1|TORTS CASES 7, 23, 24, 40, 41
G.R. No. 178763               April 21, 2009
PETER PAUL PATRICK LUCAS, FATIMA GLADYS LUCAS, ABBEYGAIL LUCAS
AND GILLIAN LUCAS, Petitioners,
vs.
DR. PROSPERO MA. C. TUAÑO, Respondent.
DECISION
CHICO-NAZARIO, J.:
In this petition for review on certiorari 1 under Rule 45 of the Revised Rules of Court,
petitioners Peter Paul Patrick Lucas, Fatima Gladys Lucas, Abbeygail Lucas and
Gillian Lucas seek the reversal of the 27 September 2006 Decision 2 and 3 July 2007
Resolution,3 both of the Court of Appeals in CA-G.R. CV No. 68666, entitled "Peter
Paul Patrick Lucas, Fatima Gladys Lucas, Abbeygail Lucas and Gillian Lucas v.
Prospero Ma. C. Tuaño."
In the questioned decision and resolution, the Court of Appeals affirmed the 14 July
2000 Decision of the Regional Trial Court (RTC), Branch 150, Makati City,
dismissing the complaint filed by petitioners in a civil case entitled, "Peter Paul
Patrick Lucas, Fatima Gladys Lucas, Abbeygail Lucas and Gillian Lucas v. Prospero
Ma. C. Tuaño," docketed as Civil Case No. 92-2482.
From the record of the case, the established factual antecedents of the present
petition are:
Sometime in August 1988, petitioner Peter Paul Patrick Lucas (Peter) contracted
"sore eyes" in his right eye.
On 2 September 1988, complaining of a red right eye and swollen eyelid, Peter
made use of his health care insurance issued by Philamcare Health Systems, Inc.
(Philamcare), for a possible consult. The Philamcare Coordinator, Dr. Edwin Oca,
M.D., referred Peter to respondent, Dr. Prospero Ma. C. Tuaño, M.D. (Dr. Tuaño),
an ophthalmologist at St. Luke’s Medical Center, for an eye consult.
Upon consultation with Dr. Tuaño, Peter narrated that it had been nine (9) days
since the problem with his right eye began; and that he was already taking Maxitrol
to address the problem in his eye. According to Dr. Tuaño, he performed "ocular
routine examination" on Peter’s eyes, wherein: (1) a gross examination of Peter’s
eyes and their surrounding area was made; (2) Peter’s visual acuity were taken; (3)
Peter’s eyes were palpated to check the intraocular pressure of each; (4) the motility
of Peter’s eyes was observed; and (5) the ophthalmoscopy 4 on Peter’s eyes was
used. On that particular consultation, Dr. Tuaño diagnosed that Peter was suffering
from conjunctivitis5 or "sore eyes." Dr. Tuaño then prescribed Spersacet-C 6 eye
drops for Peter and told the latter to return for follow-up after one week.
As instructed, Peter went back to Dr. Tuaño on 9 September 1988. Upon
examination, Dr. Tuaño told Peter that the "sore eyes" in the latter’s right eye had
already cleared up and he could discontinue the Spersacet-C. However, the same
eye developed Epidemic Kerato Conjunctivitis (EKC), 7 a viral infection. To address
the new problem with Peter’s right eye, Dr. Tuaño prescribed to the former a
steroid-based eye drop called Maxitrol,8 a dosage of six (6) drops per day. 9 To
recall, Peter had already been using Maxitrol prior to his consult with Dr. Tuaño.
On 21 September 1988, Peter saw Dr. Tuaño for a follow-up consultation. After
examining both of Peter’s eyes, Dr. Tuaño instructed the former to taper down 10 the
dosage of Maxitrol, because the EKC in his right eye had already resolved. Dr.
Tuaño specifically cautioned Peter that, being a steroid, Maxitrol had to be
withdrawn gradually; otherwise, the EKC might recur. 11
Complaining of feeling as if there was something in his eyes, Peter returned to Dr.
Tuaño for another check-up on 6 October 1988. Dr. Tuaño examined Peter’s eyes
and found that the right eye had once more developed EKC. So, Dr. Tuaño
instructed Peter to resume the use of Maxitrol at six (6) drops per day.
On his way home, Peter was unable to get a hold of Maxitrol, as it was out of stock.
Consequently, Peter was told by Dr. Tuano to take, instead, Blephamide 12 another
steroid-based medication, but with a lower concentration, as substitute for the
unavailable Maxitrol, to be used three (3) times a day for five (5) days; two (2) times
a day for five (5) days; and then just once a day. 13
2|TORTS CASES 7, 23, 24, 40, 41
Several days later, on 18 October 1988, Peter went to see Dr. Tuaño at his clinic,
alleging severe eye pain, feeling as if his eyes were about to "pop-out," a headache
and blurred vision. Dr. Tuaño examined Peter’s eyes and discovered that the EKC
was again present in his right eye. As a result, Dr. Tuaño told Peter to resume the
maximum dosage of Blephamide.
Dr. Tuaño saw Peter once more at the former’s clinic on 4 November 1988. Dr.
Tuaño’s examination showed that only the periphery of Peter’s right eye was
positive for EKC; hence, Dr. Tuaño prescribed a lower dosage of Blephamide.
It was also about this time that Fatima Gladys Lucas (Fatima), Peter’s spouse, read
the accompanying literature of Maxitrol and found therein the following warning
against the prolonged use of such steroids:
WARNING:
Prolonged use may result in glaucoma, with damage to the optic nerve, defects in
visual acuity and fields of vision, and posterior, subcapsular cataract formation.
Prolonged use may suppress the host response and thus increase the hazard of
secondary ocular infractions, in those diseases causing thinning of the cornea or
sclera, perforations have been known to occur with the use of topical steroids. In
acute purulent conditions of the eye, steroids may mask infection or enhance
existing infection. If these products are used for 10 days or longer, intraocular
pressure should be routinely monitored even though it may be difficult in children
and uncooperative patients.
Employment of steroid medication in the treatment of herpes simplex requires great
caution.
xxxx
ADVERSE REACTIONS:
Adverse reactions have occurred with steroid/anti-infective combination drugs which
can be attributed to the steroid component, the anti-infective component, or the
combination. Exact incidence figures are not available since no denominator of
treated patients is available.
Reactions occurring most often from the presence of the anti-infective ingredients
are allergic sensitizations. The reactions due to the steroid component in decreasing
order to frequency are elevation of intra-ocular pressure (IOP) with possible
development of glaucoma, infrequent optic nerve damage; posterior subcapsular
cataract formation; and delayed wound healing.
Secondary infection: The development of secondary has occurred after use of
combination containing steroids and antimicrobials. Fungal infections of the correa
are particularly prone to develop coincidentally with long-term applications of
steroid. The possibility of fungal invasion must be considered in any persistent
corneal ulceration where steroid treatment has been used.
Secondary bacterial ocular infection following suppression of host responses also
occurs.
