THE TRUSTEES OF FRASER MEMORIAL NURSING HOME, Appellants, and OLNEY, Respondent

025-NLR-NLR-V-45-THE-TRUSTEES-OF-FRASER-MEMORIAL-NURSING-HOME-Appellants-and-OLNEY-Respondent.pdf


The Trustees of Fraser Memorial Nursing Home and Olney.
73
1944Present: Soertsz and 'Hearne JJ.
THE TRUSTEES' OP FRASER MEMORIAL NURSING HOME,Appellants, andOLNEY, Respondent.
280—D. C.Colombo, 13,144.
Master andservant—Negligenceofservant—-Actingwithin the scope of
employment — Principle of respondeat superior — Damages — res ipsa
loquitur.
The • plaintiff, a minor suing by her nextfriend, claimed damages
fromthedefendants,the trusteesofaNursingHomeforinjuries
causedtoherby the negligenceof the Sister-in-CHarge of the defendant’s
X-ray plant.
It -was admitted that plaintiff had been screened on two occasionsat the Nursing Home by the Sister-in-Charge and that fees were chargedby the Nursing Home for screening.
It was proved that plaintiff had sustained serious and painful X-rayburns on her abdomen and back.
Thelearned DistrictJudge foundthattheburnswere the consequence
ofthescreening of the plaintiffat the Nursing Home.
Held, that thedefendants were liable forthe negligenceof the
Sister-in-Charge who was acting within the scope of her employmentand that theprinciple ofrespondent superior appliedeven where the
worktheservant wasemployed todowasof askilfulortechnical
character as to the method of performing which the employer was himselfignorant.
Held, further, that in the circumstances of this case the proper andnatural inference was that the injury complained of was the result ofnegligenceunless thedefendants couldshow ' thattheywerecaused
apart from negligence.
In assessingdamage theJudge isentitled totakeintoconsideration
as one of the elements of damage the fact that the plaintiff’s normalexpectation of life has beenmateriallyshortened.
Flint v. Lovell (1985)1 K. B. 354 followed.
A
PPEAL from a judgment of the District Judge of Colombo. Thefacts appear from the head-note.
N. Nadarajah,K.C. (withhim N.K. Choksy),forthe defendants,
appellants.-—No act of negligence has been established as against theNursing Home. The only duty undertaken by the trustees or governorsof a public hospital towards a patient who is treated in .the hospital is touse due care and skill in selecting their hospital staff.. Miss Tait, accord-ing to the evidence in the present case, is a competent radiographer.The relationship of master and servant does not exist between the trusteesand the nurses and other attendants who perform skilled duties-—Hillyer v.The Governors of St. Bartholomew’s Hospital 1; Dryden v. Surrey CountyCouncil 2; Lindsey County Council v. Mary Marshall 3; Gold et at. v.Essex County Council 4; Marshall v. Lindsey County Council 5; Strangwaysv. Lesmere & Clayton e; Charlesworth on Negligence (1938 ed.) p. 369.
L. R. (1909) 2 K. B. 820~.(1936) 2 A. E. R. 535.
L. R. (1937) A. O. 97.
(1942) 2 A. H. R. 237.
L. R. (1935) 1 K. B. 516 at 518.L. R. (1936) 2 K. B. 11.
74
The Trustees of Fraser Memorial Nu-rsing Home and Olney.
Assuming that .the defendants are liable for any negligence ofMiss Tait it cannot be said that such negligence has been proved. Theonus of proving negligence is on the plaintiff. The burns on the plaintiffcan be explained in various ways : (1) She may have been burnt in theFraser Nursing Home; (2) She may have been burnt somewhere else;
The burns may have been due to hypersensitiveness of the plaintiff’sskin, i.e., to an idiosyncrasy—Pohle’s Clinical Roentgen Therapy (1938 ed.)784s et seq.; George M. Mackee’s X-rays and Radium in the treatment ofDiseases of the skin (3rd ed.) 363 et seq.; Lymbery v. Jefferies 1; (4) Theinjuries may have been caused by the medicines, e.g., Flavin Emulsion,applied to the rash which appeared soon after the X-ray radiation.In the circumstances the doctrine of res ipsa loquitur cannot apply—Scott, v. The London & St. Katherine Docks Co. 1 2; Wing v. London GeneralOmnibus Co. 3 *; Mahon v. Osborne Langham v. Governors of Wellin-borough School *; Van Wyk v. Lewis 6.
