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ATTOBNEY-GENERAL v. SMITH.(
D. C., Colombo, 20,723.
Contract—Patient in hospital—Action by Crown for recovery of chargee forsubsistence in its General? *:Hospital—Claim in reconvention for damagesupon an implied contract to use due care and reasonable skill in treatmentof patients in suck hospital—Liability of Crown on implied contract fornegligence of its officers—Rejection of issue not distinctly raised in- thepleadings—Scope of Civil Procedure Code, s. 146—Framing of issuesirrespective of pleadings-^Costs of new trial.
The admission of a person into the General Hospital of the Crownfor treatment involves an implied undertaking on the part of the Crownthat due and reasonable skill will be exercised by the staff of thehospital in the'treatment and nursing of the person so admitted.
A claim for damages, for- the non-fulfilment of such an implied *undertaking is maintainable in reconvention against the Crown's actionfor the recovery of charges for subsistence in the General Hospital.
This claim in reconvention must * be treated as one founded on animplied contract and not upon a delict.
The Civil Procedure Code of Ceylon is mainly founded on the •.Indian Code.
– The Indian and English system of pleadings proceed on entirelydifferent principles.
In England the parties frame their' own pleadings, and the case is tried- on ,the issues raised on the pleadings. If a pleading is objected to, theJudge has to decide on its sufficiency or insufficiency. If insufficient,leave is given to amend. The amendments' are never made by theJudge. The Court does not dictate to the parties how they should setout their case.
Under the Indian system no answer is required, though permission isgiven to the defendant, if he desires, to file a written statement of hiscase. The Court does not -try the case on the pleadings. It can use the.plaintiff's and defendant's statements (if any) to ascertain what issuesare to be adjudicated on.
The Ceylon Code follows the Indian on this matter, except that ic'requiresthe defendant to file an answer. Like the Indian Code, however, it doesnot allow the Court to try the case on the parties' pleadings, but requiresspecific issues to be framed. Section- 146 of the Ceylon Code does not restrictthe issues to the pleadings. It is the duty of the Judge to ascertain whatthe parties intended by the pleadings, and frame issues accordingly.
Where, the defendant proposed for trial an issue not distinctly raisedin the pleadings and the Court refused to accept it—
Held, that the costs of the new trial ordered by the Appellate Courtin regard to such issue should be borne by the plaintiff, as he ought tohave consented to the issues suggested by the defendant.*
HE Attorney-General on' behalf of the Crown suedtho
defendant, Mr. William Smith, in the Court of Requests ofColombo for the recovery of Rs. 131.70 as costs of subsistence andentrance fee and ambulance hire, which it was alleged he
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4405.undertook to pay when his wife, Mrs. Smith, was admitted into
)M<ayZ5.the General* Hospital of Colombo as a patient, but which the
defendant had failed and neglected to pay, though thereuntooften requested.
The General Hospital of Colombo was described as the property<of the Government of Ceylon, and the bill of particulars annexedto the plaint showed that the entrance fee was Es. 10.50; costsof subsistence of Mrs. Smith from 17th May to 9th June, 1903,being twenty-three days at Es. 5 per diem, Es. 115; extras 70^ents; and ambulance hire Es,. 5.50.
The defendant denied his indebtedness to the plaintiff in theamount claimed, and pleaded that his undertaking to pay othecharges in respect of his wife’s entrance to the hospital andmaintenance therein was conditional on an undertaking on thepart of the Government that all due care and reasonable skillwould be exercised by the agents and servants of the Governmentwho comprised the staff of the .hospital in the treatment, nursing,and care of his wife; that while his wife was a patient in thehospital and in the course of an operation on her for lumbarabscess performed on the 23rd May, 1903, the agents and servantsof the Government, who were performing or assisting in the saidoperation, acted in so unskilful and negligent a manner that shewas severely scalded in three places and sustained such graveinjuries that she died from the effects thereof on the 9th < June,1908. The defendant alleged that by reason of the death of hissaid wife, who was helping him in carrying on an educationalestablishment in Colombo known as the Queen's College, the saidbusiness had to be abandoned, and he suffered substantial damagein consequence. He claimed Rs. 100,000 in reconvention, andprayed for a dismissal of plaintiff's action.
The plaintiff filed replication on the 22nd November, 1904,nnd the case having been transferred to the District Court ofColombo for trial, both parties agreed to the following issues oflaw and fact: —
Do the allegations in the answer disclose a valid defenceto the plaintiff's claim?
Did the agents and servants of the Government, in thecourse of the operation performed on the 23rd May, 1903, on thedefendant's wife, act so unskilfully and negligently that she was
# scalded in three places?
Was her death on the 9th June due to such scalding?
What damages did defendant suffer by the death* of hiswife ?
Is he entitled to recover such damages from the plaintiff?
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Au additional issue was suggested for the defendant,* viz.,whether the scalding was the cause or a contributory cause of thedeath of the defendant's wife. But th£ Acting District Judge(Mr. J. R. Weinman) refused to accept this issue and ordered thedefendant to begin.
The defendant, being called and svrorn, stated that he and his wifewere trained and certificated English teachers, and had carriedon an educational establishment called the Queen’s College atColombo; that the nett income from the College averaged aboutRs. 4,000 a year; that his wife attended to the duties of the College*lip to the day of her removal to the hospital; that an operationwalk performed on her by Dr. Garvin for an abscess in the leftlumbar region on the 23rd May; that his wife told him on themorning of the 24th that she had been scalded during the opera-tion by a hot water bottle on her right side; that nevertheless shewas progressing favourably till the 5th June, when a change forthe worse occurred; that Dr. Garvin told him she had an acuteattack of dysentery; that on the 7th June his wife was in greatpain. “ She would not allow the bed clothes to remain and wascontinually moaning; she was reluctant to speak throughout theday; she was articulating nothing; she took no notice of any oneUnless roused. I went to the hospital on Monday, the 8th, and as■usual took some coffee with me for her. I asked her if she
wanted some coffee. She said she would, and I held a cup ofcoffee to her lips. She motioned it away. I said ' Lottie, don’t youknow me? ’ She looked at me rather vacantly, and said 4 Don’t Iknow you, my own dear William.* We then kissed each other.She was not conscious after that. I went home and came' backabout 9 a.m. All afternoon up to about 6 p.m. that day she keptuttering the word 4 considerate * almost every minute. From6 p.m. for about three hours she kept on saying J Ah well, ah well,ah well.’ About 9 p.m. she started crying out 4 Irene, Irene,’sometimes w*ith a piercing cry. After that she kept crying out4 1,1,1.’”
