IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT
ACCRA - A.D 2019
EDWARD KOFI GHUNNEY - (Plaintiff)
JUSTINA ANSAH AND ATTORNEY-GENERAL - (Defendant)
DATE: 22ND JULY, 2019
SUIT NO: GJ696/2017
JUDGES: HIS LORDSHIP, ERIC KYEI BAFFOUR, ESQ
Notwithstanding much education that has gone into reversing peoples attitude towards persons living with the HIV virus, much results cannot be said to have been achieved as evidenced by persistent stigmatization in society. The prejudice that attends with the labelling of a person as HIV positive with its resultant discrimination and being avoided as if a mere handshake alone portends profound disaster for one like the contraction of an ebola virus makes any accusation against a person as an HIV positive person not a light one to be ignored. Sensing the debilitating smoke of rumours of being HIV positive at the National Blood Service Korle Bu Teaching Hospital, where he worked as a driver and claiming the source of that rumours to be that of 1st Defendant, the very head of the National Blood Service, the institution responsible for replenishing the stock of blood for use, Plaintiff conceived and birthed the writ on the 11th of May, 2017, which was later amended seeking the following reliefs:
1. Compensation in the sum of Gh¢200,000 for the anxiety, trauma, ridicule, mental breakdown and emotional distress Plaintiff suffered at the instance of the Defendants.
2. An apology to the Plaintiff with copies pasted at the Notice Board of national Blood Service and placed on his personal file and the National Blood Service.
3. Damages for breach of duty of care
4. Cost on full indemnity basis including legal cost.
5. Any other relief(s) the court may deem fit.
Plaintiff who claim to be a driver who personally drives 1st Defendant donated blood on the 25th of July, 2014 in a blood donation exercise but was subsequently invited by 1st Defendant who informed him that he was HIV positive and challenged him to undertake a second test if Plaintiff doubted the test results of the staff donation exercise. Having accepted the challenge thrown to him to bite the bullet of undertaking another test which was performed, he avers that 1st Defendant called to tell him that she has been told of the results of the second and that she [1st Defendant] doubt the negative results from the Reference Laboratory and was told that he had been relieved of his work as the personal driver of 1st Defendant.
That 1st Defendant again invited him to undertake yet another test at the Central Laboratory which he submitted himself the results again showed non-reactive for HIV. That for 1st Defendant having told him that he was HIV positive and which she broadcast to everyone at the National Blood Service, which was not true, 1st Defendant had failed to exercise due care expected of her as the Director of the National Blood Service to properly counsel Plaintiff as a medical doctor but not to rudely and unprofessionally tell him that when he [Plaintiff] close from work all that he engages in was sex which had resulted in him contracting HIV. And that the National Blood Service owed him a duty of care to have cross checked the sample taken from him with the results they produced.
To Plaintiff he had been traumatized and been scornfully treated by colleagues who avoided engaging him which has occasioned great embarrassment to him and his family. Plaintiff further avers that with the stigmatization suffered as a result of 1st Defendant disclosure that he was HIV positive he sought a transfer to the Disease and Surveillance Department and several letters to 1st Defendant to retract and apologize to him has received the same scornful treatment and hence his claim before the court.
The Defendants have firmly denied the claims of Plaintiff as unfounded and baseless. That Plaintiff was never assigned to 1st Defendant as her personal driver but worked in a pool like any driver with the National Blood Service. To Defendants, Plaintiff and his wife were only counseled and advised to stop donating blood as Plaintiff was tested for markers for HIV on a number of occasions and was subsequently cleared to continue donations per the record of the National Blood Service. That Plaintiff was only taken through post donation counselling but was never told that he was HIV positive. That Plaintiff was never forced to undertake a second test but voluntarily agreed to undertake a second test as his first results proved indeterminate on the advice of a consultant physician.
That all the test results of Plaintiff was treated with outmost confidentiality and that no information regarding Plaintiff’s HIV status had been disclosed to any third party. Defendants further note that 1st Defendant had never discriminated against Plaintiff on the basis of his HIV status and concludes that the reliefs being sought deserves not to be treated favourably by the court.