The amount -of damages awarded is excessive. Loss of expectation oflife has been given as a ground for the sum awarded, but there is noevidence to support it. See Flint v. Lovell 7 ; Phillips v. London & South.Wester?!, Rly. Co. ®; Glasgow Corporation v. Muir et al 9.
H. V. Perera, K.C. (with him E. F. N. Gratiaen and D. W. Fernando),for the plaintiff, respondent.—The basis of our claim is the negligence ofthe nurse (Miss Tait). But in view of Hillyer’s case {supra) we havefurther pleaded that the Nursing Home was negligent in appointingMiss Tait for performing “ screening ” operations when she was notcompetent to do such work. The nurse was qualified only for the purposeof taking X-ray photographs but not for the purpose of “ screening ”in order to locate a foreign body. The possibilities of errors in the latterare many—Mackee’s X-rays and Radium in the treatment of Diseases ofthe skin (3rd ed.), 196 et seq. Even if it can be held that she was com-petent to screen, there can be no doubt that in the present case she wasnegligent.
The Nursing Home is liable for the negligence of its nurses. A contractof service is to be distinguished from a contract for services. Hillyer’scase is closely examined in Gold v. Essex County Council {supra). Seealso Law Quarterly Review, Vol. 54, p. 553.
It is not necessary for the plaintiff to rely on the doctrine of res ipsaloquitur, because the inference of negligence on the part of the nurse isinescapable. The Flavin Emulsion treatment, according to the evidence,could not have caused the injuries and cannot break the chain ofcausation. See Macintosh and Scoble’s Negligence in Delict (2nd ed.),74. As regards the theory of idiosyncrasy, a high degree of sensitivenessto X-rays has not been reported—Robert Knox’s A Text-Book on X-rayTherapeutics {4th ed.) 7; Mackie {supra) 370. If burns due to idiosyn-crasy are possible they are improbable, and the doctrine of res ipsa
1S. A.L. R. (1925) A. D.236.5 (1932) 147 L. T. R. 91 at 93.
2(1865) 13 L. T. R. 148.6 S. A. L. R. 1924 A. D. 438.
3It. R.(1909) 2 K. B. 652al 663.7 L. R. (1935) 1 K. B. 354.
* L. R.(1939) 2 K. B. 14 at 22.8 L. R. (1879) 5 Q. B. D. 78.
® i. R. (1943) A. C. 448.
SOEBTSZ J.—The Trustees of Fraser Memorial Nursing Home and Olney. 75
loquitur will apply—Macintosh and Scoble’s Negligence in D'elict (2nd ed.)189; Mitchell v. Maison Lisbon
The sum awarded as damages is not excessive when one takes intoconsideration that the child suffered intense pain and her health ispermanently impaired.
N. Nadarajah, K.G., in reply.—Burns due to hypersensitiveness of theskin do occur—Robert Knox (supra) 9, 143; Glaister’s Medical Jurispru-dence (7th ed.) 194-5. It cannot be said that negligence was the onlycause of the burns. X-ray bums are normally rare and when they dooccur can be explained by idiosyncrasy. Where a case depends onculpa, all reasonable doubt must be eliminated—Hamilton v. Mackinnori2.
Cur. adv. vult.
January 14, 1944. Soertsz J.—
The judgment of my learned brother which I have had the advantageof reading expresses so completely the views that I myself had come toentertain, after listening .to the very able argument addressed to us onboth sides in this case, that I would have been satisfied merely to recordmy concurrence with it had he not suggested that it Was desirable, in viewof some of the important questions involved, that we should write separatejudgments.