On 26 November 1988, Peter returned to Dr. Tuaño’s clinic, complaining of "feeling
worse."14 It appeared that the EKC had spread to the whole of Peter’s right eye yet
again. Thus, Dr. Tuaño instructed Peter to resume the use of Maxitrol. Petitioners
averred that Peter already made mention to Dr. Tuaño during said visit of the
above-quoted warning against the prolonged use of steroids, but Dr. Tuaño
supposedly brushed aside Peter’s concern as mere paranoia, even assuring him
that the former was taking care of him (Peter).
Petitioners further alleged that after Peter’s 26 November 1988 visit to Dr. Tuaño,
Peter continued to suffer pain in his right eye, which seemed to "progress," with the
ache intensifying and becoming more frequent.
Upon waking in the morning of 13 December 1988, Peter had no vision in his right
eye. Fatima observed that Peter’s right eye appeared to be bloody and
swollen.15 Thus, spouses Peter and Fatima rushed to the clinic of Dr. Tuaño. Peter
reported to Dr. Tuaño that he had been suffering from constant headache in the
afternoon and blurring of vision.
3|TORTS CASES 7, 23, 24, 40, 41
Upon examination, Dr. Tuaño noted the hardness of Peter’s right eye. With the use
of a tonometer16 to verify the exact intraocular pressure 17 (IOP) of Peter’s eyes, Dr.
Tuaño discovered that the tension in Peter’s right eye was 39.0 Hg, while that of his
left was 17.0 Hg.18 Since the tension in Peter’s right eye was way over the normal
IOP, which merely ranged from 10.0 Hg to 21.0 Hg,19 Dr. Tuaño ordered20 him to
immediately discontinue the use of Maxitrol and prescribed to the latter
Diamox21 and Normoglaucon, instead.22 Dr. Tuaño also required Peter to go for daily
check-up in order for the former to closely monitor the pressure of the latter’s eyes.
On 15 December 1988, the tonometer reading of Peter’s right eye yielded a high
normal level, i.e., 21.0 Hg. Hence, Dr. Tuaño told Peter to continue using Diamox
and Normoglaucon. But upon Peter’s complaint of "stomach pains and tingling
sensation in his fingers,"23 Dr. Tuaño discontinued Peter’s use of Diamox. 24
Peter went to see another ophthalmologist, Dr. Ramon T. Batungbacal (Dr.
Batungbacal), on 21 December 1988, who allegedly conducted a complete
ophthalmological examination of Peter’s eyes. Dr. Batungbacal’s diagnosis was
Glaucoma25 O.D.26 He recommended Laser Trabeculoplasty27 for Peter’s right eye.
When Peter returned to Dr. Tuaño on 23 December 1988, 28 the tonometer
measured the IOP of Peter’s right eye to be 41.0 Hg,29 again, way above normal. Dr.
Tuaño addressed the problem by advising Peter to resume taking Diamox along
with Normoglaucon.
During the Christmas holidays, Peter supposedly stayed in bed most of the time and
was not able to celebrate the season with his family because of the debilitating
effects of Diamox.30
On 28 December 1988, during one of Peter’s regular follow-ups with Dr. Tuaño, the
doctor conducted another ocular routine examination of Peter’s eyes. Dr. Tuaño
noted the recurrence of EKC in Peter’s right eye. Considering, however, that the
IOP of Peter’s right eye was still quite high at 41.0 Hg, Dr. Tuaño was at a loss as to
how to balance the treatment of Peter’s EKC vis-à-vis the presence of glaucoma in
the same eye. Dr. Tuaño, thus, referred Peter to Dr. Manuel B. Agulto, M.D. (Dr.
Agulto), another ophthalmologist specializing in the treatment of glaucoma. 31 Dr.
Tuaño’s letter of referral to Dr. Agulto stated that:
Referring to you Mr. Peter Lucas for evaluation & possible management. I initially
saw him Sept. 2, 1988 because of conjunctivitis. The latter resolved and he
developed EKC for which I gave Maxitrol. The EKC was recurrent after stopping
steroid drops. Around 1 month of steroid treatment, he noted blurring of vision &
pain on the R. however, I continued the steroids for the sake of the EKC. A month
ago, I noted iris atrophy, so I took the IOP and it was definitely elevated. I stopped
the steroids immediately and has (sic) been treating him medically.
It seems that the IOP can be controlled only with oral Diamox, and at the moment,
the EKC has recurred and I’m in a fix whether to resume the steroid or not
considering that the IOP is still uncontrolled. 32
On 29 December 1988, Peter went to see Dr. Agulto at the latter’s clinic. Several
tests were conducted thereat to evaluate the extent of Peter’s condition. Dr. Agulto
wrote Dr. Tuaño a letter containing the following findings and recommendations:
Thanks for sending Peter Lucas. On examination conducted vision was 20/25 R and
20/20L. Tension curve 19 R and 15 L at 1210 H while on Normoglaucon BID OD &
Diamox ½ tab every 6h po.
Slit lamp evaluation33 disclosed subepithelial corneal defect outer OD. There was
circumferential peripheral iris atrophy, OD. The lenses were clear.
Funduscopy34 showed vertical cup disc of 0.85 R and 0.6 L with temporal slope
R>L.
Zeiss gonioscopy35 revealed basically open angles both eyes with occasional
PAS,36 OD.
Rolly, I feel that Peter Lucas has really sustained significant glaucoma damage. I
suggest that we do a baseline visual fields and push medication to lowest possible
levels. If I may suggest further, I think we should prescribe Timolol 37 BID38 OD in lieu
4|TORTS CASES 7, 23, 24, 40, 41
of Normoglaucon. If the IOP is still inadequate, we may try D’epifrin 39 BID OD
(despite low PAS). I’m in favor of retaining Diamox or similar CAI. 40
If fields show further loss in say – 3 mos. then we should consider trabeculoplasty.
I trust that this approach will prove reasonable for you and Peter. 41
Peter went to see Dr. Tuaño on 31 December 1988, bearing Dr. Agulto’s
aforementioned letter. Though Peter’s right and left eyes then had normal IOP
of 21.0 Hg and 17.0 Hg, respectively, Dr. Tuaño still gave him a prescription for
Timolol B.I.D. so Peter could immediately start using said medication. Regrettably,
Timolol B.I.D. was out of stock, so Dr. Tuaño instructed Peter to just continue using
Diamox and Normoglaucon in the meantime.
Just two days later, on 2 January 1989, the IOP of Peter’s right eye remained
elevated at 21.0 Hg,42 as he had been without Diamox for the past three (3) days.
On 4 January 1989, Dr. Tuaño conducted a visual field study 43 of Peter’s eyes,
which revealed that the latter had tubular vision 44 in his right eye, while that of his
left eye remained normal. Dr. Tuaño directed Peter to religiously use the Diamox
and Normoglaucon, as the tension of the latter’s right eye went up even further
to 41.0 Hg in just a matter of two (2) days, in the meantime that Timolol B.I.D. and
D’epifrin were still not available in the market. Again, Dr. Tuaño advised Peter to
come for regular check-up so his IOP could be monitored.
Obediently, Peter went to see Dr. Tuaño on the 7th,  13th, 16th and 20th of January
1989 for check-up and IOP monitoring.
In the interregnum, however, Peter was prodded by his friends to seek a second
medical opinion. On 13 January 1989, Peter consulted Dr. Jaime Lapuz, M.D. (Dr.
