CIV/T/292/2001

IN THE
HIGH COURT OF LESOTHO

In the matter between:

‘MAMMUTSOE NTESO Plaintiff

and

THE SUPERINTENDENT – QUEEN
1^st
Defendant

ELIZABETH HOSPITAL

MINISTRY OF HEALTH 2^nd
Defendant

ATTORNEY GENERAL 3^rd
Defendant

JUDGMENT

Delivered
by the Hon. Mrs Justice A. M. Hlajoane on 24^th November,
2008.

Plaintiff in this case
instituted action against the defendants claiming damages in the
amount of M800,000.00 made up as follows:-

(a) M300,000.00 for loss of
amenities in the nature of loss of a leg.

(b) M400,000.00 for pain and
suffering.

(c) M100,000.00 for
disfigurement.

The claim as contained in the
summons is that, Plaintiff and the Defendant on or about the 17^th
May, 1999 entered into an oral or verbal agreement in terms of which
the 1^st
Defendant undertook to perform surgery on Plaintiff’s leg. Further
that it was an implied term of that agreement that the Defendant

would perform the surgery with such professional skill as is
reasonable for a specialist in that field. It is also the
Plaintiff’s
case as contained in the summons that despite the
agreement, 1^st
Defendant carried out the surgery negligently in one or more of the
following aspects:-

misdiagnosis

(i) failure to take injury
suffered by the Plaintiff seriously despite an expert advice from a
fellow qualified practitioner.

(ii) Inflicting serious bodily
harm along the sides of Plaintiff’s leg.

The onus is on the Plaintiff to
establish that a reasonable person in the position of the Defendant,

(i) would have forseen the
reasonable possibility of his conduct (whether by an act or omission)
injuring another person, and causing
him loss.

(ii) Would take steps to guard
against such occurrence and that the Defendant failed to take such
steps.

The facts of this case in a
nutshell are that the Plaintiff, who is diabetic and hypertensive was
attending a workshop that day
at the U.N. House on 11^th
may, 1999. But before attending the workshop she had thought of
going via her office as it was still early. She says it could
have
been between 7 and 8 in the morning. She was still walking normally.

In describing the place at her
work place she said, there are some iron speed humps at the gate. As
she passed the place she slipped
and fell on her face. When she
tried to stand from there she realized that her knee was swollen, and
could no longer manage to
stand. She had to be supported and was
driven to Queen II Hospital. She says she was now experiencing
terrible pains.

At Queen II she was taken for
x-ray. After the x-ray she was taken back to the doctor who had
first attended to her. She says
after the doctor had looked at the
x-ray she told her that she had not broken her leg, being she had no
fracture. The Plaintiff
says she had told the doctor about her
diabetic condition. The doctor even remarked as the patient was
complaining of severe pains,
that she could not see anything that
could be causing so much pain. Some colleague at work collected
medicines for her and she
was driven home. She was still in great
pains.

Whilst she was already at home,
the Plaintiff thought of taking her health back and reading from it.
It was only then that she
realized that she ought to have gone for
physiotherapy. The doctor never told her about going for
physiotherapy. Plaintiff said
because she was then in great pains,
she was scared to go for physiotherapy the next day. She only went
for physiotherapy after
two days wherein her leg was massaged for
reviving circulation as she was told.

Plaintiff then went home and the
pain was unbearable. She had to be taken in a wheel barrow to get
her into the house. The following
day her brother advised her to go
to another doctor for a second opinion. She went to Carewell and was
examined. According to
Plaintiff the doctor who examined her even
expressed his surprise to see her walking with such a leg
particularly after being attended
to at the hospital.

The doctor referred the
Plaintiff back to Queen II with a letter, a copy of which Plaintiff
handed in as part of her evidence.
The letter was addressed to
casualty. Plaintiff went back to Queen II and presented the letter.
The doctor who received the letter
read the letter and only told
Plaintiff to come for Physiotherapy on Monday since that day was a
Saturday. The doctor had given
back the letter to Plaintiff showing
that he could not appreciate what that doctor at Carewell had seen.

