By Michael Odeng
KAMPALA High Court Civil Division has declined to dismiss an application in which fertility doctor Edward Tamale Ssali was sued over the death of a patient who was undergoing fibroid operation at his hospital.
Justice Elizabeth Musoke on Monday declined Ssali’s lawyer’s submission asking the court to dismiss the case with costs, saying the hearing of the main suit shall proceed.
“If the death of any person is caused by wrongful act, neglect or default, he or she is entitled to damages,” Musoke said.
Musoke said general damages for negligence, nuisance or breach of duty shall not be brought to court after the expiration of 3 years from the date on which the cause of action arose.
“The Law Reform Ordinance, 1953 provides that actions shall be commenced within 12 calendar months after the death of the deceased person. For the word “twelve calendar months” there shall be substituted words “three years”.
Ssali’s lawyer had raised the objection, saying the suit was barred by law and time. They say the suit was supposed to be instituted within twelve months from the death of the deceased person.
“It is admitted that the deceased died on October 14, 2010. In view of Section 6 (3) of the Act, the suit ought to have been brought by October 13, 2011,” the lawyers added.
The sister to late Mercy Ayiru instituted the suit through Muwema and Mugerwa Advocates, against Dr. Ssali to recover damages for loss of support, dependency, and expectation of life of the deceased.
Milburga Atcero was also seeking general damages for inconveniences, pain and mental suffering occasioned to the family members, special damages, interest plus costs of the suit on behalf of the deceased’s dependents.
Meanwhile, Atcero’s lawyers submitted that the period of limitation under the Law Reform Act, Cap 29 where death was caused by negligence was three years and not twelve months.
“The Law Reform Ordinance, 1953 now Act Cap 79, was amended by section 36 of the limitation Ordinance, 1958 by increasing the limitation period from 12 month to 3 years,” the plaintiff’s lawyer contends.
The lawyer urged the Attorney General under section 18 of the Acts of Parliament to re-print the Law Reform with all the additions, omissions, substitutions and amendments that will be effected by the Limitation Ordinance of 1958.
Prior to the rectification and reprint of any revised law, the lawyer said the courts are bound to apply the law as it is under the revised edition.