Lapuz), an ophthalmologist, who, in turn, referred Peter to Dr. Mario V. Aquino, M.D.
(Dr. Aquino), another ophthalmologist who specializes in the treatment of glaucoma
and who could undertake the long term care of Peter’s eyes.
According to petitioners, after Dr. Aquino conducted an extensive evaluation of
Peter’s eyes, the said doctor informed Peter that his eyes were relatively normal,
though the right one sometimes manifested maximum borderline tension. Dr.
Aquino also confirmed Dr. Tuaño’s diagnosis of tubular vision in Peter’s right eye.
Petitioners claimed that Dr. Aquino essentially told Peter that the latter’s condition
would require lifetime medication and follow-ups.
In May 1990 and June 1991, Peter underwent two (2) procedures of laser
trabeculoplasty to attempt to control the high IOP of his right eye.
Claiming to have steroid-induced glaucoma 45 and blaming Dr. Tuaño for the same,
Peter, joined by: (1) Fatima, his spouse 46; (2) Abbeygail, his natural child47; and (3)
Gillian, his legitimate child48 with Fatima, instituted on 1 September 1992, a civil
complaint for damages against Dr. Tuaño, before the RTC, Branch 150, Quezon
City. The case was docketed as Civil Case No. 92-2482.
In their Complaint, petitioners specifically averred that as the "direct consequence of
[Peter’s] prolonged use of Maxitrol, [he] suffered from steroid induced glaucoma
which caused the elevation of his intra-ocular pressure. The elevation of the intra-
ocular pressure of [Peter’s right eye] caused the impairment of his vision which
impairment is not curable and may even lead to total blindness."49
Petitioners additionally alleged that the visual impairment of Peter’s right eye
caused him and his family so much grief. Because of his present condition, Peter
now needed close medical supervision forever; he had already undergone two (2)
laser surgeries, with the possibility that more surgeries were still needed in the
future; his career in sports casting had suffered and was continuing to suffer; 50 his
anticipated income had been greatly reduced as a result of his "limited" capacity; he
continually suffered from "headaches, nausea, dizziness, heart palpitations, rashes,
chronic rhinitis, sinusitis," 51 etc.; Peter’s relationships with his spouse and children
continued to be strained, as his condition made him highly irritable and sensitive; his
mobility and social life had suffered; his spouse, Fatima, became the breadwinner in
the family;52 and his two children had been deprived of the opportunity for a better
life and educational prospects. Collectively, petitioners lived in constant fear of Peter
becoming completely blind.53
5|TORTS CASES 7, 23, 24, 40, 41
In the end, petitioners sought pecuniary award for their supposed pain and
suffering, which were ultimately brought about by Dr. Tuaño’s grossly negligent
conduct in prescribing to Peter the medicine Maxitrol for a period of three (3)
months, without monitoring Peter’s IOP, as required in cases of prolonged use of
said medicine, and notwithstanding Peter’s constant complaint of intense eye pain
while using the same. Petitioners particularly prayed that Dr. Tuaño be adjudged
liable for the following amounts:
1. The amount of ₱2,000,000.00 to plaintiff Peter Lucas as and by way of
compensation for his impaired vision.
2. The amount of ₱300,000.00 to spouses Lucas as and by way of actual
damages plus such additional amounts that may be proven during trial.
3. The amount of ₱1,000,000.00 as and by way of moral damages.
4. The amount of ₱500,000.00 as and by way of exemplary damages.
5. The amount of ₱200,000.00 as and by way of attorney’s fees plus costs
of suit.54
In rebutting petitioners’ complaint, Dr. Tuaño asserted that the "treatment made by
[him] more than three years ago has no causal connection to [Peter’s] present
glaucoma or condition."55 Dr. Tuaño explained that "[d]rug-induced glaucoma is
temporary and curable, steroids have the side effect of increasing intraocular
pressure. Steroids are prescribed to treat Epidemic Kerato Conjunctivitis or EKC
which is an infiltration of the cornea as a result of conjunctivitis or sore eyes." 56 Dr.
Tuaño also clarified that (1) "[c]ontrary to [petitioners’] fallacious claim, [he] did NOT
continually prescribe the drug Maxitrol which contained steroids for any prolonged
period"57 and "[t]he truth was the Maxitrol was discontinued x x x as soon as EKC
disappeared and was resumed only when EKC reappeared" 58; (2) the entire time he
was treating Peter, he "continually monitored the intraocular pressure of [Peter’s
eyes] by palpating the eyes and by putting pressure on the eyeballs," and no
hardening of the same could be detected, which meant that there was no increase
in the tension or IOP, a possible side reaction to the use of steroid medications; and
(3) it was only on 13 December 1988 that Peter complained of a headache and
blurred vision in his right eye, and upon measuring the IOP of said eye, it was
determined for the first time that the IOP of the right eye had an elevated value.
But granting for the sake of argument that the "steroid treatment of [Peter’s] EKC
caused the steroid induced glaucoma," 59 Dr. Tuaño argued that:
[S]uch condition, i.e., elevated intraocular pressure, is temporary. As soon as the
intake of steroids is discontinued, the intraocular pressure automatically is reduced.
Thus, [Peter’s] glaucoma can only be due to other causes not attributable to
steroids, certainly not attributable to [his] treatment of more than three years ago x x
x.
From a medical point of view, as revealed by more current examination of [Peter],
the latter’s glaucoma can only be long standing glaucoma, open angle glaucoma,
because of the large C:D ratio. The steroids provoked the latest glaucoma to be
revealed earlier as [Peter] remained asymptomatic prior to steroid application.
Hence, the steroid treatment was in fact beneficial to [Peter] as it revealed the
incipient open angle glaucoma of [Peter] to allow earlier treatment of the same. 60
In a Decision dated 14 July 2000, the RTC dismissed Civil Case No. 92-2482 "for
insufficiency of evidence."61 The decretal part of said Decision reads:
Wherefore, premises considered, the instant complaint is dismissed for insufficiency
of evidence. The counter claim (sic) is likewise dismissed in the absence of bad
faith or malice on the part of plaintiff in filing the suit. 62
The RTC opined that petitioners failed to prove by preponderance of evidence that
Dr. Tuaño was negligent in his treatment of Peter’s condition. In particular, the
record of the case was bereft of any evidence to establish that the steroid
medication and its dosage, as prescribed by Dr. Tuaño, caused Peter’s glaucoma.