Plaintiff came back to Queen II
Monday morning and was seen by another doctor. Plaintiff says, after
he doctor had read from her
health book, he appeared worried and
angry and even remarked as to how he could have been released before
at the hospital with
a leg in that condition. That doctor referred
Plaintiff to ward II for admission. Plaintiff says at the hospital
she was made
to sit on the bench from morning of around ten to
twelve, only to be allocated a bed at 3.00 p.m. She was told there
were no beds
and that the doctor who had to attend to her was not
available.

Plaintiff was finally admitted
at 4.00 p.m. of that day on the 17^th
May, 1999. She was attended to and was told that the doctor who had
to operate on her was on holiday and would only he arriving
on the
20^th
May, 1999.

Indeed the doctor arrived on the
20^th,
and Plaintiff said, she could see he was just arriving as he still
had his luggage with him. The doctor did not waste time and

Plaintiff was taken to theatre same day. Plaintiff was told that
they were going to relieve pressure on her foot. According to
the
Plaintiff the operation was from knee to her ankle. She says she
remained in hospital till the 31^st
may, 1999. She was cleaned and dressed daily.

Plaintiff says she overheard the
lady who used to clean and dress her wounds talking to herself that
she was now scared of cleaning
the wounds as the leg was rotten.
Plaintiff herself at that moment realized also that the leg was
smelling badly and was turning
green. Plaintiff’s relatives had
all along been asking from 1^st
Defendant to be transferred to Bloemfontein for further treatment but
would be told that they were still managing.

Plaintiff was eventually
referred to Bloemfontein on the 31^st
May, 1999. She was taken to Universitas Hospital in Bloemfontein.
She was taken to theatre on the 1^st
June, 1999. Her leg had to be amputated. Plaintiff says she was in
so much pains that she had to authorize the amputation without
any
hesitation. She stayed in hospital till the 25^th
August, 1999. She had to buy an artificial leg and paid for it
herself.

Plaintiff paid for the leg and
handed in the quotation of the amount she paid for the leg, which is
M12, 352.00. There was a transfer
letter from 1^st
Defendant which facilitated Plaintiff’s transfer from Queen II to
Universitas Hospital. A copy of that transfer letter from
1^st
Defendant which facilitated Plaintiff’s transfer from Queen II to
Universitas Hospital was given to the Plaintiff by the doctor
in
Bloemfontein. Plaintiff had been given the original of that transfer
letter to hand over to the doctors in Bloemfontein. It
was handed in
for identification purposes that such a letter was in fact made.

It was the Plaintiff’s case
that the first doctor who attended to her at Queen II was a
Specialist. She however argued that she
was never given a
professional treatment on admission. She said that she had made the
doctor who attended to her aware of her
diabetic condition on first
consultation, but according to her she was not offered any
professional treatment. She said this because
after she was first
attended to, the said doctor never informed her that she had to go
for Physiotherapy. It was only written
in her health book. Also
that the doctors who attended to her at Queen II did not take heed of
the professional advise by the
doctor at Carewell of being
hospitalized at that time, she was only told to go back home and come
back after two days.

Plaintiff’s claim is thus
based on negligence on the part of the Defendants. That negligence
ended up in having Plaintiff’s
leg amputated. She has thus claimed
the amount of M300,000.00 for amenities of life, M400,000.00 for pain
and suffering, and M100,000.00
for disfigurement, all totalling
M800,000.00.

In the claim for amenities of
life, Plaintiff said that being a Hydrologist by Profession, she
deals mostly with river water. The
loss of her leg has hampered her
going out in the field. She used to earn an out of station allowance
in the region of M250.00
per day for five days every month, but she
no longer gets that as she can’t go out in the field. She used to
enjoy working out
in the field as it brought her some benefit. She
has a passion which she can no longer fulfil. When she came to her
social life
she ended up crying bitterly. She said she no longer has
any social life because she no longer enjoys anything at her early
age
of 45 years. Her life ends inside the house, but even there she
is unable to perform most of her housewife’s chores. Even her
love
life is ruined, considering that she lost her husband in 1995. She
needs assistance to climb up the stairs even at home.
Wherever she
goes people would just be looking at her with an expression of pity
and shame, and she would feel embarrassed.