At the application for directions stage the court on the 23rd of July, 2018 adopted issues v. and vi. of the issues in the application for directions and issues a, b, d, e and f of the additional issues filed and these were:
1. Whether or not Plaintiff is entitled to compensation and an apology for the anxiety, trauma, ridicule, mental breakdown and emotional distress plaintiff suffered at the instance of the Defendants.
2. Whether or not the Plaintiff is entitled to general damages for breach of duty of care and negligence.
3. Whether or not Plaintiff is entitled to the reliefs endorsed on his amended writ and statement of claim.
4. Whether or not Plaintiff was the personal driver directly assigned to the 1st Defendant as her personal official driver.
5. Whether or not 1st Defendant has defamed the Plaintiff
6. Whether or not 1st Defendant was negligent in her conduct as a medical doctor and he director of the national Blood Service in respect of the Plaintiff.
7. Whether or not any of the HIV tests results of the Plaintiff done under cause of blood donation exercise by the National Blood Service was not HIV positive.
8. Whether or not Plaintiff became traumatized and scornfully looked upon his colleagues [sic].
9. Any other issues arising out of the pleadings.
Plaintiff testified in person and called Samuel Kwesi Nunoo, Deputy Chief Blood Donor Organizer and who also styles himself as a trained counsellor. In all Plaintiff tendered Ex ‘A’ to Ex ‘J’ with some of the principal ones being the pay slip of Plaintiff as Ex ‘A’, the Donor Cards as Ex ‘B’, the National Blood Transfusion Service Donor Clinical Record as Ex ‘C’, results of the HIV tests of Plaintiff from the National Public Health & Reference Laboratory Korle Bu as Ex ‘D’ series, another HIV test from Fevers Unit Counselling and Testing Centre as Ex ‘E’, a request for reposting from the National Blood Services to Ghana Health Services, Headquarters as Ex ‘F’, a marriage certificate as Ex ‘H’ series.
On the other hand 1st Defendant testified in person and called Simon Kofi Manu as DW1. She also tendered Ex ‘1’ to ‘14’ with the principal ones being a letter regarding a retirement of Plaintiff as Ex ‘1’, a Memo to Plaintiff of his posting to National Blood and Transfusion Service as Ex ‘2’, an Organogram of the National Blood Service as Ex ‘3’, queries and answers to them concerning Plaintiff as Exhibits ‘4’ and ‘5’, assumption of duty as Ex ‘10’, a petition to the Human Rights and Administrative Justice by Plaintiff as Ex ‘13’
EVALUATION OF THE EVIDENCE AND APPLICATION OF THE LAW
From the pleadings, the issues set for determination as well as the evidence adduced at trial, the cause of action of Plaintiff has been premised on two main areas of tort. That is defamation and negligence on the part of 1st Defendant and I intend to deal with the issues from these two main angles and it is out of these two broad areas that the eight or so issues set down at the application for directions stage would be dealt with.
To Plaintiff his colleague drivers and others avoided him like a plague because they got to know that he was HIV positive and it is his claim that it was 1st Defendant that was responsible for the spread of this rumours. As to whether or not that was the case will soon be made bare from the evidence on record. But first the law: Defamation is a statement which cause or likely to cause serious harm to the reputation of another in society. It has been described to be in the case of SIM v STRETCH  2 ALL ER 1237 to be a statement:
“which injures the reputation of another by exposing him to hatred, contempt, or ridicule or which tends to lower him in the esteem of right thinking members of society”.
It partakes of two forms. Libel and slander. Libel is a publication in a more permanent form or broadcast made on stage or screen or the airwaves of a matter that damages the reputation of the Plaintiff and lowers him in the estimation of society. Slander on the other hand is a publication in more transitory form such in as one in a conversation. Special damages is required to be proved under common law in a suit alleging slander whiles under customary law slander is actionable per se.
