ATTORNEY-GENERAL v. SMITH

057-NLR-NLR-V-10-ATTORNEY-GENERAL-v.-SMITH.pdf


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Present : Mr. Justice Middleton and Mr. Justice Wood Benton.
ATTORNEY-GENERAL v. SMITH.
D.C. Colombo, 20,723.
Croton, claim against—Admission of patients into Government Hospital.—Negligence inperformingoperation—LiabilityofCrown—
Lossofwife—Damages—Principle of assessment—Solatium—
Issue not directlyraised and argued in thelowerCourt—Refusal
to entertain such point in appeal.
The Crownheld liable in damagesfor the-negligence ofits
Servants employed in the Governmenthospital, 'which caused,or
contributed to, the death of a patient admitted into the hospital.
A husband is entitled to damages for the loss of his wife occa-sioned by the tortious act of a third party.*
Where in the course of an operation, owing to want of ordinarycare and forethoughton the partof the nurse whowasassisting
in theoperation, the defendant's wifewas burnt byahotwater
bottle, and such bum contributedto her death, andthedefendant
claimed damages from the Crown,—
Held, that the defendant was entitled to recover damages fromthe Crown for the pecuniary loss sustained byhimbythedeath
of his wife, and also a solatium for the loss of consortium.
Held,also,that the pecuniary lossought tobe estimatedon
*he principle of annuity.
It was contended for the Crown, on the authority of Hall v. Lees1and 'Evans v. Liverpool Corporationa and the American case ofPowersv. Massachtissets Hospital,8 thatthe onlydutyoftheCrown
towardsthe patients adnditted into thehospitalwaetoprovide a
staff of competent physicians, surgeons, and nurses, and wherethe Crown had dohe that, it was not liable for their negligenoe,but the Supreme Court refused to entertain or decide the point,
. as it had not been expressly taken or argued in the Court below.
The evidence a$ to negligence discussed.
A
PPEAL from the judgment of the District Judge (E. R.
Dias, Esq.) pronounced after a new trial as directed by the
Supreme Court in its judgment reported in (1905) 8 N. L. R. 229,
* where the facts are fully set out.
The District Judge gave judgment for the, Crown, as claimed,and dismissed the defendant's claim in reconvention.
The defendant appealed.
Elliott (with him B. F. de Silva), for defendant, appellant.
Walter 'fre&eira, K.C.t S.-G. (Maartensz, C.C., with him), for the sCrown.
– Cur. adv. vult.
i (1904) 2 K. B. 602.2 (1906) 1 K. B. 160,
3 (1901) 65 Law Rep. Ann. 372.
1907.
August 19.
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I9(n. i9th August, 1907. Middleton J.—
August 19*
The claim in this action was for Rs. 181.70 for the cost of the sub-sistence of defendant’s wife in the General Hospital from 17th May to8th June, 1908, for her entrance fees to hospital, and for ambulancehire. On this claim the District Judge found in favour of the plain-tiff at the first trial, and that finding was not contested on the firstappeal or at the second trial or before us, and there is no doubtthat the defendant is bound to defray these expenses, and that thejudgment recorded against him by the District Judge on the claimmust stand.
In reconvention the defendant claimed .that while his wife was apatient in the General Hospital, in the course of a certain operationwhich was performed on her on the 23rd May, 1903, the agents andservants of the Government of Ceylon who were performing orassisting in the said operation acted in so unskilful and negligent amanner that defendant’s wife was severely scalded in three places,and sustained such grave injuries that she died from the effectsthereof.on the 9th of June, 1903.
The action, which was started in the Court of Requests, was trans-ferred to the District Court. The issues settled there were—
—Did the agents and servants of tb6 plaintiff in the course ola certain operation which was performed on defendant’swife on 23rd May, 1903, act so unskilfully and negligentlythat she was scalded in three places ?
II.—Was her death on 9th June due . to such scalding ?
HE.—What damages did defendant suffer by the death of hiswife ?
' IV.—Is he entitled to recover such damages from plaintiff ?
On the case coming on for trial in the District Court originally,counsel for the defendant desired to amend the second issue in sucha way as to ascertain whether the scalding contributed to the deathof defendant’s wife rather than actually caused it. This amendmentwas not allowed by the Judge, and the case went to trial. Judgmentwas given for the Crown on the claim in reconvention, the DistrictJudge holding that there had been carelessness amounting to negli-gence as alleged on the part of some servant of the Crown, but thatthe death of Mrs. Smith was not due to the scalding or burns. Onappeal the Supreme Court set aside this judgment of the District, Ceurt and ordered a new trial, both the learned Judgps stating intheir judgments that on the evidence before them the burns, thoughnot possibly the sole cause of death, contributed to it. The SupremeCourt directed that the evidence taken at the first hearing might beread at the new trial, provided the witnesses’ presence at' the new trialcould not be readily obtained. At the new trial the following addi-tional issue wag settled: Did the scalding contribute to the death cf^
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Mrs. Smith in any way? It was contended before us by the learned 1907.counsel for the appellant, and I believe also before the District Judge, August 19.that the finding of negligence in his favour on the first trial obviated miijdlbtonany necessity for a finding on that issue on the second. I think, how- J.ever, that the intention of the Supreme Court was that there shouldbe an entire new trial and findings by the District Judge, not only onthe old issues, but also on the new issue, as to whether the burnscontributed to Mrs. Smith’s death.
The case went back for trial, and the additional issue I haveindicated was settled and tried.
On the new trial the learned District Judge, who had not presidedat the first trial, found (1) that there was no negligence; (2) that thebums did not contribute to Mrs. Smith’s death; and on thehypothesis that the Court of Appeal might not agree with him, heassessed the damages at Bs. 10,000, and dismissed the claim inreoonvention.
The defendant now appeals, and for him it is submitted that thefindings of the. District Judge were wrong on all the three pointsindicated.
First,* as regards negligence, it waa argued that the PrincipalMedical Officer had expressly admitted it in his letter D 8 of 15tbJuly, 1903, in which: he stated that no hot water bags should be usedin hospital without having a flannel cover to fit; that Mrs. Brohier’sevidence (pp. 76-77) shows that the hot water bottle was wrapped intowels and placed under Mrs. Smith’s body; Dr. Garvin’s evidence(p. 80) shows that an uncovered bag filled with too hot water wasbrought in; that Dr. Garvin in his report admitted that the towelsmust have shifted and the bottle have come into contact withMrs. Smith’s* body at three different areas; that Dr. Thomasz saidthe bare surface of the bottle ought not to touch the bare skin, it iseasily preventible, not to do so would be neglect; the body may beshifted for purposes of the operation; and that he inferred from theauthorities that the hot water bottles should be wrapped up infiannel or blankets (Stonham, vol. II., p. 22); that Dr. Butnam,who was present at the operation, remembers that the hot waterbottle was brought in with water too hot and taken out and broughtback wrapped up in a towel by Miss Bell, one of the nurses; thatnew flannel bags with running strings are provided at the hospital;
. and finally, that the finding of the District Judge that he was unableto find any evidence that the hot water bag was used in any un-usual or negligent manner was against the evidence; that whetherthe statement* T. F. G. made by Mrs. Brohier be taken, or her state- *ment ’in evidence, that it is clear that the use of the hot water bagwas attended by negligence on the'part of those talking part asassistants in the operation. For the plaintiff it was contended thatthe operation was performed under circumstances which satisfiedthe requirements of the case and in accordance with the ordinary
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1007.practice of the hospita.; that Dr. Thomasz and Dr. Butnam were
Avgwt 19 present and were unable to say that anything in the shape ofMxddubton n6gUgence occurred on the part of those assisting in the operation;
that the statements made by Mrs. Brobier to Dr. Craib negative anycarelessness on the part of the nurses, and that Dr. Garvin’s reportshows the same, and that the entire weight of the evidence wasagainst the existence of negligence. It is clear, however, that afterthe operation was over on the 23rd May three bums or scalds onthe deceased’s right side were discovered by Dr. Alvis, and seen by*Dr. Garvin on the 24th; that according to Dr. Garvin (p. SO) oneof those bums was at least of the fourth degree, and the others ofthe second and third.
In his report Dr. Garvin said (p. 27) that these burns were on theright loin between the crest of the ileum and the last rib, one as largeas a turkey's egg, the others as ducks’ eggs, and all oval; that thefirst involved the skin in its entire depth, the fourth degree; whilethe s.econd and third were comparatively superficial, the second andthird degree. It is clear, then, that water far too hot must have beenused in the hot water bottle even if .the towels which were put overit remained as a covering during the whole of the operation. Dr.Garvin, before the commencement of the operation, intimated thatthe water in the bottle was too hot and asked for a sand bag. Insteadof this the same bottle wrapped in towels was used. Dr. Garvin inhis report evidently thought that the towels became displaced andthe bare bottle came into contact with the patient’s bare body duringthe taking up of her clothing and the arrangement of her in properposition -during her struggles when being-anaesthetized. Consideringthat the water bottle was to be used as a' prop, tfie probabilityis that it was in contact with the patient’s body, as it wasintended to be during the whole of the operation, which ■ lastedsixty minutes.
To my mind, .therefore, a want of ordinary care was shown by thenurse in charge of the bottle, whose duty it was to apply it, in usinga bottle the water in which was admittedly too hot, without coveringit in such a way as to obviate the possibility of displacement of thecovering during the course of a long operation.
That the towels became displaced, as Dr. Garvini apparentlythought, is; I think, the truth of the matter, but, if they did not, thepatient was still scalded, evidently through the use of coveringsinappropriate or insufficient in their nature to prevent such a thing,
, owing to the use of a bottle containing water of a temperature pro-nounced by the surgeon too hot for the purpose. Whether flannelis the proper material for such appropriate covering I am not in aposition to decide, but that the covering should be incapable of dis-placement by the struggles of a patient in the course of an operationand of a material obstructive to the passage of dangerous* heat to the
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bare ikts^an body I have no doubt. I do not think it is any answerto .the charge of negligence to say that two experienced surgeons werepresent who had no fault to find with what was done.
Dr. Thomasz did not know if the bottle contained hot water, andthere is no evidence .that Dr. Butnam knew that the bottle wasbrought back after its rejection by Dr. Garvin without a change ofwater. Even if the use of towels was the approved practice—ofwhich there is no evidence—it seems to me that the present caseexemplifies the danger of it, and demonstrates that ordinary fore-thought on the part of those acquainted with the circumstancesattending operations and the nature of hot water bottles should haveimpelled the use of non-displaceable coverings for a hot water bottleused as a prop.
If hot water is of necessity required in the bottle to preventthe temperature of a patient under an operation becoming sub-normal, it is all the more necessary that those in charge shouldremember that .there should be no possibility of a dangerous contactbetween the bare bottle containing the necessarily hot. water and thebare skin of the patient. I am unable to agree with the learnedDistrict Judge that the burning or scalding was the result of anaccident, but feel bound to attribute it to the want of ordinary careand forethought of the hospital nurse entrusted with the duty ofproviding and arranging the accessories of the operation.
