ASAFO vs. CATHOLIC HOSPITAL OF APAM [1973] 1 GLR 282

CASE REFERRED TO

Brooks Wharf and Bull Wharf Ltd. v. Goodman Brothers [1937] 1 K.B. 534; [1936] 3 All E.R. 696; 106 L.J.K.B. 437; 156 L.T. 4; 53 T.L.R. 126; 80 S.J. 991; 42 Com. Cas. 99; 56 L.L. Rep. 61, C.A.

NATURE OF PROCEEDINGS

ACTION by the plaintiff against the defendants for damages for negligence for the disappearance of his child from the defendants’ hospital. The facts are fully stated in the judgment.

COUNSEL

O. K. Sampson for the plaintiff.

J. B. Short for the defendants.

JUDGMENT OF EDWARD WIREDU J.

By his writ of summons issued out of this court on 17 February 1971, the plaintiff claims against the defendant as follows:

“The plaintiff’s claim against the defendant is for the sum of two thousand new cedis (N¢2,000.00) being general damages as a result of the negligence of the defendants which negligence caused the loss of the plaintiff’s child whilst in the care of the defendants in December 1969”.

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The brief facts of this case are that some time in December 1969 the plaintiff’s six-week-old daughter fell sick and was taken to the defendant’s hospital for treatment where the child was admitted as an in-patient. Because of the age of the child it became necessary for her mother, the plaintiff’s first witness, to sleep at the hospital in order to breast feed her. The evidence shows that the child was on admission for about a period of five weeks. Whilst at the hospital the child was kept in the special ward whilst the plaintiff’s first witness had to wait at the hospital kitchen with the mothers of the other children who had been admitted for treatment at the hospital. The evidence further shows that the plaintiff’s daughter was fed three times a day between the hours of 5 a.m. and 6 p.m. and that the feeding was done by the plaintiff’s first witness at the invitation of the hospital staff on duty when it was time to feed the child under the staff’s instructions and supervision.

The events which seemed to have sparked off the present litigation are set out in paragraphs (4), (5) and (6) of the statement of claim filed in support of the plaintiff’s writ and in paragraphs (1) to (8) of the statement of defence. Paragraphs (1) to (8) of the statement of defence are as follows:

“(1) On 16 December 1969, the plaintiff’s child accompanied by the mother and grandmother was brought to the defendant’s hospital.

At the date of admission the child Ekua Asafoakwaa was admitted into the special ward for babies as she was then only two weeks old.

It is not the practice of the defendants to accept babies of that age alone and in accordance with practice the mother of the child stayed with her child from the date of admission to the day when she was reported missing.

Throughout the period of the child’s stay at the hospital the mother fed her from the breast at three-hour intervals in common with other inmates.

he nurse on duty, Philomena Andoh, witnessed the mother fed Ekua at midnight on the night of 13 to 14 January, 1970, and later at 3 a.m. on 14 January 1970.

Later at about 5.30 a.m. whilst administering medicines to the children, Nurse Andoh noticed that Ekua was missing from her cot. She immediately went to the kitchen where the mother was and asked her whether the baby was with her. And when she replied in the negative she reported the matter to the matron who later reported the matter to the police.

(7) The police immediately arrived at the hospital and carried out their investigations.

The defendants say that the averments contained in the statement of claim and in particular paragraph (4) are untrue and misleading and flatly denied”.

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The plaintiff by paragraph (7) of his statement of claim pleaded that the facts of this case fall within the principle of res ipsa loquitur and relies on this principle to establish his claim against the defendants. Issue was joined on this by paragraph (9) of the statement of defence and on 25 June 1971, the following issues were agreed to and set down for trial:

“(a) Whether or not the safety, medical care and attention of the missing child was the responsibility of the defendants.

(b) Whether or not the disappearance of the said child from the hospital was caused by negligence of the defendants.

(c) Whether or not the plaintiff’s plea of res ipsa loquitur as against the defendants is tenable.

(d) Any other issues arising on the pleadings.”

At the trial the plaintiff himself gave evidence and called his wife as his only witness. The defence called no evidence and rested their case on the evidence produced by and on behalf of the plaintiff. The gist of the plaintiff’s evidence shows that whilst the child was on admission at the hospital her custody and control were vested in the hospital authorities and that neither himself nor his wife who on the instructions of the hospital authorities had to stay at the precincts of the hospital with the sole purpose of breast feeding her as and when required had access to the child except on the invitation of the hospital authorities. It was therefore the contention of the plaintiff that the defendants were answerable for the loss of the child and he invited me to so hold.