Plaintiff showed that before the
amputation the pain she was feeling was piercing her heart terribly.
She even said she demanded
for amputation when she got to
Bloemfontein even before she could sign any papers due to the pain
she was feeling. It was driving
her mad.

As she arrived home back from
hospital, she said she had to sit down and push her way up the stairs
into her house. Her children
were looking at her with pity and
misery. Though she had received counselling whilst still in
Bloemfontein, she still felt it
was not any consolation as each
morning she would always wish it were a dream that she had lost a
leg.

Plaintiff’s counsel had at
some stage suggested to the court to see for itself the amputated
leg, but the Court felt that that
was not necessary as there was no
dispute that the leg was amputated. What is being denied is
negligence. Plaintiff is alleging
negligence on the treatment she
received which resulted in her leg having to be amputated.

On the treatment that she
received, Plaintiff said that, the doctor who first attended to her
leg was negligent in not telling her
that she had to go for
Physiotherapy. She said had she been told she could have gone for
Physiotherapy same day, not after two
days as was the case, where she
was only massaged. The other aspect of negligence was after she had
sought for a second opinion
at Carewell Clinic. It was advised that
she be hospitalized, but instead the doctor at Queen II told her that
he held a different
view as could not understand what Carewell saw in
her leg. The doctor did not even bother to examine her but only read
the letter
from Carewell and asked Plaintiff to go back home.

It was suggested to Plaintiff
that not only was she diabetic and hypertensive, but was also obese;
she agreed. It was further shown
to her that for someone who is
obese and has swollen area, it would not be easy to make a proper
diagnosis. It was also suggested
to her that once one is diabetic
and hypertensive which are not under control that may lead to dieing
of tissues (gangrene) which
might lead to amputation, of course these
were not known by Plaintiff. She only said her diabetes and high
blood pressure were
under control as she was on regular treatment.

According to the Plaintiff her
leg had to be amputated because it was rotten through the sores that
developed as she was hospitalized
at Queen II. This was the
information she got from the doctor in Bloemfontein. She said her
skin was falling of on both sides
of her leg where it had been cut
for decompression.

Plaintiff complained that it was
not the operation to relieve pressure that was negligence per se, but
the treatment to the wounds
for someone with chronic diseases as
diabetes and high blood pressure. Plaintiff even took it that she
was eventually referred
to Bloemfontein due to pressure from the
family and friends as the doctors at Queen II still felt that they
were still managing.

In defence of plaintiff’s
claim the doctor who wrote the referral letter to Bloemfontein was
called. She explained what she meant
by saying that Plaintiff was
misdiagnosed. She meant that the doctor who examined Plaintiff
thought she had one condition when
in fact she had another. It was
according to her, a wrong diagnosis. She said the doctor whom we
were told has departed this
land (may her soul rest in peace)
referred Plaintiff for Physiotherapy as she thought she had a muscle
sprain because of her history
of having fallen and already developing
a swelling. She said it was a reasonable diagnosis, though in
Plaintiff’s case was an
incorrect one.

This witness said misdiagnosis
in the medical field is not necessarily negligence. Further that,
taking the history of someone
like Plaintiff, it would not be easy to
make a correct and definite diagnosis. She said it would have been
necessary to have made
some investigations in the case of coming to a
definitive diagnosis.

This witness was the same doctor
who referred Plaintiff to Univesitas Hospital in Bloemfontein for
further treatment that they might
deem fit. Responding to the
question of whether it was Queen II or Universitas which has to be
held responsible, she said the
condition which led to amputation
started from the time Plaintiff fell and their (Queen II)
participation in the care and treatment
of the patient.