And under customary law words that produced any injury to the reputation of Plaintiff were defamatory and actionable. Therefore words imputing witchcraft, adultery, immoral conduct, depravity, an incurable venereal disease such as HIV and which sounded to the dis-reputation of a person of whom they were spoken of is actionable. See SERWAH v SEFAH [1984-86] 2 GLR 390. Defamation is deemed to be actionable per se without proof of its falsity but a plea of fair comment or justification of the publication has been held to be a defence. See DAASEBRE NANA OSEI BONSU v AKWASI MENSAH Suit No J4/23/2007 dated February, 2010; BENNEH v NEW TIMES CORPORATION [1982-83] G.L.R.302.
The plaint of the Plaintiff can be said to be slander as he states in paragraph 9 of his amended statement of claim that 1st Defendant called him to her office and on the 1st of December, 2014 that he was HIV positive. That he was stopped from driving 1st Defendant leading to colleagues avoiding his company. This claim is repeated in the witness statement filed on the 25th of September, 2018. Defamation either as libel or slander cannot be deemed to be established unless there is evidence that the defamatory statement was published or broadcast by Defendant to persons besides that of the Plaintiff alone. As one cannot claim to have suffered reputational damage in the eyes of the public if the statement or words complained of has not been uttered or broadcast to third persons. For in the case of AMOAKO v TAKORADI TIMBERS LTD [1982-83] GLR 69 the court per Twumasi J. in a defamation suit concerning a complaint lodged by the Defendant against the Plaintiff, this is what the court held that:
“a communication between two persons defamatory of another was not actionable if the person making the communication had an interest in the matter so communicated or had a duty, legal, moral or social to make the communication and the person receiving it had a corresponding interest or duty to receive it In an action for damages for defamation it was not sufficient for the plaintiff to say that in his self-estimation the words alleged conveyed some obnoxious meaning to him. He must go further to prove that the obnoxious meaning was conveyed to persons other than himself and the words had lowered him in the estimation of those persons; in other words no civil action for libel or slander could be maintained unless the plaintiff had established that the words complained of had been published to persons other than himself and those persons had understood the words in the defamatory sense attributed to them by the plaintiff”
Plaintiff admit that 1st Defendant called him alone to his office on the 1st December, 2014 and told him that he was HIV positive. This is Plaintiff’s answer when he was asked:
Q: Now when 1st Defendant allegedly invited you to her office and told you that you were HIV positive, you were the only two people in the office, I am putting that to you
A: That is true. What surprised me was when she said I should not drive her and that made me aware that the 1st Defendant had informed the other staff that and I was HIV positive and that was why she did not want me to drive her.
Q: You see, your whole claim that the 1st Defendant has defamed you is based on your assumption that she had informed other workers and not a fact that she indeed did so.
A: That is not true. I still emphasize that 1st defendant informed the other workers that I was HIV positive”.
Before dealing with the claim as to 1st Defendant informing other drivers, it is clear from the answers of Plaintiff that his HIV status regarding the staff donation was revealed to Plaintiff by 1st Defendant alone in a room. Plaintiff’s own witness, Samuel Kwesi Nunoo also admitted under cross examination on the 18th of January, 2019 that the claim Plaintiff made to him that he had rudely been told of his HIV status was made to Plaintiff alone and that he was not there. I find accordingly that the interaction that took place on the 1st of December, 2014 between Plaintiff and 1st Defendant cannot be said to be defamatory of Plaintiff as it was not broadcast or made in the presence of third parties). It is therefore necessary that the court interrogate the claim made by Plaintiff that it was 1st Defendant that broadcast his HIV status to colleague workers at Korle Bu Teaching hospital. 1st Defendant is the head of the National Blood Donation. She was not the one that conducted the test and cannot be said to be the only person with exclusive knowledge of donor’s HIV status or had exclusive custody of the test results and if Plaintiff is to be believed in his claim of pointing accusing fingers at 1st Defendant, then the necessary burden must be discharged by him. How did he do it?