I accordingly find the first issue in the affirmative. If negligenceis found to exist causing the burn,, in order to arrive at a correctconclusion as to whether the bum contributed to the death of thedeceased, it is necessary to survey the facts and circumstancesexisting and occurring »at and upon the death of Mrs. Smith, and toconsider the attitude of Dr. Garvin in relation to .the fact that a burnof a serious character had occurred durinig the course of an operationon the 23rd May, that the operation for lumbar abscess had been amost successful one, that the patient had appeared to be progressingsatisfactorily towards convalescence, when on 4th June a change forthe worse, took place and the patient died on 9th June. That thebums were not of a negligible character is, I think, demonstrated bythe exclamation of Dr. Garvin on the 24th May when he saw them,by their size, their nature, and their position on the patient’s body,and by the fact that a slough which had formed had to be removedon the 8th June under the influence of chloroform at a time when .thepatient was nearly at .the point of death* That the patient wassubmitted to chloroform on this occasion mainly owing to the neces-sity of the* removal of the slough 1 have no doubt on the evidenceof Dr> Sinnetamby.;
After the death of Mrs. Smith the evidence shows-that Dr. Garvinhad made arrangements for the funeral to take place from* the hos-pital. This was objected to by Smith, who moved his wife's' bodyto his own bouse on the morning of June 9. Upon the removal,
1907.
August 19.
Middlisiov
J.
( 268 )
1907. Smith was told, in the hearing of the witnesses Miss Siegertsz andAugust 19. Miss Vanderstraaten, by Dr. Rutnam that he was not to touch theMn>i>u&TON bandages round his wife’s body. Smith, however, cut the bandages,
J. which were very securely fastened, and inspected the wound on theright side, in the presence of Miss Thiedeman, which presented theappearance of raw beef, and was about seven inches in diameter,about one inch deep, but beautifully clean and dark. The samemorning Dr. Garvin called on Smith, who, he says, blamed a certainperson for the burn, and said that burn was the cause of his wife’sdeath (p. 61), at which Dr. Garvin told him he was quite wrong, butthat he was quite welcome to have another opinion if he liked. Itis clear, therefore, that Smith was at that time most suspicious as tothe cause of his wife’s death; that Dr. Garvin knew it, and knew alsoall the circumstances connected with the bum and its nature. Why,then, did not Dr. Garvin at once suggest a post-mortem examinationof the body, in fact order it ? I see no answer to the question in thereply that he was confident in his own integrity and knowledge of.the cause. A post-mortem examination by a qualified surgeon wouldhave demonstrated beyond all doubt the facts, if they were true,that Dr. Garvin contends for, i.e., that the bums were not serious,and that they did not cause or contribute to the death of thedeceased.
The fact that he did not do so inevitably gives rise to a suspicionthat something had .to be concealed. To this must be added the factthat in the bed-head ticket no specific mention of the burns whateveris made. The only entries that it is sqjd do refer to them are twoprescriptions for ointments on the 23rd May and the 4th June. Dr.Garvin says he did not know that the bed-head ticket contained no' entry beyond these as to the bums, but he has made other entries inthe bed-head ticket, and the fact that he did not enter the burnswhen he discovered them on the 24th gives rise to the suspicion itwas undesirable they should appear in the patient’s chronicle, forsome reason best known to the person omitting it. Dr. Garvin alsoin his report graphically describes the discovery of the bums by himpersonally on the evening visit of 23rd May, when in his evidence headmits he did not see them till the morning visit of 24th May. (Under the circumstances this hardly appears like a slip of memory,but rather as an attempt to demonstrate the earliest personal dis-covery and attention to the wounds, and to conceal the fact that thebandage had been removed and replaced and some .treatment appliedby a student. The death certificate again is signed by a gentlemanwho is admittedly ignorant of the cause of death. That, certificate
states that death is due to lumbar abscess complicated byr acute*
mania.
It is now admitted that the proximate cause of death was exhaus-tion, that the wound from the lumbar abscess operation was healingwell, and there is no direct mention of mania in the bed-head ticket
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or of its having been diagnosed. Dr. Gavin in his evidence (p. 81)1907.
has not the slightest doubt that the patient had. an attack of19.
dysentery on the 5th June caused by a chill, but there is no entry in Mzj>i>x<bxonthe bed-head ticket of dysentery nor of chill, nor does Dr. Garvinin his report (p. 28) refer to anything but diarrhoea. It was statedby the Attorney-General personally, on the hearing of the appealon the first trial, that there was reason to thiik that all mentionof the burns was excluded from the bed-head ticket so that thePrincipal Civil Medical Officer and the superior authorities in thehospital should not hear of them. It is said by the Solicitor-General that it has not been proved that the Attorney-General hadthe authority of the Principal Civil Medical Officer to enable himto make such a statement, but the Attorney-General is the nominalplaintiff in this action, he is the highest legal authority of theAdministrative Government, and it is impossible to doubt that theinformation in his possession did not support it.
It would seem that the Principal Civil Medical Officer did pay avisit to Mrs. Smith after the operation on two occasions, as his letterof 26th August, 3903, shows, and it is, 1 think, perfectly clear fromthat letter that the Principal Civil Medical Officer was then entirelyignorant of the existence of the bums at the time of those visits, orhe would have asked her about them. That Mrs. Smith did notmention her burns to the Principal Civil Medical Officer may beowing to the fact that she was, as Dr. Garvin says, a brave woman,and may not have wished to make any complaint to the PrincipalCivil Medical Officer which might involve blame to Dr. Garvin, towhom, she thought, she owed so much in the successful treatment ofthe abscess. It is material to remember also that Dr. Garvin nowherein his evidence or report said what Mrs. Smith died of, or supportedthe death certificate, or denied, until he was recalled, after his entireexamination, that the burns contributed to her death.
Looking at these facts, strong suspicions are aroused in my mindthat there was a desire to conceal and hush up the fact of the burnand minimize its effects * and consequences. It may be that theobject of this was to prevent a slur on the hospital, from esprit decorps, to shield the nurses, or to prevent Dr. Garvin being called uponfor an explanation, as suggested by counsel.for the defendant; butat the same time it is unquestionably open to the inference that itwas done with a view to conceal the fact that the burn was muchmore serious than it appeared to be, and in fact contributed to, if itdid not cause, the death of the patient.
The resort *to a satisfactory solution of the truth of the matter bypost-mortem examination was taken away (1) by the granting of adeath certificate superficially cogent, though, I take leave .to think,scientifically inaccurate in omitting the proximate cause of death,and (2) by the omission of Dr. Garvin to order it.
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1907. It has been argued that it was for Mr. Smith to propose a post-August 19. mortem, or to take steps to call in an independent medical opinion;Midduetok but evidence shows that Mr. Smith was a friend of, and hadJ. profound confidence in, Dr. Garvin ; that Dr. Garvin is a man ofpre-eminence in the surgical profession in Ceylon ; and T am notsurprised that Smith, under the circumstances, did not proceed tostronger measures, and allowed the body to be buried.
At any rate we find that he was not satisfied as to his wife’s deathras the letters D 3 and D 5 from the Principal Civil Medical Officer ofI5th July and 26th August, *1903, and D 4 from the Colonial Secre-tary (7th September, 1903), show.
As it appears to me that there was a desire to conceal the burnsand minimize their nature and consequences, and a reasonable con-clusion is that Dr. Garvin ought under the circumstances to haveordered a post-mortem examination, which would have been the onlysatisfactory means of discovering what was the nature and conse-quence of the burn, and the death certificate is signed by a medicalman who does not know the real cause of death * 1 feel that theburden of proving that the burn did contribute to the patient’s deathshould be satisfied in a civil action like this by far less cogent evidencethan would be required in a case where no such elements were present,even if the principle omnia prcssumuntur contra spoliatorem is not tobe applied.
It is only after most deep and careful consideration, and with apainful reluctance, that I come to the conclusion that a gentlemanpre-eminent in the practice of his profession as a surgeon, not onlyin the country of his birth, and whose high attainments and skill irithe performance of the many difficult and delicate operations whichin the long course of his professional career have contributed so muchto the benefit of mankind, should have acted in this matter as torender his evidence in a Court of justice liable to be doubted andignored.
My impression, however, from the evidence is that the symptomsof dysentery and mania were availed of after the death of Mrs. Smithto cover (1) the negligence which caused the burns which might affectthe reputation of the surgeon or the hospital, (2) a desire to concealtheir serious character, which led to an apparent indifference, intheir treatment during life and an attempt to prevent inspectionafter death, and the actual prevention of post-mortem examina-tion.
It is possible that Dr. Garvin, not having formed any definiteopinion as to the real cause of death before Mrs. Smith's death, mayhave persuaded himself that the symptoms indicated on the bed-head ticket warranted his assertion of the diagnosis of dysentery andmania after death, and persuaded himself that he was justified inrfiaintaining the theory in default of evidence to the contrary, whichcould only be ascertained by post-mortem examination. This view of
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Dr. Garvin’s action is preferable to my mind to a belief of deliberateperjury, but even that attitude of mind makes his evidence in myopinion unacceptable.
Assuming, however, that Dr. Garvin believed he had diagnoseddysentery and mania before death, and had satisfied his own pro-fessional mind that the burns had nothing to do with contributingto the death, he must have been aware, as a man of the world; thatSmith was dissatisfied and suspicious as to the burns, that he mightgive very considerable trouble by throwing public and official doubton the efficiency of the hospital, and as a professional man, that apost-mortem examination would set at rest all suspicion by provingbeyond all doubt that Mrs. Smith had not died from the effects ofthe burns: and yet he did not promptly order one. He could havevindicated his opinion and reputation by this simple step, which hedid not take. Could be, then, think that his professional reputationand opinion stood so high that he was strong enough to bear thebrunt of suspicion and inquiry without post-mortem examination ina case where the death of a patient of his had occurred under circum-stances which, when revealed, must at least lead to a strong suspiciondf negligence, or that the death had been caused or accelerated bythe bums ? If he did so think, his knowledge of human nature in itsmental aspect is very decidedly less than I should have imagined ofa man of his scientific attainments and experience. I find it difficult,therefore, to believe that this was the attitude of Dr. Garvin’s mind.It is with regret I am driven to the conclusion that the more probableinference is that he did not desire the post-mortem examination, forother reasons best known to himself.
It is suggested by the learned Solicitor-General that Smith was'nota reliable witness, and his admitted inconsistency (p. 69) of the formerpart of letter D 12 with the latter is quoted against him, also his state-ment at p. 68 that he knew the pain proceeded from the bum, when infact he was writing in his letters .that the pain proceeded from theoperation wound. None of the letters written by Smith to his daughterwere definitely challenged by the Crown as fabrications for the purposeof the action, and I fail to see anything in the evidence alluded toby the Solicitor-General to show that Smith’s answers ^show morethan a confused witness. The' letters were to a daughter at adistance, whom naturally a father would not wish to unnecessarilyalarm, by a husband concerning his sick wife and his daughter’smother, who saw them all before they were posted.
Again, a3 regards his cross-examination as to documents “ B, *
– ‘ D, ” “ G. **’ The matters alluded to in those documents were cir-cumstances which occurred in 1895, and it may well be * that thewitness’s memory in respect to them was not particularly accurate.
