Katende v Attorney General (Civil Suit 738 of 1989) [1992] UGHC 77 (12 June 1992)

Full Case Text

## THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA.

## H. C. C. S, NO, 758/1989.

<RP1?T KATENDE PLAINTIFF

## VERSUS

HORNEY general DEFENDANT THE HON MR, AG. JUSTICE F,M,S, EGONDA - NTENDE, JUD G M E N T: BEFORE:

The PlaintifJi Ernest Katende, brings this action seeking to recover Special and General damages against the Attorney General for injuries sustained by him during an operation at Mulago Hospital on the 21st November 1988. In his plaint filed th^ 15th September 1989 he contends that due to the negligence pf the U'VO Doctors that operated upon him the Radial nerve of the Plaintiffs right arm was damaged resulting into actual losg of use of the right arm and hand«

The Defendant in its undated Written Statement of Defgnce filed on the 51st December 1990 denied the allegations of negli- .;ci ce against its servants and contended that the Plaintiff had i3'-"er been admitted to Muiage Hospital«

When this case was called for hearing on the 11th May 1992 Counsel for the Lfber perusing the affidavit of service, I was satisfied that the Defendant had been served with a Hearing Notice and had accepted any authorised representative were absent\* Plaintiff applied to proceed exparte arguing that the Defendant lai been served and there was an affidavit of service, on the file. the Plaintiff and his witnesses were present but the defendant or

allowed the Plaintiff to proceed ex- ■such service. I therefore ur.rte &lt;

including himself. The ment. he was to his right arm. The Humerus bene in the right arm was broken end a piece went missing. He was taken to Kitova hospital where the wounds were treated and healed but the fracture was not successfully attended to. He was taken to East Germany in July 1 "36 and admitted to SUHL HOSPITAL where he stayed for 5)4 mouths A metal plate had been inserted in his body presumably to hold the bores together until they re-united. \* As a was *&* fhe Plaintiff called 5 witnesses soldier of the National Resistil November 1986. Plaintiff testified that he was a jance Army who participated in the war against the then Govern— In 1985 he was at Katonga when in the course of the war shot at and sustained shot wounds and a multiple fracture was told that the metal plate n nxs arm should be removed after one and. half years. result after that period he went to 'Muiago Hospital where he admitted to Ward 6A on the 23rd November 19?-3 Before he went to East . Germany he had not regained the use of his hand and arm as they were weak. On his return strength had returned to the arm and hand and he was able to use them normally On discharge from Buhl Hospital he

Hr. Pedroro and Lt doctors. He claimed damaged during the operation and it was the cause of his loss of Dr<- Robert and Dr. Kobusingye and ouher members of staff .ho he could not recall. He was operated on the 21st DeccuLer 15X.3 by Professor }>•. droso *y* it had lost all strength. r/.'iOt Dr. Kobusingye informed him that a radial nerve had been \* Robert were Cuban The metal plate was removed but he was no longer able use his arm and hand as

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on, radial nerve had been damaged during the opera-The discharge form was tendered as Plaintiffs Exhibit P-I. «• *&gt;* length in the right arm. indicated.that the Even the discharge form, he testified,

'•'Ne Plaintiff further testified that he suspects the doctors io operated on him at Mulago were negligent. He now could not sh his own clothes or iron them. He had to hire a servant currently at shs. 4,500/= per month.

oceicabunga who told him that his arm was now useless. He paid He prayed negligence of the Doctors at Mulago. him shs. 20,000/= and a medical report was prepared. that this Court considers his prayers in the plaint in view oP the The Plaintiff further testified that he consulted Professor

Exhibit P. I reads

| ''UGANDA | MINISTRY | HEALTH" OF | Ivi. F. | 5 | | |---------------------------|----------|---------------|-------------|-----|---------| | N/M | HOSPITAL | | | | | | OUTPATIENTS DEPARTMENT | | | | | | | NAME-. | Kr.tende | E> | P. O. No. | | | | SPECIAL | CLINIC | 6A/NRA NO. | 114999 | | | | Date: | | Diagnosis: | Healed | (R) | Humerus |

D O A.-.

