meaning of Gangrene. Black’s Medical Dictionary 40th Edition states:
“Gangrene – The death and decay of body tissues caused by a deficiency or cessation of the blood supply.......”
The evidence before me was that blood supply was ceased because of the tight bandage. There is no evidence before me to establish that gangrene developed before the admission to Korovou Hospital. The Defendant’s argument fails and the case of The Attorney General v. Narayan [2011] FJCA Civil Appeal No. 57 of 2008 (decided on 11 April 2011) cannot be applied to decide the quantum of damages.
(a) Pain and suffering $ 80,000.00
(b) Future nursing care $ 10,000.00
(c) Interest on 90,000 @ 6% 4 years and 3 months (1548 days) $ 22,901.91
(d) Loss of future earning capacity ($10,000 x 20 years) $200,000.00
Total for General Damages $322,901.91
25. There is no legislation in Fiji providing guidance for assessing award of non-pecuniary damages in personal injury actions and I cite Cunningham v. Harrison [1973] QB 942 at page 956 which was quoted in Fiji case Nasese Bus Company Limited & Another v. Muni Chand Civil Appeal No. ABU 40 of 2011 (unreported decided on 8th February 2013) “.........if judges do not adjust their awards to changing conditions and rising standards of living, their assessments of damages will have even less contact with reality than they have had in the recent past or at the present time.”
In the said case Calanchini P.A. by applying the said principle stated:
“It is sufficient for me to say at this stage, on the basis of what has been said above, that I reject the Appellant’s ground of appeal that the award for non pecuniary damages was excessive or unreasonable.”
26. Now I will deal with the General Damages for Pain and Suffering. The evidence established the Plaintiff had undergone severe pain at Korovou Hospital and CWM Hospital. It is evident he will suffer in future too. It would be physically and psychologically. The loss of dominant right forearm had left the Plaintiff with no other option other than to develop working and writing skills, by the left hand. I observe it is a very hard process. It would be more difficult to the Plaintiff as an undergraduate at USP. His studies were affected due to the injury and his ambition to become an Aircraft Engineer had become impossible. It was stated by Dr. Taloga that the Plaintiff would have suffered maximum pain. If prosthesis is done to replace right forearm, it would cost $70,000.00 approximately. In similar situations the court had awarded damages ranging from $70,000 to $100,000. I have specifically taken into account the case of Eta Naqeletia v. Ram Kumar HBC 19 of 2010 (unreported decided on 20th January 2012), right hand was not amputated and permanent disability was assessed at 19% and Wati J. had awarded $70,000.00 as damages for pain and sufferings. Considering the said pain and sufferings, by the Plaintiff, and in comparison with the damages awarded in similar cases, I award General Damages of $80,000 which a reasonable sum.
27. Obviously the future nursing case is necessary for the Plaintiff; I award General Damages for $10,000.00 as compensation for future nursing care as it is a reasonable and justifiable claim.
Interest on General Damages
28. The Plaintiff claims interest on General Damages @ 6% pursuant to Law Reform (Miscellaneous Provisions) (Death and Interest) Act from the date of issue of Writ to the date of hearing i.e. 16 March 2009 to 12 June 2013 (1548 days). Accordingly, I award interest for 1548 days calculated as below:
6 x $90,000 = $5400 = $14.79 x 1548 = $22,901.91
100 365
Loss of Future Earnings
29. Total amputation of the right forearm of the Plaintiff is assessed by Dr Taloga at a rating of 57% impairment of the whole person which would definitely affect the future earnings of the Plaintiff.
30. For assessing loss of future earnings, I consider the permanent disability of 57% and the age of the Plaintiff at the time of the incident, he was 19 years old. Paul Praveen Sharma v. The Attorney General case of similar nature where the Plaintiff was 19 years old and who underwent below the knee amputation. Byrne J. decided this case in 1993 and awarded damages at a multiplier of 20 x $5,000 making $100,000.00 as damages under the heading “Loss of future earnings”. Applying same principle, I accept the multiplier of 20 however, considering the inflation, increase in cost of living, applying multiplier of $7,500.00 to my mind is reasonable. Accordingly, I award $7,500 x 20 years totaling to $150,000.00.
(a) Special damages = $ 2,500.00
(b) General damages for pain and suffering = $ 80,000.00
(c) Future nursing care = $ 10,000.00 $ 90,000.00
(d) Interest on 90,000 @ 6% for 1548 days = $ 21,901.91
(e) Loss of future earning capacity = $150,000.00
Total $264,401.91
Costs
Orders
33. (a) I enter Judgment in favour of the Plaintiff against the Defendants in the sum of $264,401.91;
(b) The Defendants are ordered to pay interest at the rate of 4% on the above sum from the date of the Judgment until the full payment of the said sum of $264,401.91;
(c) The Defendants are ordered to pay costs of $2,500.00 to the Plaintiff.
Delivered at Suva this 25th Day of April 2014.
...........................
C. KOTIGALAGE
JUDGE
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/fj/cases/FJHC/2014/283.html