1. ' Instant suit commenced with the filing of application for permission to sue in forma paupers and on same being allowed was converted into a suit for damages and compensation filed by the plaintiff seeking judgment and decree in the sum of Rs,20,00,000 with interest at the rate of Rs,30% pended lite against the defendant.
2. ' Facts forming background to claim the relief may be given to appreciate the case of the plaintiff.
3. It is the case of the plaintiff that the plaintiffs' husband being employ of Pakistan Steel Mills Ltd., his family was entitled for treatment at Cardiac and General Hospital. Plaintiff being wife was in a family way got herself examined at the said hospital by the defendant. On 7-11-1988, she was admitted in the hospital and as per advice was operated upon for the delivery. It is the case of the plaintiff that soon after the caesarian delivery she felt acute pain in her abdomen. She was pacified on the pretext that such is normal in delivery cases. Plaintiff was discharged on 22-11-1988. But her condition worsen, she was again admitted in the hospital on 23-11-1988, and was examined by Dr. Shafqat Hamid, who issued special instructions to the defendant to take special care of the plaintiff but her ailment and cause of pain could not be diagnosed despite all teals in the hospital plaintiff was discharged from the hospital on 5-12-1988 but her complaint persisted. The defendant all time assured and pacified not to worry. On 14-1-1989, she got herself examined by one Dr. Khursheed Noorani, at National Hospital, and, was operated upon in the first week of February, 1989, a towel was found in her abdomen, which was left by the defendant while performing operation, causing sever pain and discomfort. It is the case of the plaintiff that huge amount was spent in hospitalization/medication and conveyance and plaintiff having suffered pain and agony for more than three months on account of the negligence, carelessness of the defendant for which she had made a consolidated claim for Rs,20,00,000 referred to above.
4. ' Written statement was filed by the defendant wherein the allegations were denied, it was stated that all efforts made for the normal delivery when failed, caesarian, was performed to make the delivery of baby possible. It is admitted that she was readmitted in hospital but for cardiac problem and she was discharged after being satisfied. It is denied that the alleged towel was left in the abdomen of the plaintiff by the defendant. It is also denied that the plaintiff spent any amount out of her own pocket. It was contended that in the normal course of delivery and abdominal operation the nursing staff is responsible to check swabs before and after the operation same are counted and removed carefully, similar practice was followed and no towel was left. Allegations of carelessness or negligence on the part of the defendant were denied. It was denied that any subsequent operation was performed or that any towel was recovered out of the pleading of the parties following issues were framed:--
(1) Whether the defendant was negligent in treating the plaintiff?
(2) Whether the plaintiff suffered any loss or damages due to negligence of the defendant?
(2) What should the decree be?
5. ' It is pertinent to point out that plaintiff who examined herself and produced documents in support of her claim and also examined Prof. M.A. Noorani, in support of her claim whereas the defendant despite several opportunities given chose not to appear or adduce any evidence.
6. ' Adverting to the merits of the case issue wise.
7. ' Issue No,
1. Burden to prove this issue was on the plaintiff. It was the case of the plaintiff that while caesarian was performed upon her by the defendant, a towel was left in her abdomen which remained there almost over three months until it was removed by re-operating. The plaintiff not only supported her assertion given in the plaint but also produced Prof. Dr. M.A. Noorani who recovered the towel after operating upon her. Said towel was also produced as Exh.6/1. Evidence of Dr. Noorani as far as the issue of negligence is concerned, is relevant which is reproduced in extenso:-- ' Examination-in-chief ."The towel while it was inside the stomach had made a big dent in the bowel. The towel was removed and the hole/dent was closed. Due to the presence of this hole there could have been leakage in the intestine from where the hole was and general infection could result which can be very serious and can even cause death of the patient.
8. ' Cross examination.
9. ' In my view the towel has been lying there for about three months or so, it was certainly not a fresh towel she the patient recovered after the removal of the towel. I do not know whether she came to us thereafter or not because it was ten years ago. We are concerned with the life of the person being operated but we are equally concerned with the swabs and instruments which we used for operation so that this may not be left inside the body it is true that paramedical staff is responsible for things like swa bs but over all, responsibility remains with the Surgeon in my view if swabs towel had not been removed, she would have died. As to the assessment of damages. I cannot say anything about that. After removal of the swab she was all right."
10. ' As against this evidence, defendant failed to appear in witness-box, nor she produced any evidence to the contrary. Learned counsel for the plaintiff submitted that the negligence is established and referred to the case of Achutrao Harbhan Khodwa and others v. State of Maharashtra and others AIR 1996 SC 2377 in support of her contentions that the defendant was negligent in performance of her duty, is liable for damages. The reliance was also placed on the case of Kaneez Begum v. KESC 2001 CLC 875 wherein a case of fatal accident, a boy of 11 years of age died being electrocuted, it was held that the defendant (KESC) under law were required to maintain electrical system, were negligent in performance of their duty to maintain such electrical installation resulting in such accident, the suit was decreed.