In cross-examination Mr. Smith admitted that in 1895 menstru-ation ceased in his wife and her health became a source of .anxietyto him and to her; that she* then said that her head seemed toslit open and then shut; that it was opening and shutting; thatshe was suffering from insomnia; that in 1898 she was mentally-affected in England; that they called on a specialist in mentaldisorders, Dr. Gordon Leslie; that after he had seen her she was takento Stone Asylum, where she remained three or four months; thatDr. Humphry, in charge of that Asylum, told him he had done theworst thing possible in bringing her – there; that she was
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ittOS. 'kept under restraint whencoming back fromEngland
***&gs- in July, 1896; that for six months after her return shetook no part in Bchool work, being perfectly indifferent to every-thing aibout her; that she read nothing, spoke to nobody, noteven to her husband; that another lady from England tookcharge of the College work; that afterwards she recoveredsufficiently to take charge of the College and work it very success-,fully; that on the 17th May, 1903, she awoke from bed and wasshivering all over; that her temperature then was 104°. and Dr.Thomasz was called in on the same day, and he advised her to betaken to the hospital, as a serious operation was necessary in the.lumbar region; that he saw nothing of the burn in the hospitaltill her death; that he agreed to have the funeral from thehospital at first; that he afterwards changed his mind, removedthe body to his house, and had the bandages undpne, and then forthe first time saw the burn on the right side about the lower ribs;that he wag then satisfied that the cause of death was the bumitself and not lumbar abscess complicated with acute mania, ascertified by Dr. Garvin; that on the evening of the day of thefuneral he went over to Dr. Garvin’s residence and persistentlysaid to him that the cause of the death was not as stated by Dr.Garvin. “ I said I was so confident of it that I would have mywife’s body exhumed. J cannot say that I seriously intended tohave the body exhumed. I did not have her body exhumed.’’
Mr. E. V. Rutnam, a licentiate of the Ceylon Medical Collegeand Senior Resident House Surgeon of the Colombo GeneralHospital, was the next witness called on behalf of the defendant.Mr. Rutnam said: “ Mrs. Smith’s case came under my notice fromfirst to last; she was a patient from her admission up to her death.Whatever I wrote on the bed tickets was either at the dictation ofDr. Garvin or subject to his revision. I was present in the oper-ating room on the 23rd May, wheu the operation was performedon Mrs. Smith. The operation lasted an hour, and Dr. Garvinperformed it. I assisted during the whole time. Dr. Thomas^was also present, and Dr. Van Langenberg, I believe, administeredchloroform. About twenty ounces of ■pus were evacuated from theabscess. I saw the burns bn the morning after the operation, inall three, within* the area of a hot water bottle. The largest burn(was about 3 inches by 4. The death certificate of Mrs. Smith wassigned by me. The entiles are in the handwriting of Dr. Garvin’sclerk. I did not dictate the entries in that certificate. It wasbrought to me filled up and I signed it. If I had to put down thecause of death I would have said ‘ lumbar abscess complicated bymania, dysentery, and burn. The lumbar abscess at the date of
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death was not quite healed. The abscess was dressed all through-out. I never told Miss Thiedeman that Mrs. Smith died oi bum.
I do not know what she died of. The words ‘ acute mania ’ in thedeath certificate or * mania ' do not appear in the bed-head ticket.There are words imputing acute mania. I should have enteredeither ‘ acute mania ’ or ‘ insanity.’ The bed tickets do not containcomplete records of everything that happens. Minute descriptionof everything that happens is never gone into. The word * chloro-form ’ is not put on that ticket. There was no entry that drainagetubes were put in. I thought when I saw Mrs. Smith once or twiceshe was insane. I thought she had dysentery, judging from thecharacter of the motions as they appeared in certain bed-headtickets. I would have put in the death certificate * Cause of death:lumbar abscess, complicated by insanity, dysentery, and burn,’because I knew or inferred, that she suffered from these dis-orders after she was admitted into hospital, but I did not knowthe cause of death.”»
The third witness called was Mr. F. M. Alvis, a licentiate of theMedical College, who was present at the latter part of the operatipnon Mrs. Smith. He said about 1 p.m. that day he was sent for by thenurse of the ward, and on going up she complained to him of painon the right side. He untied the bandages and found some burnsand he applied boric ointment thereto. He made no entry in thebed-h&ad ticket, nor saw the bums afterwards.
Three lady teachers who visited Mrs. Smith at the hospital werealso called. One of them, Miss Thiedeman, said: “I was presentwhen she died. I got a stretcher from Dr. Rutnam. I walkedwith the men who were carrying the body. Mr. Smith wantedthe body unbandaged. I said ‘ What’s the use? leave her alone.’Mr. Smith insisted. I cut the bandages; then I saw the wound onthe right side. I was. so horrified at what I saw on the right sidethat I did not think I would look at the other wound on. the left.From the day of the death we all believed that Mrs. Smith died,of the burn.”
Two more witnesses were called—Dr. Thomasz (Second Surgeonof the General Hospital) and Dr. Eodrigo (a* licentiate of theCeylon Medical College, who held also the Diploma of Membershipof the Royal College of Surgeons, England, Ac.).
Dr. Thomasz was present at the operation as Mrs. Smith was.getting under chloroform and remained for about fifteen minutes.He n^ver saw the case, after that day professionally,- nor had heseen the bed-head tickets. He saw nothing in the bed-head ticketswhereby he could ascribe death to the original abscess. He did notsee the burns on Mrs. Smith at any time. The symptoms shown.
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in the bed-head ticket were not in his opinion the result of the
tifda/ 25.ulceration *of the duodenum, but of the lower bowels. A duodenal
ulcer could be recognized only after a post-mortem examination.The bed-head notes showed that there was dysentery passingon to diarrhoea. Judging from the bed-head tidcets, he thoughtdysentery began on the 5th. The dysentery seemed to -havepassed away on the 7th, when looseness of the bowels followed.He should call these motions of the 5th and 6th dysenteric, notdysentery. They were not due to ulceration of the duodenum orof any parts of the bowels. There must have been only con-gestion or catarrh of these organs. He would not say it wasprobable, though it was possible, that the symptoms as describedin the bed-head ticket were the result of. burns. It is verydifficult to say. He did not think that the abscess had anythingto do with the condition of the bowels. He could not say whatwas the cause of death. It might be exhaustion due to lumbarabscess. Dr. Garvin was in a better position to decide whetherthe patient was suffering from mania or not. At the time shewas removed to hospital she was in possession of her mentalfaculties, but sudden shock caused by grief and pain mightbring on a recurrence jofthe maladyasonprior occasions.
’Given the cause, the recurrence would be very similar to theoriginal malady. Such acause mightbetheabscess or. the
exhaustion which followedthe operationortheoperation itself.
He had himself not stated in his bed-head tickets the full entriesrequired to be made. He saw the hot water bottle, put under thepatient; flannel was not necessary to be used to cover the bottle; atowel might be used to cover the bottle.-Heusually left the
wrapping up of the towel to the nurses. A professional nurseknew exactly what to do. The doctor’s attention would be con-centrated on the operation.