The first evidence Plaintiff produce is that 1st Defendant told him not to drive her again and that he was the official driver of 1st Defendant. Plaintiff’s own Ex ‘F’ which he wrote for re-posting states his designation as a principal extra duty driver with the National Blood Service but not a driver designated to drive the Head of National Blood Service. The letter that posted Plaintiff to the National Blood Service only states that Plaintiff was to report to the 1st Defendant. For that is what is found on the face of Ex ‘2’ that was written to Plaintiff on 15th October, 2003. And Plaintiff’s claim and insistence that he was the official driver of 1st Defendant cannot be correct as it is not borne out of the record. The mere fact of being told not to be available to drive 1st Defendant after 1st Defendant became aware and told Plaintiff of his HIV status and further told Plaintiff not to drive him again cannot be evidence that it was 1st Defendant that told drivers and Plaintiff’s associates that Plaintiff was HIV positive.
PW1 admitted that other persons might have intercepted the information regarding the test of Plaintiff when he was asked the following:
Q: From July, 2014 to December, 2014, the 1st Defendant had nothing to do with the blood test or the results of Plaintiff; I am suggesting that to you
A: That is correct but others might have gotten information as to what went on with this test results, for which reason they even started shunning his company”.
This answer is coming from the Plaintiff’s own witness that the leakage of the information could have been any other person. The Plaintiff who bears the burden of proof and the burden of persuasion on this to show the court that it was 1st Defendant who told other persons cannot be said to have discharged that burden. What is even more startling is that none of the drivers or staff that Plaintiff claim shunned or avoided his company were called by him to confirm as to how they received the information that Plaintiff was HIV positive and accordingly distanced themselves from him. The court is being called upon to speculate as to a possibility being that because 1st Defendant told Plaintiff in her office of the latter’s HIV status then she equally told staff about it. That is not how the rules on evidence operates in our courts.
The Court of Appeal, per Ayebi JA notes on circumstances where a party fails to discharge the relevant burden cast on him by law and rely on conjectures in the case of JACQUELINE ASABRE v JOHNSON ASIM  109 GMJ 2016 COA as follows:
“we wish to advise and remind counsel humbly that in a court of law the merits of a case are not determined based on suspicions, feelings or emotions of … any party. Cases are determined on the bases of the evidence led in support of the facts alleged in the pleadings. Counsel should please take note”
As if that is not enough, counsel for Plaintiff in her written address to the court at page 31 states that:
“someone within the NBS laboratory services went beyond the norm to disclose the Plaintiff’s name and identity to third parties as well as the results. These third parties started putting up signs of stigmatization towards the Plaintiff which made him to take the decision of a repost from the NBS to the Disease and Surveillance Department at the Korle Bu Teaching Hospital”.
Is this not an admission that persons unknown to Plaintiff other than 1st Defendant did the spread of the news that Plaintiff was HIV positive and why should 1st Defendant from the statement supra by Plaintiff’s own counsel be made to bear the consequences of third parties tortious liability when these third parties are even unknown to Plaintiff?
Lord Hoffman in the case of RE B (A CHILD)  UKHL 35, ably stated this rule which was cited with approval by Barbara Ackah-Yensu JA in the case of EDEM ADINYIRA v SCANCOM GHANA LTD (unreported) HI/100/2017 dated 27th July, 2017 by the employment of abstract concept yet poignant manner in the following:
“If a legal rule requires a fact to be proved (a fact in issue), a Judge or Jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are ‘O’ and ‘I’. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carried the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of ‘O’ is returned and the fact is treated as not having happened. If he does discharge it, a value of ‘I’ is returned and the fact is treated as having happened.
What Plaintiff is urging the court to do is to go contrary to this rule and hold that the possibility of 1st Defendant telling drivers of Plaintiff’s HIV status is a fact that might have happened. I cannot so hold. I rather hold and find that there is no evidence on record that show that 1st Defendant told any other person besides Plaintiff, of the HIV status of the latter. In fact there is even no evidence on record to show that the colleagues of Plaintiff suddenly realized that he was HIV positive as besides his evidence there was no evidence that this issue was known among the drivers of the National Blood Donation. The mind playing tricks in circumstances where one knows he is HIV positive or has been told can easily make one feel or think that this knowledge is known to friends and acquaintances as well. I conclude on the allegation of defamation that it stood unproved and wobbling by the close of the case and same is dismissed.
