Nyashadzaishe Ruth Sai v Medical Investments Limited t/a Avenues Clinic

### Preamble
Judgment No. SC 156/20
1
Civil Appeal No. SC 49/17
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DISTRIBUTABLE:           (145)

NYASHADZAISHE     RUTH     SAI

v

MEDICAL     INVESTMENTS     LIMITED     t/a     AVENUES     CLINIC

SUPREME COURT OF ZIMBABWE

GOWORA JA, GUVAVA JA & MAVANGIRA JA

HARARE: MARCH 20, 2018

L Madhuku, for the appellant

M Ndlovu, for the respondent

GOWORA JA:	On 7 January 2014, the appellant was admitted to the Avenues Clinic, a private hospital run by the respondent. At the time of admission, she was expecting her first child. She suffered a miscarriage a few days after she was admitted to the hospital. She then sued the respondent for damages as a result of the miscarriage. The matter proceeded to trial before the High Court. After the close of the plaintiff’s case, the respondent applied for absolution from the instance. The court ordered that the respondent be absolved from the instance and ordered the appellant to pay the costs of suit. The appellant then appealed.

After perusing documents filed of record and hearing counsel in this matter it was the unanimous view of the court that the appeal lacked merit. Accordingly, we dismissed the appeal with costs and intimated that our reasons would be available in due course. The reasons follow hereunder.

BACKGROUND FACTS

The events surrounding this matter can only be described as tragic. On 7 January 2014, the appellant was admitted into Avenues Clinic. With her consent, she was placed in a general ward. She was 20 weeks pregnant at the time and the reason for seeking medical care was due to the fact that she was experiencing problems with the pregnancy. The doctor had advised that she might miscarry and recommended bed rest. Upon admission, it was recorded that the appellant’s pregnancy was threatening to abort the foetus.

On 10 January 2014, she suffered a miscarriage. The hospital alerted her obstetrician but he was not able to stop the miscarriage which was done by the time he arrived to attend to her. As a result, she sued the hospital for, firstly, breach of contract in that she alleged that the hospital failed to save her pregnancy. She also alleged that the hospital had been negligent in not providing reasonable care and attention resulting in her suffering a miscarriage. She also alleged that she had been humiliated by being allowed to go through the miscarriage in an open ward.

The respondent opposed the claim and the consequential relief sought. It denied liability and denied the existence of a contract between itself and the appellant. It also denied that its staff had been negligent as alleged.

The matter proceeded to trial and at the end of the plaintiff’s case, the respondent made an application for absolution from the instance. The court after hearing the parties granted the application with costs. In addition, it dismissed the claim in its entirety. This appeal is against the grant of the application for absolution from the instance. There is no appeal against the order dismissing the entire claim.

PROCEEDINGS IN THE COURT BELOW

Both parties filed written submissions in relation to the application for absolution from the instance. The record shows that in moving the application, the respondent submitted as follows. The appellant and her witnesses had failed to indicate whether they were suing for a contractual remedy or a remedy in delict leaving the court and the respondent to conjecture on the exact nature of relief being sought. The respondent argued further that the appellant and the witnesses did not prove a causal link justifying a delictual remedy. It was suggested that the claim simply hung in the air. Further, it was contended that the appellant and her witnesses had failed to prove that the respondent had been negligent in any manner. Finally, the respondent argued that the appellant had failed to particularize her damages allegedly arising from the respondent’s alleged negligence.

The argument by the appellant went as follows. It was incumbent upon the respondent to rebut the appellant’s inference that negligent conduct on the part of the respondent’s nursing staff was a proximate cause of the injury by showing that its nursing staff did, in fact, exercise the care and diligence required of them, or that the occurrence of the inevitable miscarriage occurred without being caused by any failure of duty on their part. It was also suggested in the written submissions that the appellant’s allegations in the summons and declaration amounted to facts which were res ipsa loquitur. It was suggested that not only was it unknown to the appellant or her doctor why the miscarriage occurred, it could also not be seriously contended that ignoring a patient for more than two hours during circumstances which witnesses described as a medical emergency had not created a prima facie inference of negligence.

The pleadings by the parties are a necessary component of the proceedings before the court. The declaration by the appellant is the starting point. The pertinent portions of the declaration read:

“5. 	The plaintiff’s admission into hospital was in terms of a contract between the plaintiff and the defendant.

6. 	It was a term of the contract between the plaintiff and the defendant that the defendant would take all steps reasonably expected of a private hospital of its reputation to provide the plaintiff with such medical treatment as would be required by her condition.

7. 	In addition to the aforesaid contractual obligation, the defendant had a legal duty to act professionally and with reasonable skill to avert any reasonably foreseeable and preventable harm to the plaintiff arising from her pregnancy.