Dr. Bodrigo swore that he could correctly state and describethe cause of death of Mrs. Smith. He would describe the death■as due to the burns. The defendant, Mr. Smith, consulted him■about ten days before the trial about his wife’s case, and he had readand studied the beil-head tickets and Dr. Garvin's report, and hadbeen in Court while the previous witnesses were giving their evi-dence. He had do doubt whatever that the abscess was quite healedon the day of death. The inflammation from the burns in Mrs.* Smith’s case would affect the colon, small intestines, and the kid-ney. To get to them the heat would have to pass the peritoneumand through it to the smaller intestine, and so produce peritonitis.Possibly she died of peritonitis; more likely she died of intestinalinflammation. The cardinal symptoms of dysentery were frequent
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stools accompanied withgriping tenesmus (adesire to strain),100$^
colicky pain, possibly fever, stools containing blood and mucus, -Afoy- generally scanty. There were no symptoms of dysentery mentionedin the bed-head ticket,excepting the words“ motions contain
mucus and blood." Itwas true mucus andblood are always
present in dysentery, and the treatment might have been fordysentery, but M I do not think that Mrs. Smith suffered fromdysentery; not a bit of it. I ascribe the intestinal inflammationas recorded in the bed-head tickets to the burns and to nothingelse. In the presence of the burn I would not look for any othercause for the intestinal symptoms. I do not consider that she wassuffering from acute mania at any time she was in hospitalv Ishould say she was suffering from delirium. I would have putthe cause of death on the death certificate as burns, and nothingelse/:
In cross-examination Dr. Bodrigo said the inflammation of thebowels was caused by absorption of septic matter formed in theburnt parts. If fever was present it would be due to septicabsorption and septic intoxication. The normal temperature ofMrs. Smith, however, indicated the absence of sepsis or collapseand cerebral inflammation. The first evidence that Mrs. Smithhad collapsed of cerebral inflammation in the bed-head ticketwas on the 5th of June. Nothing else but collapse or cerebralinflammation could reduce the temperature.If there were
meningitis or encephalitis the temperature would be subnormal.
The learned District Judge considered that the evidence ofDr. Rodrigo was not worthy of credit, and dismissed the defendant'&claim in reconvention and gave judgment for the plaintiff asprayed.
The defendant appealed.
Browne, for appellant.—Dr. Garvin's operation was thoroughlysuccessful, but the burn was severe and dangerous. It was causedby negligence of some one who took part in the operation.
Dr. Rodrigo's evidence shows that he is an, expert, and thatin his opinion Mrs. Smith died of inflammation of the bowels-caused by the bums. The visceral effects of burns would,,according to medical books, apppear at the second week, and inthis case such effects did appear at the second week. It is not jcontended that Mrs. Smith died of duodenal ulcer, because onlya postmortem examination could reveal whether she died of itor not, and there has been no post-mortem examination in hercase. Nor can it be alleged by the Crown that she died oflumbar abscess complicated by acute mania. The Resident
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1605. Surgeon of the Hospital, who signed the death certificate, saidM&M' he did not 'know the cause of death. Dr. Thomasz’s evidenceamounts to the conclusion that she died of exhaustion due toburns. The bed-head ticket shows she had delirious symptomsbut not acute mania, and according to medical authorities evenacute mania does not kill a person. The abscess was piaoticallyhealed, and the patient was out of danger and had a thanksgiving,ceremony at the hospital. What endangered her life was theburn, which was in the trunk of the body, and so capable ofaffecting the internal organs easily. In the second week thevisceral effect of the burns manifested themselves and causedher death.
If the burn was the cause of death, the Court would remit thecase to the Court below for assessment of damages.
The defendant is entitled to sue the Crown for the wrong-ful acts of its agents or servants. According to Boman-DutchLaw an action is maintainable for the recovery of what is calledreconciliation money (soen-geld) on the ground of homicide(iOpinions of Grotius, No. 83,.p. 602, Bruyn's Translation). It hasbeen conceded in our. Courts that an action in tort may be broughtagainst the Crown (Lipton v. Fraser, 5 N. L. R. 54; Attorney-General v. Kudatchy, 7 N. L. B. 236).
Ramanathan, S.-G. (with him Prins, C.C.), for the plaintiff,,respondent.—The plaintiff’s action rests upon a .contract and abreach of it. The contract was that Mrs. Smith, the wife of defend-ant, should be admitted into the General Hospital of Colombo as
a patient on the defendant undertaking to pay certain charges,viz., entrance fee Bs. 10.50, her costs of subsistence at Bs. 5 perdiem amounting to Bs. 115, and ambulance, hire Rs. 5.50. The totalamount of the plaintiff’s claim was Bs. 131. The defendantresists this claim on the ground that the Government, who areowners of the General Hospital, undertook that all due care andreasonable skill should be exercised by' the medical officers andtheir staff in the treatment, nursing, and care of his wife, and thatit was owing to such an undertaking that he agreed to pay thecharges claimed. This allegation has not been proved. It is onlya vain contention. The Government was not claiming anythingfor treatment or medicine or nursing, but only for subsistence,
that is, for food and board. [Layard, C.J.—Is not there an impliedcontract in that patients admitted to the hospital should be care-fully and skilfully treated?] Not in such a case as the presentone, where no charge is claimed for treatment. The GeneralHospital is a charitable institution where patients, if poor, are fed,treated, and nursed 'free of any cost. If a better class of patients
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seek admission there and call for better food and higher comfortsthan are .given to the usual run of patients and wish to occupy aseparate room, the Government charges, as costs of subsistence,Bs. 5 a day. It is no doubt the moral duty of the Government todo all it can for the successful treatment of the patients admitted tothe hospital, but' there is no legal duty on its part that the best skillshould be made available, or that negligence of every kind shouldbe guarded against in the case of those who do not pay anythingfor medical skill or for nursing. Therefore the theory of impliedcontract falls to the ground. The Crown is not responsible for thetorts of its servants. On .the merits, the defendant has not provedthat the accidental burns were the sole cause of death. Therewas no post-mortem examination, and therefore all opinions regard-ing the cause of death would be mere speculation. Two or threeyoung ladies who attended on Mrs. Smith saw the burns on herbody rushed to the conclusion that those bums were the causeof death. Mr. Smith took up this idle cry, and without any evidencewhatever was as “ satisfied ” as his school girls as to the cause ofdeath. He even had the hardihood to say to the Surgeon of theHospital that his wife did not die of the cause stated in the deathcertificate. He had no reasons whatever for making this assertion.He took no measures to hold a post-mortem examination after theremoval of the body to his house. Nor after the burial, when thediscussion as to the cause of death became heated, did he exhumeher body and submit it to the examination of qualified medicalmen. The results of a post-mortem, if held, would be the best evidencein the case, but as the defendant carried away his wife's body fromthe hospital and buried it after challenging Dr. Garvin's opinionas to the cause of her death, the defendant should not be allowedto bolster up his case by speculative evidence. The death certifi-cate signed by the House Physician of the Hospital at the instanceof Dr. Garvin gives the cause of death as lumbar abscess compli-cated by acute mania. The only witnesses called for Mr. Smith asregards the cause of death were Drs. Butnam, Thomasz, and Rodrigo.