A much more substantial and weightier allegation that 1st Defendant had been negligent as an experienced medical doctor in the way and manner she broke the news of Plaintiff’s results to him as well as the claim of her response to results of subsequent tests conducted where she exclaimed that Plaintiff had been lucky as all that he does after close of work was sex.
The particulars of negligence was provided by Plaintiff in paragraph 17 of the amended statement of claim as follows:
a. That the 1st Defendant owed the Plaintiff a duty of care to refer him to a HIV/AIDS trained counsellor to discuss whatever result she had in her possession by virtue of her office
b. That the 1st Defendant owed the Plaintiff the duty of care to properly counsel Plaintiff as a medical doctor and not to bluntly tell Plaintiff in the face that he is HIV positive
c. The National Blood Service owed the Plaintiff the duty of care to cross-check the sample taken from the Plaintiff with the result they produced.
d. That 1st Defendant as a medical doctor and the director of the National Blood Service owed the Plaintiff a duty of care which she breached when she went out of the standard practice to tag the Plaintiff as HIV positive and insisted that the Plaintiff should not drive her.
To fully appreciate the analysis of the evidence on negligence it would be worthwhile for the court to state the law on negligence and the claim of a duty of care that Plaintiff contends 1st Defendant owes it and for which it has completely failed in that duty. The basis of the tortious law of negligence can be found in Buller’s Nisi Prius, first published in 1768 wherein it states as follows:
“Every man ought to take reasonable care not to injure his neighbour, therefore whenever a man receives hurt through the default of another, though the same were not wilful, yet it be occasioned by the negligence or folly the law gives him an action to recover for the injury so sustained …”
To succeed in an action for negligence, such as the case before the court, the law is that Plaintiff must clearly establish that, one there was a duty, two there has been a breach of that duty, three, that there is causation and four that harm has been occasioned as a duty of the breach. Though not intended to be a dissertation on the law of negligence, I think it would serve a useful guide for the evaluation of the evidence on record if the court attempted to touch, albeit briefly on each of these elements of negligence.
Duty of care is said to be the primary requirement for a successful claim in negligence. For if there is no duty the failure to take reasonable care would not give rise to liability. The leading judicial test for a duty of care in England was found in the judgment of CAPARO INDUSTRIES PLC v DICKMAN  AC 605; in which the House of Lords set out the following three-part test: Harm must be a "reasonably foreseeable" result of the defendant's conduct; A relationship of "proximity" must exist between the defendant and the claimant; It must be "fair, just and reasonable" to impose liability. See also the following cases DONOGUE v STEVENSON  AC 562; CHAPMAN v HEARSE  106 CLR 112.
It must be emphasized that the three pronged approach test developed by the English courts has now received extensive and expansive interpretation in other jurisdictions of the common law such that in California, Michigan and Tennessee States Civil Codes in US. The test include a gamut of factors such as the following: the foreseeability of the harm or injury; the possible magnitude of the potential harm or injury; the importance or social value of the activity engaged in by the defendant; the usefulness of the conduct to the defendant; the feasibility of alternative conduct; the costs and burdens associated with the alternative conduct; the relative usefulness of the alternative conduct; and the relative safety of the alternative conduct. See the following cases from the United States: ROWLAND v CHRISTIAN, 69 CAL.2ND 108 (1968); BUCZKOWSKI v McKAY 441 MICH. 96; 1100; McCALL v WILDER, 913 S.W. 2ND 150 (TENN 1995). I do not have the luxury of space and time to take each of the components of the duty of care as developed one after the other. The second element in negligence is breach. Once it is established that there was a duty, the plaintiff must then demonstrate that defendant breached that duty and that involves testing of the actions of the defendant against the standards set out supra. A defendant who fails to realize the substantial risk of loss to a plaintiff, which any reasonable person in the same situation would clearly have realized, is deemed to have breached that duty of care.