Again, Dr. Garvin (p. 82), whose daughters were educated by Mrs.Smith, states of him that he cannot believe that Mr. Smith would havewritten to his daughter things which he did not believe to be tnv*21-
1007.
August 19*
Middleton
J.
1007.
Aufuat 19.
MlDDIi ETONJ.
( 272 )
i
and that he had no reason to doubt he was a straightforward andtruthful man.- It is contended for the plaintiff that there was noobligation to furnish the defendant with the original or a copy of thebed-head ticket, as they were private documents kept for the infor-mation of the hospital authorities ; also that the omission to enterdiagnosis and symptoms was not unusual, and might very well anddid often occur under the pressure of work. As regards the firstpoint, Buie 17 of the rules of the paying wards of the hospitalordains the record of the histories of patients in detail for the infor-mation of the relatives and friends when death takes place. I failto see, therefore, why a copy of the bed-head ticket might not havebeen at once furnished to Mr. Smith on his application, or that hemight not have been given an opportunity ^to take a copy. Asregards the second point, it is no argument to say that rules are madeto be broken. The bed-head tickets contain headings providing forthe entry of diagnosis, present symptoms, and treatment of patients,and the failure to make these entries by the medical man is unques-tionably a breach of the hospital regulations for which he may becalled in question.
We have, then, to consider if it has been established that Mrs.Smith was suffering from acute mania, which caused her death, orwhether the symptoms of alleged mania are not consistent withthe fact that she was labouring under delirium caused by the severepain and sleeplessness which she had been undergoing from the4th June until her death.
The theory of mania depends mostly on the evidence of thatmost eminent authority on the subject Dr. Savage, and Drs. Garvinand Sinnetamby. Dr. Stonham contemplates delirium*as the causeof exhaustion in the alternative to mania, and Dr. Hewlett speaksof her mental condition causing exhaustion (p. 62). Dr. Manson(p. 59) says mania or delirium and want of sleep would be seriouscomplications in increasing exhaustion. Dr. Savage (P. 63) thinks thather condition was not the delirium of exhaustion, because there wasno increase of temperature, and physical strength was maintained,as evidenced by the record of violence requiring control. He givesthe causes <as predisposition from former attack, prolonged sleep-lessness'due to the lumbar abscess and consequent pain, and therecurrence of sleeplessness after recovery from' the operation. Dr.Savage further says the treatment would be suitable for some casesof mania. It is admitted that Mrs. Smith was put into StoneLunatic Asylum in .the early part of the year 1896 owing to mentalillness resulting from change of life, overwork, and insomnia. (
It does’ not seem to have been brought home to the mind of Dr.Savage and the other experts that the deceased was suffering greatpain during the last few days of her life, except perhaps from theentries oh the bed-head ticket, which do not greatly emphasize it.Dr. Savage, jnoreover, does not appear to have considered the
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length of time elapsing without any recurrence of the attack whichMrs. Smith suffered from at her change of life.
No nurse was called by the plaintiff to prove the condition of thepatient, nor why .the two attendants were required on the nightpreceding her death. It may have been that the attendants wererequired for attending to the necessary duties following on approach-ing death.
There is no evidence that the prolonged sleeplessness was due tothe lumbar abscess. In fact on the nights of 2nd and 3rd June thebed-head ticket shows that she slept well on those nights, and thecocaine prescription on the 4th points to severe pain from the bumwounds that day.
If the mania was brought on by pain resulting from the bumwounds, there can be no question that Dr. Savage is a witness forthe defendant, as claimed by his counsel. If, however, the deceasedwas suffering from acute mania, it is difficult to understand whythat fact was ignored in the bed-head ticket when it was diagnosedby Drs. Garvin and Sinnetamby, and why some steps were nottaken with a view to securing the use of an asylum, which Dr. Garvinadmitted to be indispensable, and Allbutt at p. 360 says is almostinevitable.
The evidence of Dr. Butnam is that he thought Mrs. Smith wasinsane, and Dr. Bodrigo (p. 19) would have called the delirium mania,if there was no disease to cause the delirium. There is nothing inthe prescription in the bed-head ticket, including trianol, whichis said to indicate that the deceased was suffering from acute maniarather than delirium. Talcing into consideration the ' absence otand omission from the bed-head ticket of the recognized primarysymptoms of* acute mania or its diagnosis (pages 358, 859, vol.VUL, of Allbutt), the evidence of Drs. Pepper and Carr, and theevidence of other local doctors and of Miss Siegertsz, my opinion isthat the deceased was not suffering from acute mania, but ratherfrom delirium induced by pain resulting from the bum wounds shehad received on the occasion of the operation for the lumbar abscess.I may here mention that in reviewing the medical evidence I havemore particularly dwelt on that given by the experts on both aidescalled in London. The evidence given both by Dr. Thomasz andDr. Bodrigo seems to me to bear out the conclusions contended for> by tiie defendant’s counsel on the question of mania, dysentery,and contribution to death by the bum wounds. As regards Dr.Thomasz, although he goes so far as to admit that he hates Dr.Garvin, his* eyidence in nowise appears' to be strained against him*but to be given fairly and conscientiously. As regards Dr..Bodrigo,his opinion appears to be borne out by the eminenif authoritieshe quoted in support of them, and I can find no trace in the recordof his evidence of any malevolent reeling towards the hospitalauthorities.
1907.
August 19.
MlDBEBTON
J.
1907*
August 19.
MtDPXATON
J.
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The learned counsel for the appellant, in arguing that the burnscontributed to Mrs. Smith’s death, contended that if he showedfrom the evidence that Mrs. Smith did not suffer from acute zoaniaand could not have had dysentery, .that her death was due toexhaustion produced by internal inflammation caused by or con-tributed to by the burns.
Sir Patrick Manson, Drs. Pepper, Carr, Stonham, Hewlett,Sinnetainby, and Bodrigo all attribute the proximate cause of •death to exhaustion. Dr. Butnam, who signed the certificate,omitted the proximate cause, but says (p. 13) if he had had to putdown the cause of death he would have put down lumbar abscess,complicated by mania, dysentery, and bums. Dr. Garvin himselfnowhere stated what was the cause of death, except in so far ashis clerk filled in the certificate according to Dr. Butnam. Dr.Savage gives no opinion. The evidence of the bed-head ticket andthe assertion on behalf of the plaintiff of dysentery as a diseasefrom which the deceased was sufferinig presupposes the existence ofsome inflammation or disturbance of the intestines. If this inflam-mation was not produced by dysentery, it must have been causedby some other factor./
It is not suggested by the medical evidence that it was caused inany way by the result of the operation from lumbar abscess. Candysentery, then, be eliminated as a disease .from which Mrs. Smithwas suffering ? In the first place, the bed-head ticket does notmention dysentery as a diagnosed illness from which deceased wassuffering, it is not mentioned in the * death certificate, it is notspecifically. mentioned in Dr. Garvin's’ report, and it is not evennow relied on for the plaintiff as a cause of death, but ,it is suggestedthat it was present.
As regards the symptoms of dysentery, the most important andindicative are admitted to be blood and mucus in the stools andtenesmus. The former symptoms are only mentioned twice andone day in the bed-head ticket, although it shows many motions.
In a number of cases of admitted dysentery, the bed-head tickets ofwhich we have had several before us produced by the Crown for ourinspection, show that the stools must have been carefully examined,as the symptom of blood and mucus is constantly mentioned, asalso the symptom of tenesmus.*
It is admitted, I think, that a daily examination, at least of thestools in dysentery, is of the utmost importance (Manson, p. 400).Both Drs. Manson and Stonham assumed that this w%s done, butthere is no evidence of it. The bed-head ticket does not point to thishaving been done here, or to the existence of tenesmus. Dr. Stdnham,however (p* 61), finds evidence of tenesmus from a certain statementmade by Smith, but I find it difficult to follow this.
1 The prescriptions mentioned in the bed-head ticket are send byDr. Manson (p. 59) to point to the treatment of dysentery, and by
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Dr. Stonham (p. 61) to be proper treatment for dysentery. Dr. Carrsays (p. 52) the prescriptions are appropriate to diarrhoea. Dr. Peppersays there is no mention in the bed-head ticket of the symptomsof dysentery, apart from enteritis, and the presence of blood andmucus on these two occasions are not inconsistent with the theoryof enteritis. Dr. Pepper says the motions in enteritis may ** containblood, but not necessarily, They generally contain mucus.” Dr.Carr in cross-examination says (p. 55): “ Blood and mucus noted thefirst few days, not inconsistent with diarrhoea.”
The suggestion—for it is nothing more, that dysentery might have. been caused by a chill or the eating of unripe fruiW-is not supportedby any evidence. No doubt dysentery is common in Colombo,and possibly in the hospital, and there may have been a cold windon the night of 3rd June in a particular part of Colombo, but thereis no record on the bed-head ticket or anything to show that eithera chill or that unripe fruit had been taken.
By an unfortunate error of judgment on the part of the learnedcounsel for the defendant the scientific expert witnesses for theplaintiff were not cross-examined, so that none of them have statedthat the symptom of blood noted one day was necessarily incon-sistent with diarrhoea.
As regards the evidence of Dr. Garvin, he did not advance thetheory of dysentery in his report, and he did not enter a diagnosis ofit on the bed-head ticket, and he was not called at the first trial tosupport it. Dr. Butnam would have entered the cause of death asdysentery in the death certificate from the character of the motionsin the bed-head ticket. Dr. Sinnetamby derives his knowledge on thesubject from Dr. Garvin (p. 85). Dr. Thomasz says he cannot say itwas dysentery (p. 77), but states that he intended the word " dysen-teric ” as a qualification throughout his evidence (p. 78). Dr. Rodrigo,who, if I may be permitted to say so, must have given his evidencewith marked ability, thinks it could not be dysentery, the symptomsand diet recorded in the bed-head ticket negativing the theory*.
The theory of dysentery may not be negatived entirely on themedical evidence, but there is no evidence which negatives entirely, the theory of diarrhoea from enteritis or intestinal inflammation.
Taking into consideration the omissions in the bed-head ticket and> the report of Dr. Garvin, and the medical evidence negativingdysentery, I do not think it has been established, therefore, that thedeceased was suffering from dysentery, but may-, have been sufferingfrom intestinal inflammation producing diarrhoea. In what way,therefore, could this intestinal inflammation have been producedexcept by the action of the bums? It is postulated by the* Solicitor- *General that if the burns caused intestinal inflammation, ft must havebeen either from septic absorption or reflex action. It is furtherargued by the learned Solicitor-General that the theory of reflex actionwas untenable as the evidence showed no continuous and progressive
1907.
August 10.
Mn>Di.ETOK
J.
( 276 )
1907. irritation of the wound; and -that the theory of septic absorptionAugust 19. must be rejected, because the normal temperature of the patientshowed no fever, an inevitable concomitant of septic absorption.