In her evidence she said that
the patient developed what she termed a compartment syndrome, which
meant that the tissues had swollen
thus not allowing enough
circulation. She further said that the dieing of the tissues was
caused by the injury and the risk factors
which the patient had of
being hypertensive and diabetic. That the condition of the dieing of
the tissues was not initially diagnosed
and the damage thus carried
on until the patient was eventually hospitalized.

The witness denied the fact that
the operation for decompression was done negligently. She said the
operation was a standard practice
under the circumstances. She also
denied the fact that the doctors who initially attended to Plaintiff
were negligent as they
failed to take Plaintiff’s injury seriously.
She only admitted that they only made a wrong diagnosis.

She concluded by saying that
they did all that was in their power to manage Plaintiff’s injury,
and that the kind of injury he
sustained would lead to gangrene and
once it developed, amputation would be a necessary step, depending on
how far gangrene has
developed. She finally said that first
Defendant is not responsible for what was done by another hospital as
they never directed
them as to what exactly was to be done.

Under cross examination the
doctor admitted that the fact that the patient was not told by the
doctor that she had to go for Physiotherapy
was out of step with
established procedures. The doctor also showed that had the patient
been told to go for physiotherapy she
would have felt more pains and
that would have made them aware that that was not the correct
treatment. That would have caused
the doctor to realize that the
diagnosis was not correct.

The doctor confirmed that the
fact that Plaintiff only realized she had to go for Physiotherapy
when she was already at home and
was late was part of the
misdiagnosis. Plaintiff only went for Physiotherapy after some two
days.

The doctor further told the
court that dealing with a diabetic patient needed handling with
tenderness and comparative care particularly
when a wound has to be
inflicted as might result in a wound not healing. She went further
to say that in such instances it would
be necessary to determined the
patient’s health status before any decompression could be done.
The witness did not know if the
professional standards were followed
in the process of decompression to the Plaintiff as she did not
participate in the operation.
She said she was not present in the
operation, though she however said that the management of the
operation was a joint management
between herself as general surgeon
and the doctor who performed the decompression as Orthopaedic
Surgeon.

It was the doctor’s evidence
that she could not be able to cut the chain from the first diagnosis
to the last stage of amputation
as the transactions were related to
each other. She even said that she was of the opinion that has there
been no misdiagnosis
the results might have been different.

The doctor was of the opinion
that, the fact that what finally turned out to be the right diagnosis
was a rare one which most doctors
did not know about, that might have
been the reason for the wrong diagnosis.

In response to the question of
whether it could be said the doctor who made the 1^st
diagnosis lacked professional skills, the witness said that would be
a fair way of putting it. Further that a better equipped
doctor
could have attended the complication, but that was not the case. She
said in her referral letter she did not exclude the
possibility of
amputation or any other possibility as much damage had already
occurred.

In her referral letter the
witness had said, the patient “was
admitted to the ward from the clinic, but again unfortunately the
definitive diagnosis was not made till two days later,
and she was
therefore only taken to theatre for decompression on Tuesday
20/05/99.” The
patient had slipped and fell while walking on the 11^th
may 1999. She said it was detrimental to the patient to have taken
that long before reaching the final diagnosis, and that had
the
procedure as outlined in the referral letter been done timeously that
could have made a difference to the patient’s condition.

The doctor confirmed in
re-examination that the doctor had to tell the patient if she had to
go for Physiotherapy and this was not
done. She however said that
the patient ought to have then went for Physiotherapy sooner when she
realized that she had to and
if she was not sure she could have gone
to the doctor to ascertain that. This witness told the Court that
she was aware that Plaintiff
was diabetic. She said Plaintiff
developed a compartment syndrome which is a rare disease. This is
where an injury is sustained
on the leg resulting in the swelling and
blood being compressed in the veins with no oxygen. She said the
decompression did not
necessitate the amputation, but the injury
resulted in the compartment syndrome. To try to restore the
circulation decompression
procedure was carried out.