The trial court reasoned that the "recognized standards of the medical community
has not been established in this case, much less has causation been established to
render [Tuaño] liable."63 According to the RTC:
6|TORTS CASES 7, 23, 24, 40, 41
[Petitioners] failed to establish the duty required of a medical practitioner against
which Peter Paul’s treatment by defendant can be compared with. They did not
present any medical expert or even a medical doctor to convince and expertly
explain to the court the established norm or duty required of a physician treating a
patient, or whether the non taking (sic) by Dr. Tuaño of Peter Paul’s pressure a
deviation from the norm or his non-discovery of the glaucoma in the course of
treatment constitutes negligence. It is important and indispensable to establish such
a standard because once it is established, a medical practitioner who departed
thereof breaches his duty and commits negligence rendering him liable. Without
such testimony or enlightenment from an expert, the court is at a loss as to what is
then the established norm of duty of a physician against which defendant’s conduct
can be compared with to determine negligence. 64
The RTC added that in the absence of "any medical evidence to the contrary, this
court cannot accept [petitioners’] claim that the use of steroid is the proximate cause
of the damage sustained by [Peter’s] eye."65
Correspondingly, the RTC accepted Dr. Tuaño’s medical opinion that "Peter Paul
must have been suffering from normal tension glaucoma, meaning, optic nerve
damage was happening but no elevation of the eye pressure is manifested, that the
steroid treatment actually unmasked the condition that resulted in the earlier
treatment of the glaucoma. There is nothing in the record to contradict such
testimony. In fact, plaintiff’s Exhibit ‘S’ even tends to support them."
Undaunted, petitioners appealed the foregoing RTC decision to the Court of
Appeals. Their appeal was docketed as CA-G.R. CV No. 68666.
On 27 September 2006, the Court of Appeals rendered a decision in CA-G.R. CV
No. 68666 denying petitioners’ recourse and affirming the appealed RTC Decision.
The fallo of the judgment of the appellate court states:
WHEREFORE, the Decision appealed from is AFFIRMED. 66
The Court of Appeals faulted petitioners because they –
[D]id not present any medical expert to testify that Dr. Tuano’s prescription of
Maxitrol and Blephamide for the treatment of EKC on Peter’s right eye was not
proper and that his palpation of Peter’s right eye was not enough to detect adverse
reaction to steroid. Peter testified that Dr. Manuel Agulto told him that he should not
have used steroid for the treatment of EKC or that he should have used it only for
two (2) weeks, as EKC is only a viral infection which will cure by itself. However, Dr.
Agulto was not presented by [petitioners] as a witness to confirm what he allegedly
told Peter and, therefore, the latter’s testimony is hearsay. Under Rule 130, Section
36 of the Rules of Court, a witness can testify only to those facts which he knows of
his own personal knowledge, x x x. Familiar and fundamental is the rule that
hearsay testimony is inadmissible as evidence. 67
Like the RTC, the Court of Appeals gave great weight to Dr. Tuaño’s medical
judgment, specifically the latter’s explanation that:
[W]hen a doctor sees a patient, he cannot determine whether or not the latter would
react adversely to the use of steroids, that it was only on December 13, 1989, when
Peter complained for the first time of headache and blurred vision that he observed
that the pressure of the eye of Peter was elevated, and it was only then that he
suspected that Peter belongs to the 5% of the population who reacts adversely to
steroids.68
Petitioners’ Motion for Reconsideration was denied by the Court of Appeals in a
Resolution dated 3 July 2007.
Hence, this Petition for Review on Certiorari under Rule 45 of the Revised Rules of
Court premised on the following assignment of errors:
I.
THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR IN
AFFIRMING THE DECISION OF THE TRIAL COURT DISMISSING THE
PETITIONERS’ COMPLAINT FOR DAMAGES AGAINST THE RESPONDENT ON
THE GROUND OF INSUFFICIENCY OF EVIDENCE;
7|TORTS CASES 7, 23, 24, 40, 41
II.
THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR IN
DISMISSING THE PETITIONERS’ COMPLAINT FOR DAMAGES AGAINST THE
RESPONDENT ON THE GROUND THAT NO MEDICAL EXPERT WAS
PRESENTED BY THE PETITIONERS TO PROVE THEIR CLAIM FOR MEDICAL
NEGLIGENCE AGAINST THE RESPONDENT; AND
III.
THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR IN NOT
FINDING THE RESPONDENT LIABLE TO THE PETITIONERS’ FOR ACTUAL,
MORAL AND EXEMPLARY DAMAGES, ASIDE FROM ATTORNEY’S FEES,
COSTS OF SUIT, AS A RESULT OF HIS GROSS NEGLIGENCE.69
A reading of the afore-quoted reversible errors supposedly committed by the Court
of Appeals in its Decision and Resolution would reveal that petitioners are
fundamentally assailing the finding of the Court of Appeals that the evidence on
record is insufficient to establish petitioners’ entitlement to any kind of damage.
Therefore, it could be said that the sole issue for our resolution in the Petition at bar
is whether the Court of Appeals committed reversible error in affirming the judgment
of the RTC that petitioners failed to prove, by preponderance of evidence, their
claim for damages against Dr. Tuaño.
Evidently, said issue constitutes a question of fact, as we are asked to revisit anew
the factual findings of the Court of Appeals, as well as of the RTC. In effect,
petitioners would have us sift through the evidence on record and pass upon
whether there is sufficient basis to establish Dr. Tuaño’s negligence in his treatment
of Peter’s eye condition. This question clearly involves a factual inquiry, the
determination of which is not within the ambit of this Court’s power of review under
Rule 45 of the 1997 Rules Civil Procedure, as amended. 70
Elementary is the principle that this Court is not a trier of facts; only errors of law are
generally reviewed in petitions for review on certiorari criticizing decisions of the
Court of Appeals. Questions of fact are not entertained. 71
Nonetheless, the general rule that only questions of law may be raised on appeal in
a petition for review under Rule 45 of the Rules of Court admits of certain
exceptions, including the circumstance when the finding of fact of the Court of
Appeals is premised on the supposed absence of evidence, but is contradicted by
the evidence on record. Although petitioners may not explicitly invoke said
exception, it may be gleaned from their allegations and arguments in the instant
Petition.1avvphi1.zw+
Petitioners contend, that "[c]ontrary to the findings of the Honorable Court of
Appeals, [they] were more than able to establish that: Dr. Tuaño ignored the
standard medical procedure for ophthalmologists, administered medication with
recklessness, and exhibited an absence of competence and skills expected from
him."72 Petitioners reject the necessity of presenting expert and/or medical testimony
to establish (1) the standard of care respecting the treatment of the disorder
affecting Peter’s eye; and (2) whether or not negligence attended Dr. Tuaño’s
treatment of Peter, because, in their words –
That Dr. Tuaño was grossly negligent in the treatment of Peter’s simple eye
ailment is a simple case of cause and effect. With mere documentary evidence and
based on the facts presented by the petitioners, respondent can readily be held
liable for damages even without any expert testimony. In any case, however, and
contrary to the finding of the trial court and the Court of Appeals, there was a
medical expert presented by the petitioner showing the recklessness committed by
[Dr. Tuaño] – Dr. Tuaño himself. [Emphasis supplied.]
They insist that Dr. Tuaño himself gave sufficient evidence to establish his gross
negligence that ultimately caused the impairment of the vision of Peter’s right
eye,73 i.e., that "[d]espite [Dr. Tuaño’s] knowledge that 5% of the population reacts
adversely to Maxitrol, [he] had no qualms whatsoever in prescribing said steroid to
Peter without first determining whether or not the (sic) Peter belongs to the 5%." 74
We are not convinced. The judgments of both the Court of Appeals and the RTC are
in accord with the evidence on record, and we are accordingly bound by the findings
of fact made therein.
8|TORTS CASES 7, 23, 24, 40, 41
Petitioners’ position, in sum, is that Peter’s glaucoma is the direct result of Dr.