Middleton the chart furnished by the plaintiff with the bed-head ticketis correct, 98.4° is the accepted standard of normal temperature,and the chart shows that the temperature of the deceased was below jnormal from the 25th May till 8th June, except on 29th May, when ?the drainage tubes of the operation were removed, and on 5tb June. IThere is no evidence that in dysentery such a temperature is to be ■expected.
Dr. Pepper, however, says (p. 45'): 44 When a patient is exhaustedthe causes of fever may be present, but the patient does not registerthe fever and again, at p. 46, that septic matter may be so virulentand in such quantity as to cause a fall of temperature. And Dr.Stonham says, " in cases where the dose of poison has been verylarge the temperature may not rise, because the patient dies rightaway." Dr. Pepper (p. 47) says exhaustion may be a cause ofthe temperature being lower than it would otherwise be.
There is no evidence given as to how the temperatures indicatedon the chart were taken, whether under the arm or under the tongue,nor are they sworn to be correctly taken, or whether the meannormal temperature of Mrs. Smith varied from the standard normalindicated on the chart, as Dr. Stonham at p. 61 suggests might bethe case according to the individuality of the person.
There seems to be a possibility, according to Dr. Pepper and fromthe evidence of Dr. Thomasz, that, however much attention wasgiven to the antiseptic treatment of the burn, it might have becomeaseptic owing to its position in respect to the -lumbar abscess wound.Dr. Stonham (p. 48, vol. 2) says: “ A plentiful supply of septicrhaterial is present in all cases of bums."
There is evidence that deceased was suffering from much pain onthe 2nd, 5th, and 7th June, from the letters D 10 and D 12 ofSmith to his daughter, from Smith’s evidence, from Miss Siegerts’evidence that she was crying with pain on the 4th June, which iscorroborated by. the cocaine prescription in the bed-head ticket.The bed-head ticket on the 6th records pain and restlessness, andon the 7th* no sleep whatever on the preceding night, and againon the 8th a very restless night and no sleep on the 7th.
Dr. Pepper (p. 47) says: “ Mrs. Smith must have suffered pain, *whether she complained of it or not "; and, again, at p. 48, 44 theremust have been severe pain from the bums." Dr. Garvin (p. 80)says: "On the 4th June Mrs. Smith complained of a4'slight painover the purnt area and at p. 82, 44 after the infliction of thp burnI would have expected pain a good deal.” Dr. Pepper thinks (p. 47)that on the 4th June the congestion first arose. I think, therefore,that the evidence establishes that for a very considerable period,at least from 2nd June, in spite of the fact that Mrs. Smith went on
( 277 )
>♦
the verandah on 3rd June, she was suffering pain from the burnsup to the time of her death.
Dr. Pepper (p. 46), whose experience of bums is admitted, saysthat “ there are cases but of exceptional occurrence where intes-tinal complications of bums occur even in the case of small bumsand which are aseptic.** Dr. Stonham (p. 60) says that there is aconnection between burns and intestinal inflammation including allthe internal organs, brain, &cM and the situation of burns influencesthe nature and frequency of the complications; and, in stating hisopinion that the bums did not directly contribute to the death ofMrs. Smith, thinks that the mental condition which, in his opinion,proved fatal was led up to by the whole illness under which shesuffered, but the part the bums played was practically negligible.This infers that the burns in his opinion did play some part incontributing to the death.
None of the expert witnesses examined in London on behalf ofthe Crown seem to have been aware of the operation which wasnecessary for the removal of the sloughs, it not being recorded in thebed-head ticket. Dr. Carr at p. 55 thinks the presence of sloughs asource of irritation; that “ there cannot be a healthy wound whilstdead tissue is present in it; that it would be a constant source ofirritation from • the moment it was formed to the moment of itsremoval; it would be irritating to the tissues beneath; the action•might be compared to that of a mustard leaf applied to the skin.*'Dr. Sinnetamby at p. 85 allowed that the connection between bumsand intestinal inflammation* was an admitted fact or theory, thoughthe pathology of it was obscure, and also agreed that inflammationsets in from about the second to the fourteenth day.
* My findings are that the temperature of the deceased was sub-normal from 4th June to her death, except on two occasions; thatsub-normal temperature points to considerable exhaustion; thatantiseptic treatment of a wound is palliative only, and may not bea conclusive preventive, particularly in a case like this, where thebandages round an admittedly septic wound resulting from theoperation for lumbar abscess embraced, at least on the first occasion,the surface of the bums and were taken off and replaced by Dr. Alvisunder circumstances which give rise to a possibility of immediateseptic contamination; that pain was present of a severe characterfrom 14th June till the death of the patient; that his would beindicative of continuous and progressive internal irritation; thatthe weight of the evidence is against the theory that deceased wassuffering from dysentery or acute mania; that there was an irrita-tion of the intestines caused either,by reflex nervous, effectB fromthe burns or in some other way as suggested .by Dr. Pepper in hisexperience; that deceased died proximately from exhaustion; thatthe operation for lumbar abscess was ably and successfully performed,and that the wound was proceeding satisfactorily to convalescence
1907.
August 19.
Meddebton
J.
( 278 )
1007.
August 19.
MioDunoK
J.
up to the 4th June; that the operation under chloroform on8th June was more? particularly directed to the removal of thesloughs on the burn -wounds than to the quieting of the patient byan ansesthetio. I find also that the withholding of the copy of thebed-head ticket from Mr. Smith, the failure of Dr. Garvin to ordera post-mortem examination, the signature of the death, certificateby a medical man admittedly ignorant of the cause of death, allpoint to a want of candour, if not to a desire of suppression or con-cealment, on the part of those in medical attendance on Mrs. Smith,which strongly affects my mind as to the value of any evidence inrespect to the burns or their consequences given by Dr. Garvin orany medical witness closely associated with him in the hospital.
The abstention of Dr. Garvin from the witness box on the firsttrial may have been owing to the discretion exercised by thoseresponsible for the legal management of the case, but I take leaveto think that it was an unwise discretion.
I find, therefore, that the deceased, Mrs. Smith, died from ex-haustion caused by intestinal inflammation contributed to by theeffects of the burns inflicted on her body during the course of anoperation for lumbar abscess on the 23rd May.
As regards the question whether the Government would be liableor any negligence on the part of the surgeon and nurses of thehospital, it was admitted that this was not argued in the Courtbelow, and there is no issue which directly raises the question. Ifthis point had been taken at the inception of the case, it might havebeen raised by a special issue of law as provided under the CivilProcedure Code, and a decision in favour of the plaintiff before thecommencement of the trial might have been v taken to the highestCourt of the Empire, and, if affirmed, would have prevented theenormous expense which the two trials of the issues of facts in thiscase have involved.
There was an authority in the case of Hall v. Lees,1 which wasquoted during the trial for another purpose, which was not used asan argument, as it might' have been, for the denial of the defendant'sright of action in reconvention.
There may be also authorities, like the American case, of Power v.Massachusetts Homoeopathic Hospital,2 which was furnished to usafter the conclusion of the argument by, the learned Solicitor-General, which would support the contention of the Government.In my opinion the whole case has been fought on the principle thatif the defendant proved negligence, and that negligence caused or* c6ntributed to the death of the deceased, the Governinent wereprepared tp pay the damages the Court might award.
Without, therefore, expressing any opinion as to the legal positionof the Government in its relation to the employes of the hospital,
1 (1904) a fT. B. 602.* (1901) 65 Law. Rep. Ann. 372.
( 279 )
J am prepared to hold that it has 'waived its legal rights in this 1907.respect, if' such exist-, and must be held now bound to make that August 19.reparation which it impliedly admitted must be made if the issues Middlktonagreed upon were decided unfavourably to it.J*
It is clear that the issue of law as discussed and disposed of byMr. Weinman did not involve the Government’s liability for negli-gence as the employers of the surgeons and nurses of the hospital,but only the defendant’s liability to pay the charges for medicaltreatment, if want of skill or negligence were proved on the part ofthe surgeons and nurses.
As regards the question of damages, it is contended for thedefendant that he is entitled to a solatium for the loss of his wife’sconsortium and to compensation for the pecuniary loss he hasbeen deprived of by her death in respect to her joint earnings withhim as the principal teacher in a school, the business managementof which was carried on by defendant, and the argument for theplaintiff (pp. 99-101) in Blake v. Midland Railway Co., Ltd.,1 wasrelied on as showing that the Scotch Law, which is founded onthe Civil Law, would support the claim contended for. Thompson(uoZ. 1L, p. 450) was also referred to as supporting the theory thata husband could claim pecuniary damages for the death of his wifeunder the Boman-Dutch Law, and the case of J. G. K. Carolis v.
R. P. Don Bastian et cl.3 was instanced as showing that Chief JusticeCayley had subscribed to the opinion of Thompson, although thecase did not actually involve a decision of the question. The case of
Silva v. Brodie9 was also relied on. In that case the claim was for
>
damages for the loss of a wife and child killed by the fall of defend-ant’s wall negligently built without adequate foundation. On thefirst appeal '^he Supreme Court thought that formal proof of thedeath of the wife and child owing to the fall of the wall had notbeen proved, and sent the case back to enable the plaintiff to sub-stantiate the facts. This was done, and the judgment was againgiven for the plaintiff for Bs. 1,100 damages. On the appeal comingup for hearing again before the Supreme Court, this judgment wasaffirmed on the 2nd February, 1906, no reasons to the contraryappearing to the Court. It is, therefore, authority for the conten-tion of the defendant, though no reasons are given.
On the other hand, the Solicitor-General submitted that thedefendant had in fact sustained no damage, that it was his duty tosupport his wife and children, that no damage could be recoveredfor the loss of the wife’s services as schoolmistress more than forthe death1 of a clerk, and that the Boman-Dutch Law would not4give jthe solatium sought for, and relied on Voet (Sampson's Trans-lation, p. 318), Herbert's Grotius (p. 487), Kotze's Translation ofVan Leeuwen (vol. 71., p. 282).
R. 16 Q. B. 93.» S. C., Min-. Feb. 2, 1906 (D. ft.
3 (1879) 2 S. C. C. 184.Colombo, 20,450).
( 280 )
1907.
August 19.
Middi>bton
J.
I can find no direct authority from the old text writers to supportthe right to solatium for an act ex gravi maleficio causing the deathof a wife beyond the general principle laid down in Grotius (Herbert,booh III., ch. XXXII.) of obligation to make good any inequality.This would include loss of consortium, which would certainly causeinequality, assuming no other ground for compensation existed.
As regards the pecuniary loss, it is to be estimated on the principleof annuity (Orotius, book III., ch. XXXIII.). Following this Iwould take a period of five years as a reasonable limit during whichthe profits of the school, estimated at Es. 4,000 per annum, mightfairly be deemed likely to have continued, and give the defendanthalf of this sum per annum, amounting in the aggregate to Es. 10,000.For solatium I would award him a lump sum of Es. 5,000, makingaltogether a total of Es. 15,000 as damages. The judgment of theDistrict Judge oh the claim in reconvention must, therefore, be setaside, and judgment entered therein for the defendant for Es. 15,000.
