Baidala Levi Mwanza (Male) v Harrington Akombwa and 7 Ors (APPEAL NO. 154/2015) [2018] ZMSC 615 (18 May 2018)

• 'Jl IN T HE S UPREME COURT OJF ZAMBIA A PPEAL NO. 154 /2015 HOLDEN A T LUSAKA BE T WE EN : APPELLANT BOATENG WIAFE RASFORD MUSONDA 6TH RESP ONDENT 7TH R ESPO NDENT LUSAKA EYE H OSPITAL (Sued as form) gTH RESPONDENT Coiram Hamaundu, Kabuka and Mutuna, JJS On 8 th May 2018 and 18 th May 2018 For the Appellant M:r. C . Chuula of Messrs Chibesakun da a nd Co n1pany For the Resp ondent N / A. Jr UDG M EliT Mutuna, J S . d elivered the judgme nt of t h e cour t . Case s referre d to : J2 1) Sacher Nasendra Ku ma:r v Joseph Brown Mutale, SCZ j udgment No. 8 of 2013 2). . William Dav~d C~rlise Wise v ~. F .. ,Harvey Limited (,1985) ZR 17~ . 3) Sata v Zambia BotUe:rs Limited scz judgment No. 1 of 2003 4) Attorney Gene:ral v Mali."cus Achiume {1983) ZR 1 5) Bolitho v Hackney Health Authority (1 998) A.. C. 232 I \ \ I Legislation referred to : 1) The Limitation Act 1939 (of England) 2) T h e ;La w ,Reform (Li m ,i t ation) of Actio~s) Act, Cap 72 3) The Supreme Court Practice, 1999 4) The Health Professions Act , 2009 Works r eferred to: 1) Halsbury's Laws of England, by Lord Hailsham of St. Marylebone, 4 t h edition, reissue , Butterworths, Lo n don 2 ) Winfield and Jolowicz on Tort, by W. H. Rogers, s ixteenth edition, Sweet and M axwell, London. 3) Charles worth and Percy on Negligence, tenth edition, by R . Cooper, S. E. Wood and J . Walton, Sweet and Maxwell, London. 4) Ethical Judgments-Re-Writing Medical Law b y Stephen W. Smith, John Coggon, Clark Hobson, Richard Huxtable , Sheelagh Mcguiness, Jose ' Miola and Mary Neal, Bloombury, Oxfoird and Po1·tland, Oregon 2017. Intli"oduction 1) The facts of this appeal make very sad reading . They emanate from an action commenced by the Appellant 1n the High Court against the Respon d e nts, following an operation to his eye by th e Respondents . The lS for breach of • J3 contract, duty of care and compensation for injury su.ffered whilst' ·he was under their care•.. · 2) During the course of t h e action, as will be demonstrated by the background to the appeal, a determination had to be m<;tde as to whether the I I I t t Appellant's action was one for personal injuries. The reason for this was that it had an effect on whether or not the action was statute barred. 3) Arising from the determination made by the Learned High Court Judge , the appeal addre sses: when the period for limitation of the action s tarted running; whether or not there were subsequent causes of action; whether or not there was concealment; and, . whether or not there was a break in the limitation period . 4) Last of all, the appeal discus se s the ethical and moral obligations placed upon m e dical J4 practitioners to provide c are for their patients. In doing, . so, it looks at the effect of an action beiBg s tatute barred . . Backg1r())undl. 5) Sometime 1n April 201 o·, the Appellant noticed . that he had difficulty driving 1n the night which prompted him to attend the Eighth Res pondent eye hospital. Upon being examined h e was informed that he had a cataract in his left eye. 6) The Eighth Respondent recommended that the Appellant undergo an operation in the left eye which he was advised was safe. He, therefore, paid the prescribed fees, after which the operation was conducted on 5 th May 20 10. 7 ) The operation went horribly wrong resulting in pain, discomfort and loss of sight in the left eye. This appears to h a ve b een caused by the negligent JS manner in vvhich t he operation was conducted by the ·Respondents •. and was . .revealed )_ o L . the Appellant a w eek after t h e opera t ion was conducte d . 8) . Tl]e Respor:idepts continue.,d to attend to the Appellant by placing him on medication and reviewing his condition from time to time. After some time, they took the Appellant 'by ambulanc·e to another eye hospital known as Vision Care Appasary (VCA) for further t re atment. 9) Upon examining the Appellant, the doctors at VCA agreed with the diagnosis given to the Appellant by t he Respo ndents but in dicated that they lacked capacity to remedy the condition he was in . and recon1mended t hat he t ravel to India for rem.edial a c tion . He was given a rn edic al report by VCA which appraised hirn of the extent of his injuries . 