Tuaño’s negligence in his improper administration of the drug Maxitrol; "thus, [the
latter] should be liable for all the damages suffered and to be suffered by
[petitioners]."75 Clearly, the present controversy is a classic illustration of a medical
negligence case against a physician based on the latter’s professional negligence.
In this type of suit, the patient or his heirs, in order to prevail, is required to prove by
preponderance of evidence that the physician failed to exercise that degree of skill,
care, and learning possessed by other persons in the same profession; and that as
a proximate result of such failure, the patient or his heirs suffered damages.
For lack of a specific law geared towards the type of negligence committed by
members of the medical profession, such claim for damages is almost always
anchored on the alleged violation of Article 2176 of the Civil Code, which states that:
ART. 2176. Whoever by act or omission causes damage to another, there being
fault or negligence, is obliged to pay for the damage done. Such fault or negligence,
if there is no pre-existing contractual relation between the parties, is called a quasi-
delict and is governed by the provisions of this Chapter.
In medical negligence cases, also called medical malpractice suits, there exist a
physician-patient relationship between the doctor and the victim. But just like any
other proceeding for damages, four essential (4) elements i.e., (1) duty; (2) breach;
(3) injury; and (4) proximate causation,76 must be established by the plaintiff/s. All
the four (4) elements must co-exist in order to find the physician negligent and, thus,
liable for damages.
When a patient engages the services of a physician, a physician-patient relationship
is generated. And in accepting a case, the physician, for all intents and purposes,
represents that he has the needed training and skill possessed by physicians and
surgeons practicing in the same field; and that he will employ such training, care,
and skill in the treatment of the patient. 77 Thus, in treating his patient, a physician is
under a duty to [the former] to exercise that degree of care, skill and diligence which
physicians in the same general neighborhood and in the same general line of
practice ordinarily possess and exercise in like cases. 78 Stated otherwise, the
physician has the duty to use at least the same level of care that any other
reasonably competent physician would use to treat the condition under similar
circumstances.
This standard level of care, skill and diligence is a matter best addressed by expert
medical testimony, because the standard of care in a medical malpractice case is a
matter peculiarly within the knowledge of experts in the field. 79
There is breach of duty of care, skill and diligence, or the improper performance of
such duty, by the attending physician when the patient is injured in body or in health
[and this] constitutes the actionable malpractice. 80 Proof of such breach must
likewise rest upon the testimony of an expert witness that the treatment accorded to
the patient failed to meet the standard level of care, skill and diligence which
physicians in the same general neighborhood and in the same general line of
practice ordinarily possess and exercise in like cases.
Even so, proof of breach of duty on the part of the attending physician is insufficient,
for there must be a causal connection between said breach and the resulting injury
sustained by the patient. Put in another way, in order that there may be a recovery
for an injury, it must be shown that the "injury for which recovery is sought must be
the legitimate consequence of the wrong done; the connection between the
negligence and the injury must be a direct and natural sequence of events,
unbroken by intervening efficient causes"; 81 that is, the negligence must be
the proximate cause of the injury. And the proximate cause of an injury is that
cause, which, in the natural and continuous sequence, unbroken by any efficient
intervening cause, produces the injury, and without which the result would not have
occurred.82
Just as with the elements of duty and breach of the same, in order to establish the
proximate cause [of the injury] by a preponderance of the evidence in a medical
malpractice action, [the patient] must similarly use expert testimony, because the
question of whether the alleged professional negligence caused [the patient’s] injury
is generally one for specialized expert knowledge beyond the ken of the average
layperson; using the specialized knowledge and training of his field, the expert’s role
is to present to the [court] a realistic assessment of the likelihood that [the
physician’s] alleged negligence caused [the patient’s] injury. 83
9|TORTS CASES 7, 23, 24, 40, 41
From the foregoing, it is apparent that medical negligence cases are best proved by
opinions of expert witnesses belonging in the same general neighborhood and in
the same general line of practice as defendant physician or surgeon. The deference
of courts to the expert opinion of qualified physicians [or surgeons] stems from the
former’s realization that the latter possess unusual technical skills which laymen in
most instances are incapable of intelligently evaluating; 84 hence, the indispensability
of expert testimonies.
In the case at bar, there is no question that a physician-patient relationship
developed between Dr. Tuaño and Peter when Peter went to see the doctor on 2
September 1988, seeking a consult for the treatment of his sore eyes. Admittedly,
Dr. Tuaño, an ophthalmologist, prescribed Maxitrol when Peter developed and had
recurrent EKC. Maxitrol or neomycin/polymyxin B sulfates/dexamethasone
ophthalmic ointment is a multiple-dose anti-infective steroid combination in sterile
form for topical application.85 It is the drug which petitioners claim to have caused
Peter’s glaucoma.
However, as correctly pointed out by the Court of Appeals, "[t]he onus probandi was
on the patient to establish before the trial court that the physicians ignored standard
medical procedure, prescribed and administered medication with recklessness and
exhibited an absence of the competence and skills expected of general practitioners
similarly situated."86 Unfortunately, in this case, there was absolute failure on the
part of petitioners to present any expert testimony to establish: (1) the standard of
care to be implemented by competent physicians in treating the same condition as
Peter’s under similar circumstances; (2) that, in his treatment of Peter, Dr. Tuaño
failed in his duty to exercise said standard of care that any other competent
physician would use in treating the same condition as Peter’s under similar
circumstances; and (3) that the injury or damage to Peter’s right eye, i.e., his
glaucoma, was the result of his use of Maxitrol, as prescribed by Dr. Tuaño.
Petitioners’ failure to prove the first element alone is already fatal to their cause.
Petitioners maintain that Dr. Tuaño failed to follow in Peter’s case the required
procedure for the prolonged use of Maxitrol. But what is actually the required
procedure in situations such as in the case at bar? To be precise, what is the
standard operating procedure when ophthalmologists prescribe steroid medications
which, admittedly, carry some modicum of risk?
Absent a definitive standard of care or diligence required of Dr. Tuaño under the
circumstances, we have no means to determine whether he was able to comply with
the same in his diagnosis and treatment of Peter. This Court has no yardstick upon
which to evaluate or weigh the attendant facts of this case to be able to state with
confidence that the acts complained of, indeed, constituted negligence and, thus,
should be the subject of pecuniary reparation.
Petitioners assert that prior to prescribing Maxitrol, Dr. Tuaño should have
determined first whether Peter was a "steroid responder." 87 Yet again, petitioners did
not present any convincing proof that such determination is actually part of the
standard operating procedure which ophthalmologists should unerringly follow prior
to prescribing steroid medications.
In contrast, Dr. Tuaño was able to clearly explain that what is only required of
ophthalmologists, in cases such as Peter’s, is the conduct of standard
tests/procedures known as "ocular routine examination," 88 composed of five (5)
tests/procedures – specifically, gross examination of the eyes and the surrounding
area; taking of the visual acuity of the patient; checking the intraocular pressure of
the patient; checking the motility of the eyes; and using ophthalmoscopy on the
patient’s eye – and he did all those tests/procedures every time Peter went to see
him for follow-up consultation and/or check-up.