As regards the costs, I think that the defendant's costs on bothtrials and appeals should be borne by the plaintiff, save and exceptthe costs incurred by the plaintiff in obtaining judgment on theclaim for Es. 131.70, which the defendant must pay.
Wood Kenton J.—
I am of the same opinion. I propose, in the first place, to dealwith tfie question whether the present action is maintainable, andthen to proceed, avoiding as far as possible any recapitulation ofthe facts which have been fully stated by my brother Middleton,to consider the case on the merits. It was contended by the learnedSolicitor-General, on the argument before us, that the appellant hasno cause of action, on the two-fold ground that by the common lawof the Colony a husband has no right to 6ue for damages in con-sequence of the death of his wife owing to the tortious act of a thirdparty, and also that, even if such a right of action existed, it wouldnot lie against the Attorney-General, against whom, in his officialcapacity, the appellant’s claim in reconvention has been presented.I do. not think that either of these points can avail the Crown inthis action. *T have been unable to obtain access to all the Eoman-Dutch authorities which are cited in the ordinary text books on thequestion of the right of action for patrimonial loss. But I think that,both on principle and on authority, there is nothing to prevent ahusband from recovering damages for the death of his wife, if thecircumstances of the case show that he, or their common children,have in fact incurred loss in consequence of it. It is quite truef thatthe Eoman-Dutch writers give as illustrations of the class of casesin which an action for patrimonial loss will lie that of a widow orof c children who have been deprived, by the death of a husband andfather, of their usual means of support (Nathan's Common Law of
( 281 )
Sguth Africa IIIss. 1620, 1622). But I do not think that theyever intended to limit the right of action in this way. I can scarcelyconceive, for instance, that they would have held that an infirmhusband, who was dependent on his wife’s exertions for his dailybread, would have been debarred from recovering damages on theground of her death, and if this be so, it would follow that theremedy is competent to any husband who can bring himself withinthe range of the class of loss for which it is designed to providecompensation, and that pecuniary loss, as well as loss of consortium,must be included in the category. It seems to me that this viewof the law is confirmed by the Dutch Jurists, themselves (seeGrotius, Maasdorp, pp. 487-8, as. 4 and 6), by the learned author ofThompson78 Institutes (see vol. 71., p. 461), and by local judicialauthority so far as it goes. In the case- of Carolis v. Don Bastian1it was expressly stated by Chief Justice Cayley that a husband hat1by the law of this Colony a right of action for the loss caused himby his wife's death. It is no doubt true that this statement wasmerely obiter dictum; for in the case in question the Court held thatthe wife’s death had not been shown to be due to the assault ofwhich the husband complained, and that consequently he was entitledto damages only for the loss of her services, and for his expenses andtrouble in tending her- during her last illness. (But the more recentcase of Silva v. Brodie2 is an authority directly in point. Iti was anaction by a husband for damages for the death of his wife and child,owing to tiie fall, in consequence of the negligence of the defend-ant, of a boundary wall. The case was tried in the District Court,came up before the Appeal Court, was sent back for further evidence,and was decided in the husband’s favour, a decision which wasaffirmed on appeal, without any suggestion being made on any sidethat the action would not lie. But, even if I were in doubt whetherthe present action is maintainable on the ground with which I havebeen dealing. I should still hold that the point was not open to theCrown in this case. When I come to consider the second objectionpressed by the Solicitor-General against the appellant’s title to sue,I will show more fully what the attitude of the Crown has beentowards the. present claim. It may suffice in the meantime to saythat the objection now before me was never mooted at all until thesecond trial of the present action, and that it is obvious, from thefinding of the District Judge, that even then it was not seriouslypressed in the Court below, inasmuch as he deals only with thequestion whether Mr. Smith was entitled to special damages on the*ground of his wife’s educational gifts'.
I pass on now to consider the Solicitor-General’s second point,namely, that, whatever may be the appellant’s rights againstthe Hospital authorities regarded as individuals, all that the
(1870) 2 S. 0. G. 184.
(1905) 1 Bol. 172 and 28, D. C., Colombo, 20,450. SOiJt Juno, 1905.
1907.
August 19.
WoodRenton J,
( 282 )
1907. Government undertakes to do in connection with the admission ofAugust 19. patients into the General Hospital is to provide a staff of competentWood physicians, surgeons, and nurses, and that, consequently, when thisRbmton J. obligation has been discharged, the responsibility of the Crown isat an end. If this objection had been taken in time, it would, Ithink, in view of the cases of Hall v. Lees1 and Evans v. LiverpoolCorporation,3 and of. the American case of Powers v. MassachusettsHospital,3 have been a serious one for the appellant. No materialsare now before us on which it would have been possible for us todetermine the real contractual relationship between the Crown,the Hospital authorities, and patients admitted into the Hospital.Such materials, however, could rea'dily have been obtained. ButI am clearly of opinion that no . opportunity of adducing suchevidence ought at this stage to be given to the Crown. The objec-tion in question was essentially one that ought to have been takenat the outset, in order that the appellant might have the chance ofconsidering whether, abandoning his action against the Attorney-General, he should sue the Hospital authorities as individuals, orwhether he' should join them as alternative defendants with theAttorney-General, as the Code of Civil Procedure would enable himto do. It was not, however, till the argument of the present appealthat the Solicitor-General's second objection to the competency ofthe action was raised. It does, indeed, appear from the originalproceedings' that the Attorney-General, while joining issue with theappellant in his replication on the alleged facts on which the claimin reconvention is based, averred also that the action could not bemaintained. It is obvious, however, both from the ruling of theDistrict Judge oh .that plea and from the judgment of the SupremeCourt on the first appeal, that the only point taken under it wasthat the action, being one in delict, could not be maintained againstthe Crown. It was that objection which the Supreme Court dealtwith* and over-ruled, and it would be no longer competent for us toentertain it, even if it were, as it has not been, urged here again.From start to finish the attitude of the Crown towards the presentappellant, since the plea of delict was disposed of, has been to courtfull inquiry and to accept responsibility, if the appellant proved theallegations in his claim in reconvention. I may point out, by theway, that at the second trial the Solicitor-General had the case ofHall v. Lees, which I have already mentioned, before him, and thathe used .it only for the purpose of medical cross-examination. It•would be highly inequitable now to permit the Crown, at tbfc eleventhhour, after the case has been fought exclusively on issues of fact,to fall back on a plea in law which would render the proceedingsabortive.
i (1904) 2 K. B. 602.2 (1906) 1 K. B. 160.
2 (1901) 65 Law Rep. Ann. 372.
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I have now disposed oi the second objection to'the present actionbeing maintained, and I go on to deal with the case itself. Itappears to me that that part of the District Judge’s decision inwhich he affirms the appellant’s liability to satisfy the respondent’sclaim must be upheld. For the sum claimed consists almost entirelyof actual outlay by the Hospital authorities in connection with Mr6.Smith’s maintenance. It was scarcely argued by Mr. Elliott, whoconducted his client’s case in the Appeal Court with commandingability, that this comparatively small sum was not due, and I haveho hesitation in agreeing with the District Judge’s finding in regardto it.
There is one other preliminary matter on which I desire to say aword before proceeding to grapple with the facts. It was contendedby Mr. Elliott that, as Sir Charles Layard and Mr. Justice Moncreiffhad come to the conclusion on the first appeal that negligence onthe part of the Hospital authorities was established, he started atthe second trial with a finding in his favour on that issue, and thathe was entitled to judgment if he succeeded in proving that theresult of that negligence had in fact contributed to Mrs. Smith'sdeath. I am unable to accede to this contention. It seems to methat, in ordering a new trial, the Appeal Court must be taken tohave left the issue of negligence as well as that of contributionopen to the respondent. It is of course competent for Mr. Elliottto make use of all the arguments by which Sir Charles Layard andMr. Justice Moncreiff fortified their conclusion that negligence hadbeen proved as ratio scripta. But I do not think he is entitled totreat the finding itself as a judicial decision in his favour.
There can^be no doubt as to the legal standpoint that we have toassume in considering the facts of this case. It follows from whatI have already said that, if there was negligence on the part of theHospital authorities, they must, in regard to that negligence, betaken in these proceedings to be the servants of the Crown, and thatthe Crown, as principal, will be responsible for the acts of its agents.In point of law the^appellant has to establish, in the first, place, thatthe bums, which were undoubtedly inflieted on Mrs. Smith,were due to the absence of reasonable care on the {Jar of one orother (which is quite immaterial) of the officers of the Hospital whowere concerned with her case; and, in the second place, that theseburns in fact contributed, in some appreciable degree, to her death.I should premise also that as Judges of the facts as well as of the lawwe must trqat this case as if we were a jury trying a civil action,*and ^return the verdict which the weight of the evidence demands.It is essential to a just estimation of'the evidence on both sides thatwe should make up our minds at the outset as to the reliability, sofar as these proceedings are concerned, of the two great protagonistsin the suit: Mr. Smith,' the appellant, and Dr. Garvin. It is obviousthat our decision in regard to such questions as the* symptoms that
1907.
August 19.
WoodRbntok J.
1907.
August 19.
WoodRbntok J.
( 284 )
Mrs. Smith displayed, the pain (if any) that she suffered, and thecharacter and gravity of the burns must depend to a large extent onthe view that we take of these two witnesses. On both sides theissue of their credibility has been placed before us, and, howeverunpleasant the inquiry may be, that issue has to be fairly faced anddecided. The learned District Judge disbelieved Mr. Smith whenhis evidence came into conflict with the case for the Crown, and, indealing with the question of damages, he described him as having“ lived upon the industry of his wife.”
If this stricture is to be interpreted as meaning that Mr. Smithwas a loafer content to be maintained by his wife, there is nothingin the record that justifies it. It would appear that Mr. Smith wasat one time in the employment of the Church Missionary Society,and that, in consequence of some difference of opinion with hisemployers, he resigned his appointment. There is nothing to showwhether he or the Society was in the wrong. In his evidence hestated that he had at one time been insolvent in consequence ofmoney lent and lost in coffee speculation. Again, there is nothingto show that any personal discredit attached to the insolvency. Withregard to the schools carried on by himself and his wife, he describedhimself as proprietor and manager. There is nothing in the recordto disprove his allegation that he was taking a real part in his wife’seducational work, although it was admittedly her gifts as a teacher ■which rendered that work lucrative and successful. It is obvious,indeed, from the whole tone of Mr. Smith’s letters to his daughter,and all the evidence recorded as to whbt passed between himselfand his wife during her last illness, that the,family was, in everysense of the term, a united one. When we turn to *the evidencegiven by Mr. Smith with regard to the special subject-matter of theaction, there are, so far as I can see, only two points on which it isfairly open to suspicion. Mr. Smith denied at first, and afterwardssaid that he did not recollect, that he had. supplied—as he clearlymust have done—to the various doctors who were professionallyconsulted as to his wife’s health in 1896 the information on thestrength of which she was confined in the Stone Lunatic Asylum.