8. 	In breach of its legal duties, the defendant by omission acted negligently in not providing reasonable care and attention to the plaintiff and as a consequence the plaintiff miscarried.

9. 	The defendant’s acts or omissions consisted of not giving any medical treatment and or advice to the plaintiff for several hours when she called for help whilst experiencing pain related to her pregnancy. The defendant’s officials did not act for several hours after the call for help.”

I did not consider it necessary to reproduce the plea and as a result, I have paraphrased the plea to the summons. The plea by the respondent in substance is set out as follows.

The respondent pleaded that at all times during the appellant’s stay at the hospital, she was under the care of her personal doctor who was the primary caregiver. The doctor was responsible for advising the respondent’s nursing staff on all matters to do with the appellant’s treatment including the drugs to be administered to her.

The respondent admitted that during the period in issue it was obligated to take all reasonable care for the appellant as directed by her doctor. It denied that it had failed by any act or omission to discharge its obligations toward her and denied responsibility for the miscarriage. It denied that such miscarriage was a result of any act or omission on its part. It denied being negligent in all or any of the alleged respects.

In considering the application for absolution from the instance the court stated:

“Absolution from the instance is equated to an application for discharge at the close of the state case. If at the end of the plaintiff’s case there is no evidence to support the plaintiff’s claim or there is insufficient evidence upon which a court acting reasonably, might find for the plaintiff then the court is entitled to absolve the defendant from the instance. The test was aptly set out in the case of Claude Neon Lights v Daniel 1974 (4) SA 403 (A). The court held that;

“When absolution from the instance is sought at the close of the plaintiff’s case, the test to be applied is not whether the evidence led by the plaintiff establishes what would finally be required to be established, but whether there is evidence upon which a court, applying its mind reasonably to such evidence could or might find for the  plaintiff.”

The court concluded that the appellant had failed to meet the onus set out in the authorities. She failed to establish a prima facie case. The court granted the application and proceeded to dismiss the entire claim.

THE APPEAL

The appellant was aggrieved and noted an appeal on the following grounds:

“1. 	The learned judge in the court a quo misdirected herself and erred in law in granting absolution from the instance in circumstances where the evidence at the close of the appellant’s case was such that a court directing its mind reasonably to the evidence could or might have found for the appellant.

2. 	The court a quo’s finding that the appellant had not established a prima facie case of negligence on the part of the respondent is irrational in that there was clear evidence of negligence consisting of the failure by the respondent’s nurses to:

2.1 carry out the instructions of the medical practitioner.

2.2 exercise reasonable care, with or without the instructions of the appellant’s medical practitioner.

2.3 timeously alert the appellant’s medical      practitioner

3.  	The learned judge’s finding that the appellant failed to make out an answerable case at the close of its case is, so outrageous in its defiance of logic that no reasonable court applying its mind to the evidence could ever make such a conclusion, in particular, the following findings fall into this outrageous category:

3.1 That there was no evidence of a contract between the appellant and the respondent.

3.2  That Dr Mhlanga’s evidence was to the effect that miscarriage was inevitable.

3.3 That there was no evidence that nurses failed to follow the doctor’s instructions.

3.4 That it is the appellant’s actions that likely caused her miscarriage.

3.5 That the appellant had made no effort to prove her damages.”

The part of the judgment dismissing the claim itself has not been appealed against. In seeking relief from the court the appellant prayed that the appeal be allowed with costs, that the judgment be set aside, and be substituted with an order dismissing the application for absolution from the instance. Critically there was no prayer for the setting aside of order dismissing the appellant’s claim.

SUBMISSIONS ON APPEAL

Mr Madhuku presented the following argument. Mr Madhuku referred the court to the evidence given by the doctor and submitted that this was the basis upon which the appellant was claiming damages based on negligence. He argued that based on the evidence of the doctor on record there was a clear misdirection by the court in not finding that the appellant had established a prima facie case.

On behalf of the respondent, Mr Ndlovu countered as follows. He argued that the appellant had never pointed to a contract between the parties. In that sense, the appellant had failed to establish a relationship based on contract. On that premise the court a quo came to the correct conclusion when it found that the appellant had failed to establish a contract. As regards the issue of negligence, Mr Ndlovu contended that the appellant’s declaration did not set out any particulars of negligence on the part of the respondent or its staff. Contrary to what was suggested by Mr Madhuku the evidence itself did not point to any negligence on the part of the respondent. The evidence of the doctor did not help the appellant’s case. He concluded by submitting that the appellant was advised by the doctor to have bed rest, and she knew that she should have bed rest. She did not.

ISSUES FOR DETERMINATION

The only issue was whether or not the appellant established a prima facie case in contract and or negligence entitling her to payment of damages. The court did not have regard to the quantum claimed and as a result, this is not an issue.