D. O. D. 12/1/89'

Hmd compression plating but unfortunately the radial nerve was injured' during operation. Is due to have another operation to correct the wrist drop.

$-$ 4

Discharged via Mbuya Hospital to come to Mbuya O. P. C. after A month. Sick leave 1 month.

(Dr. Kobusingye)

(Rubber stamp reading: -Ministry of Health MULAGO HOSPITAL P. O. Box 7061 $KAWPALA$ )

PW2 was Professor James Ssekabunga who testified that he was t 62 year old Surgeon at Mulago Hospital and a Professor of Surgery at Makerere Medical School. He qualified as a Doctor with an MB. B. S. (LONDON) in 1959. He is the holder of a Fellowship of the Royal College of Surgeons (EDINBURGH) 1963 and a Laster of Surgery (LONDON) 1967. He examined E. Katende on the 20th November 1989 and made a medical report which was tendered in evidence as Exhibit P.2 it reads in part:-

> "Wnen I saw him (Plaintiff) on 20/11/89 he had two operation scars on the resterior aspect of the right upper limb. He could not move the wrist and fingers of the right hand. An X-ray of the fracture of the right humerus showed that it united. The strength of the right hard was reduced. The strength

This man emate with fracture of the with have an area a posited but injury of the rest to there was causing weakness of the right hand.

I assess his permanent disability at $50\%$ ."

Professor James Ssekabunga testified that according to the information on the Ex. P.1. the radial nerve was damaged during the operation at Mulago. In his opinion this type of injury comid easily be avoided in surgical work: Every surgeon ought to $...5$

knows where the radial nerve is and avoid causing injury to it. He further testified that the consquences of damage to the radial nerve is a loss of strength in the hand.

In further examination by Court Professor Ssekabunga stated:-

"The patient had not had the second operation recommended to correct the wrist drop at the time I examined him. The second operation could have probably corrected the wrist drop. In assessing the Plaintiffs permanent incapacity at 50% I was taking into account the wrist drop."

The Plaintiffs third witness was Robert Nkaada. He testified that me was/41 year old technician at Bwaise who had known the Elaintiff since 1980. When he came to know the Plaintiff he was physically fit. In 1985 the Plaintiff was injured during the war in the right hand arm as a result of gun shots. The Plaintiff was waken to Germany for treatment in 1986 and came back in Nevember of the same year. When the Plaintiff came back his arm $\cdots \cdots \cdots \cdots$ and hand WORM skay. The witness used to see the Plaintiff using his hand including cultivating with it.

聘例 further testified that when the Plaintiff left Mulago after the metal plate in his arm had been ismoved his hand fulled and it could no lenger do the work that it used to do and could do before he wont to Mulugo Hospital.

What the close of the case for the Plaintiff, Counsel for the Plaintiff addressed this Court. He submitted that the Plaintiffs claim is founded in negligence of the Doctors who carried out the operation on the Plaintiff at Mulago Hospital and damaged the radial nerve leading to the weakening of the right arm and hand

$.../6$

of the Plaintiff. on The Plaintiffs hand was functioning normally discharge it had failbefore admission to Mulagc Hospital but

and corroborated by Ex. P.2. probability the Plaintiff had proved his claim in negligence. 'This damage to the radial nerve is confirmed by Exhibit P.1 He submitted that on a balance

He further submitted tr.a the Plaintiff had. proved, the special damages much as no receipt had been He cited the case of W. M. was not always necessary in all cases. issued by Professor Ssekabunga. Eyambnl^ V. Mpigi District Administration /"19837 H. C. B. 44 to support the arguement that documentary proof of speeial damages of shs. 20,000/:

he further referred to two cases on award of .damages in respect of the injury to an arm/hand-

