Attorney General v Chibalabala (SCZ Judgement 11 of 2014) [2014] ZMSC 258 (18 February 2014)

JI IN THE SUPREME COURT FOR ZAMBIA SCZ Judgment No. 11 of 2014 (257) HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: Appeal No. 141/2011 THE ATTORNEY GENERAL APPELLANT AND JUDITH CHIBALABALA RESPONDENT CORAM: Chibesakunda, Ag CJ, Mwanamwambwa, JS and Kaoma, Ag. JS On 5th March, 2013, and 18th February, 2014 FOR THE APPELLANT Mrs. C. Mulenga, Snr. State Advocate FOR THE RESPONDENT Mr. J. M. Kapasa of J. M. Kapasa and Company Chibesakunda, Ag. C. J, delivered the Judgment of the Court. JUDGMENT Cases referred to: 1. Donoghue v Stevenson [1932] AC. 562 2. Caparo Industries Plc v. Dickman and other [1990] 1 All ER 568 3. Bank of Zambia vs. Kasonde (1995 - 1997) Z. R. 238 4. Whitehouse v Jordan (1981) 1 All ER 267 HL 5. Gautret v Egerton [1867] LR 2CP 371 6. Hastings O’Brian Gondwe v BP Zambia Limited (1995-1997) ZR 178 Works referred to: 1. Charlesworth and Percy on Negligence 9th Edition 2. Chitty on Contract Volume 1 General Principles J2 (258) This is an appeal against the decision of the Industrial Relations Court which found in favour of the Respondent (Complainant in the Court below). The Court ordered the reinstatement of the Respondent as her dismissal was illegal and discriminatory, and therefore null and void. The Court further ordered that the withdrawal of the Respondent’s offer to purchase House No 18 Mukuba Close, Ndola be set aside and the property be restored to her. The Respondent had commenced action against the Appellant (Respondent in the Court below) on 13th September, 1999 seeking the following reliefs: (i) A declaration that her dismissal was illegal, discriminatory, and therefore null and void (ii) Reinstatement in her job (iii) Restoration of House No 18 Mukuba Close, Ndola. The Respondent’s testimony, on which there was no dispute, was that she was employed as a Zambia Enrolled Midwife at Twapia Clinic in Ndola under the Ministry of Health, until 25th July, 1998 when she was dismissed for gross negligence resulting in the loss of life. She recounted that on 22nd July, 1998 she reported for night duty with a workmate at 18.00 hours. That the clinic was in J3 (259) darkness as there was no electricity in the whole of Twapia Compound. That there were only two candles burning at the time but these burnt out plunging the entire clinic into total darkness. That at about 01.00 hours some people brought a pregnant woman who was in labour. But she was unable to attend to her because there was no power at the clinic. That she advised them to find a vehicle to take the woman (who we shall refer to as the deceased) to the hospital as there was no ambulance at that time or go back home. The Respondent told the Court that at about 05.00 hours the people who brought the deceased returned and told her that the deceased had delivered but was not feeling well and needed an ambulance. That the ambulance was available at the time but she could not release it as it was against the institution’s policy to follow patients to their homes. That she advised them to bring the deceased to the clinic and that by the time she knocked off from work at 07.50 hours, they had not done so. That she learnt the following day when she reported for night duty that the deceased had died at home. In response, the Appellant deposed in the Answer that the dismissal was justified and no question of discrimination and unfairness had arisen. The Appellant opposed the claim for reinstatement as there was no illegality in the dismissal but was in J4 (260) fact proper and in accordance with employment conditions and rules. The Appellant also opposed the claim to restore the house which was withdrawn from the Respondent as the right and prerogative rested with the Appellant, who was the absolute owner of the house. The Appellant also filed written submissions. The Appellant submitted that the Respondent acted in a negligent manner. That it was incumbent upon the Respondent, as the person in charge at the time, to ensure the availability of adequate resources. That the Appellant ought to have exercised her discretion to pick up the deceased and rush her to the hospital. As regards the withdrawal of the house, the Appellant submitted that since the house was allocated by virtue of her employment, she automatically lost her entitlement upon termination of her employment. In its Judgment, the Court below found as a fact that as there was no electricity, it was not possible for the Respondent to attend to the deceased patient. The lower Court also found as a fact that there was a policy not to send ambulances into residences. Oddly, the lower Court then found that in fact the Respondent’s refusal “reflected a correct decision on her part as far as the guidelines at her place of work were concerned’. J5 (261) The lower Court went on to state, “In the premises, we find that her advice to the family to take her to the hospital was well grounded. Secondly, from the evidence we are satisfied that when the Complainant (Respondent) advised the family to bring the patient to the clinic in the morning and declined to send the ambulance to her home, she acted in line with the policy of her employers.” In a nutshell, the lower Court’s decision, which relevant portion we have reproduced hereunder, was as follows: “All this considered we do not at all agree with the submission of the State that she acted negligently or indeed find any wrong doing on her part. Instead we find that unfortunate as it is that a human life was lost, the blame cannot be put on an individual but the system which does not seem to. have been ready for the emergency... “Overall, we find for the Complainant (Respondent) and hold that her dismissal was illegal and discriminatory and therefore null and void. Secondly, we find that in the circumstances she ought to be reinstated to her job and we so order and direct. Further, we find that the withdrawal of her offer of House No. 18 Mukuba Close was motivated by wrong considerations and we set it aside and order that the house be restored to her. ” Aggrieved by this decision, the Appellant has appealed to this Court, raising the following two grounds of appeal: J6 (262) 1. That the Court below misdirected itself in law and in fact when it held that the dismissal of the Complainant (Respondent) was illegal and discriminatory, and therefore null and void and it found that in the circumstances, the Complainant ought to be reinstated in her job. 2. That further the Court erred in law and in fact when it found that the withdrawal of her offer to purchase House No. 18 Mukuba Close, Ndola was motivated by wrong considerations and the Court ordered that the house be restored to the Complainant. At the hearing of this appeal before this Court, both Counsel relied entirely on their filed Heads of Argument. On ground one, Mrs. Mulenga argued, on behalf of the Appellant, that the Respondent acted in a negligent manner. That as a person with over 10 years experience, she did not act as a reasonable midwife. That given the circumstances which she found herself in, the Respondent’s first call of duty ought to have been to save the life of the deceased. That instead she exhibited an uncaring attitude based on the premise that there was no electricity at the clinic and that she had no authority to release the ambulance. Counsel argued that the evidence on record showed at pages 73-77 that there were additional candles in the storeroom and that J7 (263) the keys were kept by RW2, Tenford Luhanga, a Clinical Officer, whose house was a stone’s throw away from the Clinic. That the testimony of RW7 Annie Mkandawire Mwape, a Registered Midwife at pages 84-90 supported the evidence that there were additional candles in the storeroom. RW3, Florence Sambi Simwinji, a midwife also testified that there was a radio and an ambulance which was meant to be used in cases of emergency. In the case of the radio, RW7 testified that it switched automatically to battery when there was no power. That in cross examination, RW3 explained that although there was a rule that patients ought to have been brought to the clinic in order for them to be taken to the hospital in an ambulance, persons in charge could use their discretion to alter that rule. Relying on the celebrated case of Donoghue v Stevenson1, Counsel submitted that the Respondent owed a duty of care to the deceased patient but she breached that duty and as a result the patient died. Counsel also referred us to Caparo Industries Plc v Dickman and Others2, where the House of Lords espoused three criteria for imposing the duty of care, namely foreseeability of damage, proximity of relationship and the reasonableness or otherwise of imposing a duty. Mrs. Mulenga submitted that the three criteria laid down in the Caparo Industries Plc v Dickman and Others2 had been met J8 (264) in the present case thus making the Respondent’s dismissal correct and reasonable. She argued that there were, therefore, no special circumstances to warrant the reinstatement of the Respondent, as was the case in Bank, of Zambia v Kasonde3. She argued that neither was the Respondent discriminated against when only she was dismissed and the others who were on duty with her, were still in employment. She contended that as person in charge, the Respondent had to take responsibility for the resultant consequences. On behalf of the Respondent, Mr. Kapasa submitted that the learned trial Court was on firm ground when it declared that the Respondent’s dismissal was illegal and discriminatory. He argued that the charge of negligence leveled against the Respondent was as a result of an expectant mother dying upon giving birth, yet there was no medical evidence to show exactly what caused the death. That it was therefore presumptuous and speculative to allege that the cause of death was failure on the part of the Respondent to attend to the patient. Mr. Kapasa argued that there was ample evidence that the Respondent acted within her skill and exercised it properly. He referred us to the case of Whitehouse v Jordan4 and the learned authors of Charlesworth on Negligence to support the proposition that allegations of negligence against medical practitioners should J9 (265) be regarded serious and that the standard of proof required a high degree of probability. He also argued that for an action for negligence to lie due to failure to exercise due care and skill, it ought to be proved that the Defendant did not possess the requisite skill or by showing that although he possessed it, he did not exercise it in the particular case. Counsel went on to refer us to other authorities supporting