First of all, I should wish to say that I am in entire agreement with hisobservations on the submission made to us on behalf of the appellantsthat Anthea Olney must have suffered her injuries elsewhere than at theFraser Nursing Home and later than January 14, 1940. Not only is thatsubmission contrary to the positive evidence of Mrs. Olney which thetrial Judge has accepted unqualifiedly but it is also inconsistent with everyconceivable probability.
Taking then the Fraser Nursing Home and January 14, 1940, as theplace and the occasion where and when Anthea Olney suffered theinjuries she complains of, we come next to the admitted fact that she wasscreened twice on that day, once when she and Nurse Tait were the onlypersons in the X-ray room and again an hour or two later when Dr. Chissellwas also present. Dr. Chissell and Nurse Tait were witnesses in the case.Anthea was not. She was only six and a half years of age at the .timeand obviously not sufficiently cognisant of what was being done to beable to give any material evidence at the trial some eighteen monthslater. Even an adult, ignorant of the mechanism of this X-ray apparatusand hot conversant with its delicate manipulation and adjustmentswould scarcely have been in a better position. But both Dr. Chissell andNurse Tait agree that for the second screening the girl stood with herback to the instrument and that would appear to be the normal exposure.That evidence affords a probable explanation of the bum on the back.But there is a similar bum in front, on the abdomen. Nurse Tait whowas the only person other than Anthea who was present at the firstscreening states positively that on that occasion too the girl stood inexactly the same position. If that were so, the only supposition onwhich .the bum on the abdomen could be explained is that the X-raywent athwart the body on both or at least on one of the screenings. But1 S. A. L. R. {1937) T. P. D. 13.2 S. A. L. R. {1935) A. D. 114 at 118.
76 SOERTSZ J.—The Trustees of Fraser Memorial Nursing Home and Olney.
the evidence of„ the experts is that on that supposition all the internalsin the line of the rays should have been similarly burned and of that therewere no indications whatever. The medical evidence seems clear that thetwo burns were the results of two different exposures, one with the girlstanding with her back to the machine and the other with her face to it.It follows inevitably that Nurse Tait’s recollection is at fault and thatmost probably in her anxiety for the safety of the child and doing herbest to locate this very tenuous thing, a hypothetical needle, she thoughtshe would make a thorough search screening the girl both ways. AndMajor Sharrard tells us that “ There is nothing wrong ” in screeninga patient consecutively with a front and a back exposure provided ofcourse one keeps within the bounds of safety in regard to the duration ofthe exposures and the potency of the rays. The next question is whetherAnthea’s burns were due to the negligent management of the instrumentby Miss Tait or by Dr. Chissell, the only other possible person. Therecan be doubt on that point for Nurse Tait admits that she operated it onboth occasions, exercising her own discretion and judgment. It is truethat, on the occasion of the second screening, it was Dr. Chissell wholooked for the needle and called out certain directions to have the raysthrown from spot to spot t it she frankly says she obeyed those directionsbecause she thought they were proper and that she would not havecarried them out if, in her opinion, they were fraught with any danger atall. The only possible conclusion therefore is that if there was negligence itwas the negligence of Nurse Tait. In regard to this question of negligence onthe part of Nurse Tait we heard a great deal in the course of the argumentabout res ipsa loquitur, three apparently simple words from which-volumes of discussion appear to have flowed. One thing, however,seems certain and must be borne in mind when there is reference to thismaxim and that is that it does not mean that a plaintiff allegingnegligence is ever absolved from establishing it and is entitled in every caseto point to his or her injury and say that it speaks for itself and proclaimsthe negligence of the defendant. There are many aocidents from whichno presumption of negligence can arise. But there are others in whichthe transaction resulting in the injury seems to speak so eloquently ofnegligence that the necessity arises at once for the defendant to go forwardwith his testimony or to take the risk of non-persuasion and a consequentadverse verdict. To put the matter in the wav in which Lord Dunedincalled attention to it in Ballard v. N. B. Railway Go. 1 the injury mayamount to “a piece of evidence relevant to infer negligence ” or maybe evidence from which the Court “ necessarily infers negligence ” or inthe words of Lord Shaw of Dunfermline in the same case (Ballard)res ipsa loquitur “ is the expression in the form of a maxim of whatin the affairs of life frequently strikes the mind that is, that a thing tellsits own story not always but sometimes ”. Blow, then, does the presentcase stand in the light of these observations ? We are concerned in itwith an X-ray apparatus which, according to the evidence, came from thehands of well recognized makers, was in efficient working order at the timeand possessed of a great margin of safety, if the instructions of the makerswere observed. In short, it was harmless in normal operation but
1 1923-60 Scot. L. R. 448 cited in 1935 A. D. P. 125.