11. ' As against this learned counsel for the defendant contended that the defendant is not liable for any consequence, as other operation theater staffs are associated with Surgeon when any operation is performed. It was contended that the defendant had removed all the swabs and the nurse Incharge properly counted each of such swabs, according to him, it is the nursing staff that is responsible to count the swa b and if any is left out, it is concerned nursing staff who is responsible and liable for the same. He relied upon decision recorded in Mahon v. Osborne Kings' Bench Division 1993 page 14 in support of his contention that the task of counting swabs is of attending Paramedic Staff, he emphasized that the plaintiff is not directly liable and it is the vicarious liability of the hospital and since hospital and Paramedic staff are not made a party, therefore, no direct liability could be imposed on the defendant and suit is bad for non-joinder. He also placed reliance on another case from King's Bench Division 1937, page 494 Mooris v. Winsbury While.
12. ' In the instant case, it has come on record that through the evidence of Dr. Noorani, that he had recovered and removed the towel after operation upon the plaintiff. It was also stated by him that surgeon are equally concerned, that the swabs and instruments which they used for operation so that they may not be left inside the body. He further stated that over all responsibility remains with the surgeon.
13. ' Defendant though in written statement had taken specified stand that the responsibility for counting the swa bs and instruments is upon the Operation Theater Staff attempted to absolve herself of any responsibility but the facts remains no evidence was led by the defendant in support of her contention and she chose, not to step into witness-box.
14. ' In the case of Abdul Qadir v. S.K. Abbas Hussain PLD 1997 Kar. 566 in a suit for recovery of general and special damages filed by the plaintiff, who suffered 'compound fracture mutilation of right thigh and knee was operated upon twice, whilst considering liability of a tort feaser. Mr. Justice Rana Bhagwan Das (since elevated to Supreme Court) in a well-considered judgment after examining case-law on the subject held at page 576:-- "The liability arises where there is a duty to take care and failure has taken place, which has caused damage. Such duty arise only in respect of those persons whom one can reasonably anticipate to be affected by such wrongful act. Indeed a person is entitled to claim damages for mental stress, nervous shock when it is natural and immediate result of the offending act complained of. The wrongful act should be probable cause for such suffering which in such circumstances may be suffered by an ordinary person. Liability of a defendant is co-related to the duty of care he owes to the victim in the circumstances of a case."
15. ' A professional like a doctor and Surgeon owes duty to their patient to exercise all due care, take necessary precaution, give proper attention while extending any advise, treatment or when operating upon. In case of negligence generally Courts are very slow in attributing negligence on the part of professionals like doctor and surgeon in performance of their regular duties, general presumption is attracted that they have performed their duties to the best of their abilities and with due care and caution, such presumption are indeed rebuttable, if it is established through cogent evidence that a doctor or a surgeon failed to take necessary precaution, due care and attention or acted carelessly and negligently, then in such cases action in tort would be maintainable.
16. In the instant case the very fact that towel was left inside the abdomen of the plaintiff by the defendant No,1 was recovered/removed by another surgeon who appeared in the witness-box and testified such facts, is a circumstance which speaks for itself and the doctrine res ips loqitur (facts speaks for themselves) will be attracted. As far as the contentions of the learned counsel for the defendant that it was the duty of the Paramedic Staff posted, while performing operation, to remove such swa bs as was held in the case of Mohan (supra) where a patient died on account of swa b which was left by the surgeon in his body. The facts of the case are distinguishable inasmuch as in said case, the defendant was able to discharge the onus on him to prove that it was not his duty or responsibility to remove swa b, whereas, in this case the defence plea is unsupported.
17. Defendant despite opportunity failed to appear or adduce any evidence in support of her plea raised in written statement. A defence plea based on factual aspect, howsoever, plausible is of no significance and value, without supportive and corroborative evidence.
18. ' As regard objection of the learned counsel for the defendant that it is the vicarious liability of the hospital or the nursing staff and the defendant is not personally liable. Vicarious liability under tort means, financial liability a person is made to suffer or bear for the actionable wrong or conduct of another based on nature of, either fiduciary or contractual relationship between the two. For example liability of an employer, master, principal, insurer or guardian for the act/conduct of his employee, agent, insured or ward respectively. Reply to such objection cannot be expressed better than quoting Mr. Justice Rana Bhagwan Das in case of Abdul Qadir at page 573:-- "It is elementary principle of law that a person is liable for his own acts of omission and commission and nobody can be penalized for the acts of another unless committed as agent or in exercise of authority conferred by the principal upon an agent or by a master on his servant."