On the facts before me, there is no dispute that when the plaintiff’s sick daughter was admitted to the defendants’ hospital, the hospital authorities assumed the custody and control of her. The defendants became by law duty bound to ensure the safe custody of her and to deliver her back to the plaintiff whether dead or alive. These duties are imposed on the defendants by their accepting the child into their custody for treatment. A breach therefore of any of these duties would justify an action by the parents of the child, against the defendants provided that they can prove negligence and subsequent loss arising out of it. On the facts of the instant case it is apparently clear that the plaintiff’s daughter got missing whilst under the custody and control of the hospital authorities.

The question now is do the present facts justify the plaintiff’s reliance on the principle of res ipsa loquitur in establishing his claim against the defendants? On this issue I understand the plaintiff’s contention to be that since the custody and control of the child was with the defendants at the material time when she was found to be missing only the employees of the defendant hospital who were with the child at the special ward could tell about the circumstances under which the child disappeared from her cot at a time when she was supposed to be sleeping in it. The circumstances under which the child got missing according to the plaintiff’s counsel were a matter within the exclusive knowledge of the defendants’ staff on duty at the relevant time. Learned counsel for the

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defendants took issue with the plaintiff’s reliance on the principle of res ipsa loquitur and submitted that in the absence of any evidence to show that the administrative set up of the defendants’ hospital was found wanting in their security system compared with what exists elsewhere in other hospitals the plaintiff’s action should be dismissed.

It is trite law that where an event occurs such as would not in the ordinary course of things have occurred without negligence then, conditions exist for the application of res ipsa loquitur. Among the instances of such occurrence is the theft of goods from a bailee’s warehouse: see Brooks Wharf and Bull Wharf Ltd. v. Goodman Brothers [1937] 1 K.B. 534 at pp. 539-540, C.A. The facts of this case can be likened to a case of bailment. The only difference is that a child cannot strictly be described as a chattel which can be bailed, but the principle I am trying to draw is the same. In matters of care, attention and control of movements a child of six weeks old is no different from an inanimate object which is incapable of independent movement but depends for such support on whoever have its custody. Where therefore the child gets missing whilst under someone’s custody conditions exist which require an explanation from whoever had its custody, and on this score I am of the view that the plaintiff’s contention that the facts of the present case call for an explanation from the defendant is the right view and that the reliance he places on res ipsa loquitur to establish his claim is justifiable. In my judgment I find res ipsa loquitur applicable to the facts of the present case, and in the absence of any evidence from the defence to show how the child disappeared or to show that the disappearance was consistent with due diligence on their part or that there was no lack of reasonable care on the part of the hospital staff in their custody of the child, I hold the defence liable to the plaintiff in damages.

The next question is what damages is the plaintiff entitled to? This of course must depend on the loss occasioned to him by the negligence of the defendants. Like actions founded on bailments the plaintiff would have been entitled to an order for the delivery of his child or in the alternative its value. To place a monetary value on a human being is against public policy. I think in the circumstances of this case what the plaintiff should be entitled to should have bearing on what he was likely to have gained had the child not disappeared due to the negligent act of the defendants’ agents. This must depend on a number of factors such as the age of the child and other similar factors and perhaps the injury to the feelings of the plaintiff. Most of the matters for consideration are matters of conjecture and speculation incapable of any arithmetical calculation and where the need has arisen for the courts to award damages for even loss of parts of human body as a result of negligence they have approached the same by adopting the method of what is fair and just to award having regard to the particular facts of each individual case. Assessment of such awards as are reasonable in the circumstances

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of a particular case have never been done in vacuum. I have no precedent to guide me in the present task of trying to find how much is due to compensate the plaintiff for the loss of his daughter through the negligence of the defendants but that is no reason for me to refrain from giving the plaintiff what I consider fair and just for his loss. Doing the best that I can under the present circumstances, I think an award of ¢650.00 is reasonable and I enter judgement in favour of the plaintiff in that sum. Costs of ¢105.00 are awarded in favour of the plaintiff against the defendants.

DECISION Judgment for the plaintiff with costs.

S.E.K.