10) O n 4 th Augus t 2 0 10, the Appellant wrote to the ·. Eighth Re s po.ndent infor ming. it of the d iagnosis by VCA hospital and the recom mendation. He also requested the Eigh th Respondent to meet part of the costs of t reatment and travel to India. The I I I Eighth Respondent igno re d his letter. 11) The Appellant travelled t o India at his own expense where a cornea transplan t was · carried out and partial visibility was resto red to his left ey e . H e continued to attend the ho spital in India and required another operation a nd fu rth er r eviews . 12) As a consequence of the matters referred t o in the precedin g p aragraphs , the Appellant took out a n action against the Respondents in the High Cour t on 16th September 2014. J7 13) The Appe lla nt's suit in the High Court w as by v1ay ·. ofa writ of surrimons and ·stateme n t of claim. 14) The endors e ment on the w rit of sumn1ons was for the following : 14.1 tlamages for brea'ch of contract; ' 14.2 d amages for b:re ach o f duty of care ; 14.3 d a mag e s for pain and s u ffering; 14.4 d a m ages for loss of expect~tion of Hfe; 14.5 damages for loss of amenities; 14.6 nominal, general and exemplary d a m ages; 14. 7 Interest; 14.8 any other order the c o u rt may deem fit; a nd, 1 4.9 costs of and i nciden tal to the act ion. The pYoceedi:ngs in t h e H igh Cou:r.t 15) After the Appellant filed the writ of s ummons and s tatement of cla im, the Respondents a pplied to d ismiss the a ction for b e ing statute barr e d before the Learn e d Deputy Re gis t rar. The application J8' was by way of an interlocuto:rJ sum m ons 1n ·. support w he.r eef wer e a ffidavits . In r e$pon se , t he App ellant filed an affidavit in opposition. Th e parties a lso filed skeleton arguments The contention by the Respondents as c ontained I • I I I I in the affid avit evidence a nd arguments presented to the Learned Deputy Registrar was that since the Appella nt's claim w a s one• for p ers onal .injuries it should have b e e n commen ced with in three years of the ope ration having b een conducted on t he Appella nt . 1 7) The Respond ents also contende d that the Appellant was aware of h is cause of action by 4 th . August 20 10 as evidence d by his letter of even date to the Respondents . That there ·was, therefore, no concealment of the cau se of action by t h e Respondents. Consequ ently, since the J9' Appellant did n ot commence the action within ·.t h Tee years of the event, it .was statute har red. 18) The contentions by the Appellant were as follows: 18 .1 the claim he made was not one fo:r nor did it include a cla im for damages for personal injury. As such the limitat ion period was s ix yea1·s n o t three years; I t I I I f 18.2 for purposes of computing the limitation period, time did not start running from the date of the operation but rather the date of accrual of the c a use of action; Alternatively, 1 8.3 t he continuou~ reviews after t h ~ o peration gave ,ris e to distin ct c auses of a ctio n from the one w hich e nsued after the operation which were not time barred; 18.4 the matter fell within the ambit of section 26(b) of the Limitation Act which provides for s u spension of time on account of concealment of a fact relevant to the action by the Eighth Respondent. 19) 20) Consequently, the action w as not time barred. The Learned Deputy Registrar considered the . evid ence and arguments presented before her and held as follows: 20.1 the AppeHa:.nt 's claim does not include a claim foir damages for personal injuries, as such the applicable limitation period was sh, yeairs and not three yea:rs; JlO 20.2 that time i n :respect of the lh.n:H:ati<Dn period did not start :running from the date of the ope:[('ation but :rather when the ca'u se of action a rose ; and, 20.3 the AppeHant continued to attend the Eighth Re sponde n t up to 2 0 1 2, 'as s uch, commencement of the action was within the period of limitation 2 1) As a re sult of the foregoing, the Learned Depu ty Re gist rar held that t he application lacked merit a n d d ismissed it with costs . ' ' 22) The Responde n ts appealed a gainst the decision of the Learned Deputy Registrar to the Learned High Court Judge