1998 PLP 139 (CLC)

The two consultant child specialists Dr. A.G. Billoo and orthopaedic surgeon Dr. S.M.A. Shah in their Affidavit‑in‑Evidence stated that the treatment given to the patient was according to the best prevailing standards. The patient received the utmost care and the best treatment in accordance with their directions and instructions. Both the witnesses have also not been cross‑examined at all on their above statement which remained unchallenged. The witness, if not cross‑examined on any portion of his statement, the presumption would be that the said portion of his evidence is accepted as correct and true. See 1985 CLC page 2111 Muhammad Yasin's case wherein it has been observed that if there was no cross‑examination on fact deposed in examination‑in‑chief, presumption would be that evidence had been accepted by party against whom it was given. The other important piece of evidence on which there is no cross‑examination is the deposition of Tariq Sohail (D.W.2). In paragraphs 11 to 14 of his Affidavit‑in- evidence he deposed that on F.I.R., lodged by the plaintiff against the defendants, the police referred the matter to the Home Department, Government of Sindh. The Home Department referred the matter to the Health Department for setting up a Medical Board, accordingly a Medical Board was constituted consisting of Dr. D.S. Akram M,B.,B.S. DAB(USA) Associate Professor of Paediatrics, D.M.C. and Civil Hospital Karachi, Professor Mrs. H.N. Mehmood F.R.C.S. Professor of Surgery, D.M.C. and Civil Hospital Karachi and Dr. Aftab Ahmad Qureshi, Medical Superintendent Civil Hospital Karachi. The Board after holding several meetings at the Medicare Clinic (defendant No. l) as well as at Civil Hospital Karachi opined as under:‑‑ "As far as the treatment of this case is concerned, it was in the best hands and was given at the prevailing best standards in the best environment." The Board in his report further pointed out that the cause of death was not due to negligence on any one's part. The evidence of P.W.5 Dr. Sahib Khan Khaskhelly is also not confidence inspiring. He was a junior doctor having done M.B.,B.S. in the year 1980. He has not seen the patient while she was in the hospital. His evidence was based on the case file of the patient maintained by company where he was employed. This witness has also failed to prove any negligence on the part of the defendants in the treatment of the patient. The learned counsel for the plaintiff has cited the following cases in support of his contentions. 1993 SCMR 848 (Pakistan Steeel Mill Corporation and another v Abdul Habib and others. The facts were that the deceased while painting on electric pole fell down from hydrolic telescope (elevator) from the height of 15 feet and died due to the severe head injuries. It was proved in evidence of defendants that accident occurred on account of mechanical fault due to negligence of the defendants. It was held that the mechanical fault could have been detected by the mills and corrected. There was no evidence that it was done. In the case of Road Transport Board, N.‑W.F.P. and others v. Mst. Gul Zarina and others (1995 CLC 83) the deceased died in a road accident. The respondents pleaded that the accident was "act of God". It was held that vehicle plying on a public road causing injury to any person cannot be the act of God rather its negligence which caused the injury. The negligence of a mortal human being cannot be attributed to act of God. There was no evidence that there was earthquake, storm, substantial damage to the road or floods resulting in accident. Mst. Kamina and another v. Al Amin Goods Transport Agency and 2 others (1992 SCMR 1715). The facts were that the respondents Al‑Amin Goods Transport Agency engaged a truck owned by one Amir on hire for the purpose of transporting 23 drums to Lahore belonging to Government of Punjab, Agriculture Department. Amir drove the truck with Syed Nawaz as co‑driver, Naseem Khan and Ilyas Khan as conductors/cleaners. According to Amir Khan, at the time of loading he and his co‑driver were not informed that the drums contained poisonous material. When the truck reached between Pattoki and Lahore, Nasim Khan and Ilyas who were sitting inside the truck near the drums sensed stinky smell and felt giddy. Amir Khan also felt the smell and drove to the destination and un loaded the truck. He took Nasim Khan and Ilyas to Mayo Hospital where they were admitted, went into comma and died. According to Amir Khan, death was occasioned due to the negligence of respondent who engaged the truck for transporting the invoiced drums. Respondent denied the allegations and stated that the driver and the cleaners were informed about the contents of the drums and were told to be careful. After analysis of evidence, the Court came to the conclusion that the driver and other persons were not informed that the drums loaded contained poisonous stuff and had not been instructed and warned to be careful. In the circumstances of the case, it was held that when the true cause of accident lies within the sole knowledge of defendants, they have to prove that there was no negligence. Karachi Transport Corporation v. Mst. Qaiser Jehan and another (1995 CLC 196) In this reported case, the appellant argued that the accident occurred due to the negligence of deceased who was driving the scooter rashly and negligently The witness of the plaintiff furnished the detail of the accident stating that the two buses