the principle that there could be no negligence if a medical practitioner acted in accordance with general and approved practice. Mr. Kapasa further submitted that there was discrimination in that the team of nurses, set up to investigate the incident that led to the death of the patient, had made recommendations against four members of staff but only the Respondent was dismissed. He submitted that the Court below, in exercising its discretion, was not wrong in principle by ordering the Respondent’s reinstatement. We have looked at the evidence on record, the submissions and authorities. We propose to deal first with ground one. The facts on which there was no dispute was that the Respondent was employed as an enrolled midwife at the clinic under Ministry of Health in Twapia Compound. It was also not disputed that on the night of 22nd July, 1998, there was no electricity at the clinic as everywhere else in Twapia. It was also common ground that the deceased was brought to the clinic by some people but the J10 (266) Respondent gave the reason that she could not attend to her because the clinic was in total darkness. It was common ground that the people who brought the deceased patient came back the following morning indicating that the deceased had given birth but was unwell and needed an ambulance. It is not disputed that the ambulance was not made available due to policy restriction on its use. It is not disputed that the deceased died at home. Mrs. Mulenga argued that the Respondent acted in a negligent manner and that as a person with over 10 years experience she ought to have acted as a reasonable midwife whose first call of duty would have been to save the life of the deceased. On the other hand, Mr. Kapasa argued that the Respondent acted within her skill and exercised that skill properly. To begin with, as correctly stated by Mrs. Mulenga, the case of Caparo Industries Plc v Dickman2 is very instructive. That case lays a fundamental principle of the three necessary ingredients giving rise to a duty of care. Firstly, there must be foreseeability of damage. Secondly there should exist between the party owing the duty and the party to whom the duty is owed a relationship characterized by the proximity or neighbourhood, as amply adumbrated by Lord Atkins in the classic case, Donoghue v Stevenson1. Thirdly, that the situation should be one in which the court considers it fair, just and reasonable that the law should Jll (267) impose a duty of a given scope on the one party for the benefit of the other. Further, it is trite law that just as any other professional providing healthcare, nurses owe a duty of care towards the patients who come within their charge. The learned authors of Charlesworth and Percy on Negligence stated, at page 593 paragraph 8-126, that the standard of care, for nurses, is that of a reasonably competent nurse exercising proper care and skill. Given the authorities cited above, we hold, without a shadow of doubt, the view that the Respondent, being an enrolled midwife owed a duty of care to the deceased patient. The fact that she was a professional satisfies all the three ingredients as espoused in the Caparo case. The question now rests on the standard of care. We agree with Mrs. Mulenga that the test that ought to be applied is an objective one. Did the Respondent do all that any person of her skill could reasonably be expected to do in such a case? We are mindful that where negligence is alleged, the facts to be set out must be those which show a duty to take reasonable care and in what respect that duty has been disregarded (See Gautret v Egerton5). Having examined the facts we find evidence that supports the view that the Respondent showed disregard of her J12 (268) profession and did not act in a manner a person of skill would reasonably have been expected to act. Throughout it was the Respondent’s testimony both in Court and in her affidavits that there were two small candles that ran out, it can be assumed, between 22.00 hours and 01.00 hours, because that was the time the clinical officer had left the clinic and before the deceased was brought to the clinic (at pages 57-67). The issue of the two candles is also supported by evidence from RW7 (at page 84). But from the record, we find unchallenged evidence from RW3 (at page 83) and RW7 (at page 84 line 30-35) that as in charge the midwife was supposed to ensure that all the necessary materials, and in this particular case candles and batteries for the radio, were available. Therefore, it was the duty of the Respondent to ensure that these supplies were made available. As rightly observed by Mrs. Mulenga, there was evidence that the person with the key to the storeroom was living a stone’s throw away from the clinic. But the Respondent made little or no attempt to secure these supplies which she ought to have insisted on having. In addition, we see that even when the people came back with information that the deceased had delivered but was unwell, the Respondent still refused to attend to her or even follow her with an ambulance, even if it meant breaking a rule, in order to save a life. To support our view, there is evidence, which was not challenged J13 (269) during cross examination, to the effect that a person in charge could use their discretion to alter the rule on the use of the