I am not satisfied that Mr. Smith has not attempted to minimizethe seriousness of his wife’s symptoms at the period in question,although it certainly does not result from the evidence, either oralor documentary, that he had at any time described her as havingthen been suffering from an attack of acute mania. Some allowance,•^however, must be made for the natural reluctance of a Busband toadmit thaj his wife had been insane, and I am unable to regardMr. Smith's*attitude towards this question as either destroying orseriously impairing his credibility as a witness. The second point,&3 to which Mr. Smith’s testimony may fairly be challenged, consistsin his statements at the second trial (a) that*he did not know of theburning till he heard of it from Dr. Garvin, whereas at the first trial
( 285 )
he said that he heard of it before speaking to Dr. Garvin from hiswife herself; and (b) that he had all along regarded his wife’s painas proceeding from the bums, whereas in his letter to his daughterhe would seem to attribute it to the operation wound. With regardto (a), I see no reason to discredit Mr. Smith’s statement that whenhe spoke of the burning he meant the pain. With regard to (b), itmay well be that some confusion existed in his mind as to the con-nection of the operation wound and the pain on the left side, of which,he says, his wife complained, in view of Dr. Garvin’s statement tohim that the burn was a slight one. Dr. Garvin is the only witnesswho says that Mrs. Smith had ever been made aware that she hadbeen burned, and as her husband’s letters to their daughter inEngland were for the most part read over by Mrs. Smith before theywere despatched, it may be that the omission from them of anyreference to the pain of the burning was not accidental. The matterhas not been entirely cleared up on the evidence before us; and inview of what I have just said, I do not consider that the inconsis-tency, if there be one, is a reason for rejecting Mr. Smith’s evidenceas a whole. That evidence is corroborated on all other essentialpoints by the letters which he wrote to his daughter at a time whenno question of litigation had arisen, and also by the statements ofMiss Siegertsz, -Miss Vanderstraaten, and Miss Thiedeman, whoseevidence, in spite of the fact that they were teachers under Mrs.Smith, I find no ground for disbelieving. It was suggested by theSolicitor-General, rather than expressly contended, that there wereinconsistencies in Mr. Smith’s correspondence with his daughter,which raised a suspicion that the passages emphasizing the pain,from which Sirs. Smith is alleged to have suffered, had been inter-polated after his present dispute with the Hospital authorities hadarisen. It is admitted that Mr. Smith obtained the originals of theletters in question in England after his wife’s death, and of coursehe had the opportunity of tampering with them. But the lettersthemselves show no traces of fraudulent manipulation, and in myopinion there is no real inconsistency between any of the passageson which the Solicitor-General relies. Take, for instance, the letterof 2nd June, 1903 (D 12), in which the writer first refers to thesplendid progress the patient was making, and then goes on to recordthe great but, as he believed, diminishing pain from which she wassuffering. In view of the fact that Mr. Smith had at that time everyreason to pxpect his wife's recovery, it appears to me that it wasperfectly natural for him to record both the patient’s general progress #and hlso the pain which he regarded either as incidental to theoperation or as due to the attendant bum, which' Dr.* Garvin hadassured him was of a trivial character. It should be added thatDr. Garvin himself stated in his evidence that he did not believethat Mr. Smith, whom he knew well, would have written to his
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WoodBbmtok J.
daughter things in regard to the health of her mother which he knewto be untrue. I have weighed as carefully as I can what is to besaid for and against Mr. Smith’s credit, and I have come to the con-clusion that he ought to be accepted as a reliable witness. I willshow, later on, the effect of the acceptance of Mr. Smith’s testimonyon the case as a whole.
I come now to Dr. Garvin. It was stated by the Attorney-General, at tjie first argument in appeal, that there was reason tothink that all mention of Mrs. Smith’s burns was excluded from thebed-head tickets so that Sir Allan Perry, Principal Civil MedicalOfficer, might not hear of them. It was practically on the sameground that, in the present appeal, Mr. Elliott put his case againstthe good faith of the Hospital authorities and particularly of Dr.Garvin. After following with the utmost anxiety the argumentson both sides and all the evidence in the case, I feel constrain-ed to say that, in my opinion, the Attorney-General’s explanationwas well founded. It is clear that, whether Mrs. Smith’s mishapwas due to accident or negligence, it was one that could not fail, tocause embarrassment to the Hospital authorities directly concernedwith her case, and to cast suspicion upon the whole regime of theHospital itself. I .think that the evidence leads irresistibly to theconclusion that a deliberate attempt was made to suppress all proofof the real nature of the injury done to Mrs. Smith in the course of theoperation upon her. It seems to me idle to contend that if bed-headtickets are, as we are assured and as the Hospital rules require,intended to contain an accurate history 6f every phase in a patient’scase, such a serious development as the accidental infliction of burnsunder operation ought not to be recorded. We are* told by Dr.Pepper that, in St. Mary’s Hospital, London, with which he is con-nected, such an entry would or ought to be made in the notes cor-responding to the bed-head tickets in Ceylon. If I understood thelearned Solicitor-General aright, he did not dispute this contention.His argument was that Mr. Alvis, whose attention was first calledto the bums, had emitted to make the entry, and that Dr. Garvinwas unaware of the omission. I am unable to accept this view ofthe facts. It is clear that Dr. Garvin was following the ease of Mrs.Smith personally with the greatest care. Most of the entries in thebed-head tickets are in his own handwriting. He was aware of theexistence of the bums. He was dressing them from day to day.It was he who, on the occasion when he admits that Mrs. Smithl cbmplained to him of pain on her left side, prescribed boric acid andcocaine, yhich, he says, brought prompt relief.r
I cannot 'believe that Dr. Garvin was unaware of the originalomission of any entry as to the bums, or that if e.g.t bums had beeninflicted accidentally by Mrs. Smith herself during convalescenceby upsetting a spirit lamp which she was using for the purpose ofdressing her hair, he would not have recorded eo nomine his tre^t-
( 287 )
ment of them and their appearances from day to day. In thepresent oase the bed-head tickets from first to last are absolutelysilent as to an injury which Dr. Garvin himself admitted wouldretard her recovery, which at least once before Mrs. Smith’s relapserequired special treatment, and which necessitated an operationunder chloroform on the day before her death. I am confirmed inmy views as to the cause of the silence of the bed-head tickets on thesubject of the burns by the false death certificate issued- by Dr.Rutnam—I say false because Dr. Rutnam did not know the cause ofthe lady’s death, and if he had had to certify on his impressions wouldhave added a reference both to the alleged dysentery and to theburns; by the failure of Dr. Garvin to insist on a post-mortemexamination, which would have demonstrated the cause of death;•by the .proposal of the Hospital authorities that the * funeral shouldtake place from the Hospital; and by the suggestion made by Dr.Rutnam to the appellant, when he came to remove his wife’scorpse to his own house, that in any event he should not touchthe bandages because it would not be a pleasant sight for him tolook at ** an ulcer in a dead body.” It may well be that each ofthese circumstances would not carry us far standing alone, but theircollective force has created on my mind so strong and adverse animpressions as to the conduct of the Hospital authorities in this casethat I am prepared to accept Mr. Elliott’s contention that they werenot* acting in good faith.
The circumstances just enumerated are not weakened, as the.District Judge seems to thnik, by the fact that the accident wasgenerally known in thea Hospital, or that Mr. Smith was told of it.Mr. Smith was told only of a slight burn, and there is no evidenceof any communication to Sir Allan Perry on the subject during Mrs.Smith’s lifetime. I desire to say one word in particular with regardto the death certificate. In his evidence at the first trial Dr. Rutnamstated that, although he had authenticated the certificate as the lawrequired, he did not know the cause of Mrs. Smith's death, andthought that he would himself have added to the certificate a referenceto dysentery and burns. It was Dr. Garvin who really settledthe statement in the certificate as to the cause of death/ though hedid.not sign it. We were told by the Solicitor-General that this’method of issuing death certificates is in vogue in the Hospital, andthat it might be justified by a sort of 41 legal fiction.” I can onlysay that if any such practice exists, the sooner it is abandonedthe better, hs it exposes those who pursue it to the risk of criminalprosecution, it is impossible that any court of justice shouldpermit the law of death certification-to be tampered with in thislight-hearted and irresponsible manner.
It may be desirable to refer here to the evidence of Dr. Sinnetamby;Mr. Elliott expressly disclaimed any intention of attacking this wit-ness’s honesty, and contended himself with impeaching the accuracy
1907.
August 19.
Wood
EbntoxJ.
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( 268 )
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i
of his recollection. He pointed out, however, that Dr. Sinnetambywas himself acting as first physician to the Hospital in 1903, andthat he displayed in the witness box the reluctance to say anythingthat might implicate his colleagues, which was not unnatural underthe circumstances. When pressed with the mysterious silences ofthe bed-head tickets, Dr. Sinnetamby replied: “I don’t want tosay anything against these tickets or about them.” But apartfrom this aspect of the question, I am unable to hold that Dr.Sinnetamby's evidence rebuts the case against the Hospital author-ities. His memory was clearly hazy as to the dates or duration ofhis visits to Mrs. Smith. He had no notes by which to refresh it.
It is clear that he relied at the time largely on what Dr. Garvintold him of the case, and later on, when he came to give evidence,on the entries in the bed-head ticket, which only mentions hisname once. Dr. Sinnetamby’s evidence further tends to show, itmay be noted in passing, that—-as one would expect from the con-dition of the patient—the removal of the sloughs under chloroformon the 8th June was not a mere ordinary dressing carried out withthe aid of an anaesthetic, because the patient was restless and wouldbe the better of a little sleep, but an operation sufficiently seriousand important to form the subject of consultation between Dr.Garvin and himself.
I come now to consider the question whether the appellant hassucceeded in proving negligence as against the Hospital authorities,and I shall deal with this question as briefly as it was dealt with onboth sides of the Bar. The learned District Judge concludes thatthere is no legal evidence of negligence. If he meant that there is noevidence which a Judge would allow to go to a jury—«and I can onlyinterpret his language in this sense—I am at a loss to understandthe ground of his finding. It appears to me that negligence hasbeen clearly established. We start with the undisputed fact of theinfliction of burns of the second, third, and fourth degrees on thepatient while under operation. In his report to Sir Allan Perry(D 6, 23rd August, 1903), a report which, he says, was the result of” careful inquiry,” Dr. Garvin says that he can only attribute theaccident te the fact that during a the taking up of the patient’s'clothing, the arranging her in the proper position for the operation,and her struggles when anaesthetized, the towel must have shifted*and the bare bottle come in direct contact with her body over the •whole area of the bums. We know that the operation lasted for«an hour, and that the -bums were not discovered while it was inprogress.# If Dr. Garvin's explanation is correct, it follows, thatpractically «durmg the whole time that he was operating the processof scalding was going on. There is no contest as to the degree ofthe bums which were inflicted, and there can be equally little doubtas to the heat that inflicted them. We have, therefore, to ask our-selves how it was that this accident was allowed to happen. • On
( 269 )
that point the facts are tolerably clear. Or. Garvin had rejectedthe water bottle as a prop for the patient on the ground of its heat,and had directed a sand bag to be brought instead. His directionwas not complied with. The identical water bottle which they had.rejected was brought back wrapped only in towels. If the nurse,who took upon herself to improve on Dr. Garvin’s orders, placedthe hot water bottle under the patient without consulting him, shewas guilty of breach of duty to begin with, and she also assumedthe responsibility of seeing that her departure from the. instructionsof the operating surgeon caused no harm to the patient. If, on theother hand (and the point is not clear on the evidence), she didsubmit the bottle to Dr. Garvin and he approved of its condition,he cannot escape the imputation of negligence in having sanctionedthe use of a water bottle which he knew was too hot to be allowedto come into direct contact with the patient’s skin, and which wasin no way secured against the very accident that happened. To thelay mind—and the layman’s judgment on the point is corroboratedby the opinion of Sir Allan Perry (D 3) and by the fact that flannelbags are now used in the Hospital—it seems incredible that, if for thepurposes of operation it is found necessary to use water bottles so hotthat should they come into contact with the patient’s skin they willinflict bums of the second, third, and fourth degree, they shouldnot be enclosed in bags which will effectually prevent any suchmishap from occurring (c/. also Stonham's Manual of Surgery II..p. 22). Moreover, even if the hot water bottle at the time it wasactually placed under Mrs. Smith’s body was sufficiently pro-tected by the towels in which it was wrapped from burning her, itwas the duty of the* nurses who were assisting at the operation tosee that it ’continued in this condition during the whole time theoperation lasted. I can quite appreciate the force of Dr. Garvin’sstatement that his own mind was entirely occupied with the opera-tion itself. No one expects that a general shall do the work of thesentry box. But there certainly ought to be a sentry on guard,and if mischief arises from his absence or inattention, neither henor his superiors can be held excused.