were overtaking each other and a scooter was hit by one of them. He noted the number of bus which hit the scooter. It was held that the factum of negligence on the part of driver of the bus stood proved by irrefutable evidence which is on record. PLD 1995 Karachi 329 (Messrs Jehangir Services (Private) Limited and another v. Mst. Bibi Rukhsana Begum and 2 others) This was a case of rash and negligent driving of a trailer owned by appellant due to which two wheels of trailer parted from axles and hit the deceased. The defence was that the speed of the trailer was very slow but the road was badly damaged to such an extent that even light vehicles could not be driven easily. The defence, thus, was that accident was due to act of God. It was held that the party who claimed that any act was the 'act of God" has to prove that accident was act of God and that the wheels parted from trailer on account act of God. The aforesaid cases in view of the facts of this case do not apply and are of no help to the plaintiff's counsel. In the case in hand as discussed hereinabove, the factum of true cause of death of the patient was within the knowledge of the plaintiff, his doctor (Dr. Malik Ali Sheikh) and the doctors of his employers to whom the entire record of the patient was supplied. The next contention of the plaintiff's counsel that the death certificate is silent about the cause of death and meningitis is an after thought, has also no force because the record of the patient (Exh.5/1) at page 69 shows the diagnoses of meningitis by the consultant child specialist Dr. A.G. Billoo. Onward pages show the condition and treatment provided to the patient. From pages 69 to 86 of Exh.5/1, the true cause of death of the patient is quite evident. The contention of the plaintiff s counsel that the meningitis has no direct relation or consequence of dehydration or vomiting for which the patient was admitted in the hospital is also not correct. When the patient was admitted, the consultant child specialist diagnosed "D.I.C." which was noted by the said consultant in Exh.5/1. Further the said child specialist in para.3 of his affidavit‑in‑evidence stated "A diagnosis of several gastroenteritis, septicemia, D.I.C., dehydration and electrolic imbalance was made and confirmed by blood picture at the time of admission. This was not challenged by the plaintiff in cross‑examination. The said witness, Dr. Billoo, in cross‑examination clearly stated "I also noted DIC on the first day. It is correct that there was no mention of the word septicemia but D.I.C. means septicemia with D.I.C.". Considering the above evidence, it is not correct that patient was admitted only ' on account of dehydration and vomiting as alleged by the plaintiff's counsel. The notings contained in Exh.5/1 at the time of admission under the hand of defendant No.3 clearly mention that the patient's condition was very serious. The plaintiff has not given any detail as to how the patient succumbed to the maltreatment by the defendants Nos.l and

2. It is an admitted position that patient since the time of her admission in defendant No. l hospital remained under care and treatment of consultant child specialists. There is no evidence on record nor it has been pointed out by the plaintiff's counsel that there was any maltreatment by the defendants. The plaintiff's counsel has also not pointed out as to how the patient died on account of venesection, fasciotomy and amputation. With regard to gangrene it may be pointed out that the consultant child specialist Dr. A.B. Billoo D.W.3 at page 2 of the cross‑examination said" the dark patch was discovered about a couple of inches above the venesection side. The dark patch was gangrene." The consultant orthopedic surgeon Dr. S.M.A. Shah in para. 3 of his affidavit‑in‑evidence has said "Incidentally, few days ago a cut down was performed on the same patient but it was apparent that this minor surgical procedure was in no way related to the black patch of skin." This was not subjected to any cross‑examination on behalf of the plaintiff. The learned counsel for the plaintiff has placed reliance on the case reported in PLD 1989 Karachi page 269 (PIA v. Muhammad Ali and others) and argued that the employer is liable vicariously for the acts of his employees. There is no cavil with this proposition. The plaintiff in order to bring his case in line with the above proposition, had to prove negligence of the employee of the defendant No. l which he has miserably failed to prove in this case. Admittedly, the defendant No.3 was the R.M.O. of casualty department of the defendant No. l at the relevant time. He provided the emergency treatment to the patient and shifted her to the children ward, where Dr. Billoo and Dr. Shams Ansari, the two child specialists, started the treatment of the patient. It is an admitted position that after initial emergency treatment provided by defendant No.3, on 7‑1‑1984, the child/ patient remained under the treatment of child specialist. The plaintiff did not implead the said child specialist as party to the suit. The defendant No.3, in no way, was responsible while the patient remained under the treatment of Dr. Billoo and Dr. Shams Ansari. The defendant No.3 was, thus, not responsible for any alleged negligence or carelessness. The plaintiff has also not proved any act of negligence or carelessness on the part of Dr. Billoo arid Dr. Shah. The aforesaid doctors were admittedly not the employees of defendant No.