We cannot but agree with Dr. Tuaño’s assertion that when a doctor sees a patient,
he cannot determine immediately whether the latter would react adversely to the
use of steroids; all the doctor can do is map out a course of treatment recognized as
correct by the standards of the medical profession. It must be remembered that a
physician is not an insurer of the good result of treatment. The mere fact that the
patient does not get well or that a bad result occurs does not in itself indicate failure
to exercise due care.89 The result is not determinative of the performance [of the
physician] and he is not required to be infallible. 90
10 | T O R T S C A S E S 7 , 2 3 , 2 4 , 4 0 , 4 1
Moreover, that Dr. Tuaño saw it fit to prescribe Maxitrol to Peter was justified by the
fact that the latter was already using the same medication when he first came to see
Dr. Tuaño on 2 September 1988 and had exhibited no previous untoward reaction
to that particular drug. 91
Also, Dr. Tuaño categorically denied petitioners’ claim that he never monitored the
tension of Peter’s eyes while the latter was on Maxitrol. Dr. Tuaño testified that he
palpated Peter’s eyes every time the latter came for a check-up as part of the
doctor’s ocular routine examination, a fact which petitioners failed to rebut. Dr.
Tuaño’s regular conduct of examinations and tests to ascertain the state of Peter’s
eyes negate the very basis of petitioners’ complaint for damages. As to whether Dr.
Tuaño’s actuations conformed to the standard of care and diligence required in like
circumstances, it is presumed to have so conformed in the absence of evidence to
the contrary.
Even if we are to assume that Dr. Tuaño committed negligent acts in his treatment
of Peter’s condition, the causal connection between Dr. Tuaño’s supposed
negligence and Peter’s injury still needed to be established. The critical and
clinching factor in a medical negligence case is proof of the causal connection
between the negligence which the evidence established and the plaintiff’s
injuries.92 The plaintiff must plead and prove not only that he has been injured and
defendant has been at fault, but also that the defendant’s fault caused the injury. A
verdict in a malpractice action cannot be based on speculation or conjecture.
Causation must be proven within a reasonable medical probability based upon
competent expert testimony.93
The causation between the physician’s negligence and the patient’s injury may only
be established by the presentation of proof that Peter’s glaucoma would not have
occurred but for Dr. Tuaño’s supposed negligent conduct. Once more, petitioners
failed in this regard.
Dr. Tuaño does not deny that the use of Maxitrol involves the risk of increasing a
patient’s IOP. In fact, this was the reason why he made it a point to palpate Peter’s
eyes every time the latter went to see him -- so he could monitor the tension of
Peter’s eyes. But to say that said medication conclusively caused Peter’s glaucoma
is purely speculative. Peter was diagnosed with open-angle glaucoma. This kind of
glaucoma is characterized by an almost complete absence of symptoms and a
chronic, insidious course.94 In open-angle glaucoma, halos around lights and
blurring of vision do not occur unless there has been a sudden increase in the
intraocular vision.95 Visual acuity remains good until late in the course of the
disease.96 Hence, Dr. Tuaño claims that Peter’s glaucoma "can only be long
standing x x x because of the large C:D 97 ratio," and that "[t]he steroids provoked the
latest glaucoma to be revealed earlier" was a blessing in disguise "as [Peter]
remained asymptomatic prior to steroid application."
Who between petitioners and Dr. Tuaño is in a better position to determine and
evaluate the necessity of using Maxitrol to cure Peter’s EKC vis-à-vis the attendant
risks of using the same?
That Dr. Tuaño has the necessary training and skill to practice his chosen field is
beyond cavil. Petitioners do not dispute Dr. Tuaño’s qualifications – that he has
been a physician for close to a decade and a half at the time Peter first came to see
him; that he has had various medical training; that he has authored numerous
papers in the field of ophthalmology, here and abroad; that he is a Diplomate of the
Philippine Board of Ophthalmology; that he occupies various teaching posts (at the
time of the filing of the present complaint, he was the Chair of the Department of
Ophthalmology and an Associate Professor at the University of the Philippines-
Philippine General Hospital and St. Luke’s Medical Center, respectively); and that
he held an assortment of positions in numerous medical organizations like the
Philippine Medical Association, Philippine Academy of Ophthalmology, Philippine
Board of Ophthalmology, Philippine Society of Ophthalmic Plastic and
Reconstructive Surgery, Philippine Journal of Ophthalmology, Association of
Philippine Ophthalmology Professors, et al.
It must be remembered that when the qualifications of a physician are admitted, as
in the instant case, there is an inevitable presumption that in proper cases, he takes
the necessary precaution and employs the best of his knowledge and skill in
attending to his clients, unless the contrary is sufficiently established. 98 In making
the judgment call of treating Peter’s EKC with Maxitrol, Dr. Tuaño took the
necessary precaution by palpating Peter’s eyes to monitor their IOP every time the
11 | T O R T S C A S E S 7 , 2 3 , 2 4 , 4 0 , 4 1
latter went for a check-up, and he employed the best of his knowledge and skill
earned from years of training and practice.
In contrast, without supporting expert medical opinions, petitioners’ bare assertions
of negligence on Dr. Tuaño’s part, which resulted in Peter’s glaucoma, deserve
scant credit.
Our disposition of the present controversy might have been vastly different had
petitioners presented a medical expert to establish their theory respecting Dr.
Tuaño’s so-called negligence. In fact, the record of the case reveals that petitioners’
counsel recognized the necessity of presenting such evidence. Petitioners even
gave an undertaking to the RTC judge that Dr. Agulto or Dr. Aquino would be
presented. Alas, no follow-through on said undertaking was made. 1avvphi1
The plaintiff in a civil case has the burden of proof as he alleges the affirmative of
the issue. However, in the course of trial in a civil case, once plaintiff makes out a
prima facie case in his favor, the duty or the burden of evidence shifts to defendant
to controvert plaintiff’s prima facie case; otherwise, a verdict must be returned in
favor of plaintiff.99 The party having the burden of proof must establish his case by a
preponderance of evidence.100 The concept of "preponderance of evidence" refers
to evidence which is of greater weight or more convincing than that which is offered
in opposition to it;101 in the last analysis, it means probability of truth. It is evidence
which is more convincing to the court as worthy of belief than that which is offered in
opposition thereto.102 Rule 133, Section 1 of the Revised Rules of Court provides the
guidelines for determining preponderance of evidence, thus:
In civil cases, the party having the burden of proof must establish his case by a
preponderance of evidence. In determining where the preponderance or superior
weight of evidence on the issues involved lies the court may consider all the facts
and circumstances of the case, the witnesses’ manner of testifying, their
intelligence, their means and opportunity of knowing the facts to which they are
testifying, the nature of the facts to which they testify, the probability or improbability
of their testimony, their interest or want of interest, and also their personal credibility
so far as the same legitimately appear upon the trial. The court may also consider
the number of witnesses, though the preponderance is not necessarily with the
greater number.