SOEBTSZ J.—The Trustees of Fraser Memorial Nursing Home and Olney. 77
capable of serious harm if handled unskilfully. That on this occasionit was the source of the injuries suffered by Anthea is antecedently morethan probable and the resulting position in law appears to be as stated•by Brie C-J. in the leading case of Scott v. London & St. Katharines Docks1" where the thing is shown to be under the management of the defendant•or his servants and the accident is such as in the ordinary course of thingdoes not happen if those who have the management of it use proper careit affords reasonable evidence in the absence of explanation by thedefendant that the accident arose from want of proper care The caseof the plaintiff before us is just that and the question arises at oncewhether, it can be said that the defendants have met it with reasonable-explanation. All they have done is to suggest that the injuries mighthave been caused (a) elsewhere than at the Fraser Home. (6) by some un-verified pernicious effect of the ointment and emulsion applied on DoctorPeterson’s directions on the skin that had only reacted in a not unusual-and not harmful manner to the X-rays, (c) by a hypersensitive skin.Hypothesis (a) has already been dealt with and rejected “ out of handIn regard to the alternative of negligence on the one hand and alternatives■{fi) and (c) on the other the position, if I may say so, is stated correctly byMacintosh and Scoble in their Negligence in Delict, pp. 189-190: —
“ Where the natural explanation of the accident is negligence in thedefendant but there are other possible explanations then the Courtmust decide upon the balance of probability having regard to the factthat the onus remains on the plaintiff and that the probability must-be strong; something more than a mere conjecture or surmise. But adifficult question arises as to whether in order to establish a prima facie-case it is necessary for the plaintiff to negative such other possible-explanations or whether if he establishes that the probable explanationwas the defendant's negligence it is then for the defendant tc provide•evidence showing that the accident may reasonably have occurred■without fault on his part ….
It is submitted that the question is really one of degree of proba-bility. If the evidence for the plaintiff points strongly towards thenegligence of the defendant a prima facie case will be established,•even though other possible explanations might be advanced. Whereif the most that can be said is that negligence in the defendant is a morelikely explanation than others which not uncommonly produce similaraccidents not even a prima facie case will be established.”
Examining this ease in that way I would associate myself entirelywith the observations made by my brother Hearne in regard to (b) and (c).and say that in the result the strong probability—such a probability.as is contemplated by the explanation given of the word “ prove ” in•section 6 of the Evidence Ordinance—is that Anthea Olney suffered herinjuries under the negligent handling of the X-ray apparatus by NurseTait.
Then comes the question whether the defendants are responsiblefor the negligence. On the evidence it is beyond question that NurseTait in operating the X-ray instrument was acting in the course andwrithin the scope of her employment under the defendants and the
1 3 H. «fc C. 596.
78 HEARNE J.—The Trustees of Fraser Memorial Nursing Home and Olney.
defendants would under tlie general principle of respondeat superior beresponsible for her negligence unless they are entitled to claim exemptionfrom that rule on the ground that at the time the injuries were causedNurse Tait was exercising professional or technical skill. Such a groundof exemption was adumbrated in the case of Hillyer v. St. Bartholomew’sHospital 1 which was a case in which damages were claimed on account ofthe alleged negligence of a Consulting Surgeon. This case, however,nas occasioned much question and some anxiety. When it came undernotice in the House of Lords in the course of the appeal in Lindsey CountyCouncil v. Marshall a it was stated that “ it is not necessary to expresshere any opinion one way or the other about the correctness of thatdecision But when it arose again in the Court of Appeal quite recentlyin Gold v. Essex County Council 3 it was not followed in the instance of aradiographer’s negligence which was the cause of action. The decisionin the last named case is exactly in point here and I would respectfullyadopt the rule laid down in it and hold that the defendants are liable inrespect of Nurse Tait’s negligence.