by way of a no tice of appeal ra1s1ng three grounds of a ppe al as follo w s: 22. l The Honourable Deputy Regist:rrar erred in iaw and fa ct when she ll."efuse d to d ismiss the action afteir. the e xpiry of the limitation period, 22.2 The Honm.llit'able Deputy R egistrcaT eir:red in law and fact when she heJl.d that the (AppeHant's} dahn did not include a c laim for personal injuries ; and , Jll 22.3 The Honou.:rable Deputy Regis t lt"air m isdirected herself when s he h eld that time did n ot s tart i-;unn :ing on 1 , ' , I I f I I account of alleged :revi ews and check-ups done on the (Appellf1nt) by t he Eighth Responde n t 23) At the h earing of t h e appeal the parties relied ,entirely on tl;ie evide nce aµd.ar gument~ adva nced b e fore t he Learne d Deputy Registra r. 2 4) The Learned High Court Judge considered t he argume nts and identified the issues . in contention as b eing: when the Appe llant's cause of action a gainst t he Respond ent s arose; a nd , whether or n ot t h e Appellant was within the limita tion period when h e took out the court processes. 25) The Judge then qu oted from the learne d auth ors of Halsbury's Laws of Engla:n.d, 4 th edition, v ol. 28 at paragrap h 822 as to whe n a cause of action is deerned to have accrued . She a lso referred to section 2 of t he Liin11,iitatiorrtl A rc(r; 1939 and section J12 3 of the Law Ref©rm (Li1nrdJc({)1ti@n of Acc(d,«Jns) Act (the Act) . 26) In addition, the Learned High Court Judge analyzed the claim and relief sought by the ,Appellant and . the evidence • before her. • She concluded that a claim for damages for negligence which consists of, or includes damages for personal injury, is subj-ect to the limitation period of three years. She relied on the provis o to section 3 of the Act. 2 7) According to the Learned High Court Judge, her analysis of the claims and remedy sought by the Appellant led her to c onclude that they relate to, or are hinged on the personal injuries he suffered. This , she stated further, applied to the clairn for b reach of duty of care or negligence because they were all related t o the history of the incident of the . ' , J13 eye ope r ation from w hich the Appellant con ten ded that the ·Respondents ·did not use reasonable .skill in the opera tion. 28) As a c onseque n c e of t h e foregoing, the Learn e d . Hie;h Court J:udge t ook th~ vi~w t hat th~ lip-iitation period applicable to the Appellant's action is t hree ye ars and not six years . 29) · In a rriving at t his decision the Learne d High Cour t J udge distinguished the fac ts of t his case fro m thos e in t he c ase of S acher Nas endra Kumar v Josep h Brown Mutale 1 • According to her, the claim in the Sac her c a se arose fro m damage to a ve hicle and conseque nt loss of busin ess. The ca se did not , therefore , a ssis t . the Appellant 's case . 30) Tur ning to the second issu e of w h e n the limitation p e riod started run n in g 1n re s pect of t h e J14, Appella n t' s claim, t he Learned High Court Judge ' . referred t o our ·.decision in the case of William David <C<tJLrU.se Wise V Eo Fa 1-Iarvey Livrd .. t red2 J. D which we held as follows at page 179: "A cause of action is disclosed only '"!'hen a factual situation is alleged which contains facts upon which a party can attach liability to the other or upon which he can establish. a right or entitlement to a j udgment in his favour against the other . 11 31) The Learned High Court Judge concluded that 1n cases of p e rsonal injuries the cause of action accrues on the date of the accident or incident which give s rise to the injuries. She, however, found in relation t o the Appellant' s claim, that s ince a n op e ration is a specialized procedure a la y person cannot be expe cted to know immediately after the oper ation that damage has occurr ed . As such , the ca u se of action accrues only after the • J15 victim becomes aware of the injury caused t o his person . 32) After a rriving at the conclusion 1n the preceding paragraph, the Learned High Court Judge analyzyd . the evidenc;e . and ple<?-dings which I revealed that the Appellant was prompted to return to the Eighth Respondent about two weeks after the pain in his eye got worse and was informed of the caus e of his current condition. Further, this notwithstanding, the doctor who attended t o him insisted that the Appellant continue on medication. 