In response to the question by
the Court as to whether the rare disease was a result of Plaintiff
being diabetic, the witness showed
that being diabetic was only a
risk factor. She further said that that could have been avoided if
the doctor who detected the
numbness had picked up the rare disease
earlier.

It is the Defendant’s case
that Plaintiff’s claim is a delictual one founded on negligence.
That for such a claim to succeed,
some three elements have to be
satisfied:-

First national Bank of
Southern Africa v Durenhage (5) 2006 S.A 319 at 320

(a) a legal duty in the
circumstances of a case to act and conform with the standard of the
reasonable person in one’s actions,
in our case the standard of a
reasonable doctor. Krugger
v Coetzee 1966 (2) S.A 428 at 430 E.

Plaintiff in her evidence has
shown that she made known to the doctor who first attended her, that
she was both hypertensive and
diabetic. As for her condition of
being obese, it was obvious as could be observed even without having
to enquire. This was not
denied by the defence witness. Plaintiff
was not told or warned by the doctor at casualty after examining her,
taking her x-ray
and writing in her health book that she was to
attend physiotherapy.

We have heard from the defence
witness in explaining what she meant by misdiagnosis, being a wrong
diagnosis. She said she meant
that the doctor who first saw the
Plaintiff thought that she had one condition when in actual fact she
had another. This witness
as earlier on shown in this judgment, said
that it would have been necessary to have made some investigations in
an effort of coming
to a definite diagnosis. The doctor referred
Plaintiff to physiotherapy as she thought she had a muscle sprain.
She further said
if the patient had gone for physiotherapy
immediately after she was examined that could have helped them to
realize at once that
it was not the right treatment and would have
detected that the tissues were beginning to die. The decompression
operation could
therefore have been done earlier than had been the
case.

According to the defence
evidence, when the patient was eventually hospitalized the damage had
already been done. This was because
the condition of the dieing of
the tissues had not initially been diagnosed.

(b) whether in the circumstances
of this case, the conduct complained of falls short of the standard
of a reasonable doctor?

We are aware that Plaintiff was
not informed of going for physiotherapy treatment which we learn
could have made them aware that
they had to change treatment.

Plaintiff complained that her
injury was not taken seriously, despite an advice, would not call it
expect advice, from a fellow
qualified Medical Practitioner. The
doctor just looked at the letter which advised that Plaintiff be
hospitalized, made some comments,
and acted as though ignoring it and
asked the patient to go back home only to come back after two days.
She never prescribed anything.
Would a reasonable doctor in the
circumstances of Plaintiff’s condition have acted in that manner?
No.

The answer to the above came
from the Defendants’ evidence where she said every single moment in
the treatment of the patient
counted. So that the passing of time
in between when there was misdiagnosis and the time when Plaintiff
was finally hospitalized
worsened the condition of Plaintiff’s leg.
Also the waiting period whilst waiting for the specialist doctor who
was on leave
to perform the decompression was detrimental to
Plaintiff’s condition.

We have not been told as to why
the Plaintiff was not transferred to Bloemfontein when it was
realized that the doctor who had to
operate on her leg was on leave.
She had to wait from the 17^th
to the 20^th
1999 before the operation was performed.

I therefore find that the
conduct of the doctors at Queen II fell short of the standard of
reasonable doctors in the treatment of
the patient in Plaintiff’s
condition. Though they stated that each moment counted, we see a
time lapse in between each treatment.
Had Plaintiff been informed of
going to Physiotherapy that would have averted the situation from
becoming worse. This was confirmed
by the doctor who finally
referred Plaintiff to Bloemfontein. The decompression could have
been performed sooner than was the
case.

(c) the loss or damages suffered
whether consequent upon the conduct complained of.

The doctor in her evidence told
the Court that there was a link from misdiagnosis till the
amputation. She said the chain was never
broken. The misdiagnosis
led to mistreatment which finally led to amputation.