The plaintiff went further in this ease and alleged that the defendantswere also liable on their own negligence in entrusting Nurse Tait talisqualis with the screening of patients in order to discoyer foreign objects.In regard to this and to the amount of damages awarded, I have nothingto add. The appeal must be dismissed with costs.
Hbarne J–—
The defendants-appellants are trustees of the Joseph Fraser MemorialNursing Home. The plaintiff, a minor, appearing by her next friend,was awarded a sum of Us. 30,000 as damages for injuries caused to herby the negligence of Miss Tait while acting within the scope of heremployment as Sister-in-Charge of the defendants’ X-ray plant.
Out of a welter of evidence and theories there emerged one clear,incontrovertible fact—that the plain tiff, Anthea Olney, sustained veryserious and most painful X-ray burns on her abdomen and back.
It was admitted that for the purpose of locating a needle she wassuspected of having swallowed, she had been “ screened ” on two occasionsat the Nursing Home by Miss Tait on January 14, 1940. In the opinionof Hr. Gunawardene the burns could only have been caused by screeningin two positions, her abdomen in one instance and her back in the other,being exposed to the apparatus. In her evidence Miss Tait stated that■on the first occasion when she was alone, as well as on the second whenHr. Chissell was present, the plaintiff’s back and not Tier abdomen “ wasexposed to the machine Hr. Chissell agreed in regard to the latter.It was argued on behalf of the appellants that, assuming Miss Tait wasright that the abdomen of the plaintiS was not exposed to the rays whenshe was operating the machine alone, it is possible that subsequent to thescreening at the Fraser Nursing Home in one position only, the plaintifE’smother had had her screened at another Nursing Home in two positions,and that the injuries had been sustained at the latter place.
1 L. R. {1909) 2 K. B. 820.2 L. R. {1937) A. C. 97.
3 (1942) 2 A. E. R. Vol. 2, p. 27.
ffEA-RNE J.—The Trustees of Fraser Memorial Nursing Home and Olney. 79
On February 2, 1940, Dr. Peterson saw the plaintiff and “ had nodifficulty in diagnozing X-ray bums in an early condition in the front and—rear The evidence of some of the medical witnesses suggested that theonset of intense pain, which in the case of the plaintiff was in June, 1940,was inconsistent with the infliction of X-ray bums as early as January 14,1940, or on any date before February 2. This was pressed on appeal andit was argued that the plaintiff’s mother had probably arranged for asecond screening at another Nursing Home very much later thanFebruary 2.
If this, was so, what was the occasion for it ? There is no reason tothink that Mrs. Olney still suspected that a needle had been swallowed byher child, for Dr. Chissell had assured her to the contrary. But, apartfrom the improbability of the suggestion, there is the positive evidence ofDr. Peterson that the plaintiff had two X-ray bums on February 2 andhis evidence was unreservedly accepted by the trial Judge.
Dismissing this theory of the defence out of hand as the Judge wasentitled to do, his finding that the bums were the consequence of thescreening of the plaintiff at the Fraser Nursing Home on January14, 1940, is, in my opinion, unassailable. This involves the implicationthat on the first occasion Miss Tait screened the abdomen of the plaintiffif not her back as well. She denied it, but it is probable that her memoryis at fault.
Two questions arise at this stage. Was Miss. Tait negligent ? If so,are the defendants liable ?
I shall deal with the second question, which is one of law, first. Theposition taken up by the defendants was that they had no control overthe skilled work entrusted to Miss Tait, that they had no reason to doubther competency and skill as a Radiographer and that they were notresponsible for her_ negligence, if she was negligent. This pleading wasno doubt suggested by the decision in Hillyer’s case1
Jn his judgment the Judge found the defendants were negligent intbeir appointment of Miss Tait. If it were necessary to do so, I wouldhold upon the evidence that she was competent to take X-rayphotographs—it was for this purpose that she was engaged in addition toordinary nursing duties—and perhaps also to screen, if. necessary, for avery short period of time prior to the taking of an X-ray photograph*.
