GENERAL DAMAGES AND FUTURE MEDICAL COSTS
The Court of Appeal sitting at Nairobi (Coram: Musinga, Omondi, & Laibuta JJ.A) delivered a landmark judgement on the award of damages involving medical negligence. In Civil Appeal No. 28 of 2012, Jimmy Paul Semenye (a minor suing through his father and next friend Paul Semenye) versus Agha Khan Health Service Kenya T/A Agha Khan Hospital and 2 Others, the appellate court partially allowed the appeal and reversed the damages awarded to the appellant in the High Court (HCCC No. 807 of 2003). The appellant is a minor suing through his father and next friend. His case was that the 1st and 2nd Respondent failed to exercise a duty of care during delivery leading to him sustaining injuries leading to a condition known as Erb’s Palsy. The appellant sustained injuries to the nerves on his right-hand side as a result of which he could not move his right hand at all. The appellant prayed for special damages as pleaded, general damages for pain and suffering, costs of future medical treatment, costs of the suit and any other relief that the court may deem fit.
The findings of the trial court on the duty of care by medical professionals lay a good foundation for similar cases in future and on the need to train medical practitioners about medical consent. By the 1st respondent acceptance of the appellant’s mother as a patient, a duty of care was created. The appellant had disclosed to the 1st respondent’s agents and/or servants about her previous miscarriages, therefore, the hospital should have taken measures to mitigate against the possibility of a high-risk pregnancy. The trial court observed that the hospital did not demonstrate that it conducts regular drills to train its staff in case of high-risk pregnancies such as the present case. Furthermore, the trial court also noted that the at the time of the appellant’s mother’s delivery, the 2nd respondent was not a trained gynaecologist, therefore, ill-equipped to handle the case. The trial court rejected the argument for contributory negligence and observed that the appellant’s mother agreed to vaginal delivery upon the advice of trained doctors who knew or ought to have known that under the circumstances, the safest option would have been caesarean delivery. The learned judge awarded Kshs. 800,000 general damages, Kshs. 70,000 as cost for future medical expenses and partially allowed the special damages. The appellant not being satisfied with this decision, appealed on the question of quantum only.
The Court of Appeal was guided by its holding in Arrow Car Ltd vs Elijah Shamallah Binomo & 2 Others where the court held that: comparable injuries should, as far as possible, be compensated by comparable awards. Consequently, the award of general damages was enhanced upwards from Kshs. 800,000 to Kshs. 15,000,000. The appellate court also faulted the High Court’s quantum for cost of future medical expense. The appellate court observed that the expert witness’s testimony that the appellant would require physiotherapy for life went uncontroverted, therefore, enhanced the award for cost of future medical expenses from Kshs. 70,000 to 7,800,000. This judgement has set a precedent on the award of damages, especially future medical costs. Where there is no evidence to the contrary, the courts will rely on the testimony of the expert witness.