Defendants contended that
because no medical evidence was led on behalf of the Plaintiff to
prove that the diagnosis was so palpably
wrong as to prove
negligence, then Plaintiff as a non-professional in the field of
medicine could not tell if Professional Standards
were met. True
enough the Plaintiff was the only witness to prove her claim as the
doctor was the only witness for the Defendants.

It would therefore not have been
necessary to call any medical evidence for Plaintiff as the doctor
who gave evidence for Defendants
clearly showed that there has been
misdiagnosis. That to have come up with a definitive diagnosis that
some investigations ought
to have been carried out. She also said it
was the doctor’s responsibility to have told the patient that she
had to go for Physiotherapy.

The same doctor further said had
the patient sooner gone for Physiotherapy it could have become
clearer at the early stage that
the diagnosis was wrong. The dieing
of tissues could have also been realized before it was too late and
decompression done sooner.

The Defendants contented further
that Plaintiff ought to have gone for Physiotherapy at her earliest
possible chance after she had
realized that she had to, but she
waited for two day due to severe pain she was experiencing. But the
doctor has told this Court
that Physiotherapy treatment was going to
cause more pain which was going to be an eye opener to wrong
diagnosis.

Saying that the date for
Physiotherapy was not given is as good as saying the date for
collecting medicine prescribed was not given.
The prescription
written under the date for consulting the doctor meant that all had
to be done on that day because if it was
any other date that could
have been specified. The delay in going for Physiotherapy could
therefore not be blamed on Plaintiff
but the doctor who failed to
inform Plaintiff. It was therefore wrong to have even suggested that
no date for Physiotherapy was
stated.

Learning from the evidence given
by the doctor I would not agree with the Plaintiff when she said
operating on her leg from knee
down to her leg was causing or
inflicting serious bodily harm. That happened to be a necessary
operation. The bad thing about
the operation was that it was done
whilst it was already too late because of the misdiagnosis. If it
was done earlier, a day following
that of the first consultation
after first visit to Physiotherapy it would have brought about the
desired results. This was confirmed
by the doctor.

The Defendants were also saying
that the doctors at Universitas had a free hand in finally deciding
to amputate. That 1^st
and 2^nd
Defendants should not be held answerable for acts committed in
another hospital. I considered this to be a misstatement; otherwise

this would bring an end to allowing referral to expects in the
neighbouring country. When Plaintiff was so referred to Universitas,

doctors at Queen II had already participated in the treatment of the
patient and done some operations on her. That was why the
doctor
conceded there was a causal link.

It was not even the question of
having called medical evidence by Plaintiff to exclude the
possibility of gangrene developing even
if a proper diagnosis was
made earlier. What the doctor said was that the health condition of
Plaintiff being diabetic, hypertensive
and obese were risk factors.

She did not say for certain that
because of her condition what Plaintiff finally developed was bound
to happen. What the doctor
said was that having gone for
Physiotherapy earlier could have averted the situation from becoming
worse. This could have saved
Plaintiff’s leg. The doctor said
going for Physiotherapy would have remedied the situation and
corrected the misdiagnosis.

On the question of negligence,
Plaintiff’s counsel showed that the Court allowed the Defendant’s
counsel to invite his witness
to go at length in expressing an
opinion on the reasonableness or negligence of a Defendant’s first
doctor’s conduct upon and
after seeing the Plaintiff at the Queen
II Hospital. The Court allowed this despite the objection from the
other side because
in the final analysis the determination on the
matter was going to be made by the Court. The case of Michael
and Another v Linksfield Park Clinic (Pty) Ltd and another 2001 (3) ©
A 1188 at Para 34 was
correctly cited on this aspect by Defendants’ Counsel. Whilst on
the other hand Plaintiff’s Counsel on the same aspect
of negligence
cited the case of Mitchell
v Dixon 1914 AD at 519
where it was stated:

“a Medical Practitioner is not necessarily liable
for wrong diagnosis. No human being is infallible; and in the
present state of
science, even the most eminent specialist may be at
fault in detecting the true nature of a diseased condition. A
Practitioner
can only be held liable in this respect, if his
diagnosis is so palpably wrong as to prove negligence ….. if his
mistake is of
such a nature as to imply an absence of reasonable
skill and care on his part, regard being heard to the ordinary skill
in the
profession.”

