Problem 1:
Two weeks ago, Mwakio was seriously ill and required an urgent blood transfusion. Mwakio has the rarest type of blood on earth, AB Negative. Mwatate hospital looked far and wide in Kenya, but no such blood was available. Another challenge was that blood type O Negative, the universal donor, was unavailable due to reasons currently under investigation. Kilonzo, a resident of Mwatate remembered that he had blood type O Negative and rushed to Mwatate Hospital to donate blood. Ordinarily, Kilonzo should not donate blood as he has Hepatitis C - and a standard test should have identified this. But that day Mwakio was in dire straits and blood was needed in a manner of minutes of he would die. Kilonzo did not know he had this illness but his drug using habits (injectables) put him at risk. This too, should have come out in the questionnaire provided by the Government of Kenya. The nurse, Claire, was a friend to Mwakio's wife and was emotionally affected by the illness. So, when Kilonzo presented, Claire gave him the questionnaire in a huff, and he signed. The next person that reviewed the questionnaire was Kamau, also a friend of Mwakio's family, who upon seeing no risk factors, decided to bypass the blood test with permission from Mwakio's wife, Charo, based on a little-known exception that permits this when blood was needed in a life and death situation. This exception has been debated in Kenyan medical circles and found to be inconsistent with best practice. A circular was recently issued by the Director General of Health revoking the exception but due to bureaucratic delays, has not arrived at Mwatate Hospital. Mwakio is now healed from the life-threatening illness but now suffers from Hepatitis C, and HIV - which Kilonzo also did not know he had.
It is not in doubt that Mwatate Hospital owed Mwakio a duty of care to transfuse him with safe blood. A debate has ensued whether they acted in breach of this duty. Draft a memo for your senior partner explaining whether there was a breach of duty based on the law and facts.
Problem 2: In the case of Mwakio in Question Two above, in a subsequent litigation, the But-for test did not appear persuasive to the trial court. The judge has invited the lawyers to make submissions on how causation in this matter can be fulfilled, and further, which defences are available to Mwatate Hospital. Examine the law and facts.
Problem 3: Still based on the facts in Question Two above, Kilonzo has been a traumatized person after learning that his blood left Mwakio more ill. He blames Claire for the entire mess. Kilonzo claims that knowing his blood caused two serious illnesses has resulted in severe nervous shock, such that can no longer trust hospitals, doctors, or nurses. Yet because he is ill, he needs medical attention. He wants to hold Claire responsible and has brought an action claiming that Claire's actions resulted in negligent infliction of nervous shock. Explain to Kilonzo, based on the facts, what is required for a court of law to find Claire liable in negligence.
Problem 4: Explain the following, with authorities:
a) Exemplary or punitive damages
b) African customary law on tort liability
c) Ex turpi causa non oritur action
d) Vicarious liability