Herein, the burden of proof was clearly upon petitioners, as plaintiffs in the lower
court, to establish their case by a preponderance of evidence showing a reasonable
connection between Dr. Tuaño’s alleged breach of duty and the damage sustained
by Peter’s right eye. This, they did not do. In reality, petitioners’ complaint for
damages is merely anchored on a statement in the literature of Maxitrol identifying
the risks of its use, and the purported comment of Dr. Agulto – another doctor not
presented as witness before the RTC – concerning the prolonged use of Maxitrol for
the treatment of EKC.
It seems basic that what constitutes proper medical treatment is a medical question
that should have been presented to experts. If no standard is established through
expert medical witnesses, then courts have no standard by which to gauge the
basic issue of breach thereof by the physician or surgeon. The RTC and Court of
Appeals, and even this Court, could not be expected to determine on its own what
medical technique should have been utilized for a certain disease or injury. Absent
expert medical opinion, the courts would be dangerously engaging in speculations.
All told, we are hard pressed to find Dr. Tuaño liable for any medical negligence or
malpractice where there is no evidence, in the nature of expert testimony, to
establish that in treating Peter, Dr. Tuaño failed to exercise reasonable care,
diligence and skill generally required in medical practice. Dr. Tuaño’s testimony, that
his treatment of Peter conformed in all respects to standard medical practice in this
locality, stands unrefuted. Consequently, the RTC and the Court of Appeals
correctly held that they had no basis at all to rule that petitioners were deserving of
the various damages prayed for in their Complaint.
WHEREFORE, premises considered, the instant petition is DENIED for lack of
merit. The assailed Decision  dated 27 September 2006 and Resolution  dated 3 July
2007, both of the Court of Appeals in CA-G.R. CV No. 68666, are hereby
AFFIRMED. No cost.
SO ORDERED.
12 | T O R T S C A S E S 7 , 2 3 , 2 4 , 4 0 , 4 1
G.R. No. L-21291               March 28, 1969
PRECIOLITA V. CORLISS, plaintiff-appellant,
vs.
THE MANILA RAILROAD CO., defendant-appellant.
Moises C. Nicomedes for plaintiff-appellant.
The Government Corporate Counsel for defendant-appellee.
FERNANDO, J.:
  Youth, the threshold of life, is invariably accompanied by that euphoric sense of
well-being, and with reason. The future, bright with promise, looms ahead. One's
powers are still to be tested, but one feels ready for whatever challenge may come
his way. There is that heady atmosphere of self-confidence, at times carried to
excess. The temptation to take risks is there, ever so often, difficult, if not
impossible, to resist. There could be then a lessening of prudence and foresight,
qualities usually associated with age. For death seems so remote and contingent an
event. Such is not always the case though, and a slip may be attended with
consequences at times unfortunate, even fatal.
  Some such thought apparently was in the mind of the lower court when it
dismissed the complaint for recovery of damages filed by plaintiff-appellant,
Preciolita V. Corliss whose husband, the late Ralph W. Corliss, was, at the tender
age of twenty-one, the victim of a grim tragedy, when the jeep he was driving
collided with a locomotive of defendant-appellee Manila Railroad Company, close to
midnight on the evening of Feb 21, 1957, at the railroad crossing in Balibago,
Angeles, Pampanga, in front of the Clark Air Force Base. In the decision appealed
from, the lower court, after summarizing the evidence, concluded that the deceased
"in his eagerness to beat, so to speak, the oncoming locomotive, took the risk and
attempted to reach the other side, but unfortunately he became the victim of his own
miscalculation." 1
  The negligence imputed to defendant-appellee was thus ruled out by the lower
court, satisfactory proof to that effect, in its opinion, being lacking. Hence this appeal
direct to us, the amount sought in the concept of damages reaching the sum of
P282,065.40. An examination of the evidence of record fails to yield a basis for a
reversal of the decision appealed from. We affirm.
  According to the decision appealed from, there is no dispute as to the following: "In
December 1956, plaintiff, 19 years of age, married Ralph W. Corliss Jr., 21 years of
age, ...; that Corliss Jr. was an air police of the Clark Air Force Base; that at the time
of the accident, he was driving the fatal jeep; that he was then returning in said jeep,
together with a P.C. soldier, to the Base; and that Corliss Jr. died of serious burns at
the Base Hospital the next day, while the soldier sustained serious physical injuries
and burns." 2
  Then came a summary of the testimony of two of the witnesses for plaintiff-
appellant. Thus: "Ronald J. Ennis, a witness of the plaintiff, substantially declared in
his deposition, ..., that at the time of the accident, he also awaiting transportation at
the entrance of Clark Field, which was about 40 to 50 yards away from the tracks
and that while there he saw the jeep coming towards the Base. He said that said
jeep slowed down before reaching the crossing, that it made a brief stop but that it
did not stop — dead stop. Elaborating, he declared that while it was slowing down,
Corliss Jr. shifted into first gear and that was what he meant by a brief stop. He also
testified that he could see the train coming from the direction of San Fernando and
that he heard a warning but that it was not sufficient enough to avoid the
accident." 3 Also: "Virgilio de la Paz, another witness of the plaintiff, testified that on
the night of February 21, 1957, he was at the Balibago checkpoint and saw the train
coming from Angeles and a jeep going towards the direction of Clark Field. He
stated that he heard the whistle of the locomotive and saw the collision. The jeep,
which caught fire, was pushed forward. He helped the P.C. soldier. He stated that
he saw the jeep running fast and heard the tooting of the horn. It did not stop at the
railroad crossing, according to him." 4
  After which reference was made to the testimony of the main witness for
defendant-appellee, Teodorico Capili, "who was at the engine at the time of the
mishap," and who "testified that before the locomotive, which had been previously
inspected and found to be in good condition approached, the crossing, that is, about
300 meters away, he blew the siren and repeated it in compliance with the
13 | T O R T S C A S E S 7 , 2 3 , 2 4 , 4 0 , 4 1
regulations until he saw the jeep suddenly spurt and that although the locomotive
was running between 20 and 25 kilometers an hour and although he had applied the
brakes, the jeep was caught in the middle of the tracks." 5
  1. The above finding as to the non-existence of negligence attributable to
defendant-appellee Manila Railroad Company comes to us encased in the armor of
what admittedly appears to be a careful judicial appraisal and scrutiny of the
evidence of record. It is thus proof against any attack unless sustained and
overwhelming. Not that it is invulnerable, but it is likely to stand firm in the face of
even the most formidable barrage.
  In the more traditional terminology, the lower court judgment has in its favor the
presumption of correctness. It is entitled to great respect. After all, the lower court
had the opportunity of weighing carefully what was testified to and apparently did
not neglect it. There is no affront to justice then if its finding be accorded acceptance
subject of course the contingency of reversal if error or errors, substantial in
character, be shown in the conclusion thus arrived at. It is a fair statement of the
governing, principle to say that the appellate function is exhausted when there is
found to be a rational basis for the result reached by the trial court.