33) The Learned High Court Judge advanced her analysis by referring to the Appellant'_s letter to the Eighth Respondent's Administrator of 4 th August 2010 in vvhich he reveals his knowledge of the damage done to h is eye and the remedial s teps r ecommende d t o him. As a consequence of these facts , she found that .. the limita tion· period started running on 4 th August 20 10 and not the day of the operation of 5 th May 2010 . ~4), In reg~rd. to the c?ntention that ,the limitatio:p period was suspended in line with section 26(b) of the Limitati<Dn Act, by virtue of concealment of facts, the Learned High · Court Judge de clined to accept the argument on the ground that the Appellant did not reveal the facts which were allegedly concealed. She foun d tha t Part 2 of the Limitation Act, 1939 under sections 22 to 26 provides for extension of the Limitation period 1n . cases of . disability, acknow ledgement of the wrong done and part payrnent, fraud and mistake. J17 35) In the case of the Appellant, the a llegation ,iVas fraud , based •on the contention that th.e 'damage done to his eye was concealed from him and he only learned of it through the medical report h e obtained from Univers~ty Teaching Bospital (UTH) I I . . . in 2013 , thus, time started running then . In dismissing the contention, the Learned High Court Judge looked at the content of the medical report from UTH and concluded that it merely gave the history of the Appellant' s lnJUry, its extent at the material time and recommended remedial action. Further, it set out the treatment which the Appella nt underwent on 17th May, 2010 1n Zambia a nd subsequently in August, 20 l O in India. It also revealed that the Appellant knew the nature of the lnJury he s uffered by those d ates and the state the . . lnJury J18 progressed to by February, 2011. The view taken by the Learned High ·. Cburt Judge ,was that , in qriy event, by the date of the medical r eport the limitation p eriod had already expired . 36) Th~ Learned . High Court Judge also declined to accept the Appellant's contention that his subseque nt visits to the Eighth Respondent in 2011 and · 2012 for check-ups and ·reviews gave · rise to a continuous duty of care and therefore, constituted separate causes of action. According to the Judge , the Appellant had failed to prove this conte ntion because he did not specifically outline the distinct causes of action nor did he demonstrate when and how t he Respondents' subsequent breach of duty either aggravated the earlier injuries suffered in 2010 or materially J19 contributed to t h e c ondition w h ich ex is t ed a fter the operation in 20 10.·· 3 7) Following [rom the foregoing finding~ , t he Lear ned High Court Judge h eld that the preliminary :i;no,tion raised, b;r the Resppnde nts had ,merit and uphe ld it . In d oin g s o , she dismissed t he Appellant 's claim as being statute barred and ordered e·ach p a rty to bear their respe ctive costs . 38) This d e cis ion has r iled the Appellant , prompting this a ppeal which is brought on five grounds. The g l!."ounds of appe al and a X'gu m ents p resented to this Cou11t by t h e part ies. 39) The five groun d s of a p p eal present ed b efo re u s are as f ollO"\iVS: • J20 39.1 The Learned High Court Judge e:rred in law and fact . when she h eld that the Appellant' s d aim consisted of or . . inc'Iudes damages for p~rsona! injury';· 39.2 The Lea:rne d High Court Judge e.rx-ed i n law and fact when she held that for purposes of the limitation p eriod, time started running a day from 4 th August 20 10; 39.3 The Le arned High Court Judge erred in law and f;tc t • ' • I o w hen she held that the c ontinuous reviews and checkups on the [Appellant] by the Eighth [Respondent] did not give :rise to a c ontinuous duty o f care and subsequent cause o f action; 39.4 T he Learned High Court Judge erre d in law and fa ct when she held t hat there was no concealment of relevant facts by the Eighth [Respondent], as such, time was :not suspended; and alternatively; 39.5 The Learned High Court Judge e:rred in law and fact when she dismissed the whole action and not just the c laims she found to consist o f or include claims for personal injury. 