Negligence: Res Ipsa Loquitur III

Ground Four
The learned Justices of the Court of Appeal erred in law when they abandoned the appellants amended/ additional grounds of appeal and instead relied on the original grounds in determining the appeal and this occasioned a miscarriage of justice.
Ground Five
The learned Justices of the Court of Appeal erred in law when they failed to differentiate between the 2nd appellant and the Plateau State Medical Board and wrongly held that it was the 2nd appellant who referred the respondent to Jos University Teaching Hospital and this occasioned a miscarriage of justice.”
This appeal came up to be heard on the 9th October, 2012. E. J. Pwajok, Hon. Attorney General of Plateau state, with him F. B. Lotben (Mrs.) and N. A. Garba (Mrs.), adopted and relied on the appellants’ brief of argument dated l S’” October, 2004 and urged this court to allow the appeal, set aside the judgment of the lower court and also of the trial High Court and dismiss the case of the respondent Chike Onyemenam with him Phillips Odungu appearing as counsel for the respondent, adopted and relied on the respondent’s brief of the argument dated the 181h October, 2010. Counsel went on to say that the burden of proof is not on the plaintiff when the principle of “res ipsa loquitur” is concerned and the respondent nevertheless went on to lead evidence when there was no basis for that. He urged this court to dismiss the appeal. Appellants have distilled two issues in their brief of argument.
These are:-
i Whether the learned Justices of the Court of Appeal were right in coming to the conclusion that “res ipsa loquitur” applied in this case when it was established that the learned trial Judge did not comply with section 57 of the Evidence Act or in the alternative what is the remedy available to an appellant whose appeal succeeds in part.
ii Whether the Justices of the Court of Appeal were right in rearranging the issues and determining the appeal based on the appellants’ original rather than the amended/ additional grounds. These issues are contained at pages 2 and 3 of the appellants’ brief of argument.
For the respondent, the following issues were formulated at page 6 of the respondent’s brief of argument.
(i) Whether the finding of the learned justices of the Court of Appeal that the learned trial Judge did not comply with section 57 of the Evidence Act in admitting and relying on exhibits “C” and “E” in hisjudgment rendered the doctrine of “res ipsa loquitur” inapplicable to the respondent’s case, thus rendering same liable to be dismissed.
(ii) Whether the re-arrangement of the Issues for determination formulated by the appellants by the learned Justices of the Court of Appeal based on the appellants’ original grounds of appeal instead of the amended grounds of appeal has occasioned any miscarriage of justice on the appellants necessitating a reversal of the judgment of the Court of Appeal.
I find the issues formulated by the respondent in his brief of argument more apt and straightforward in the determination of this al and I intend and have adopted same in the consideration determination of this appeal. Issue 1 as formulated by the pendent reads as follows, “whether the finding of the learned of the Court of Appeal that the learned trial Judge did not  with section 57 of the Evidence Act in admitting and relying exhibits “C” and “E” in his judgment rendered the doctrine of s ipsa loquitur” inapplicable to the respondent’s case, thus rendering same liable to be dismissed.” This issue is by no means confusing.
The learned Justices of the Court of Appeal had agreed with the appellants’ contention that section 57 of the Evidence Act not having been complied with in the sense that whichever medical expert who made exhibits “C” and “E” ought to have been called to give evidence on those exhibits and was not so called, exhibits “C“and “E” were of no evidential value. The appeal was allowed in part on that basis. Does the mere rejection of exhibits “C” and E” as being of no evidential value render the doctrine of “res ipsa loquitur” inapplicable to the respondent’s case so as to have his case dismissed? That appears to be the question that this issue seeks to answer. Put even more simply, now that exhibits “C” and “E” have been discredited and discarded, do the facts and circumstances of the respondent’s case not still disclose a case of “res ipsa loquitur” in law? In Royal Ade Nigeria Ltd. & Anor. v. National Oil and Chemical Marketing Company Pic (2004) 8 NWLR (Pt. 874) 206 at 224, paras. B-D, (2004) 18 NSCQR 334, the Supreme Court stated the principle under which the doctrine of “res ipsa loquitur” becomes operative as follows:
1. Proof of the happening of an unexplained occurrence.
2. The occurrence must be one which would not have happened in the ordinary course of things without negligence on the part of somebody other than the plaintiff.
3. The circumstances must point to the negligence in question being that of the defendant rather than that of any other person.
Simply put the doctrine means the thing speaks for itself. In Barkway v. South Wales Transport Co. Ltd. (1950) 1 ALL ER 392 the purport of the doctrine was to shift the onus on the defendant to disprove negligence. In that case, the appellant’s husband had been killed while travelling on the respondent’s bus which accident was as a result of a burst tyre. The burst tyre was as a result of an impact fracture due to heavy blows on the outside of the tyre leading to the disintegration of the inner parts. Although such a fracture might occur without leaving any visible external mark, it was contended that a competent driver would be able to recognize the difference between a blow heavy enough to endanger the strength of the tyre and a lesser blow. The respondent’s witnesses had argued that they had put in place a system of tyre inspection which was satisfactory but evidence showed that the respondent had not taken all the steps they should have taken to protect passengers because they had not instructed their drivers to report heavy blows to tyres likely to cause impact fractures.
See also Walsh v. Holst & Co. Ltd (1958) 1 WLR 800; Woods v. Duncan (1946) AC 401; Odebunmi & Ors v. Abdullahi (1997) 2 NWLR (Pt. 489) page 526 at 535 – 536; Polycarp Ojogbue v. Nnubia (1972) 1 All NLR (Pt. 2) 226 at 232.