ambulance (at page 88). There is also further evidence that the Respondent refused to use the radio which was meant to be used in cases of emergency. We, therefore, find that the lower Court misdirected itself and was not on firm ground when it stated, oddly as we have observed earlier, that the Respondent’s refusal to release the ambulance ‘reflected a correct decision on her part as far as the guidelines at her place of work were concerned,” and further that: “In the premises, we find that her advice to the family to take her to the hospital was well grounded. Secondly, from the evidence we are satisfied that when the Complainant (Respondent) advised the family to bring the patient to the clinic in the morning and declined to send the ambulance to her home, she acted in line with the policy of her employers.” For us, we view this rule, pertaining to the use of the ambulance, as being only for administrative convenience and not an approved practice or procedure for the medical profession. For this reason, we respectfully disagree with Counsel for the Respondent’s submission that she acted within her skill and exercised that skill J14 (270) properly. Neither do the authorities he cites as regards this proposition assist in any way. Admittedly, there was no expert opinion on record to prove the cause of death of the deceased as observed by Mr. Kapasa but we find force and approve of the case of Whitehouse v Jordan and others^ cited by Counsel, although for a different reason. Our position is that, although the view of the trial Judge (who had seen and heard the witnesses) as to the weight to be given to their evidence was always entitled to great respect, where his decision on an issue of fact was an inference drawn from the primary facts and depended on the evidentiary value he gave to the witnesses’ evidence and not on their credibility and demeanour, an appellate court was just as well-placed as the trial Judge to determine the proper inference to be drawn and was entitled to form its own opinion thereon. We are, therefore, just as well-placed as the trial Court to determine the proper inference to be drawn from the facts that the deceased died that same morning. Thus we are entitled to form the opinion that she died in child birth. So, having established that the Respondent breached her duty of care, and therefore was negligent, we find that the Respondent’s dismissal was right and proper. The issues of reinstatement, in this case, do not arise. Ground one of the appeal succeeds. J15 (271) Coming to ground two, Mrs. Mulenga submitted that the lower Court erred in finding that the withdrawal of the house from the Respondent was motivated by wrong considerations when no evidence was led or proved, to that effect, on the balance of probabilities. Counsel argued that the learned trial court did not even state in the Judgment what the wrong considerations were. Mrs. Mulenga’s contention was that the house was allocated to the Respondent as an incident of her employment and therefore, once her employment ended, the allocation was no longer in issue. Mrs. Mulenga submitted that a mere allocation did not automatically mean the Respondent would be entitled to purchase. That it basically gave the Respondent the right to occupy a government house, as a government employee. In reply, Mr. Kapasa argued for the Respondent, that the withdrawal of the house was prejudicial to the Respondent as it was done prior to the conclusion of the investigations or prior to a decision being made in the Respondent’s case. He contended that the withdrawal was against the principles of natural justice and against the presumption of innocence. Counsel submitted that the court below, in exercising its discretion was anchored by the requirement to do substantial justice between parties. J16 (272) Mr. Kapasa submitted that there being no decision against the Respondent prior to the withdrawal, the Respondent remained an employee of the Appellant and consequently, the withdrawal was an adverse action against the Respondent. He argued that had the house not been withdrawn, the Respondent would have accrued the right to purchase it, as a sitting tenant in line with government policy. This Court, in the case of Hastings O’Brian Gondwe v BP Zambia Limited6, made a distinction between the prerequisites enjoyed as an incident of employment and conditions and benefits enjoyed after a certain period while in employment or at the end of that employment. We are of the view that the house was allocated by virtue of her being a government employee. Since we have held that the Respondent was negligent and properly dismissed, we therefore hold that the withdrawal of the house was correctly done. In the alternative, while we appreciate that the Respondent was allocated the house, according to the learned authors of Chitty on Contracts, the general rule is that an offer may be withdrawn at any time before it is accepted. This is especially so, where the promise is unsupported by consideration. We therefore agree with Mrs. Mulenga, that as the absolute owners, the Appellant had a right to withdraw the allocation of the house. Ground two succeeds. J17 (273) The appeal is allowed. We reverse the Judgment of the Court below. We make no order for costs. L. P. Chibesakunda ACTING CHIEF JUSTICE R. M. C. Kaoma AG/SUPREME COURT JUDGE