Professor Priyani Soyza v. Rienzie Arsecularatne [2001] 2 Sri LR 293 is one of the most outrageous judicial decisions delivered in the last decade. The Supreme Court of Sri Lanka dealt a deathly blow to the Roman-Dutch Law and the Aquilian Action freezing them in time and the English tort of negligence was brought to a humiliating bathos, as the death of a child due to the negligence of an expert pediatrician was considered to be trivial, giving into technicalities and strict interpretation of the law as opposed to establishing justice. This critique contains the impact of the judgment on the law of Sri Lanka and the conclusion will be an analysis of what the judgment should have been.
Immobilization of the Aquilian Action & the Abasement of Medical Negligence
In analyzing the requisites of the Aquilian Action, Justice Dheeraratne referred to the texts of Wickramanayake , McKerron and Boberg which are probably outdated in laying down the requirements for the modern Aquilian Action as opposed to modern authors like Burcell.
In its reasoning the court held that for mental shock to be a claim the plaintiff has to suffer from psychiatric illness, and for the claim of future earnings and support to be successful, the plaintiff had to be indigent. Moreover, the claim of loss of care and companionship was rejected as the court cited Union Government (Minister of Railways and Harbours) v. Warneke [1911] SALR 657 where the loss of a wife was held not to constitute pecuniary loss. Justice Dheeraratne following the same course held that it was not possible to extend the scope of the Aquilian Action to accommodate a claim for damages other than for pecuniary loss. Thus the court was being archaic as old texts and cases were referred to instead of the current ones. Thus the Lex Aquilia was made static as changes could only be made through legislation according to the court and hence damages under the Aquilian Action were confined to pecuniary losses.
The standard of care is more or less similar in tort and delict and the court was correct to apply the Bolam Test since similar principles are found in the South African case of Mitchell v. Dixon [1914] AD 519. Then under the heads of properly attending the child and properly investigating her illness, the court found that “the defendant’s conduct fell short of that standard of care and she was therefore negligent”. Nevertheless the court held that the plaintiff had failed to prove on a balance of probability that the negligence of the defendant had a causal nexus with the non-diagnosis of the malady. It shamelessly implied that the child would have died in any event and therefore the plaintiff is not entitled to damages. Thus according to this judgment medical negligence by an expert would not result in damages if it was in relation to a terminally ill person.
Consequences on the Law of Sri Lanka
There are numerous far reaching implications on the law of Sri Lanka as a result of this determination. Firstly, it held that the applicable substance of the Roman-Dutch Law was incapable of being evolved by the courts as it followed the precedent of Lily de Costa v. Bank of Ceylon [1969] 72 NLR 457 instead of the one laid down in Kodeeswaran v. Attorney General [1969] 72 NLR 337. The fact that the Supreme Court vehemently rejected the idea of developing the law to suit contemporary needs such as compensating for the loss of care and companionship is a negative outcome itself. The strict textualist approach followed by the judge moreover binds the later courts from adopting purposive interpretation of the law. The decision further left the Aquilian Action without a hint of humanity as patrimonial damages were available only for pecuniary loss.
However, the gravest issues were regarding medical negligence. It left a massive lacuna in that area, as it is in doubt whether a person who attends a terminally ill person will ever be liable in a claim of negligence. Moreover, parents will not be able to sue for damages due to the loss of their children unless they prove the absurd requirement of indigence. In addition to that if the loss of a child results in emotional trauma there will not be damages awarded unless the parents are able to prove psychiatric illness for at least a short duration.
The drastic effect all of these negative consequences coupled with the ominous costs order, will be that victims of medical negligence will be dissuaded from vindicating their rights. The public will lose regard for the law and the society will dismiss the judiciary as a stronghold which protects their rights.
What it should have been…
If I were writing the judgment I would have first concentrated on whether the Court of Appeal had erred in its finding of professional negligence instead of dealing with whether the plaintiff was entitled to damages. Thus when the Bolam Test laid down in the Bolam v. Friern Hospital Management Committee [1957] 2 All ER 118 is applied it is evident that the defendant was negligent. I agree with Justice Dheeraratne when he proceeds from here to assume that the child would not have probably survived of Brain Stem Glioma. Moreover according to Bolitho v. City and Hackney Health Authority [1997] 4 All ER 771, a doctor could be negligent in respect of the diagnosis and treatment despite a body of professional opinion sanctioning his conduct, where it had not been demonstrated to the judge’s satisfaction that the body of opinion relied on was reasonable and responsible. Therefore his Lordship failed to notice that if there had been a proper diagnosis initially with the due care, then the child’s life may have been prolonged as Dr. Sri Lal Dias testified. Although the Supreme Court held that this possibility was unsatisfactory evidence I believe that it was more than enough to prove that there was a causal nexus between the child’s UNTIMELY death and the flagrant negligence of the Professor.
In the matter of damages, the additional medical expenses incurred by the plaintiff as a result of the negligence of the defendant should have at any rate been recoverable. However, I too would have refused the claim of mental shock as the plaintiff had not suffered from a psychiatric illness. In addition to that the claim of loss of future earnings would be rejected based on the fact that since Brain Stem Glioma was a terminal disease, it would have eventually resulted in the death of the child and there would be no future earnings. However when it comes to the loss of care and companionship, instead of the atavistic attitude of Justice Dheeraratne in abiding to Lily de Costa v. Bank of Ceylon, the Privy Council decision in Kodeeswaran v. Attorney General should have been adopted where Lord Diplock held that the Roman-Dutch Law like the English Law is capable of evolution to adapt to changing conditions. So if such an approach was taken, the court would have determined that it could modify the principles of the Roman-Dutch Law when the necessity arose, and damages would have been allowed. Nevertheless the damages have to be on a scale of proportionality weighing the merits of the life span of the terminally ill child and how much it may have been reduced due to the negligence of the defendant.
Conclusion
Therefore it is undoubted that Professor Priyani Soyza v. Rienzie Arsecularatne had a detrimental effect on the Aquilian Action and the tort of negligence as they were both made inhibitory. It is apparent that the decision may have been aimed at sealing a floodgate which would have opened in the area of medical negligence. Instead of taking the opportunity to modify archaic principles in the law, the court chose to follow them knowing all too well that it would lead to iniquity. Hence at the end of the day, the grieving father had to bury his child and swallow his loss owing to the blatant injustice of the court.
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