Dr. Butnam swears that he does not know what Mrs. Smith died
of, that he could not say that her bum caused her death, and thatif he had to put down the cause of death he would have said"lumbar abscess complicated by mania, dysentery, and bum.”Dr. Thomasz is also unable to state definitely what the cause of3death was, and does not know how he would have written up thedeath ^certificate. He swears, “ I might have said exhaustion due tolumbar abscess." These two physicians were in actual attendanceon Mrs. Smith. Dr. Thomasz it was that recommended Mrs. Smithto go to the hospital, and at the hospital Dr. Garvin and Dr. Butnam
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190)5. were in constant attendance as Chief Surgeon and House Physicianrespectively of the hospital. According to Dr. Garvin the death~ was due to lumbar abscess complicated by acute mania. Accordingto Dr. Rutnam death .may have been due to lumbar abscess compli-cated by mania, dysentery, and bum. But Dr. Rodrigo, an outsiderwho knew nothing personally of Mrs. Smith's case, boldly under-takes on oath to “ correctly state and describe the cause of death."He is called as an expert, but having been proved to have a grievanceagainst the Government, and especially against the Head of theMedical Department, his evidence is open to great suspicion.Besides, his evidence depends entirely on premises which were notproved to exist in the cause of Mrs. Smith. He is unhesitatinglyof opinion that death was due to the burn and burn only; but‘theassumptions he makes in order to maintain this conclusion do notexist here. He says the heat of the hot water bottle would passdirectly from the skin to the peritoneum and through the peritoneuminto the smaller intestine, and so produce inflammation of the bowels.But there is no evidence whatever that there was inflammation ofthe bowels in the present case. All that is proved is that thebowels were irritated, that the motions contained mucus and biood,and that one motion contained much undigested matter. As hertemperature was normal it cannot be assumed as Dr. Rodrigoassumes, that there was inflammation of the bowels or peritonitis-.Indigestion is capable of producing blood and mucus in the motions.About ten symptoms are necessary to constitute peritonitis accord-ing to the medical authority quoted by Dr. Rodrigo, but really andtruly there are only two of the symptoms in the present case, andyet he jumps to the conclusion that she may have died of peritonitisor more likely died of intestinal inflammation. This is. absurd.Ousted from this conclusion by the force of cross-examination, heswears that duodenal ulcers may have resulted from this bum, butwhen reminded that such ulcers cannot be discovered except by1 :apost-mortem examination, he flits to the conclusion that the causeof Mrs. Smith's death was exhaustion resulting from the burn. ■ As,however, it was pointed out that he had not shown any realconnection between* the burn and death, he jumped to the thirdconclusion that she died .of collapse or exhaustion, due to meningitis andensephalitis. But as the authority he quoted mentioned symptomslike paralysis, &c., which were not present in the present case, it'oecame quite clear that he was a wild speculator and quite unfit toadvise the Court as to the cause of death, much less on the questionwhether such cause was due to the burn and bum only/ Theopinions of the young ladies who were allowed to enter the sickchamber of Mrs. Smith are attempted in this case to be forced
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through the Law Courts as indisputable tacts with the help of Mr.Rodrigo, who has a grievance against the Head of the MedicalDepartment. Mr. Rodrigo has shown himself most incautious andinexpert in trying to prop up a fanciful idea by inapplicable textsfrom medical books.
Browne heard in reply.
Cur. adv. vult.
25th May, 1905. Layakd, C.J.—
' The plaintiff in this action is the Attorney-General of Ceylon,and seeks to recover from the defendant the sum of Rs. 131under the circumstances alleged in the plaint, viz., that at therequest of the defendant and on his undertaking to pay thecharges his wife (now deceased) was admitted into the GeneralHospital of Colombo as a “ patient ”. The above is admitted bythe defendant, but I understand his answer to allege that thecontract oh which the plaintiff sues contains an implied under-taking on the part of the Government, the proprietors of thehospital, to use due care and reasonable skill in the treatmentand nursing of the defendant’s wife.
The plaintiff’s action is undoubtedly and admittedly founded oncontract, and I think that the admission of a person into theGeneral Hospital for treatment involves an implied undertakingon the part of the Government that due and reasonable skill will. be exercised by the staff of the hospital, i.e., by the servants ofthe Government, in the treatment, nursing, and care of the personso admitted into the hospital. The items sought to be recovered. by the plaintiff mostly consist of charges for subsistence of thedeceased whilst living in the hospital.
There remain two other charges, one for ambulance hire andthe other for “ entrance fees,” the first for service rendered priorto admission to the hospital and the second payable beforeadmission, being “ entrance fees. ”
' The defendant’s defence to the claim in convention is that afteradmission the deceased was not properly treated in the hospitaland her death was caused thereby, and consequently the defend-ant is not liable to pay the amount claimed in convention. 1agree with the District Judge that it is no answer to the claim inconvention. The defendant is bound to pay the actual cost oi*subsistence and the other charges. If there was any negligenceon the part of the servants of the Government in treating hisdeceased wife, the defendant has a claim in reconvention fordamages on the implied contract set out by him in his answer.
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1(05. Turning to defendants claim in reconvention, I understand ftMay to be one resting on the contract above-mentioned and to be& claim for damages for the non-fulfilment of the implied under-taking to use due care and reasonable skill in the treatment andnursing of the defendant's wife. The Attorney-General hasargued that paragraph 2 of the answer ought not to be read- withparagraph 3, and that the latter refers to the claim in reconvention,whilst the former must be treated only a6 an answer to the claimin convention. We do not now apply very strict rules w.ithregard to pleadings, but try to ascertain what the parties intendedby the statements made in their answer. The defendant dis-tinctly alleged the implied contract in the 2nd paragraph of hisanswer, and there is no doubt that the pleader intended paragraphs2 and 3 to be read together. The implied contract i6 not specifi-cally denied in the plaintiff's replication, and no issue wa6 raisedat the trial as to whether the plaintiff's contract included theimplied undertaking alleged by defendant. I think we ought totreat the defendant'6 claim in reconvention a6 one founded oncontract, and not, as suggested by the Attorney-General, as anaction founded on a delict. It is admitted that if the action isbased on contract the defendant can maintain such an actionagainst the plaintiff.
