Indira Wati v Attorney-General & Ors (2007) H&FLR 2014-20

Court of Appeal of Fiji

9 March 2007

Coram: Ward P, Barker and Scott JJA

Appearing for the Appellant: S. Maharaj (of Suresh Maharaj & Associates)

Appearing for the Respondent: A. Tuilevuka* and P. Prasad (instructed by the Office of the Attorney-General)

Catchwords: Fiji – medical negligence – myocardial infarction – risk factors – misdiagnosis – loss of chance of survival

Facts: On 23 March 2002 Mr Raj Kumar Singh died at Nadi Public Hospital from an acute inferior myocardial infarction.  He had several risk factors for the infarction including being in his mid fifties, somewhat overweight, a smoker and had elevated blood pressure and a family history of heart attack and high blood pressure.  Despite this, he was initially diagnosed with a gastric complaint.  This misdiagnosis was not rectified before the hospital’s employee left treatment and monitoring of the deceased’s condition to his family.  For the last 12 hours of his life the deceased experienced severe pain and extreme distress was caused to his family.

The plaintiff (the deceased’s widow and the administratrix of his estate) brought negligence proceedings in the Lautoka High Court against the Attorney-General as representing the State, which operated the hospital.  The trial judge found that the Hospital and its employees had been negligent in providing treatment to the deceased.  However, this negligence had not lead to his death.  There was no evidence on whether the deceased was more likely than not to have died had he received proper medical care.  The Court awarded $5,000.00 to the widow for mental anguish and $15,000.00 to the estate in respect of the deceased’s suffering.

The plaintiff appealed to the Fiji Court of Appeal.

Held: Per curiam, dismissing the appeal, that for the plaintiff’s case succeed, it was necessary to show that proper treatment of the deceased would (as opposed to may) have prevented his death when it occurred.  Loss of a mere chance of survival is not a recoverable head of damage.

Gregg v Scott [2005] 2 AC 176; 2 WLR 268; 4 All ER 812; UKHL 2 (UK House of Lords), followed.

Judgment

The Court’s judgment is available here.

==========================================

* Since appointed to the bench.