• T) 122. decis 3 ons made inf] ati 'i: and the injury sustains by the Plairtiff. prayed for costs of this action as well. Richard Walugembe V. Attorney General /f~19857 H. C. B. Damba V. Uganda Railways Corporation /~19857 H. C. B. 125. cobunsel proposed an award in the region of shs. 3,000,000/= with linterexstt at 20% P. A. as a fair award having regard to the above 3 years ago,

This arm and hand were functioning normally?. qu-ent inability to use the said arm and hand. I have carefully considered the ovj denco. adduced before me evidence is not controverte4;% I accept tlyi^ tihe pjainriff entered Mulago Hcspiual when his An operate on was Q^ra^ed. Q'UA- ^y staff of Mulago Hospital, Ministry of Health of the Government of Uganda. Dur-ing that operation a radial nerve was damaged resulting in the Ions of strength to the Plaintiffs right arm and hand and cons-

Professor Ssekabunga testified that in ordinary surgical Ork any surgeon would be able to identify the radial nerve and avoid Cinfficting any damage to it. In the absence of any explawition from the Defendant, I would hold that the Defendants servants did not exercise reasonable skill and care expected of surgeons while operating on the Plaintiff and in the result injured the radial nerve leading to the Plaintiffs loss of use of his right arm and hand. The Plaintiff has on a balance of and ability established his claim in negligence.

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I de find that the Plaintiff has by his uncontroverted $\mu$ timony proved that he spent the sum of shs. 20,000/= being are not for medical report and judgment shall be entered in his " your in that sum.

I have had some difficulty with assessing the general damages for injury to the arm and hand sustained by the Flaintiff. This Ls so because on discharge from Mulago Hospital the Plaintiff was ivised to report to Mbuya Laspital in one months time as he was

> "due to have another operation to correct the wrist drop."

The Plaintiff in his testimony said nothing as to whether he went match or not to Hospital for the second marking. PW2 Professor .. kabunga in his test.monv stated: -

> "The patient had not had the second connaction renommended to correct the wrist and the I examined him. The second operation could have probably corrected the wrist drop. Tn assessing the Plaintiffs permanent incapacity at 50% I was taking into account the wrist drop."

> > $\ldots$ /8

It is possible that had the Plaintiff followed the advice of sic actors part of his disability would have been remedied. This Occurris not in position to determine what contribution the "wrint drop" makes to the Plaintiffs incapacity or disability. It rould in my view not be reasonable to speculate as to whether the second operation proposed would have possibly been successful or not. All I can say is that this is a factor that must be taken into account while assessing damages.

The Plaintiff has for all practical purposes lost use of hi right arm and hand. He cannot cultivate, wash his own tlothes or undertake any activity that requires strength in the right arm and hand. As a soldier he is no longer able to effectively handle the tools of his trade. Prospects of promotion may be diminished. $\mathbf{A}\mathbf{t}$ home he has had to employ a servant at shs. 4,500/= per month to handle his washing, ironing and other miscellaneous tasks he can no longer perform. He is only 37 years old and may have many more years a head of him.

Taking all the above factors in consideration, I do find that a sum of shs. $1,750,000/$ = (one million seven hundred and fifty thousand only) to be adequate compesation for the injuries sustained by the Plaintiff.

I therefore make the following markets the Plaintiff.

- (1) Special damages shs. $20.000/$ = - (?) General damages she. $1.750,000/-$ - (3) Interest on decretal amount at 20% per annum from the date hereof till realisation in full.

Dru Defendant shall meet the Plaintiffs costs for this action. So be it.

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$12/6/1992$ 12:10 $p.m.$ Dresent: I... Asambu for the Plaintiff.

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$\mathbb{P} \times \mathbb{P} \times \mathbb{P}^{\mathbb{P}}$ Il intiff. Judgment signed and delivered.

Gumphonice. G EGONDA - NTENDE. $\mathbf{F}/\mathbf{F}$ AG. J U D G $E$ .

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$12/6/1992.$