The question then remains to be decided whether the defendanthas substantiated the negligence alleged by him. This was thefirst isue of fact settled by the District Judge, and the burden ofproving it wa6 on the defendant. The Judge has held that heha6. There has been no attempt by respondent’s counsel to upsetthat finding, and I am not surprised, because the Principal CivilMedical Officer; after inquiry, came to the conclusion that itwas due to carelessness. See his letter D 3 dated February 15,1903, in which he states that a hot water bag without having aflannel cover to fit it should never be so used in a hospital.Whatever may be the final result of this case, one cannothelp feeling that the unfortunate deceased, who wa6 in hospitalfor the purpose of undergoing (to use Dr. Garvin's own words)“ a severe and serious operation," was, through the care-lessness and negligence of one or more of the agents and servantsof the Government, caused to suffer considerably from such care-lessness and negligence.
f* I now turn to the second issue settled at the trial, “ Was thfedeath on the 9th of June due to such scalding?"
I see that the appellant's counsel was anxious that a furtherissue should be settled by the Judge, viz., whether the scaldingcontributed to the death of the deceased. The Judge appears to
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have deelined to accept that as one of the issues because it was'1900.
not distinctly raised oh the pleadings. * I am inclined, for theMay 25.
following reasons, to think he was wrong.LaYabd,C.J
Our Civil Procedure Code is mainly founded on the Indian.
The English and the Indian systems of pleadings are on entirelydifferent principles. In England the parties frame their own plead-ings, and the case is tried on the issues raised on the pleadings. Ifa pleading is objected to by the other party, the Judge has todecide on the sufficiency or insufficiency of the pleading, and ifthe Judge should find it insufficient leave is given, to amend. Theamendments are never made by the Judge. The Court neverdictates to parties how they should set out their case. Under theIndian system no answer is required, though permission is givento the defendant, if he desires, to file a written statement of hiscase. In India the Court does not, as in England, try the case onthe pleadings; it can use the plaint and the defendant’s statement(if any) to ascertain what issues are to be adjudicated on. Theyare supplemented by examination of the parties, the documentsproduced by them, and also by the statements of their • respectivepleaders. It is the duty of the Court in India from such materialsto frame the issues to be tried and disposed of in the case. OurCode follows .the Indian in this matter, except that it requires thedefendant to file an answer, like the Indian Code. However, itdoes ’not allow the Court to try the case on the parties* pleadings,but requires specific issues to be framed. By section 146 of ourCode, if the parties are agreed, the issues may be stated bythem; if not agreed, then the Court must frame them (see Fer-nando v. Soysat 2 N. L. B. 41). In this case the defendant’scounsel—i.e., pleader—expressed a wish to have- a further issuesettled. There is no necessity under our law to restrict the issuesto the pleadings, as was done in this case; in fact, it appears to meto be contrary to our lsw> and I think the Judge should, haveallowed an issue to be framed as to whether the burns contributedto the death of the deceased.
I must now deal with, the issue tried, " Was the defendant’swife’s death, on the 9th June, due to scalding?" The constructionthat has been placed on that issue by both the appellant's anddefendant’s counsel is whether the cause of the deceased's deathwas due to the^ burns mentioned in the evidence. I am a littledoubtful myself as to the exact meaning to be attached to the*issue as worded, but every one seems to be agreed that the matterin dispute between the parties' was as to-the cause of death, thedefendant alleging on the one hand it was the bum, and theplaintiff forcibly contesting that it was the lumbar abscess
( 242 )
1905. complicated with acute mania. The District Judge has foundMay25.the cause of death was correctly described in the death certi-
Lavabd,C.J. ficate, and was not due to the bums.
The . question to be decided is a difficult one, and the Solicitor-General argues that without a post-mortem examination no onecould conclusively state what the actual cause of death was, andconsequently we must more or less speculate from the circum-stances of the case and the factB proved as to what actually didcause the death. The case is not made easier by the gentlemanwho actually certified the cause of death, and who made a declara-tion to the effect that the cause of death to which he certified wastrue and correct, now turning round and saying he does notknow what the deceased died of, and further saying if he himselfhad inserted the cause of death on the certificate he would nothave used the words appearing in the certificate, which he hadpreviously declared to be true and correct. We must do our best,to arrive at some conclusion.
The deceased lady, early in May, 1903, was attended byDr. Thomasz, who foundher suffering from pain on theleftside
and fever. On the 17thMay hesatisfied himself thatshehad
an abscess in the loin, and advised her going to the GeneralHospital. At the hospital, 1 understand, she passed to thecharge of the Surgeon in charge, Dr. Garvin, and on the 20thMay was operated on and the abscess cavity evacuated/ Theoperation was very successfully performed. Most unfortunatelya hot water bag or bottle was 'placed under the right loinof the patient to prop her up.The oral evidence inthecase
seems, so far as it goes,to showthat a hot water bagor bottle
ought not to have been so used (see Dr. Thomasz’s evidence,w.page 88a, and Dr. Bodrigo’s evidence). In any case, whether itNvas right to use one or not, every one connected with the case,including counsel for the Crown, • admits that a hot water bag orbottle, if used, should be so securely covered and protected thatundernocircumstancesshould thebare bag or bottle come in
directcontact with anypart of the patient’s body. During the
courseofthe operationthe bag orbottle appears to have come
into direct contact with the deceased's body at three differentspots. It is impossible from the evidence adduced in the DistrictCourttofind who isresponsiblefor what occurred. Neither
is it necessary for the purpose of this judgment to find who* was responsible in the matter. The evidence shows that itmust have been due to one or more of the several officers orservants of the Government whose names have been mentionedas taking part in the operation. There is no doubt that
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the operation was thoroughly and successfully performed, and1900* •
the • medical men in attendance considered that if nothing26*
untoward happened in forty-eight hours the deceased would have Layabd, C.Xrecovered (see Butnam’s evidence, page 80, and Smith’s evidence,page 15). That Mrs. Smith was burned during the course of theoperation was not discovered until she complained to Alvis, alicentiate of the Medical College, who was at the time of theoperation a student of the hospital. Mrs. Smith complained tohjm of pain, and he untied the bandages and found some burnscn the right side. He applied boric ointment to the burns andreported what he saw to Dr. Butnam. No entry, however, wasmade of the bums in the bed-head – ticket. I must here explaintKat a bed-head ticket is by the general regulations of the CeylonCivil Medical Department kept for the purpose of having enteredtherein the history of the patient’s case and its treatment, Ac., andby the rules of the paying wards (one of which Mrs. Smith occu-Jpied) the medical attendant is required to record the histories indetail on the bed-head ticket, so that it may be available for theinformation of relations or friends when death takes place. It wasafter repeated inquiries, to which I received no satisfactoryanswer from the counsel for the Government, as to why no men-tion of the burns was made in these tickets and of the treatmentof the burns when discovered, the Attorney-General came into theCourt and informed me that there was reason to think that allmention of the bums was excluded from the bed-head tickets, sothat the Principal Civil Medical Officer and the superior author-ities in the hospital should not hear of them. I had myself pre-viously arrived at the same conclusion, and think that that wasvery probably the reason. It is not very clear how Dr. Garvinbecame first aware of the bums, but it is admitted that his state-ment in his report that he discovered the bums on the eveningof the 23rd is incorrect, and that they were not treated by himantiseptically, as stated in his report that evening. The antiseptictreatment began on the morning of the 24th, the day after theoperation. Dr. Butnam and Dr. Garvin are not at one as to thediscovery of the burns being made by the latter. I see no reasonto disbelieve the sworn evidence of Alvis that he discovered thebums and told Dr. Butnam, and I think it is probable that Dr.
