Question 1

Critically read Nair v Permanent Secretary for Health [2013] FJHC 75 and answer the questions provided below.

1. Briefly summarize the facts of the case (parties, alleged tortious conduct/pleadings).

• The plaintiff, a diabetic patient suffered injuries on his left foot. As a result of the said injuries he was admitted to the hospital on 30 September 2007. The next day on 1 October 2007, his left leg was amputated below his knees. The plaintiff claims that his left leg was amputated without his informed consent. As a result, he brings an action against the defendants' for trespass to person and negligence. The plaintiff thus claims special and general damages, interests and costs. The general damages include damages for pain and suffering, loss of amenities of life, and loss of past and future earnings. The defendants refute the claim for trespass on the basis that the plaintiff had provided his consent to the amputation. On the action for negligence the defendants say that the plaintiff had presented himself to the hospital one month after the foot injury. He had a septic foot beyond salvage and the surgery was necessary in the circumstances to save his life and/ or an amputation at a higher level would have occurred. The defendants further say that the consent was secured in a manner which was the accepted practice in the hospital and that it should not be held liable in negligence for obtaining consent in the manner it did and amputating the plaintiff's leg.

2. According to the learned judge, how does the application of the defense of consent differ in a trespass to person claim/negligence claim?

3. In terms of the trespass to person claim, what was the decision of the court? Briefly summarize the rationale of the court.

4. What heads of damages were claimed by the Plaintiff?

5. What damages, if any, were awarded by the court? If so, explain the justification for the damages awarded.