I am, however, of the opinion that she was not competent to screen, forinstance, for the purpose of searching for a foreign body. By reason ofthe fact that the exposure to the rays is longer “ the process ”, asDr. Ofunawardene puts it, “ is much more dangerous ” and the operatorand oatient are liable to be burnt if the former is not competent. I thinkthat, having regard to Miss Tait’s limited experience and the lack of anyrecognized qualifications, the risk was not justified.
But it is not necessary to decide the question for the purpose of thisappeal. The decision in Hilly er's case (supra) has been criticallyexamined in reference to the liability of a hospital for the acts of nurses.In Gold v. Essex County Council2 Mackinnon L.J. stated that “ one whoemploys a servant is liable to another person if the servant does an actwithin the scope of his employment so negligently as to injure thati L. R. (1909) 2 K. B. 820.2 (1942) 2 A. E. R. 237.
80HKAltNE J.—The Trustees of Fraser Memorial Nursing Home and Olney.
other—this is the rule of respondeat superior—and that principle applies;even though the work which the servant is employed to do is of a skilful'or technical character, as to the method of performing which the employeris himself ignorant The position of a Nursing Home relative to afsurgeon who, in the circumstances of Hillyer’s case, is not acting “ under acontract of service but a contract for services ” is different.
Miss Tait acted within the scope of her employment. She screenedand fees were charged by the Nursing Home for screening. If she wasnegligent the defendants are liable for the consequences of her negligence.
I would point out that, although a medical man was present on thesecond occasion of screening, he was not a radiologist and gave noinstructions which Miss Tait was bound to obey. She was acting entirelyas a servant of the Fraser Nursing Home and admitted that, in henadjustment and manipulation of the X-ray machine, she was a- free agentand not under the control of any third party.
The trial Judge dealt at length with the negligence of the trustees intlieir appointment of Miss Tait. However negligent they might have-been, judgment could not be obtained against them unless Miss Tait„even if technically unqualified or insufficiently experienced for the dutiesentrusted to her, was in fact shown to have been negligent when shescreened the plaintiff. But he also specifically answered the third:issue—were the burns caused by the negligence of Miss Tait ?—in theaffirmative.
That is the final question to be answered. Was she negligent ? In.the nature of the ease it was not possible to prove precisely what she didor omitted to do that amounted to negligence. But the defendants-appear to have assumed that the principle of res ipsa loquitur operatedagainst them and that, if they could not show the bums were causedapart from negligence, “ the proper and natural inference was that the.injury complained of was the result of negligence ”, Whether this is soor r.ou they certainly advanced at the trial two more theories excul-pating Miss Tait. Reference was also made to them at the hearing ofthe appeal.
In his evidence Dr. C. I. de Silva is recorded as having said, in answerto the question “ are these burns on Anthea X-ray bums or not ? ’V“ when I first came into Court and saw the burns I thought they werebut …. I have a lingering doubt. They may have been causedby the X-ray pure and simple through some unfortunate accident or bythe use of … applications which are injurious if a person has-been exposed to X-ray radiation as for instance acriflavin ”. Theplaintiff’s bums had been treated with “ Flavin Emulsion ”.
The Doctor also said “It is a matter of hypothesis of which T am notsure. In reading Mackee’s description of Chronic Radio Dermatitis-1 notice that he mentions the application of certain ointments and othermaterials—drugs—has a peculiar action of turning an ordinary harmlessexposure to one which is capable of turning into an apparently harmfulexposure ”. The expression “ apparently harmful exposure ” has no*relevance to the facts of this ease. The harm suffered by the plaintiff,so far from being merely apparent, was very real indeed. “ I noticedhe went on, “ that one of the substances he mentioned was Scarlet R
81
HEAJtNE J.—The Trustees of Fraser Memorial Nursing Home and Olney.