Butnam is right when he states that Dr. Garvin was informedof it on the day of the operation. I must prefer the sworn testi-mony of the witnesses to the report of Dr. Garvin, which has notbeen verified on oath or tested by cross-examination, and whichadnpttedly on this point is not accurate. I * gather from theevidence that there were three burns, one of the fourth degree,
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1VU0* deep and involving the skin in its entire depth, and two others of theJ<!l£? ‘ second and third degree, comparatively slight. The first was as largeLayabd.C.J. aB a turkey egg, and the other two the size of duck eggs; they were allthree situated within the area covered by the hot water bag or bottle.The most serious, of course, was the bum of the fourth degree, whichwould result, I understand, in the integument being destroyed, andpart of the subcutaneous cellular tissue. The evidence showsthat there is greater danger attending bums on the trunk of thebody than on the extremities of the feet by reason of the proxi-mity of the viscera. There is a certain amount of danger from allburns dependent on the area burnt. A bum of the fourth degree onthe trunk, I gather, is always more or less dangerous, and Dr.Thomasz says “ the bums in Mrs. Smith’s case would possibly haveresulted in serious consequences, and would possibly have beenfraught with danger to her life.” According to Mr. Smith’s evi-dence, which is uncontradicted, Mrs. Smith first told him of theburn on the morning of the 24th, the day after the operation. Shementioned having complained of pain on the right side to Dr.Garvin—that is, the side on which the bums were, and not on theside on which the operation had taken place, from which shesuffered apparently no pain. Dr. Garvin appears to have ex-claimed on first seeing'the burn, “ Good God Almighty.” I amtold that this is language commonly adopted by Dr. Garvin; how-ever, it certainly is an exclamation expressing surprise. And asI gather from the evidence Dr. Garvin knew of the bum theevening before, it seems to me that it is an expression of horror.Mr. Smith then appears to have seen Dr. Garvin, who told himthat unfortunately Mrs. Smith got a “ slight burn ” during theoperation. He could not account for how it happened, and added:“It is most unfortunate; it may delay her convalescence for someweeks. ” That is the only evidence we have of the interviewbetween Mr. Smith and Dr. Garvin. If Mrs. Smith had lived andher recovery had been delayed by the bums, there can be no doubtthat she would have been entitled to recover damages consequenton such delay. In view of Dr, Thomasz’s statement quoted above,it is unaccountable why Dr. Garvin told Mr. Smith it was ” aslight bum,” when‘the bums ’ ’might possibly have resulted inserious consequences and would possibly have been fraught withdanger ” to his wife’s life. Mr. Smith appears to have been satis-fied, from what Dr. Garvin told him, that it was a slight bum.From the day of the operation, as far as one can judge from theoral evidence, the bed-head ticket, and the temperature chart,( thepatient progressed very favourably. She had no fever after the24th May, save on the evening of the 29th May, when the
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temperature appears to have risen. The abscess was healing so 1005.satisfactorily that the drainage tubes were removed on the 28thor 29th May, and from the bed-head ticket it appears there was Layabd,C.J.only a slight discharge on the 29th and 81st May, and not there-after; and Dr. Butnam says that if the abscess wound was in aserious condition it would have attracted his attention, and hewould remember it and would have entered it on the bed-headticket. He cannot say when he saw the abscess wound last,though he remembers the washing and dressing of the burns onthe 8th June. I find Dr. Garvin’s report is silent as to when thedischarge from the abscess ceased. He does not state there wasany discharge from the abscess after the 81st May, but says:From
the date of operation, the 20th May, until the 5th June, the patient'sprogress was steady and encouraging; nothing untoward occurred.
The abscess was healing satisfactorily.” And he does not any-where state the condition of the abscess at the time of death.
Dr. Butnam, as I pointed out above, does not throw any light onthe matter. Dr. Thomasz says: ” If there was a discharge afterthe 31st May, I think such discharge should have been recordedon the bed-head ticket. 'I think probably the abscess had hesded.
I am not able to judge of the case. The stoppage of discharge isno indication that the abscess had healed. There might have beenpent-ijp pus. I see nothing in the bed-head ticket whereby Icould ascribe death to the original abscess. ” With reference tothe pent-up pus, there appears to me to be wanting any materialto support this theory; the patient did not suffer from fever, andthere is no suggestion in Dr. Garvin’s report that he had reason tothink there was pent-up pus. On the contrary, I understand himto be of opinion that the operation was most successful, and henowhere hints that the treatment of the abscess failed, or that thedrainage tubes were removed too early. Dr. Butnam, who withDr. Garvin was attending the patient and dressing the wound,nowhere suggests that there was pent-up pus, and I cannot findany evidence to support the theory of pent-up pus advanced by Dr.
