Kuwait Court of Cassation principle number 506

Summary: - A principal's liability for the unlawful acts of his subordinate. It rests on irrebuttably presumed fault on the part of the principal. Its condition. The unlawful act must have occurred while the subordinate was performing his duties or because of them, or those duties must have assisted him or facilitated the commission of his unlawful act. Article 240, Civil Code. - Determining the fault giving rise to liability, attributing it to its perpetrator, determining the resulting damage and the causal connection between them, and assessing compensation redressing that damage. Questions of fact. Independently determined by the judge of merits by virtue of his authority to understand the facts of the case and assess the evidence, documents, and expert report submitted in the proceedings, without review by the Court of Cassation. Its condition. - Compensation for moral damage pursuant to Article 231/2, Civil Code. The instances stated are illustrative, not exhaustive. Permissible in its various manifestations. - A person's right to life and bodily integrity. Among the rights guaranteed by the Constitution and the law, which prohibit infringement thereof. Its implication. Any harm to bodily integrity that impairs this right gives rise to entitlement to compensation for material damage. - The challenged judgment's ordering the appellant hospital to pay provisional compensation based on its conclusion from the 2 forensic medical reports that there was medical fault by the hospital's subordinate physician, establishing material and moral damage and engaging the hospital's liability as the entity responsible for the acts of its subordinates and obliged to pay compensation, on sound reasons. Criticism thereof. Factual argument. Inadmissible. An example concerning the establishment of a physician's liability during a circumcision operation. Rule: Article (240) of the Civil Code provides that (A principal shall be liable to the injured person for damage caused by his subordinate through his unlawful act whenever committed in the performance of his duties or because of them, and the relationship of subordination exists even if the principal has no actual authority to supervise and direct him). This means that the principal's liability for damage caused by his subordinate through his unlawful act rests on fault irrebuttably presumed on the part of the principal whenever the unlawful act was committed during the performance of his duties or because of them, or those duties assisted him or facilitated the commission of his unlawful act. Moreover, determining the fault giving rise to liability, attributing it to its perpetrator, determining the resulting damage and the causal connection between them, and assessing compensation redressing that damage are questions of fact independently determined by the court of merits by virtue of its authority to understand the facts of the case and assess the evidence, documents, and reports submitted in the proceedings, without review by the Court of Cassation in that regard, provided that its inference is sound, has an established basis in the papers, and is sufficient to support its judgment in this respect. Article (231/2) of the Civil Code provides that (Moral damage includes, in particular, physical or psychological harm suffered by a person as a result of an infringement of his life, body, liberty, chastity, honour, reputation, social or moral standing, or financial standing ....). This indicates—as stated in the Explanatory Memorandum—that the references in this Article to certain types of moral damage are illustrative, not exhaustive, and that compensation is permissible for moral damage in its various manifestations. Furthermore, a person's right to life and bodily integrity is among the rights guaranteed by the Constitution and the law, which criminalize infringement thereof. Accordingly, any harm to bodily integrity that impairs this right gives rise to entitlement to compensation for material damage. That being so, the challenged judgment based its order requiring the appellant to pay the respondent the provisional compensation awarded on its conclusion from the 2 forensic medical reports that the treating physician had made a diagnostic error before performing the circumcision operation. He established that the opening of the urinary tract was in its normal position and performed the operation on that basis. Then (the respondent's son) complained of urine emerging from beneath the head of the penis, and it became apparent that this resulted from a congenital defect of the penis consisting of the presence of the (urethral) opening beneath the head of the penis, which led to urine emerging from beneath the head after the said operation. The physician could have discovered this defect at the time of diagnosis had he followed the first steps of the circumcision operation, namely retracting the (foreskin of the penis) and exposing the head of the penis. He would then have discovered the congenital defect and taken the correct decision at that time, namely performing an operation to correct the urinary tract using the excess skin from the circumcision and performing the circumcision operation. What the treating physician raised, as established in the papers and medical reports, establishes his liability because he erred in diagnosis before performing the circumcision operation and failed to conduct a proper and sound examination. This arose from carelessness, negligence, and failure to follow recognized scientific principles. This resulted in material damage to (the son of) the respondent, consisting of his need to undergo another operation to correct the urinary tract and his need to have (skin) taken for this operation from another site, depriving him of the opportunity to have the operation performed at the time using the excess skin from the circumcision, in addition to his exposure to medical complications and a complaint from a site, as it is responsible for the faults of its subordinates, which resulted in material and moral damage suffered by (the respondent's son), and it is obliged to pay compensation. This inference by the judgment was sound and derived from matters having a basis in the papers, was sufficient to support its ruling, and contained a sufficient response rebutting the defence raised by the appellant in this regard. What the appellant raises in the grounds of appeal, criticizing this inference on the basis that there was no medical fault on the part of its subordinate, amounts to no more than an argument concerning matters within the discretionary authority of the court of merits, which may not be raised before the Court of Cassation. The ground is therefore without foundation, and, for the foregoing reasons, the appeal must be dismissed.