40) At the hea ring of the appeal, coun s el for the Respondents w e re not in attenda nce having filed a notice of no n-appearance pursuant to Rule 69(1) of our Rules. Further , counsel for the App ellant informe d us that the Appellant had abandoned J21 grounds 1 and 5 of the appeal and only argued ground.s Q to 4 of th~ appeal. 41) The Appellant filed his heads of argument on 5 th October 2015 while the First, Second and Eighth Respondents filed theirs on 15th Decemb½r 201 5. I I I I I I t There were no heads of argument filed on behalf of the other Respo ndents. 42) . In arguing. the appeal the parties relied upon the· heads of argument. The Appellant augmented the heads of argument with viva voce arguments. 43) In regard to ground 2 of the appeal, the Appellant's argument was simply this, that a cause of action accrues when there is in exist e nce a p erson with a right to sue and one who can be sued and w h e n there are present ail the facts which are material t o be proved to entitle the plain tiff to s ucceed. Re ference in this regard was J22 m ade t o Jfl«JJ.l§bury's L©LY. JJ§ of Engla nd 4th e dition vol. 2 8 · .. . 44) The App ellant advan ce d his argumel).t by contending t hat the elements requ ired t o be present for a cause of action to accrue are: duty of I I I t care; the bre ach of such duty; and damages arising from the breach. Further, a nd quoting from· the Le arned authors of Charle sworth on Negligence , six th edition and the case of Sata v Z ambia Bottle rs 5 , negligence lS only actionable if actual damage 1s proved and conversely, negligence alone doe s not give rise to a cau se of action. He t h u s, concluded that there was no evidence to support the finding by the Learn ed High Court ,Judge that damages arose on 4 t h August , 2010 or indeed that the Appellant' s letter to the E ighth Respondent sufficie ntly proves J23 he was aware of the extent of the damage to his eye. by that date:, 45) In advancing the arguments 1n the pre.ceding paragraph fu rther, the Appellant acknowledged that this Gourt can only reverse findings of fact by I f I I ' I a trial court where they are perverse or made in the absence of any relevant evidence or upon a misapprehension ·of facts , in a·ccordance with our holding in the case of Attorney General v Marcus Achiume4 o f-Ie contended that the finding by the Learned High Court Judge that the cause of action accrued on 4 th August 2010 met the criteria we set in the Achi'v1,.me4 case and should, therefore, b e set aside . 46) The arguments under ground 3 of the appeal can hardly be termed as such because there are merely a res tatement of the ground of a ppeal as cr afted 1n the memorandum of app eal. Consequently,.we have not r.eproduced th~in. 4 7 ) In the VlVa voce arguments counsel for the Appe llant Mr. C. Chuula contended that the Appellant's s ubsequent causes of, a ction arose f I I I from the fact that he continued attending the Eighth Respondent for reviews in 20 11 and 2012. He however, did ·not spe cify the nature of these causes of action save to state that the limitation period started to run in 2 012 and not 4 th August 2010. 48) In re spe ct to ground 4 of the a ppeal, the Appellant contended that the Learned High Court Judge dismissed his contention that there was concealment of damages based on the contents of his letter to the Eighth Respondent of 4 th August 20 l 0 . He a rgued t h at the Learned High Court J25 Judge failed t o recognize the fac t that h e is a lay person and authored the letter with no 'medical professional opinion which informed him of the extent of his in jury. That the in jury he suffered ' . was one ;w-hich could .only be appreciated upon I I , I receipt of professional advice which only came in February, 2013 1n the fo r m of a medical report from UTH. 49) Concluding arguments on this ground of appeal, the Appellant contended that the Eighth Respondent owed him a duty of information of full disclosure of the extent of his injury. That the Eighth Respondent failed to discharge the said duty. 50) In the viva voce arguments counsel for the Appellant, Mr. C. Chuula, clarified that the c oncealment of fac ts by t h e Responde nts lay in J26 the fac t t hat they did not re spo nd to the Appellant"s le tter of 4tli · August 2 010 . He howevet concede d that the con tents of the letter of 4 th August 2010 suggest that the Appellant knew the extent of the injury to his eye and tha t the damage I I I I f could only be corrected outside the country. 