Thomasz. Dr. Garvin does not suggest it in^ his report. If therehad been pent-up pus, one would have expected to see the tempera-ture of the patient rise, which did not occur. The evidence pointsto the operation being most successful; in fact, so successful thatthe medical men anticipated, if nothing untoward happened, inforty-eight hours the deceased would have recovered. I cannot >find from the evidence that anything untoward happened after the-operation, and nothing to account why the patient did not recoverwithin the forty-eight hours. The only untoward event was theburning during the operation, and that admittedly would, on
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Dr. Garvin’s authority, retard the recovery of the patient. The25•patient appears to have had fever until the evening of the day after
.Eiayabd, C. J. she was operated on, but none thereafter except on the evening ofthe 29th, after the removal of the drainage tubes. Her progress-towards recovery and accession of strength seemed to be every-thing to be desired, and she actually bad a thanksgiving service onthe 3rd June on account of her recovery. At that time apparent-ly from the bed-head tickets the discharge from the' abscess,which had been slight, had ceased for three days. On the 4thJune we find from the bed-head ticket a prescription used whichwas applied to the bum and not to the abscess wound. It containedcocaine. Why was that applied if the burn was causing no troubleor discomfort, and how is this reconcilable with Dr. Garvin’sstatement that from the date, the 23rd May, till the 5th June thepatient’s progress was steady and encouraging, and nothinguntoward occurred ?“ The abscess was healing satisfactorily, and
the scalded area caused no trouble or discomfort; ” what, then,was the necessity or the use of prescribing anything to be applied, to the bums ? With reference to the burns, I must here point outthat owing to their never being mentioned in the bed-head ticketit is impossible to say what the actual state of them was from dayto day or at the time the ointment was prescribed. Dr. Rutnamsays: "I cannot say whether the cuticle was sloughed off or not.I., have no means of refreshing my memory by means qf anymemorandum made by me nor to my knowledge by any one else.”He could give no information, as to why the prescription of the 4thJune was ordered, but he says it could not have been applied to theabscess wound. All he does appear to remember is, that-, whenthe chloroform was administered on the 8th June there was somesloughing removed from one of the burns, and he does not recollectthe abscess wound being attended to. Dr. Garvin in his reportdoes not give a detailed history of the treatment of the burns.He does mention “ the wounds ” (in the plural) were washed anddressed on the 8th June, but does not mention the sloughing beingremoved- from the burns. I am forced to think there was troubleand discomfort on the 4th June from the burns, and perhaps thisis what Dr. Garvin refers to when he says that the patient oncecomplained of pain over the burnt area, when an ointment con-taining 2 per cent, cocaine quickly removed it. It was fromr, the 4th of June that the patient became worse. On the 5th ofJune her bowels were irritated, and the motions contained mucusand blood. She had two motions during the night of the 4th andtwo on the morning of the 5th. One motion contained muchundigested matter, but she did not complain of much pain. In
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the evening I find recorded in the bed-head ticket, “ Had two 1904-motions since 11 a.m. Contained blood serum and shreds of •afsy Z5'mucus and shreds of mucus bile tinged. Has no pain to speak of. Layard, C.JTongue coated white in the middle. Is somewhat drowsy andincoherent in her speech. Pulse normal. Pulse 100—of goodvolume. Consultation with Dr. Sinnetamby.
The Solicitor-General tells me that as there was undigestedmatter there can be no doubt that the irritation of the bowels wascaused by indigestion. I cannot find that Dr. Garvin in hisreport alludes to this as the cause. I am inclined to think that I•cannot accept this simple solution as the cause, in view of whatDf. Garvin himself said to Mr. Smith: “ Your wife has got an acuteattack of dysentery; I don’t know how." This apparently was saidafter examination of the motions. There has been a great deal oflearned discussion as to whether these symptoms showed dysenteryor merely dysenteric diarrhoea. Where doctors disagree I refrainfrom expressing any opinion.
I must try, however, from the medical evidence, oral and.•documentary, to trace the cause. The bed-head tickets do nothelp me. Dr. Garvin’s report gives me no information. It is not. suggested that it was caused by the original abscess; why not, Ic'annot say. I can only assume it would have' been suggested if itwas thought the abscess caused it. Dr. Rutnam’s evidence doesnot help me. Dr. Thomasz, who appears to think the symptomsdysenteric but not dysentery, says that the motions of the 5th and6th were'not due to ulceration of the duodenum or of any part ofthe bowels. There must have been only congestion or catarrh ofthese organs. He has known cases of mild attacks of dysenteryfollowing bums. He could not say it was probable, though it ispossible, that the symptoms as described in the bed-head ticketswere the result of bums. The condition of the bowels might bedisease per se, or it may result as a consequence of the burns.
As a consequence of the burns the patient would be moresusceptible to disease. Assuming that the abscess itself had healedand the surface wound was healing (which I may here say appearsto be supported by the evidence in the case); and assuming theburns were of the second, third, and fourth degree, as describedby Dr: Garvin, the doctor says he would not ascribe the intestinalinflammation rather to the bum than to the abscess. It is. verydifficult, he says, to say. It may or may not be, and he does notfthink that the abscess had. anything whatever -to do with thecondition of the bowels. He adds catarrh may have supervenedfrom some independent consideration or from the bum. Thebums would have the effect of lowering the system, and as a
( 248 )
.1906.resultrender the patient moresusceptible to chillsand
Jfgy #6.consequently''to catarrhal affections.I gatherfrom this thatthe
Zj4yabd,C.J. dootorcannot positively ascribe thesymptomsas arising fromthe
burn.The abscess, though apparently healed,might also havethe
effect of lowering the system. The bum, together with the abscess,
not only would retard, as admitted, convalescence, but would
contribute to the lowering of the system, and naturally render the
patient more susceptible to chills and consequently to catarrhal.
affections. On Dr. Thomasz’s evidence, uncontradicted by any
evidence on behalf of the Grown, I cannot help thinking that the
bum, if I may use that expression, on the top of the abscess
contributed to the lowering of the system, and rendered the patient*
more susceptible to chills and to catarrhal affections, and
the combination of the two led to the dysenteric symptoms-
mentioned in the bed-head ticket. It is then suggested by
respondent that on the 5th June, in the evening, the deceased
was suffering from an onset of an attack of acute mania, and
was absolutely insane on the 7th June. I have carefully read
through Dr. Ratnam’s evidence, as he was in attendance on the
deceased when in hospital. He nowhere deposes to the onset of
an attack of acute mania, nor that Mrs. Smith appeared to him to
be at any time before her death insane. All he deposes to is that
he would have put down the cause of the death to be lumbar
abscess complicated by mania amongst other things. The value
of that statement must be judged by the context, and also by the
subsequent statement of this witness that he did not form any
opinion as to the cause of death. I go further: the value of his
opinion as to the patient suffering from insanity must be gauged
not only by the context, to which. I shall presently allude, but to
his not deposing to having at any time himself observed any
symptoms in the patient which would enable him or any one
else to say whether Mrs. Smith ever was insane. After saying he
would have put down the cause of death to be lumbar abscess,
complicated by mania and certain other things, he adds: “ The
words * acute mania * or * mania ’ do not appear in the bed-head
tickets, but there are words imputing acute mania. M
One has only to read the bed-head tickets carefully to see thereare no words used “ imputing M or ascribing acute mania or any#form of mania. I go even further and say, judging from thebed-head tickets, there is nothing to show ‘Mrs. Smith wassuffering from acute mania, and we have before us the testimonyof Dr. Thomasz, with which I entirely agree, that “ judging fromthe evidence given already (see evidence in case of all exceptDr. Rodrigo), and from the bed-head tickets, I should not say
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Mrs. Smith suffered from acute mania.” He further adds:1806*
There was delirium in her oase—a symptom of the exhaustionMqpM.
she was in. ” It is true he admits that Dr. Garvin was in a better Layabd, GJkposition to judge. We have not, however, had the advantage ofDr. Garvin’s evidence on this subject, and after all he appears,judging fromhisreport, to haverelied a great deal onthe
opinion of oneDr.Sinnetamby,andthat gentleman has notbeen
called as a witness. The District Judge seems to think that ifDr. Thomaszhadbeen shownthetemperature chart he would
have come totheconclusion itwasmania but not delirium.The
temperature chart, however, appears to be only made up fromthe bed-headtickets,and the doctor had seen thesetickets
and gave hisevidence accepting those bed-head ticketsashis
data, and they dearly described the patient’s temperature fromtime to time,and showed as clearly as the chart, to usethe
words of theDistrictJudge, that " between the dayofthe
operation and the death the temperature of the body wasnormal or subnormal, except on the 27th, when the drainage tubeswere removed.” Dr. Thomasz underwent a severe cross-exami-nation, but wasnever askedwhether, in view ofthepatient’s
temperature, hestill adheresto the opinion thatthebed-head
tickets showed the patient was suffering from delirium and notmania. The District Judge appears to think “ that the patientwas treated with trional and subcutaneous injections of morphiabeoause she was supposed to be suffering from acute mania.”