I know that Scarlet R. has a most extraordinary action on X-ray. It isa dye. Flavin is also a dye used in medicine. It immediately startedme thinking that Sodium Floureseine which is used to make a small doseof X-ray have the action of a bigger dose. That is done by applicationbefore and after. Then I have been working with other radiant energyin my work. I remembered that there is a whole group of substanceswhich have that “ dynamic action and I remembered that Acredine wasone. That is also a dye and Acredine is the mother substance of Flavinand Aeriflavin. When I came to that it confirmed that Acriflavin hassome action in a peculiar way …. Those burns may have beencaused by the neligent use of the X-ray apparatus or (?) by the conjointuse of X-ray and Acriflavin lotion and idiosyncracies
Leaving aside for the moment the subject of idiosyncrasy (I shallreturn to it later), if the learned Doctor meant that X-ray burns would beaggravated by Flavin treatment, it does not help the appellants at all.Assuming the plaintiff was burnt by X-rays, inappropriate treatmentwould not “ break the chain of oausation ”. If, however, he meant that“ a normal dosage ” of X-rays followed by Flavin treatment could haveproduced the physical condition in which Dr. Spittel found the plaintiff,this was admittedly no more than a speculative hypothesis. It wouldappear to have been based in the main on the ground that Acredinewhich has “ dynamic action is the mother substance of Flavin andAcriflavin ”.
I now pass to the other theory of idiosyncrasy. It appears to havebeen the object of the defence to establish through the medical witnessesthat idiosyncrasy as a possibility is recognized by their profession andupon that basis to argue that while there was a possibility of a highdegree of hypersensitiveness in the plaintiff, she could not succeed in heraction. This means that if a patient is burnt by X-rays and the exactnature of the negligence, if there was negligence, cannot be established,the mere chance that the patient may be hypersensitive is a complete .answer to an action for damages. That is not the way I can bring,myself to regard the matter.
In Knox’s work on X-ray (1932 Edition) it is stated that “ thevariation in sensitiveness of patients does not exceed 10 to 15 per cent.”and that no authenticated cases of a high degree of hypersensitivenesshad been reported. But if hypersensitiveness has since then beenestablished and accepted as a scientific fact, it does not conclude the caseagainst the plaintiff. The ease must be judged as a whole.
There was nothing wrong with the X-ray plant. Disregarding thesuggestion of “ another ” Nursing Home and Dr. de Silva’s ” hypothesisof which he was not sure ”, there remained the evidence of experts calledfor the defence and on behalf of the plaintiff. What was their view inregard to the X-ray bums from which plaintiff undoubtedly suffered ?How did they think they had been caused ?
“ Assume those are X-rays bums ” Major Sharland was asked “ Burnsof that kind would indicate negligence? ” His answer was “ Yes, thereis no doubt about that ”.
“ You would not conceive of any competent person causing thosebums except by utter negligence ? ”
82
The King v. A. A. Kitchilan.
“ Complete negligence. I would like to know the depth of the ulcers.”Dr. Amarasinghe was asked “ Are you satisfied on the evidence that ifthese are X-ray burns that it indicates negligence qn the part of some-one ? ” His answer was “ Yes, I am satisfied about that “ Can youmention any possibility other than negligence ?” His answer was thatidiosyncrasy might produce it even with a normal dose.
Dr. de Silva said “ To produce the two burns the technician is bothnegligent and insane, to produce one burn only the technician is in-competent or (it may be) the application of Flavin or third idiosyncrasyEven Miss Tait said that, although she did not cause the burns, “ who-ever caused them was thoroughly incompetent
I think the witnesses called by the defence largely helped to establishihe case of the plaintiff.
Dr. Gunawardene was asked “If a radiologist keeps well within theinargin of safety do you think it is possible to cause a third degree burneven in the case of a hypersensitive person ? ” and his answer was “ No ”.He was also asked “ Do you consider that if a competent radiologistcaused an X-ray burn it could only be attributed to negligence ? ”. Hereplied “ Yes, I cannot imagine any unavoidable burn ”.
In my opinion the trial Judge came to the only possible conclusion.It was also argued that the damages awarded were excessive. Followingthe principles laid down in Flint v. Lovell 1 interference by this Courtwith the quantum of damages would not be justified.
The appeal is dismissed with costs.
Appeal dismissed.