It was urged, by the Solicitor-General that the statement of Dr,
Thomasz, who was present at the commencement arid during the
early part of the operation, that he saw nothing wrong, clearly
negatived the suggestion of negligence. I do not think that it did so
to any degree; for, in the first place, Dr. Thomasz was not present
professionally; in the second place, he says he was in no yay
superintending the work of the nurses; and, in the last place, if
the Solicitor-General’s argument were well founded, it wtmld merely
serve to. bring home negligence to Dr. Thomasz himself. It seems
to me impossible to contend on the facts in .the present case that
there was not negligence somewhere.°
, <•
§ I have now to deal with the question whether the burns contributed
10J. H. A 90007 (8/60)
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– WoodRecto* J.
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Avgust. 19.
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to Mrs. Smith's death. It is conceded on all hands that theimmediate cause of death was physical exhaustion, and, even if thetheory put forward on the part of the Crown that this condition ofexhaustion was due to acute mania and to the weakening effects ofdysentery were accepted, it would be a question whether, on thematerials before us, the appellant might not still be entitled to succeed.In the state of great weakness in which Mr6. Smith was left, firstby the operation, and afterwards by dysentery, with superveningdiarrhoea, the infliction of burns of considerable area and of thesecond, third, and fourth degree must have lowered her vitalityand contributed to the exhaustion from which she died. Dr.Savage, indeed, who was examined in England on behalf of theCrown, includes pain as one of the causes that may have pro-voked the attack of mania from which he holds that Mrs. Smithdied, although he (erroneously as I venture to think) confines hisstatement to the pain from the lumbar abscess antecedent to theoperation. But I am prepared .to give judgment for the appellanton higher grounds. I think that the weight of evidence showsthat the exhaustion, which caused Mrs. Smith's death, was dueto intestinal inflammation, and that this intestinal inflammationwas itself the direct result of the burns. It is in this connectionthat the estimate which I have already given of the cbmpara- *tive credibility of the leading witnesses on both sides becomesof paramount importance. The fact—if it be a fact—that theHospital authorities were endeavouring^ to conceal the gravityof the burns of course weakens every scrap of evidence which theyhave adduced in regard to the real facts of the case. We have tosolve a problem complicated by their own wrongful acts, by themisleading bed-head ticket, by the false death certificate, and' bythe absence of any post-mortem examination. We are bound,therefore, to keep in view the presumption which the law createsagainst wrongdoers, and fco remember that it is the Hospital author-ities themse.lves who have created the difficulties of proof againstwhich the appellant has had to contend. On the other hand, if weaccept Mr. Smith's testimony, we have strong evidence as to thecharacter of the burns and as to the fact that they were causing his■ wife severe, if not completely continuous poin up to the very eveof her death. It is clear that the lumbar abscess must be eliminatedas a factor in the case. It is admitted that Dr; Garvin's operation^vas brilliantly successful. The bed-head tickets show1 that thepatient made an excellent recovery from the operation. AI. theoral evidence < points in the same direction; and, indeed, the lumbarabscess was inserted in the death certificate only because of one olth§ rules of the Hospital (of which the common sense is not apparent)that if the.disorder from which the patient is admitted is not com-pletely. cured at* the time of death, it should be given as one of the
( 291 )
causes of death in the certificate.
I now come to deal with the dysentery. It is not alleged by theCrown that dysentery was the actual cause of death, and its pre-sence is relied upon only as accounting for Mrs. Smith's weakness,and as negativing the appellant's contention that the intestinalinflammation from which she unquestionably suffered was in anyway connected with the burns. It may be admitted that Dr. Garvinat first believed—and no doubt communicated to Dr. Sinnetambyhis belief—that Mrs. Smith was suffering from dysentery. -He toldMr. Smith so. It is also clear from the two volumes of the bed-headtickets for June and July, 1903, which we have ourselves examined,that at or about the time in question dysentery was prevalent inColombo. But I have come to the conclusion that dysentery alsomust be eliminated from the present case.
In Dr. Garvin’s report to Sir Allan Perry, which is put forwardby the Crown as a complete history of Mrs. Smith's illness, he notonly never alludes to dysentery at all, but impliedly describes thecase as being one of diarrhoea. In the bed-head ticket the word<( dysentery ” is never mentioned. Some of the distinctive symp-toms of dysentery—blood and mucus—are noted as having appearedon one day only. The remedies prescribed would be equally applic-able in any case of intestinal inflammation; and the diet, whichwas still left to the patient during the time that the dysentery issaid to have lasted, is open to precisely the same observation. Iconfess that I attach great importance to the omission of the term“ dysentery ” in the bed;head ticket, and also to the fact that itcontains no reference to tenesmus or to the reappearance of theother symptoms I have already referred to. It was argued by theSolicitor-General that there was no obligation incumbent on thesurgeon in charge of a case to enter in the bed-head ticket the nameof any supervening disease which might attack the’patient. Hemight have diagnosed the disease quite sufficiently for purposesof treatment, and yet object to pin himself down to a formal expres-sion of opinion on the point. It must also be remembered, said theSolicitor-General in effect, that Dr. Garvin is a man overwhelmedwith work, and that it would be unreasonable to expect him to doanything more than to record- the symptoms of a1 cjase and thetreatment prescribed for the guidance of his subordinates. If thisargument is to be taken as meaning tha-t Dr. Garvin was uncertainof the presence of dysentery, and that, whatever the bent of hisopinion might be, he thought it safer merely to deal with thesymptoms Jpefore him, it goes far' to concede the very point whichI am endeavouring to establish, although, even under &uch circum-stances, .if bed-head tickets are to ,comply with the ^Hospital rulesand to provide for the information of relatives a complete historyof a patient’s case, I do not see why an entry should not be madeto the * effect that the symptoms indicate dysentery or whatever
1907.
August 19.
Woo»Renton J.
( 292 )
1*07. the supervening disease may be. Ifv on the other hand, theAu§mt 19. Solicitor-General meant to argue that a supervening disease, when
Wood once clearly diagnosed, ought not to be entered by name in the bed-Bbnvoh J. head ticket, or that owing to pressure of work the omission of suchan entry in the present case may have been accidental, I can only say,with the greatest respect, that I do not think that either branch ofhis argument will Btand examination. The very raison d*itTe of abed-head ticket requires the development of any new disease to berecorded. We know that the death certificates are prepared fromthe entries in the . bed-head tickets, and unless these entries areaccurate and complete, there is no guarantee of the accuracy andcompleteness of the certificates.
Moreover, as I have already pointed out, Dr. Garvin was follow-ing Mrs. Smith's case personally with the utmost care. She was apatient in whom he took the keenest professional and friendlyinterest, and, whatever may be its cause, hi6 omission to make aspecific record of the alleged attack of dysentery cannot be ascribedeither to hurry or to forgetfulness. Dr. Bodrigo is positive- thatMrs. Smith did not suffer from dysentery, and gives his reasons forsaying so: the absence of any symptoms of dysentery except bloodand mucus, and (a subject with which I shall deal in a little) the pre-sence of blood and mucus only on a single day. It is suggested, andthe learned Judge seems to have adopted the suggestion, that owingto some professional grievances against Sir Allan Perry, Dr. Bodrigohas come forward in this case to wreak his vengeance on the Hospitalauthorities. Dr. Bodrigo is clearly in matters of professional opinionno respecter of persons, for he breaks a lance indifferently with theexperts for the Crown and the experts for the defence. But, likeMoncreiff J. on the first appeal, I have , looked into those of theauthorities cited by him, to which it was permissible to us to refer,and I can only say—speaking on such a subject with the diffidenceof a layman—that if Dr. Bodrigo is a venal witness, he has succeededin clothing his venality with a very respectable garb of authority.Dr. Thomasz, at the first trial, said that, judging by the bed-headtickets, there was dysentery passing into diarrhoea. He immediate-ly added, however, that he should call the motions of the 5th (theonly day on which the presence of the symptoms of blood and mucusis recorded) and the 6th, dysenteric and not dysentery, and heexplained at the second trial that he intended this statement to bea qualification of his evidence on the subject throughout. It appears(and Dr. Thomasz himself admits the fact) that he and Dr. GarvinVre not on speaking terms. Judging by the evidence,< however, I.think that this state of feeling has only tended to make Dr. Thomaszguarded in the opinions that he expressed. He attended as a witnesson subpoena, and I find no trace in his evidence of any desire tomake out a case against Dr. Garvin. On the contraxy, he seems tome to have spoken with moderation and'even reluctance. Dr.
( 293 )
Pepper, though he objects to the term “ dysenteric,” agrees withDr.'Thomasz that Mrs. Smith’s^ symptoms were " not in the natureof true dysentery. ” One of the reasons that he assigns for this^conclusion, viz., the absence of proof that dysentery was prevalent atthe time, is, as we now know from our examination of the bed-headtickets for June and July, 1903, not good. But his other reasonsstand: the absence of any mention of dysentery or its symptoms,•as distinct from those of enteritis, in the bed-head ticket, and theabsence of any reference to tenesmus, or, except on one day, to thepassage of blood and mucus. Dr. Carr gives evidence to the same•effect, adding that the prescriptions noted in the bed-head ticketare not such as he would expect to find in a case of kcute dysentery.In cross-examination, Dr. Carr admitted that he had no practicalknowledge of tropical dysentery, and that, in cases of mild dysen-tery, the symptoms of blood and mucus might disappear early andsubside into diarrhoea. But in the present case the diarrhoea gotworse.