19. Wrongdoer cannot seek refuge behind the doctrine of vicarious liability. It is the victim or those affected by the injury who can claim compensation from the Principal, Master or Insurance Company as the case may be who may by virtue of such relationship with wrongdoer may be considered as joint tortfeasor. Liability of wrongdoer is co-extensive with that of his principal, master or indemnifier. Even otherwise there is nothing on record to suggest whether the defendant was working under the employment of Hospital or independently or on contract, in absence of such necessary detail. Vicarious liability cannot be foisted on a third person. Even otherwise, if there are more than one tortfeasor, all tortfeasors are jointly and severally liable It is prerogative of the plaintiff to proceed against the principal wrongdoer alone or join other tortfeasor as well. If the defendant considered that hospital or the nursing staff were responsible or liable to make good the loss or damage she was exposed to, there was no impediment in her way to have joined them as a party by invoking Order 1, Rule 10, C.P.C., now it is too late in the day to extend such an arguments.
20. Defendant may, subject to limitation, recover such amount from the hospital or other person who may, if at all, be vicariously liable for her act of omission and commission. Evidence of plaintiff has gone unrebutted. Under the circumstances, the issue is decided in affirmative. Having decided the first issue in affirmative, I will now advert to the second issue relating to loss and damages suffered by the plaintiff.
21. 'In an action for damages in tort, a person injured, physically or otherwise, is entitled to be compensated both for pecuniary loss, as well as for non-pecuniary loss. (one may refer to Nazar Ali Siddiqui v. Pakistan 1986 CLC 1370 and case of Abdul Qadir (supra) pecuniary G losses, are firstly relatable to the loss of earning of the injured during period of such injury or even as an aftermath of such injury. Secondly, injured is also entitled for the reimbursement of all the expenses in actual which he incurred in treatment or curing such injury including medical/hospitalization expenses etc. Non-pecuniary losses may be classified as (a) pain and suffering, (b) loss of amenities of life and (c) loss of expectation of life.
22. In a suit for damages, burden is on the plaintiff to plead and establish such suffering and damages. In terms of Article 125 of Qanun-e-Shahadat Order, 1984, any fact which will enable the Court to determine the amount of damages, which ought to be awarded is relevant and as laid down in Order VI, Rule 2, C.P.C, it is necessary for the plaintiff who is interested to recover damages, on account of any injury suffered at the hands of a wrongdoer, to plead with clarity all such facts upon which he relies in support of his claim for damages and to quantify the amount claimed under each head. Mere assertion claiming inflated amount without corroborating evidence is of no avail to the plaintiff.
23. ' Examining the claim of the plaintiff in the light of above discussion. Plaintiff in the instant case has claimed Rs,20 lacs as consolidated damages both for pecuniary as well as non-pecuniary loss, though the plaintiff had pleaded and established the negligence on the part of defendant. It is also established that she had undergone second operation, whereby towel left by the defendant, was removed.
24. ' Under the head of pecuniary damages, the plaintiff was required to prove loss of earning during period of her injury and recovery. Nothing was brought on record to show that she was an earning member, or suffered financially on account of her injury. The expenses both for the first and second operation were borne by Pakistan Steel Mills, the employer of her husband, whose family in terms of his employment contract, is entitled for such treatment. Plaintiff who is housewife and non-working woman has not led any evidence, either to show that, she suffered any pecuniary loss on account of her injury nor it was shown that on account of her injury or incapacitation during period of her injury or ailment any other family member while attending her suffered financially. Under the circumstances, she cannot claim or be awarded any compensation or damages on such count, as none were established to have been incurred or sustained by her or her husband.
25. ' Regarding reimbursement of medical/hospitalization and treatment expenses. It had come on record that same were borne by the Pakistan Steel Mills Ltd. In cases where injured is compensated/ reimbursed for such treatment by a third person like employer, as in this case, or by insurance- company, as the case may be, then the injured cannot be allowed to claim any reimbursement from the wrongdoer on such count. It is only the injured who has suffered pecuniary loss personally is entitled to claim reimbursement from the wrongdoer. Pecuniary compensation is awarded to reimburse the actual expenses incurred and not to make profit out of injury. In this case, it is not the case of the plaintiff that Pakistan Steel is deducting or claiming any such amount from the husband of the plaintiff. Therefore, in my opinion, plaintiff having failed to prove that she incurred such expenses personally or even by her husband, she is not entitled to claim any amount of compensation or damages on account of medical/ hospitalization etc. ' Now adverting to yet more difficult task of assessing non-pecuniary losses like the one identified earlier. Non-pecuniary losses are by nature discretionary. It is not possible to lay down any formula or yardstick by which it can be measured or translated in terms of money. However, attending circumstances, age, sex, nature, intensity, duration, resulting pain and possibility of total or partial recovery, aggravating or mitigating condition, effect on over all quality of life an injured person may lead, are some of the relevant consideration for determining fair and reasonable compensation for such loss or suffering. Discretion to award such compensation must be exercised judicially keeping in view all the attending circumstances varying from case to case as damages under such head in tort are consolatory and compensatory not punitive.