But in Plaintiff’s condition
we have not been told that any care or precaution was taken
considering the risk factors which the
patient already had. She was
treated like any other ordinary patient without taking any
precautions. For instance, she ought
to have been told to go for
Physiotherapy by the doctor and immediately to come back and assess
if that was the right treatment.
That was not done. A reasonable
doctor ought to have done that, considering the evidence by the
doctor that every moment counted.
Again the decompression was not
done earlier otherwise it could have saved the condition of
Plaintiff’s leg according to the
evidence by the doctor. All these
amounted to negligence on the part of the doctors who were managing
Plaintiff’s condition.
She could have been referred earlier when
it was clear that the specialist was on leave, but they waited for
him to come back
from his holiday.

Under the circumstances of this
case, the Court finds that the 1^st
and 2^nd
Defendants have been negligent in the management of Plaintiff’s
injury on her leg.

On question of quantum,
Plaintiff has claimed under three heads

- amenities of life M300,000

- pain and suffering M400,000

- disfigurement M100,000

Amenities of Life

Defendant’s case has been
that, Plaintiff under amenities of life has not stated at to why as a
Hydrologist by Profession, is
now unable to do field work. But
Plaintiff has shown that in her professional work she deals mostly
with river water but that
the loss of her leg has hampered her to go
out to the field. That she used to get some allowances for being a
field worker but
that has since been hampered by her loss of her leg.
It is obvious that being in the field involves a lot of walking.
You can’t
be moving in a vehicle to go to the river.

Pain and Suffering

For pain and suffering
Defendants’ case has been that Plaintiff was already experiencing a
lot of pain when she went for the first
consultation at Queen II
hospital. The pain was caused by the injury she had sustained. That
the pain she experienced was not
caused by an act of Defendants’
doctors, but the injury which itself was not caused by the
Defendants.

Defendants submitted further
that the Plaintiff ought to have led evidence to prove when pain
caused by the injury itself would
have ceased, and at what point it
could be said the pain felt thereafter could be attributed to the
actions of Defendants’ doctors.

I would not agree with the
Defendants’ Counsel’s submission on this point for the following
reasons. It has become clear to
us that Plaintiff did not waste any
more time after she was injured but rushed to casualty for treatment.
She went there for treatment
to have the pain stopped. We have not
been told that the pain could not stop because she had done anything
which hampered progress
in the treatment of her injury. So that it
would not be possible for the Plaintiff to claim for such pain and
suffering from a
particular time after she had been treated and
during the treatment.

Disfigurement

Defendants here said that this
heading and that of amenities of life fall under the same category
and therefore to be treated as
such. We are aware that Plaintiff’s
leg was amputated and has thus lost her figure and her manner of
walking is abnormal and
difficult. But for amenities of life
Plaintiff showed that her social life has become miserable. Her love
life as a widow has
came to a stand still as no man would be
attracted to someone in crutches. She has become unattractive and
her friends, relatives,
and strangers even her children look at her
with pity. So that the two could by no means fall under the same
category.

Plaintiff’s claim thus
succeeds and the award stands as follows:

1. Loss of Amenities of
Life M200,000

2. Pain and
Suffering M200,000

3. Disfigurement M
50,000

Total M450,000

With interest at prevailing bank
interest rates and costs of suit.

As for some other expenses
allegedly incurred, since they have not been part of the claim in the
summons and no application was
ever made to amend the declaration to
involve them, they have not been granted. This being expenditure for
buying an artificial
leg.

Plaintiff may later claim that
in another litigation if she so wishes.

A.M. HLAJOANE

JUDGE

For Plaintiff: Mr Mosito

For Defendants: Mr Putsoane