I proceed now to the evidence for the other side on this point.Unfortunately none of the expert witnesses called for the Crown inDondon under the commission from Ceylon were cross-examined,the counsel who represented the appellant in England declining tocross-examine them, unless it was proved from the record that therespondent had filed a list of his proposed witnesses in the action inColombo. I certainly do not think that we should have beenjustified in rejecting the evidence on this ground. The appellant’scounsel could, I have no adoubt, easily have obtained from theCommissioner such an adjournment of the proceedings as wouldhave enabled him to prepare for the adequate cross-examination ofthe respondent’s experts. The only result of the attitude that headopted on the subject has been to increase our difficulty in decidingthe case. I begin with Sir Patrick Manson. His pre-eminence asan authority on tropical diseases is indisputable. He stated thathe thought Mrs. Smith was being treated for dysentery both fromthe prescriptions and from the symptoms. He does not, however,say that the prescriptions would be unsuitable for, or that thesymptoms might not be indicative of, other forms of intestinaldisease. It was pointed out by Mr. Elliott that if the case hadreally been one of dysentery, we should have expected to find thesymptoms of blood and mucus appearing- on more days than one.In reply to this argument, the Solicitor-General referred* to thestatement of Sir Patrick Manson that when once the existence ofdysentery has-been established, there is no need for the daily repeti-tion cf what are not, after all, its essential symptoms. I# confess Ishould have thought from the medical text books that were cited tous in the course of the argument that blood and mucus wereat least such highly, characteristic symptoms of dysentery (see, e.g.,Manson, »Tropical Diseases, p. 376) as to make their presence or.
1907.
August 19
WoodRbotoh J
( 294 )
1907. absence a matter worthy of daily record, and there is certainly much!
August 19* support for this view in the two volumes of bed-head tickets which
Wood nay brother Middleton and I called for during the argument in appeal.
Bbntok J. But, after all, Sir Patrick Manson’s statement is applicable onlywhere the fact of dysentezy has once been clearly diagnosed. Inthe present case, although the bed-head ticket clearly contemplatesthe entry by name of any supervening disease, no such diagnosis,was ever made. Sir Patrick Manson adds that, judging by the bed-head ticket, he was of opinion that dysentery persisted to the deathof the patient. Dr. Garvin, on the other hand, says that afterseventy-two hours’ treatment there was a distinct improvement-in the dysentery, and “ the usual symptoms of diarrhoea continued. "Mr. Stonham, who acquired a practical and even personal know-ledge of dysentezy in the South African war, thinks the case wasone of "catarrhal” dysentery (in one part of his evidence hedescribed it as ” chronic,” but afterwards withdrew the term, andthere certainly seems to be nothing in the evidence that would havejustified its use). The treatment was ” suitable for dysentery. ”The symptoms pointed to it. ” -Tenesmus ” was not mentioned. Butit was ” highly probable ” that it was there all the same. Thiaevidence is open to the same observations as Sir Patrick Manson's.Mr. Stonham nowhere says that the symptoms and treatment,whose actual, presence is recorded, might not point to other formsof intestinal inflammation. Dr. Hewlett says the symptoms pointto an attack of mild dysentery. Neither Sir Patrick Manson norMr. Stonham nor Dr. Hewlett makes any allusion to the significantfact that, although according to Dr. Sinnetamby Mrs. Smith’s was"a clear case of common dysentery, ” Dr.* Garvin never used theword in his .report to Sir Allan Perry, but, on the contrary, de-scribed the case as one of diarrhoea. With omissions of this characterbefore us, we cannot treat the problem, as the experts for the Crownhave treated it, as if the only question at issue were the properscientific inferences from proved or admitted facts. I
I proceed now to deal with the theory that the exhaustion fromwhich Mrs. Smith died was due to'mania. Two strong points maybe made iq favour of it: her undoubted attack of insanity for a. few.months in 1895-96, and the fact that acute mania was promptlyalleged by Dr. • Garvin as the cause of death. He entered it as such*in the death certificate, and set it out strongly in the same light inhis report to Sir Allan Perry. On the other hand, we have the facts.(1) that there is no reference to acute mania by namef in the bed-head ticket, in spite of the Hospital rule which requires qases ofsupervening insanity to be notified to the police and made thesubject of a special report to the Lunatic Asylum, and which,although perhaps not strictly applicable in such a case as Mrs.Smith’s, clearly imposes by implication oq the Hospital, authoritiesthe duty of recording the development of insanity in any pajbient
( 295 )
in express terms; (2) that all the symptoms recorded, from thedrowsiness and incoherence on the 5th June to the delirium on the8th, present, as Dr. Pepper said, “ a complete clinical picture ofthe delirium of exhaustion,M and are, in any case, far more consistentwith such delirium than with mania; (3) that the treatment pre-scribed in the bed-head ticket would admittedly be suitable in aease of delirium, and would be a mild treatment in one of acuteinania (Dr. Savage, it should be observed, however, said that it wasnot now the practice to give large doses of sedatives for mania);(4) that we have positive evidence from Mr. Smith, Miss Siegertsz,and Mrs. Brohier showing that, in the language of Dr. Thomasz,there was “ no more than mere delirium in the case." It must beremembered also, on the one hand, that Mrs. Smith made a com-plete recovery from her attack of insanity in 1895-96, resuming herformer educational work, and continuing it without interruptiontill 1908, and, on the other hand, that it might perhaps predisposeher to delirium as a direct consequence of physical disease. Theappellant's witnesses, Dr. Thomasz, Dr. Rodrigo, Dr. Pepper, andDr. Carr, unanimously pronounce against the presence of mania.
The only expert for the Crown who deals with the subject exhaus-tively is Dr. Savage, a witness, I need scarcely say, of the highestauthority. It appears to me, however, that the assumed facts onwhich Dr. Savage founds his opinion are so inaccurate as to depriveit of weight. He excludes the delirium of exhaustion as a possibleexplanation of the case because (1) there was no increase of tempera-ture, and (2) the physical strength of the patient was maintained," as evidenced by the record of violence requiring control/’ It isclear from the temperature chart that Mrs. Smith’s temperaturewas steadily sub-normal, a fact which would account for the absenceof fever. It is clear from the bed-head tickets that Mrs. Smith wasso weak that she passed her motions in bed from her physicalinability to rise and use the commode. There is no evidence thatshe ever had special attendants to control her, except on the nightof her death. If we are bound, therefore, to reject alike the lumbarabscess, dysentery, and acute mania as the real causes of Mrs.Smith’s death, we are left face to face with the intestinal inflam-mation and the burns. On behalf of the Crown/ the Solicitor-General made an able and ingenious attempt to break down thecase for the appellant at this point. He argued that, as the evidencenegatived any idea of a progressive and continuous irritation pro-ceeding ^from the burns, it was impossible that they could haveproduced enteritis by way of reflex action. He contended also that,as "the burns had been treated asceptically throughout, there was noroom for the theory that enteritis had been brought about by septicabsorption. He pointed out that there is no special connectionbetween burns and enteritis, and he made much of the fact ,thatthere was no agreement among the appellant’s experts, Dr. Thomasz,
1907.
August 19.
WoodRentok J.
( 206 )
1907. Dr. Rodrigo, Dr. Pepper, and Dr. Carr, on the pathology of theAufftw 19. subject. If it were necessary to deal with this argument in detail,Wood it might. fairly, I think, be urged on the other side that the patho-RbntokJ. l0gy of bums and enteritis is on all hands—by the experts for theCrown as well as by the appellant's—admitted to be still obscure;that the evidence discloses a degree of pain which, although it mayhave not been constant, may have been sufficiently severe andcontinuous to set up enteritis; that aseptic treatment, even if it iscomplete, only minimizes the. risk of septic absorption, and that inthe present case the real aseptic treatment did not commence until theday after the infliction of the burns, may have been forestalled bythe removal of the bandages by Mr. Alvis on the afternoon of theoperation (Dr. Pepper tells us that if he had left the operationwound and the bum under the treatment described by Mr. Alvis,he would expect infection to follow, and that boric ointment wouldnot have prevented it), and may equally have been disturbed by theshifting of the bandages when the patient put on her clothes for thethanksgiving service on the 3rd June, and the fact that thesloughs were not removed from the largest bum till the 8th. Ac-cording to Dr. Pepper, the fact (if it be a fact) that there were noexternal signs of septic absorption would not necessarily show thatsepsis was not progressing in the deeper part of the burn. In thisconnection I need only touch on the Solicitor-General's furtherargument that, if Mrs.. Smith had really been suffering from enteritis,she would also have been suffering from fever. This latter con-dition would not, according to the appellant’s experts, and I donot see that they are contradicted on this point by the experts forthe Crown, be present if the patient were in a state qf exhaustionapproaching collapse. There is abundant evidence of such exhaus-tion in Mrs. Smith’s case, and the chart produced by the Crownitself shows that, except on the days following respectively theoperation and the removal of the drainage tubes, her . temperaturewas steadily sub-normal. But I do not think there is any need todiscuss these questions minutely here. It is certain that bums mayset up intestinal inflammation. It is clear that Mrs. Smith sufferedfrom intestinal inflammation, and if we once eliminate dysentery,we are left with the bums as the sole factor which could have pro-duced it. I accept the evidence adduced on behalf of the appellant—evidence corroborated by Dr. Pepper both as an expert and frompersonal experience, by Dr. Carr, and to some extent by the entriesin .the bed-head ticket—which shows that Mrs. Smith sufferedsevere pain from some cause or other practically from*the date ofthe operatiftn up to the time of her death. This evidence is notdisposed of by the statements of Dr. Garvin and Sir Allan Perrythat Mrs. Smith never complained to them of pain. A patientwhb is described by Dr. Garvin himself as “ a brave woman," and
“i,
who has every reason to think that she is recovering in spite of pain,
( 297 )
might very well say little or nothing about it to official visitors. Thepain is not proved to have been incessant. Sir Allan Ferry is notproved to have been made aware of the burns during Mrs. Smith’slifetime. Now the pain in question was not due to the lumbarabscess. It was not due to the intestinal inflammation, for it waspresent before any symptoms of intestinal inflammation had mani-fested themselves. It was unconnected with the presence orremoval of the drainage tubes, for Mrs. Smith’s letter of 2nd Juneshows that it was in full operation after the tubes had been removed,and in any event it was of a character quite different from ” thealight discomfort,” as the Solicitor-General termed it, which theremoval of the tubes would occasion. It could have no connectionwith the lady's mental disturbance. We are forced, therefore, tothe conclusion that it was due to the bums. We start, thenwith the presence of severe burns on a vital part of the human bodycausing great and frequent pain. The expert evidence for theappellant shows that at the very time when intestinal inflammationmight be expected to appear as a consequence of bums, such inflam-mation sets in. There can be no question that that inflammationcontributed to Mrs. Smith’s death, and if it was itself the resultof the bums, whatever may have been the pathological connectionbetween them, it is equally little open to question that they, too,were a contributing factor to the same event. I hold that on thispoint also the appellant has made out his case.
On the question of damages I have nothing to add. to what hasfallen from my brother Middleton, and I concur in the decree whichhe has proposed.
1907.
Avgust 19.
WoodBektoh J.
Appeal allowed.