26. ' Even similar injury suffered by two different persons may yield different financial implication for instance if Index Finger of a Stenographer or a person engaged in hand embroidery vocation is lost his livelihood or earning capacity would be largely effected as against a machine operator whose loss of index finger may not at all effect his earning capacity or in case of injury inflicted on the face of a Model or Public Performer may seriously effect his carrier, as against, an ordinary person or in case where mobility and vitality of a person living in a posh locality, is effected, measure of damages for similar disadvantage to a person living in modest or low line area may be different depending on expenses ox cost that may be incurred in mitigating and consoling such discomfort by loss of mobility and vitality. By this it does not mean that the pain or suffering of one class of person is less or inferior to the other. As stated above, the award of compensation is remedial and consolatory in order to mitigate the suffering and pain of the injured, it is not inflicted as a punitive measure on the wrongdoer. As cost for mitigating such suffering and pain may vary from person to person, vocation to vocation and place to place depending on other attending circumstances as well in each case.
27. ' In the instant case, the suffering of the plaintiff are detailed in paras. 25 to 27 of the plaint, which reads as follows:-- "25. That on account of the careless operation by the defendant the plaintiff has become a constant patient, unable to do her normal domestic work and keep or look after the minors who are now totally neglected as the plaintiff on account of complications is unable to provide them physically help and affection.
28. ' That the plaintiff have suffered and is suffering all these hardships and miseries on account of the careless and callous operation conducted by the defendant. The plaintiff shall never regain her normal health.
27. The plaintiff has suffered from physical disabilities on account of deliberate, carelessness by the defendant. She is suffering permanent mental torture, as she feels that the life for her is not worth living."
29. ' Such statement was reiterated in paras. 26 to 28 of her affidavit-in-evidence.
30. ' Plaintiff was subjected to lengthy cross-examination, she was consistent in her stand.
31. ' There is no denial that the plaintiff suffered on account of negligence of defendant and had undergone second operation due to negligence of the defendant. Plaintiff was first operated upon by the defendant on 11-11-1988 when the towel was also left in her abdomen which gave rise to suffering and pain to the plaintiff. She was discharged on 22-11-1988 but was admitted again on 23-11-1986 she was discharged on 5-12-1988 and remained under treatment of defendant upto 21- 12-1988. When her condition did not improve she consulted other doctors and on 2nd February, 1989 she was admitted in Karachi National Hospital (Exh.P.13) and operated upon, and was discharged on 18-2-1988. It is undeniable fact that she suffered agony and pain during all this period from 11-11-1988 to 18-2-1988 i,e, for over almost 4 months and is still suffering as aftermath of such injury. In my humble estimation, though there cannot be any standard of calculating in terms of money the pain and suffering the plaintiff had undergone during this period. I deem Rs,10,000 per month for this period of 4 months as reasonable consolatory compensation.
32. ' As far as compensation for the pain and suffering on account of deteriorating health and diminished quality of life as an aftermath and consequence of injury is concerned. The social status and personal circumstances of the plaintiff as detailed above are to be kept in mind. Her husband is Supervisor in Pakistan Steel having a modest living, as a consequence of her injury, she is unable to do normal domestic work and look after her family with some energy and vigor, under such circumstances, in my opinion, she is entitled for such compensation as may provide certain degree of consolation to mitigate her suffering or handicap for impaired health and vitality.
33. ' A modest domestic helper/servant who can attend routine domestic course like dish/cloth washing, cooking etc. In an area like Shah Faisal Colony where the plaintiff resides will cost not less than 2,000 per month. Accordingly, considering that the plaintiff is entitled to such compensation from the date of filing of suit i,e, 31-8-1989 till the date of decree and a further sum of Rs,2,00,000 from the date of decree, which may be invested by the plaintiff in some profit bearing scheme to have a permanent source of income for the recurring expenses for such domestic help in order to mitigate and console future suffering. Defendant is directed to deposit the above amount within one month from the date of decree with 14% equalizer paramount per annum to be added and calculated after 30 days from the date of decree till realization.
34. ' Issue No,3,, In view of my finding on Issue No,2, I decree the suit in 10 terms set out above.