The third element is one of the need to establish causation. That is the loss that has occurred to the plaintiff must be directly attributable to the conduct of a defendant. In other words the test is to find out whether the harm occasioned the plaintiff was the proximate cause of defendant’s conduct. The test usually is to ask if the injury would have occurred without the defendant’s breach of the duty owed to the plaintiff. See STRONG v WOOLWORTHS  285 ALR 420; WALLACE v KAM  HCA 19 AUST.
The fourth element is that of harm. As a proof the question is usually what loss has the plaintiff suffered as a result of the breach which was reasonably foreseeable. The loss can be economic or even reputational.
Applying the first element of negligence, being duty of care to this case can one say that 1st Defendant owes Plaintiff a duty of care to ensure that as a staff who had donated blood his HIV status was not supposed to have been disclosed to him and in the manner in which it was done. In this respect, Ex ‘C’ being the National Blood Transfusion Service Donor Clinical Record filled by donors is critical in resolving if there was a duty of care not to disclose Plaintiff’s HIV status to him. When 1st Defendant was confronted with it in cross examination in the following:
Q: Have a look at Ex ‘C is a copy of the National Transfusion Donor Clinical Records and that this is a form the donor fills before donating blood
Q: Now look at the latter part of the form the donor declaration, kindly read the second paragraph
A: I am not donating to know my HIV Status …
Q: I am putting it to you that on the 1st of December, 2014 you had no right whatsoever to call the Plaintiff to tell him whether he is reactive, non-reactive, positive or negative
A: We have the right as a blood service to determine the status of the donor to ensure that he can continue to donate into the pool or otherwise. And to determine that we have an algorithm or procedure based on international best practice … previously people use blood service to know their status because they do not want to pay fees. So to actually deter people from using the blood service as a testing site to know their status, this clause was put there”
Whatever the reasons that might have informed the National Blood Transfusion Services to have stated that a donor of blood was not doing so to know his HIV status, it is clear that donors were not to be lined up to be told their HIV status and there was a duty reposed in 1st Defendant not to have disclosed the HIV status of Plaintiff to him and more so in the manner in which she did. And I agree with Plaintiff’s counsel that it is highly improbable for 1st Defendant to line all blood donors that test positive for HIV or hepatitis B by Plaintiff to be told of their status. In fact the normal course when a donor’s blood is contaminated is for the blood to be discarded and this was confirmed by 1st Defendant’s own witness, Simon Manu when asked:
“Q: When a person donate blood and the blood is contaminated what do you do with it.
A: My Lord, a contaminated blood is autoclaved and discarded”
This is not what happened in the case of Plaintiff. He was led by 1st Defendant to take other tests to confirm his HIV status. And DW1 could not even confirm whether 1st Defendant had a duty to select donors after donation for purposes of counselling. 1st Defendant maintained that Plaintiff was referred to her for counselling but failed to tell the court who did the referral. I accordingly find as fact that 1st Defendant owed the Plaintiff a duty of care not to have disclosed the HIV status of Plaintiff to him. I further find from the evidence and analysis that 1st Defendant breached that duty of care when she personally spearheaded and led Plaintiff to take two confirmatory tests which proved non-reactive before 1st Defendant became satisfied that Plaintiff was not HIV positive.
HAS HARM BEEN CAUSED?
Notwithstanding my findings above that 1st Defendant owed a duty of care and that she breached that duty, it is not enough to make Defendants liable unless Plaintiff proves that harm has been occasioned as a result of the duty of care that has been breached. If no special damages is proved, what would be available is general damages, as ex facie, the breach of a duty will necessitate a form of damage which would be general one. Plaintiff on the 14th of January, 2019 under cross examination described what he experienced when he was told of his status:
Q: Indeed it was rather you who went to Kwesi Nunoo in his house to inform him or tell him that the 1st Defendant had defamed you and was discriminating against you
A: That is not true; I have an explanation. My Lord. He told me about my HIV status in the afternoon on that fateful day. Later in the day, I could not go home because I was traumatized. Mr Nunoo is not a mere or ordinary person, he is a deputy blood donor organiser, and so I decided to go and inform him about what happened to me … and he told me that the 1st Defendant had no right to send me to the reference laboratory, nonetheless I should go with her and that what 1st Defendant had told me was not true. This is what happened”.