51 ) In response to ground 2 of the appea l the Respondents argue d that according to the Learned a uthors of Ha.lsbury's Laws of England, t he limitatio n period in cases for personal injury b egins to run either on t h e dat e the cause of action a c crues or on the dat e which the Plaintiff becomes aware of the injury, whichever is the later. The Respondents expla ined the r ationale for this as being that n e gligence alone cannot give rise to a cause of action in line with our decision in t h e c a se of Sata v Z ambia B lf.1>ttl e rrs 3 case . The J27 court m ust, therefore , examine the fac ts surrounding a cla im • 'and d e t ermi~e when both negligence and dama ge are pre s ent. 52) Applying th e reasoning a d vanced in the preceding • • pp.ragrap h to I . this cas~, , the Respondents contended that the claim by the Appellant is that the Eighth Respondent negligently operated on his left eye on · 10th May 20 i O, causing damage t o it. Therefore, on that date both the negligence and damage were present and thus, the cause of action accrued. 53) The Respondent advanced the a rgument by contending tha t d ue to t h e s p e cial nature of m edical cases, H((Jllsbury's takes · the view that w h ere there 1s b oth negligence and damage but the Plaint iff 1s unaware of t he d arnage done to him, t:he cause of action arises whe n he b ecomes J28 aware. They set out the tes t in HalsbVJ.:ry,'s in relation ·td- when a per.son is pre s umed to b e awar~ of the damage. 54) In conclusion, it was submitted that the Appellant ' I w:as, aware of, the damage. an 4 th Au~st 20 10 when he sent the letter to the Eighth Respondent setting out the nature of his injuries. 55) · As regards ground of the ·appeal, the · Res pondents argued that the Appellant h as not reve a led the subsequent causes of action which arose and when they arose as a consequence of the rev1e\VS . In addition , he has not given particulars of the a lleged continuous d uty of care and . whether it was . breached '. According to the Respondents, the Court cannot speculate on these issues b ecause it is the duty of the Appella nt to prove them. J29 5 6) In r e lation to ground 4 of the a ppe al the argurnen t by the ·. Respondents· . was merely ·.this that, it·. is evident frorn the contents of the Appellant' s le tter to the Eighth Respondent dated 4 th August 2010 , that he had knowle dge of the extent of the I I I I t I I I I I damage to his eye. Consequently, the contention that there was concealme nt 1s • untenable. · The decision of this Court 57) We have carefully c onsidered the arguments raised by the parties, the record of appeal and the ruling which is the subject of this appeal. The grounds of a ppeal a dvance d by the App e llant r aise thre e is sues for d e t ermination as fo llows: 57 o l w h e n did the llimitatfo n p e iriod start :nrn.nning; 57.2 was t here a continuous il:uty o f care on the part of t h e E ighth Responde nt whkh gave rds e 'i::(Q) subsequent ican.llses J30 57 .3 was there conce alment of facts by t h e Eigh th Respondent in relat io n to 11:lh.e AppeHant's i njury which '• ' · re s ulted in the ~us pension o f th~· limitation p eri~d . 58) In regard to the first issue on when the limita tion ' ' period began to run t h e parties are in agreement that in terrps of the prov,isio t o section 3 of t he Act, the limita tion p eriod in re spect of the Appella n t 's claim is t hree ye ars a nd not six ye ars. It is important to state this agree d position b e cause the b ackground t o this a ppe a l revea ls that t h is issu e was in di spute in the Court b elow. 59) Halsbu ry's L«JLws of Englound h as t h e fo llowing to say at p age 42 0 in terms of whe n the lim it ation period begins to run : "Whe re damage is the cause of a ctio n or part of the cause of action, as fo:r example with negligence~ the period of limitation :runs from the date of the damage and not of the act which caused the damage . " As a consequ e nce of the foregoin g and in rela tion to. the App e llant's claim , t he limitation period did . not star t running on the date of the opera tion but ' ' ' ' r a t h er the d a t e of the damage . 