WHETHER THE APPELLANT ESTABLISHED A PRIMA FACIE CASE

In a trial cause, the burden of proof to establish the claim is upon the plaintiff. The phrase burden of proof has been defined to mean the onus which rests upon a litigant to establish the factual basis for a claim or defence. In turn, the incidence of onus is determined by the pleadings filed by the parties although this is not necessarily cast in stone. What is critical however is that at the close of the plaintiff’s case there should have been adduced on plaintiff’s behalf sufficient evidence to establish a prima facie case.

What constitutes a prima facie case in civil litigation has been settled. In the absence of such an evidentiary burden being met, a defendant is entitled to apply for absolution from the instance. The court’s approach to an application for absolution from the instance was set out recently in Gordon Lloyd Page & Associates v Rivera 2001 (1) SA 88, (SCA), at 92-3 as follows:

“The test for absolution to be applied by a trial court at the end of the plaintiff’s case was formulated in Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403(A) at 409G-H in these terms:

‘When absolution from the instance is sought at the close of plaintiff’s case the test to be applied is not whether the evidence led by the plaintiff establishes what would finally be required to be established, but whether there is evidence upon which a Court applying its mind reasonably to such evidence could or might (not should or ought to) find for the plaintiff. (Gascoyne v Paul and Hunter 1917 TPD 170, at 173; Ruto Flour Mills (Pty) Ltd v Adelson (2) 1958(4) SA 307(T)).’

This implies that a plaintiff has to make out a prima facie case-in the sense that there is evidence relating to all elements of the claim-to survive absolution because without such evidence no court could find for the plaintiff (Marine & Trade Insurance Co Ltd v Van der Schyff 1972 (1) SA 26(A) at 37G-38A; Schmit Bewysreg 4th ed at 91-92). As far as inferences from the evidence are concerned, the inference relied upon by the plaintiff must be a reasonable one, not the only reasonable one, (Schmit at 93). The test has from time to time been formulated in different terms, especially it has been said that the court must consider whether there is ‘evidence upon which a reasonable man might find for the plaintiff’ (Gascoyne (loc cit))-a test which had its origin in jury trials when the ‘reasonable man’ was a member of the jury (Ruto Flour Mills). Such a formulation tends to cloud the issue. The court ought not to be concerned with what someone else might think, it should rather be concerned with its own judgment and not that of another ‘reasonable’ person or court. Having said this, absolution at the end of the plaintiff’s case, in the ordinary course of events, will nevertheless be granted sparingly but when the occasion arises, a court should order it in the interests of justice.”

It has not been suggested that the court a quo applied the wrong test. It did. The only issue is whether or not the appellant met the evidentiary burden at the close of her case.

The appellant did not produce a written document in proof of the contract between the parties. This means that she had to prove an oral agreement. The terms of the contract were not pleaded in the declaration. Before us, Mr Madhuku did not point us to any evidence in proof of the contract. The court a quo set out the basis of the application by the respondent as follows:

The failure by the appellant to give evidence of an existing contract, in order to prove its point that the respondent breached the contract;

The absence of a causal link between the respondent’s action and the appellant’s loss;

There was no proof of negligence and wrongfulness on a balance of probabilities. The appellant had failed to show how the respondent was negligent;

There was no justification for the quantum of damages claimed.

When one has regard to the first ground of appeal, the appellant attacks the court a quo for granting absolution from the instance in the face of evidence where the court could have found for the appellant. The ground is vague due to the fact that it does not state which evidence the court a quo failed to take into account. The appellant must, in order to succeed on this ground, have made reference to the aspects of the evidence that the court a quo overlooked. She has just made a general statement which fails to pinpoint the exact error that the court a quo made and which error when considered by the court would justify a finding of misdirection on the part of the trial court. In the absence of any detail, this Court cannot even begin to examine the alleged error. It would be akin to searching for a needle in a haystack. That is not the function of the court. A court is obliged to work with the material that a litigant placed before it.

In the second ground, the appellant suggested that she had established a prima facie case premised on the issue of negligence. Apart from a reference to the evidence by the doctor, the appellant did not point to this Court any evidence which established that the appellant established a prima facie case. The issue of negligence was left unproved. There was no causal link established between the loss of the pregnancy and the respondent. The evidence of the appellant herself was to the effect that she was admitted to hospital because her pregnancy was under threat of aborting. The appellant conceded under cross-examination that the doctor had told her that the chances of her miscarrying were ‘50-50’. She also confirmed that upon admission she was leaking some fluid from the body. She also conceded that she had labour pains before the miscarriage.

The doctor, even though called as plaintiff’s witness, said that a miscarriage was inevitable because when he consulted with the appellant her condition showed signs of a miscarriage. The umbilical fluid was leaking and he had ordered strict bed rest hoping that he would assist in sealing the plug which was the cause of the leakage.