How severe or how traumatized was Plaintiff was not made known to the court as Plaintiff admitted he did not go to the hospital to be diagnosed in the following:
Q: You see after the alleged incident, you never went to the hospital to be diagnosed of trauma by a medical officer, is that correct?
A: I disagree with that. I was really traumatized to the extent that I thought I was already dead. I was a healthy person and I only donated blood. I was not sick”
The extent of any trauma could not be gleaned from the Plaintiff’s own answers as there was no medical report to prove same. PW1, was questioned on the level of suffering endured by Plaintiff in the following:
Q: You are not a clinical psychologist
A: I am not saying I am a clinical psychologist. I said I am a trained HIV counsellor.
Q: I am putting it to you that you have no capacity to diagnose or make any judgment on the psychological or mental status of Plaintiff
A: My Lord, I do not agree to that. I am saying this because the mood in which the Plaintiff came to me, he sat for quite a long time before he was able to talk. So finally when I was able to calm him down, he just shouted the name of 1st Defendant… and looking at the time that he came to me and the mood in which he was, I was thinking something very bad might have happened between Plaintiff and 1st Defendant whom he drove. So when he finally came out, he said 1st Defendant had told him he had HIV. So I calmed him down.
Q: You did not produce any report?
A: It was because that was the day 1st Defendant told the Plaintiff and he continued by saying that the 1st Defendant said if he was in doubt he should come so that the following morning, they would go to the reference laboratory for a confirmatory test, which he did and the result turned out to be negative and they went for another test again”
The above description given by DW1 can be said not to be a proof of special damage suffered by Plaintiff but in support of a general one. Damages may be either general or special in nature. It is general when losses are deemed to have resulted from the action of the defendant. Special damages are not presumed by law but must be particularized, pleaded and proved. There are a number of damages that fall under general and they include, among others, nominal damages, substantial damages, aggravated damages, parasitic damages, exemplary damages and incidental/consequential damages.
Substantial Damages are damages given when actual damage has been caused. They are also called ‘actual or compensatory damages’. And in that respect bears some semblance with aggravated or parasitic damages as it is also in the nature of actual or substantial damages. General damages in the form of nominal is usually awarded due to the fact that a breach of duty has been caused without prove of actual loss. In the ADINYIRA case supra, the Court of Appeal stated to be:
“General damages, sometimes styled hedonic damages, compensate the Plaintiff for the non-monetary aspects of the specific harm suffered. This is usually termed “pain, suffering and loss of amenity” (Beaman, Richard (2010-09-22) “Loss of Amenity”). This is not easily quantifiable, and depends on the individual circumstances of the plaintiff”
It is this damage that took place here for which I am to assess. Damages for trauma are non-economic and more so when there was no diagnoses in the form of a medical report for the court to fully apprise itself of the level of trauma. To recover a Plaintiff must show some preponderance of evidence that he indeed suffered such loss. The only evidence worth taking may be one of judicial notice that a breaking news to a person in a crude manner the way 1st Defendant did to Plaintiff to any ordinary person was likely to cause some shock and confusion to the recipient of such a bad news of his HIV status. In that respect the court must be mindful of the purpose of damages, more so when it is supposed to be general as in this case. It is not supposed to over-enrich a party and the converse is also true. And that is when nominal damages is awarded as a sign of the vindication of a party that he has a right that has been violated. Plaintiff claim that he seeks a compensation of Gh¢200,000. There is no such basis in this case more so as the court has completely dismissed the claim of defamation and found negligence without any further finding of special damages.
Given the level of experience of the 1st Defendant as a medical doctor in charge of the National Blood service, I think her conduct towards Plaintiff in respect of his HIV status was uncalled for and high handed and the court must sound its disapproval with an award of damages, which of course must be a nominal one. I think on the whole, an award of damages in the sum of Gh¢20,000 would be a fair figure and Gh¢8,000 to cover for the legal cost of the Plaintiff is also granted by the court. Save for this the action of the Plaintiff is dismissed.