1. Mr. Abdul Matin, learned counsel for the defendants has submitted that the defendants Nos. l and 2 could only be liable/responsible if it could be proved that the defendant No.3, who at the relevant time was servant of defendants Nos. l and 2, acted negligently and carelessly in the treatment of the patient. Learned counsel further submitted that even if it be shown that the consultant child specialist or consultant surgeon acted negligently and carelessly in the performance of their duties, the defendants Nos. l and 2 cannot be held liable for their negligent acts. Learned counsel for the defendants cited the following cases:‑‑ Gold v. Essex County Council (1942) 2 KB

293. The facts were that the plaintiff aged 5 years was taken by her mother to Old Church County Hospital maintained by defendant County Council for treatment of warts on her face. She was seen by the visiting dermatologist Dr. Burrows who ordered treatment by one thousand units of grenz rays and sent the plaintiff to the radiology department which was incharge of radiolgist Dr.. Allen. The treatment was, however, given by a qualified and competent radiographer named Mead who was employed by the defendants under a contract of service. While the plaintiff was undergoing treatment, her face was covered with a lead‑lined rubber cloth which protected all but the affected parts of her face. As the warts did not yield to this treatment, Dr. Burrows ordered the number of units of grenz rays to be doubled. On this occasion, Mead was admittedly negligent in that he covered plaintiff's face only with a piece of lint as a result of which the plaintiff's face was permanently disfigured. At page 297 of the report it was held: "On the fact, I would have thought it is clear on principle that the defendants were liable to the plaintiff for the negligence of Mead." At page 298 of the report it was held: "The facts were consistent that the surgeon being the responsible party at any rate, the hospital authorities were not liable." At page 302 it was further held:‑‑ "So far as consultant physicians and surgeons are concerned, clearly the nature of their work and the relationship in which they stand to the defendants precludes the drawing of an inference that the defendants undertake responsibility of their negligent acts." Collins v. Hertfordshire County Council and another (1947) 1 KB

598. This was an action by the widow claiming damages against the County Council as the proprietor and manager of the hospital on the ground that the death of her husband was the result of their negligence and against the surgeon Mr. Allen Henderson Hunt, was operated on her husband owing to his failure to exercise reasonable care, injected into her husband as a local anesthetic which was in fact a lethal dose. It was alleged that the defendants was liable for the negligence of Elizibath Marry Knight, a resident of junior hospital surgeon being a student and for negligence of Allen Hendersen Hunt, a visiting surgeon. Miss Knight was employed as a whole time Resident Medical Officer. It may be pointed out here that at page 601 it has been observed:‑‑ "Of Mr. Hunt's appointment and services there was a similar form in which he was employed as that of a temmporarily part time person taking an appointment of an employer on the staff of the County Council. " At page 619 in the last paragraph it has been observed:‑‑ "On the whole, however, I think that; Mr. Hunt's position was one where, if the test to be applied is whether the authorities could in any way control how he was to perform his duties, they certainly could not." Further, at page 620 it was concluded:‑‑ "In this circumstance, which I think the hospital was vicariously responsible for Miss Knight's act of negligence or negligent, omission in the course of the performance of her duties, the same does not apply to Mr. Hunt." Cassady v. Ministry of Health (1951) 2 KB

343. The facts were that the plaintiff, a general labourer, was suffering from contraction of his 3rd and 4th fingers. He consulted his panel doctor Dr. Flanagan who diagnosed the condition as DUPUYTRN'S' contracture. The plaintiff was sent with a note to Walton Hospital for examination. The plaintiff was seen by Dr. Fahrani, the 3rd party in these proceedings. Dr. Fahrani was a whole time assistant medical officer of the Walton Hospital. Dr. Fahrani' confirmed the diagnosis of Dr. Flanagan and. recommended operation. The operation involved in the ordinary course, the hand being kept rigid in splint for about 8 to 14 days when the plaintiff's hand was finally released after about 14 days, the condition of all the four fingers was very bad, it was revealed not only were the two fingers which were operated upon almost completely stiff but trouble spread to the other two fingers. The result was that even after two manipulative operations, the ‑left hand became completely useless. At page 351 of the report it was held:‑‑ "On the facts as I have stated