The bed-head tickets, however, describe that the morphia waslast injected on the 4th June, and not once during the periodof alleged mania,and that theonly treatment for itwasa powder
of fifteen grainsof trional onthe night of the 6th June. The
evidence certainly does not disclose that at any time during herillness Mrs. Smith was suffering from mania or insanity. Thereis no evidence to support the statement in Dr. Garvin's reportthat Mrs. Smith was before her death suffering from acute mania.
Whatever may be my final decision in this case, and whatevermay be ultimately decided, I am unable to support the DistrictJudge’s finding that the evidence establishes that the cause ofdeath was correctly described in the death 'certificate for thefollowing reasons:—
Dr. Butnam, who is responsible for the death certificate,deposes that he did not form any opinion as to the cause of death,and had he filled up the certificate himself says he would haveput down the cause of death differently.
Dr. Thomasz was unable to say what the cause of deathwas, and does not know how he would have written the certificate.
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1005.He says he ‘/ might have said exhaustion due to lumbar abscess/
May 25. not that he is prepared to depose to that being the cause of deathExyabi>,cu. °r <®ly cause of death.
Even admitting that Dr. Garvin’s report has the same-probative value as sworn' evidence, which it clearly has not, henowhere in that report states ** in my opinion the only cause ofdeath was lumbar abscess complicated with acute mania.” Hemerely relates what were the contents of the certificate of deathissued by him. It may be that the certificate did properly 6etout the cause of death; there is, however, no evidence of anyprobative value to support it.
The argument for the plaintiff was that only a post-mortemexamination of the deceased's body could possibly elicit what thecause of death was. Accepting that, to be the plaintiff’s case, itis evident that the burying of the body without a post-mortemexamination was entirely due to the fault of one of the servantsof Government in signing as true a certificate which he now, byhis own evidence, admits he cannot support, as he formed noopinion himself as to the cause of death. If it had not been forthe granting of that certificate there must have been a post-mortemexamination of the deceased’s body before burial. The Solicitor-General argues that the defendant was responsible for the buriaLwithout a. post-mortem examination, but the defendant could nothave buried the body without the medical certifiate granted byone of the Government’s own medical officers.
It will be noticed that up to this I have made hardly .anymention of Dr. Rodrigo’s evidence. My reason for so doing isthat the District Judge has commented very severely on thiswitness, and I thought it better in the first place to considerthe evidence of the expert witnesses against whom the plaintiff'scounsel could not allege anything, and both of whom had hadan opportunity of seeing the patient and knowing somethingof her case. Judging from the diplomas and degrees heldby Dr. Rodrigo, he appears to be well qualified to give anexpert opinion on'a medical subject, and he appears to me tohave given his evidence with considerable ability, and to havequoted authorities in support of the propositions adduced byhim. The Solicitor-General referred to the witness more than' once with great contempt. I am unable to find any justificationfor this. His cross-examination has not, in my opinion, shownhim to be a sham expert or a medical witness who has edld hisknowledge for the purpose of advancing the defendant’s case. Heis undoubtedly a young man, and consequently his experience islimited.
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– He is alleged to have made some unfounded charges against hissuperior officers in the Medical Department. It is impossible for MaySS.mq to adjudicate without material whether the charges brought by Layabd,CJhim were unfounded or not. Assuming, however, that he waswrong in attributing the loss of an appointment for which he hadbeen selected by the Secretary of State to the action of the Headof his Department, or in suggesting that Dr. Perry opposed^ hisappointment on account of certain letters written by him to thelocal papers—and there is no reason to think that he was right—Ido not consider I should be justified in dismissing his evidencealtogether, for it is supported to a very great extent by Dr.
Thomasz, and what Dr. Bodrigo concludes to have followed fromthe data sumbitted to him is confirmed by Dr. Thomasz admittingin almost every case the possibility of such following. Expertevidence is essentially necessary in this case, and the generaldictum of Lord Campbell, to which the ^District Judge refers, hasnot abolished expert evidence, and certainly never will do awaywith medical scientific evidence.
The question, however, remains for me to decide as to whether
I can* rightly adjudicate that the burns were the sole cause of death.
There is a great deal to be said in favour of Dr. Bodrigo’s opinion,
but I must^ say, on the material before me, I am not prepared to
definitely hold that the bums were the sole cause of death.
The- statement made by Dr. Garvin that they would retardrecovery, the evidence of Dr. Thomasz that they would possiblyhave resulted in serious consequences and. would possibly havebeen fraught with danger to Mrs. Smith’s life, the evidence ofDr. Butnam that they complicated her case, and the evidence withregard to the healing of the abscess and the sudden and unaccount-able change for the worse on the 5th June, all point to theburns as contributing to the death, though possibly not being thesole cause of it; and had the District Judge so held, I would haveaccepted his verdict.
If the Attorney-General is prepared to accept this finding, I willremit the case to the District Judge for the amount of damages tobe ascertained and determined.
On the other hand, if the Attorney-General insists upon histechnical right to have the issues, which ought to have beenaccepted by the District Judge, as I pointed out earlier in thisjudgment, placed on record and determined by the' District Court,
I see no other course open but to remit the case to the DistrictJudge .for a new trial. As the respondents ought to have con-sented to the issue suggested by appellant’s counsel being settledby the District Judge and determined by him, the respondent
Utabo, C. J.
( 252 )
must pay the costs of the abortive trial in the District Court andof this appeal.
The appellant to be at liberty, in the new trial, to read as-evidence the deposition of any witness taken at the first trial,provided 6uch witness's presence at the new trial cannot bereadily obtained.
The Solicitor-General preferred a new trial.
The Chief Justice: It will be noted that the Solicitor-Generalwishes a new trial on behalf of the Crown, and order will bemade as in the second alternative.
Monorkiff, J. (whose written judgment was read by the ChiefJustice) considered the case on the merits at length and concludedas follows: “ I need not say more on the materials before us thanthat the bums contributed to the death of the patient. I agree tothe order suggested by the Chief Justice."