These cases illustrate the working of the principle of res ipsa loquitur. The presumption of negligence that res ipsa loquitur imposes on a defendant is rebuttable. It is thus for the defendant to show that he was not negligent. Learned counsel for the appellants has submitted, relying heavily on the case of Strabag Construction (Nig.) Ltd. v. Ogarekpe (1991) 1 NWLR (Pt. 170) 733 at 748 that where a case is open to possibilities, res ipsa loquitur does not apply. That may be a correct statement of the law, but is the present case open to possibilities? Let us at this stage examine the state of pleadings at the trial High Court.
The present respondent, then plaintiff, averred that sometime in August, 1990, he reported himself to the appellants, then defendant’s, hospital for treatment having taken ill with pneumonia and after the administration of drugs on him he lost his hearing senses, due to the negligence of the appellants. The appellants stated in their joint statement of defence that they would lead evidence to show that they were not negligent and that at the trial they would lead evidence in proof of the fact that the respondent’s deafness was as result of other causes.
The appellants also averred that they would lead evidence to show that the treatment for pneumonia could have side effects. The appellants never led any evidence at all at the trial. What is one to make out of a situation in which as the respondent averred in paragraph 5 of his statement of claim and affidavit evidence he was an able police officer posted to ‘B’ Division Bukuru Police Command of Plateau State only to leave the appellants’ hospital 100% deaf after treatment? In Russel v. L & S W RLY (1908) 24 TLR 548 at 551, Kennedy LJ. properly expounded the term “Res ipsa loquitur” thus.
“The meaning as, I understand, of that phrase … , is this, that there is, in the circumstances of the particular case, some evidence which viewed not as a matter of conjecture, but of reasonable argument, makes it more probable that there was some negligence, upon the facts as shown and disputed, than that occurrence took place without negligence.
The res speaks because the facts stand unexplained, and therefore the natural and reasonable, not conjectural, inference from the facts shows that what has happened is reasonably to be attributed to some act of negligence on the part of somebody, … Res ipsa loquitur does not mean, as I understand it, that merely because at the end of ajourney a horse is found hurt, or somebody is hurt in the streets, the mere fact that he is hurt implied negligence. That is absurd. It means that the circumstances are, so to speak, eloquent of the negligence of somebody who brought about the state of things complained of.”
Belgore JSC lent his voice on the requisites of the maxim “res ipsa loquitur” when in Odebunmi & Ors v. Abdullahi (1997) 2 NWLR (Pt. 489) 526 at 535 he said as follows, “where a thing is shown to be under the management of the defendant or his servants and an accident occurs in the process, and that accident is such as does not occur in the ordinary course of things if those who are thus in the management exercise proper care or diligence, in the absence of any explanation by those in the afore-mentioned management as to how the accident happened, the accident is presumed to occur due to lack of care. Thus negligence is presumed in such cases; for in such cases negligence is inferred to have resulted from the want of care by the persons in the management of their agents or servants. The maxim res ipsa loquitur means “things speak for themselves.” The above cited two cases amply illustrate what took place in the present case now before us on further appeal. What concl usion can one reasonably draw from a case in which a man who is hale and hearty but for a complaint that he has pneumonia and so proceeds to a hospital to have that ailment treated but comes out of the said hospital with a completely different and worse ailment after taking  some drugs administered by the hospital’s personnel? The scenario is worse when no attempt is made by the hospital authorities to explain its own side of the story after promising to do so. The respondent had stated in his affidavit evidence that the appellants were negligent. The appellants led no evidence whatsoever of their own to controvert those facts as stated by the respondent. There is a plethora of cases to the effect that uncontroverted facts contained in an affidavit are taken as true and only minimal proof is required of such evidence. See Alagbe v. Abimbola (1978) 2 SC 39 at 40; Cappa and D’ Alberto Ltd. v. Akintilo (2003) 9 NWLR (Pt. 824) 49 at 71. It will therefore be seen that “res ipsa loquitur” can succeed irrespective of the rejection by the Court of Appeal of exhibits “C”  and “E”. Mention should also be made of exhibit “8” – minutes of the appellants’ Medical Consultants/Specialist’s Report which established that the patient (respondent) had, “a post-febrile deafness after some injections at Plateau Hospital (2nd appellant)” were administered on him, for the treatment of pneumonia on the 22nd August, 1990. Respondent was recommended for an alternative job with lesser communications while efforts were made at treatment to improve his condition. After appellants had recommended him to Dr. Isichei for further check up, the same appellants wrote to his employers – exhibits “D” that he be retired from service. It can therefore be seen that the duty of care which the appellants had to the respondent was breached and the appellants were negligent in the proper management of the health needs of the respondent. See Oyidiobu v. Okechukwu (1972) 5 SC 191; M.J. Evans v. S.A. Bakare (1973) 3 SC 77. Thus even on the basis of the pleadings, the evidence led by the respondent and lack of same by the appellants having chickened out of an opportunity to state their own position by abandoning their statement of defence and leading no evidence at all and the sheer force of the other exhibits notably “8” and “D”, exhibits “C” and “E” having been rejected, the appellants were properly found liable in negligence and res ipsa loquitur applied and both the trial High Court and the Court of Appeal properly so held that res ipsa loquitur applied. Issue 1 is therefore resolved in favour of the respondent against the appellants.