The court found the doctor's testimony to be persuasive. The learned judge was swayed by the evidence of the doctor to the effect that the miscarriage was an inevitable occurrence given the diagnosis given to the appellant and the spouse. The court also found that the appellant had not presented any proof that the nursing staff had failed to carry out any of the doctor's instructions. It concluded that the miscarriage did not occur as a result of the actions or omissions of the respondent. I agree.

It seems to me that the appellant was of the view that from the mere fact that the respondent had admitted her into its hospital, it should be held responsible for the loss of the pregnancy. This cannot be correct. She should show that the hospital was negligent in specified aspects of the manner in which the staff handled her condition causing the miscarriage. In Roe v Ministry of Health and Others; Woolley v Saure (1954) E W C A CIV 7, [1954] 2 ALL ER 131 CA at 139, DENNING L J stated;

“But we should be doing a disservice to the community at large if we were to impose liability on hospitals and doctors for everything that happens to go wrong. Doctors would be led to think more of their own safety than of the good of their patients. Initiatives would be stifled and confidence shaken. A proper sense of proportion requires us to have regard to the conditions in which hospitals and doctors have to work. We must insist on due care for the patient at every point, but we must not condemn as negligence that which is only a misadventure.”

The appellant should have adhered to the advice to maintain strict bed rest. The appellant herself testified that she had not adhered to the instructions for strict bed rest. She had taken a bath and had suggested that the nursing staff should have stopped her from bathing. There is, however, no suggestion on the evidence that the bath itself was the proximate cause of the miscarriage. The appellant’s spouse confirmed that the doctor had advised that the pregnancy might abort.

Given the evidence of the doctor, it behoved the appellant to adduce sufficient evidence to show that there was negligence on the part of the respondent and its staff which led to the miscarriage. Although the respondent made reference to the absence of proof on the alleged negligence on a balance of probabilities, the court correctly, in my view, applied the correct test, that the appellant had not established a prima facie case. The court in fact concluded that the appellant had failed to establish a causal link between the miscarriage and any actions or omissions on the part of the respondent. Besides, in the absence of pleading the factors of negligence upon which the claim was premised it became difficult for the appellant to adduce any evidence in proof of negligence. This was negligence in the air.

The third ground is misplaced. The factors that the court a quo is alleged to have overlooked are factors that an appeal court is enjoined to take into account before setting aside findings of fact by a court or tribunal of first instance. Those factors have no bearing in the exercise of a court when considering an application for absolution from the first instance.

DISPOSITION

The court a quo was correct in its application of the law and assessment of the facts before it. The appellant was unable to present any argument that could convince us that the court had erred in any respect.

It was the unanimous view that the appeal was devoid of merit and it was for this reason that it was dismissed in its entirety.

It occurred to the court that notwithstanding that the appellant had not appealed against the dismissal of the claim by the court a quo, the dismissal by the court following upon the grant of the absolution in favour of the respondent must be addressed. The issue of the dismissal of the claim was not before the court a quo. It was not sought by the respondent and neither party addressed the court on this issue. The grant of relief not sought by a party is a gross irregularity warranting this court to invoke its powers of review under s 25 of the Supreme Court Act [Chapter 7: 13]. The section reads in relevant part:

“25 Review powers

Subject to this section, the Supreme Court and every judge of the Supreme Court

shall have the same power, jurisdiction and authority as are vested in the High Court and judges of the High Court, respectively, to review the proceedings and decisions of inferior courts of justice, tribunals and administrative authorities.

The power, jurisdiction and authority conferred by subs (1) may be exercised

whenever it comes to the notice of the Supreme Court or a judge of the Supreme Court that an irregularity has occurred in any proceedings or in the making of any decision notwithstanding that such proceedings are, or such decision is, not the subject of an appeal or application to the Supreme Court.

Although the order issued by this Court did not mention the irregularity, in settling the reasons for the judgment, it has become apparent that the irregularity cannot be allowed to stand. It behoves this Court in the circumstances to invoke our powers under s 25(1) and (2) and correct the irregularity. In the exercise of those powers the order of the court a quo dismissing the appellant’s claim stands to be set aside. The invocation of this power after the order dismissing the appeal will result in an alteration of that order. In my view, the correction of that order does not prejudice either of the parties and is entirely necessary in the interests of justice. In the premises the order we issue is to the following effect:

IT IS ORDERED THAT:

The appeal be and is hereby dismissed with costs.

In the exercise of the powers of review of the Supreme Court in terms of s 25 of the Supreme Court Act [Chapter 7:13], the order of the court a quo dismissing the appellant’s claim is set aside on the grounds that it constitutes an irregularity.

GUVAVA JA		:                I agree

MAVANGIRA JA	:                I agree

Mundia & Mudhara, appellant’s legal practitioners

Atherstone & Cook, respondent’s legal practitioners