60) I I This must b e considered in the ,light of our I I f t d e cision in the case of William Dav id Carlisle Wis e v E aFo H ervey L i mited 2 , which the Learned High · Court Judge · referred to, and which we have quoted in t h e earlie r part of this judgm e nt. 61) The interp retation w e h a ve given t o the passages from Hal s bury's and the Wise case in r e lation to the Appellant's claim is t hat the limit a tion period d id n ot b e gin t o n1n afte r the operation but r ather a fter h e discovere d the extent of the damage. The reason for this is that it is clear from t h e facts of t his case that on t he day of the operation the Appellant d id not know that damage J32 had b ee n done to him. He, howeve r, discove red the full· . extent of · 'the damage ·. subsequentiy and confirmed it by letter dated 4 th . August 20 10. Our ' ' decision has the support of Halsll:nJL'ff'!J 1 S paragraph 9 05, ref~r:.re d to us ,by the Resp,ondents whic;h• states in p art as follows: "For purposes of the application of the limitation period (or actio ns involv:ing personal injury, the date of a • person's knowledge is the date on which he first had knowle dge of the following facts: 1) That injury in question was significant; 2) That that injury was attributed in whole or in part to the act or omission which is a lleged to c onstitute negligence, nuisance o r breach of duty; 3) The identity of the defendant; and, 4) 62) The Ap pellant's letter of 4 th August 2010 reveals t hat he had been examined a t VCA and was given a medical report explaining the extent of the injury to his eye. Thus, at this point the Appellant b e came awa re of the d a mage. The letter a lso J33 reveals that he was aware that the damage vvas attr1butable in ·whole to the ·orilis sion or br~ach of duty ,of care. That ,is, the d amage was attrihytable to the operation gone wrong, and that the Respond~nts were re~ponsible, heµoe his writi:r:ig• to the Eighth Respondent. We cannot, therefore, fault the finding by the Learned High Court Judge. , 63) We now come to the second issue which relates to the contention that the re was a continuous duty of care on the part of the Re spondents which gave rise to subsequent causes of action. The Respondents have argued that the Appellant has not explaine d what the se subsequent causes of action are . We agree with the argume nt advanced by the Respondents especially that s uch subsequent causes of action are not even revealed in the pleadings . The fact , in and of itself, that the J34 Appellant we n t for review a t the E ighth Respondent in 20 1 1 ·and 201 2, dbe'S not entitle' · the Appe llant, to a fre s h cause of action. ' ' ' 6 4) Further the Appella nt h as not s p e cifically s t a t ed wqat the contin,uous duty of, care was on .the part • I of the Appellant which was allege dly breached . 65) In addition , the Appellant has not claimed that h e suffere d further in jury as a consequence of the operation or reviews or t hat subse quent actions of the Re spondents led to further in June s . H aJsbury's Laws ({))f E ngl((Jlnd puts the position advanced by the Appe llan t under this issue as fo llows at para graph 82 1: "~)Vhere there has bee n a continuan c e o f damage, a fresh c ause o f a ction a ris es fro m the ti m e to time , , as ofte n as daFnage is c aused. F o:l ezKample, if t h e o w ner o f mine s 'lilmli0 ks t hem. a nd causes d amage to the m.ll.rface moire than six yearn befor e action, and w ithin s ix y e a:rs of a c tion a fresh suihsli.denc e c ausin g d.annage o ccuir::; w~.tho ut any J35 fresh damage is not baned, as the fresh subsidence resulting in the inju.:ry gives a fresh. cause o f action." ', ' 1 ' , ' · ', . ' The Appellant's circumstances as r eveale d by the undisputed fac ts of this case reve a l that they by no means fall in the am bit of the example given by ' I • I ' I • I • I ' I Halsbury's because it has not b e en claimed or indeed proved that the initial damage to the Appellant's ,eye had a ripple effect which resulted in further damage . 