them I would have said that both Dr. Fahrani and Dr. Ronaldson had contract of service. They were employed like nurses as part of the permanent staff of the hospital. As a result, the hospital was held liable for their negligent." As far the consultant physician and surgeon at the same page it was held:‑‑ "I agree that if he is treated by some one who is visiting or consulting surgeon or physician he will be treated by some one who is not a servant of the hospital. " It has been held in the aforesaid cases that the hospital' was liable for the negligence of his employee, but the hospital was held not responsible for the consulting physicians and surgeons, who were held not the servants of the hospital. In the last case reported in PLD 1989 Karachi 269 (PIA v. Muhammad Ali and others), it has been observed that servant is an agent, works under the supervision and directions of the employer, whereas an independent contractor is one who is his own master, he is bound by the contract but not by his employer's order. .. In view of the principles laid down in the above reported cases, it has clearly been established that the defendants Nos.1 and 2 could be held vicariously liable if defendant No.3/was a wrong doer or had acted negligently in the performance of his duties but in this case it has already been observed by me that the defendant No. 3 was not the wrong doer and had not acted negligently in the performance of his duties. In view of the aforesaid reported cases, it has also been established that due to any negligence of the visiting consultants and surgeons the hospital could not be held liable for such negligence. However, in the present case the plaintiff has failed to prove any negligence even on the part of the visiting consultant and surgeon who were also not made party to the Suit. The plaintiff s counsel further argued that Dr. A.G. Billoo and Surgeon Muhammad Ali Shah had not appeared before Oath Commissioner for swearing the affidavits as such their affidavits‑in‑evidence were inadmissible in evidence. In my opinion, supposing that the aforesaid deponents had not appeared before the Oath Commissioner for taking Oath, but when they appeared for cross-examination and took Oath, were cross‑examined by the plaintiff's counsel, the irregularity, if there was any, in not taking Oath before the Oath Commissioner had stood cured and their deposition, thus, became valid and admissible. The plaintiff's counsel relied upon the case reported in 1990 CLC 703 (Master Muhammad Bashir v. Moinuddin) wherein a learned Single Judge of this Court observed:‑‑ "Non‑appearance of defendants before Oath Commissioner or before anybody for statement on Oath, .the affidavit cannot be relied upon as evidence." With great respect, I am unable to agree with the aforesaid observation. Further it appears that the attention of the learned Single Judge was not drawn to section 13 of the Oath Act, 1873 and to an earlier decision of this Court in the case of M/s Leather Goods International v. Mst Aisha Khatoon Sherwani (1986 CLC 333) wherein at page 335 Mr. Justice Saleem Akhtar (as his lordship then was) held:‑‑ "The learned counsel then contended that the affidavit was not sworn before the Commissioner and, therefore, the affidavit in evidence cannot be accepted in evidence. Mr. Aziz, the learned counsel has referred section 13 of the Oath Act which provides that the irregularity in swearing the affidavit is merely an irregularity which will not wipe out the entire evidence. Even if the affidavit is accepted from such technical irregularity, the submissions in cross‑examination can be taken into consideration. " In another case, reported in 1992 CLC page 1331 (Manzoor Ahmed v. Razia Khatoon and others), a learned Single Judge of this Court has observed:‑‑ "Omission to take Oath or make affirmation or any irregularity in its form. would not invalidate proceedings or render inadmissible any evidence whatsoever, in or in respect of which such omission or irregularity had taken place." In view of the above observations made in the above two reported cases, I do not agree with the submissions made by the plaintiff's counsel in this regard. The above discussion covers issues Nos.2, 3 and 4 and accordingly issue No.2 is decided in the negative holding that the plaintiff has failed to prove that the defendants acted negligently and carelessly in the treatment of plaintiff's daughter. Issue No.3 is also decided in the negative holding that the plaintiff has failed to prove that the operation of plaintiff's daughter was carelessly performed. Issue No.4 is decided in the affirmative holding that the plaintiff's daughter received the utmost care and the best possible treatment under the directions and instructions of child specialists. With regard to issues Nos.5 and 6, I hold that the plaintiff is not entitled to any relief claimed in the suit and thus the suit is dismissed with no order as to costs. A.A./M‑206/K Suit dismissed.