66) The third issue contends that there was concealment of facts by the Eighth Respondent in relation to the Appellant's injuries . We must state from the outset that w e find no merit whatsoever in the contention by the Appellant in view of the contents of his letter t o the E ighth Respo n dent date d 4 th Augu st 2010. Th e letter, as we have said, reveals that he was referred to VCA Vilhere the full extent of the injury '\Nas explained to hi:m and J36 remedial a ctio n sugge sted . 'vVe, the refo r e, see n o basis ·upon w hicli · to uphold ·the contention· · o r the arguments to t hat effe ct by Mr. C. Chuula. 67) Wt; Rreface d th~ d.eterminatiop of this appe,aL by • I • I stating that the fac ts of this case make very sad reading . The reason for this is that the Eighth Respon dent and inde ed the othe r Re spondents have the p r imary objective of care giving in line with The Health Professions Act, 20 09 which p rovides for the promulgation of a c ode of ethics for medical practitioners. The position at C ommo n Law is n ot different , as was explained in t he t ext Ethical J udgments-Re-Writing Med ical Law and q uoting Lord Montgomery in the case of B©li tho v H©J.rcBtney BleaJth A uth@rity5 as follows : "This case raises fasu.es of clinical judgment and moral h1.teg:rH:y that He at the very foundation of m.edkal J3 7 m..aJp:ractice faw. Medicine is a caHing t hat requires k nowiledge, skill and judgment. Doc\l:oirs must b e scien'tis'ts applying their' expe:rtise ii:n tfre 'inte:rests of theill" patients within a centudes -old ethical t:.radition and t hus ,must possess m~ral integrity. (?n ,this combination. of scientific expeirtise and ethical orientation, a social contract is built tha t offers the m edical profession a privileged position in our socie ty in I I I I I I I return for the care that it provides." 68) In this case the Respondents renege d on their duty and do not dispute that the ir actions resulted in the injuries complained of by the Appellant . The non contes t can be seen from the arguments advanced in relation to when th e limitation period began to r un. They have argued that it began to run when the Appellant knew the full extent of his injuries as reflected by the letter of 4 t h August 2010 . By implication this is a n acceptance of the con ten ts of the letter. 69) T he q ue stion 1s , should the Re spondents on ethical a nd ·n,1 ora 1 gr ol 1 .,,.., d - s ,1. J. l _ ,_ - - - _1_,_,_, -; u,--:1_· e _ b 1 . d e_1.1n -1--h p ,__ ---~ • ' principle of statute b ar leaving the Appe llant to suffer physically, ·mentally and• ,financially? . We are by no means suggesting that the Respondents are not entitled to have recourse to the Liimit((]Ltion Act, l 93~ ;Jr the Act p9r are we sµgg esting thqt, I I the Respondent is not entitled to set up the defence of statute bar, but should they not consider their ethical and moral duty to the Appellant and what impact their actions have on their reputation as medical care givers , especially that this action is in the glare of th e public? Statute bar is a complete proce dural defence to a claim on grounds that the time within which to seek redres s through the courts of law has lapsed . It is not a defence on the merits to the claim. There is, therefore, need for introspection on the part of the Responde n t s. • Conclusion J39 • I ' . 70) TJ:-1e detern1-ination we have n1.ade of the three issues leads us to the conclu sion that the appeal must sadly fail. All three grounds of app eal fail t I I I I • • • • and Yrve dismiss the rn accordingly. 71.) As to th e issue of cos ts, the princjple lS th a t they · - - -------- · · -1 ollov/ th-e -event unl-e-ss-:-wh-ere-tB.-e--C-f:fH-F-t- -d e.cides...,__ _ _ _ _ to exercise its discretion otherwise . The nature of this case is such that we have felt co1npelled to order that the parties bear their respective costs . . . . . . . . . . . . . . . . . :,~;ii=i~:-.? ....... . . ( . E. Ni. HAMAUNDU SUPREME COURT JUDGE J. K . KABURJi SUPREME COURT JUDGE ,,.,--------\ ( ) <l I / " y' :> 9 \ \ l ••••••• I> !> 6 " • ,, 0 " o O - { ~ .. ~ 4 I> ~ 0 0 o • O ~ O > • • " • I ~ ~ ~ 1 ,- / -·r· .-:r 11\•ur;ru· ·v r,_ 1,,, 1,-;... v~ 1.n'lc S;lJPR E:l\/KE C OURT J""'UDGE C __ _