  As was held in a 1961 decision: "We have already ruled, that when the credibility
of witnesses is the one at issue, the trial court's judgment as to their degree of
credence deserves serious consideration by this Court."  6 An earlier expression of
the same view is found in Jai-Alai Corporation v. Ching Kiat: "After going over the
record, we find no reason for rejecting the findings of the court below. The questions
raised hinge on credibility and it is well-settled that in the absence of compelling
reasons, its determination is best left to the trial judge why had the advantage of
hearing the parties testify and observing their demeanor on the witness stand."  7
  In a 1964 opinion, we adhered to such an approach. Thus: "'Nothing in the record
suggests any arbitrary or abusive conduct on the part of the trial judge in the
formulation of the ruling. His conclusion on the matter is sufficiently borne out by the
evidence presented. We are denied, therefore, the prerogative to disturb that
finding, consonant to the time honored tradition of the Tribunal to hold trial judges
better situated to make conclusions on questions of fact'."  8 On this ground alone we
can rest the affirmance of the judgment appealed from. lâwphi1.ñet
  2. Nor is the result different even if no such presumption were indulged in and the
matter examined as if we were exercising original and not appellate jurisdiction. The
sad and deplorable situation in which plaintiff-appellant now finds herself, to the
contrary notwithstanding we find no reason for reversing the judgment of the lower
court.
  This action is predicated on negligence, the Civil Code making clear that whoever
by act or omission causes damage to another, there being negligence, is under
obligation to pay for the damage done.  9 Unless it could be satisfactorily shown,
therefore, that defendant-appellee was guilty of negligence then it could not be held
liable. The crucial question, therefore, is the existence of negligence.
  The above Civil Code provision, which is a reiteration of that found in the Civil
Code of Spain, formerly applicable in this jurisdiction, 10 had been interpreted in
earlier decisions. Thus, in Smith v. Cadwallader Gibson Lumber Co., 11 Manresa
was cited to the following effect "'Among the questions most frequently raised and
upon which the majority of cases have been decided with respect to the application
of this liability, are those referring to the determination of the damage or prejudice,
and to the fault or negligence of the person responsible therefor. These are the two
indispensable factors in the obligations under discussion, for without damage or
prejudice there can be no liability, and although this element is present no indemnity
can be awarded unless arising from some person's fault or negligence'."
  Negligence was defined by us in two 1912 decisions, United States v.
Juanillo 12 and United States v. Barias. 13 Cooley' formulation was quoted with
approval in both the Juanillo and Barias decisions. Thus: "Judge Cooley in his work
on Torts (3d ed.), Sec. 1324, defines negligence to be: "The failure to observe for
the protection of the interests of another person that degree of care, precaution and
vigilance which the circumstance justly demand whereby such other person suffers
injury." There was likewise a reliance on Ahern v. Oregon Telephone Co. 14 Thus:
"Negligence is want of the care required by the circumstances. It is a relative or
comparative, not an absolute term and its application depends upon the situation of
14 | T O R T S C A S E S 7 , 2 3 , 2 4 , 4 0 , 4 1
the parties and the degree of care and vigilance which the circumstances
reasonably require. Where the danger is great, a high degree of care is necessary,
and the failure to observe it is a want of ordinary care under the circumstances."
  To repeat, by such a test, no negligence could be imputed to defendant-appellee,
and the action of plaintiff-appellee must necessary fail. The facts being what they
are, compel the conclusion that the liability sought to be fastened on defendant-
appellee had not arisen.
  3. Plaintiff-appellant, in her brief, however, would seek a reversal of the judgment
appealed from on the ground that there was a failure to appreciate the true situation.
Thus the first three assigned errors are factual in character. The third assigned error
could be summarily disposed of. It would go against the evidence to maintain the
view that the whistle was not sounded and the brakes not applied at a distance of
300 meters before reaching the crossing.
  The first two assigned errors would make much of the failure of the lower court to
hold that the crossing bars not having been put down and there being no guard at
the gate-house, there still was a duty on the part of Corliss to stop his jeep to avoid
a collision and that Teodorico Capili, who drove the engine, was not qualified to do
so at the time of the accident. For one cannot just single out circumstance and then
confidently assign to it decisive weight and significance. Considered separately,
neither of the two above errors assigned would call for a judgment different in
character. Nor would a combination of acts allegedly impressed with negligence
suffice to alter the result. The quantum of proof required still not been met. The
alleged errors fail of their said effect. The case for plaintiff-appellant, such as it had
not been improved. There is no justification for reversing the judgment of the lower
court.
  It cannot be stressed too much that the decisive considerations are too variable,
too dependent in the lid analysis upon a common sense estimate of the situation as
it presented itself to the parties for us to be able to say that this or that element
having been isolated, negligence is shown. The factors that enter the judgment are
too many and diverse for us to imprison them in a formula sufficient of itself to yield
the correct answer to the multi-faceted problems the question of negligence poses.
Every case must be dependent on its facts. The circumstances indicative of lack of
due care must be judged in the light of what could reasonably be expected of the
parties. If the objective standard of prudence be met, then negligence is ruled out.
  In this particular case, it would be to show less than fidelity to the controlling facts
to impute negligence to defendant-appellee. The first three errors assigned certainly
do not call for that conclusion.
  4. The fourth assigned error is deserving of a more extended treatment. Plaintiff-
appellant apparently had in mind this portion of the opinion of the lower court: "The
weight of authorities is to the effect that a railroad track is in itself a warning or a
signal of danger to those who go upon it, and that those who, for reasons of their
own, ignore such warning, do so at their own risk and responsibility. Corliss Jr., who
undoubtedly had crossed the checkpoint frequently, if not daily, must have known
that locomotive engines and trains usually pass at that particular crossing where the
accident had taken place." 15
  Her assignment of error, however, would single out not the above excerpt from the
decision appealed from but what to her is the apparent reliance of the lower court
on Mestres v. Manila Electric Railroad & Light Co . 16 and United States v. Manlabat
& Pasibi. 17 In the Manabat case, the doctrine announced by this Court follows: "A
person in control of an automobile who crosses a railroad, even at a regular road
crossing, and who does not exercise that precaution and that control over it as to be
able to stop the same almost immediately upon the appearance of a train, is guilty
of criminal negligence, providing a collision occurs and injury results. Considering
the purposes and the general methods adopted for the management of railroads
and railroad trains, we think it is incumbent upon one approaching a railroad
crossing to use all of his faculties of seeing and hearing. He should approach a
railroad crossing cautiously and carefully. He should look and listen and do
everything that a reasonably prudent man would do before he attempts to cross the
track." The Mestres doctrine in a suit arising from a collision between an automobile
and a street car is substantially similar. Thus: "It may be said, however, that, where
a person is nearing a street crossing toward which a car is approaching, the duty is
on the party to stop and avoid a collision who can most readily adjust himself to the
15 | T O R T S C A S E S 7 , 2 3 , 2 4 , 4 0 , 4 1

exigencies of the case, and where such person can do so more readily, the precaution, and vigilance which the situation demands. Thus defendant-appellee
motorman has a right to presume that such duty will be performed." acted. It is undeniable then that no negligence can rightfully be imputed to it.

  It is true, as plaintiff-appellant would now allege that there has been a drift away
from the apparent rigid and inflexible doctrine thus set forth in the two above cases
evidenced by Lilius v. Manila Railroad Co., 18 the controlling facts of which, however,
are easily distinguishable from what had been correctly ascertained in the present
case. Such a deviation from the earlier principle announced is not only true of this
jurisdiction but also of the United States.
  This is made clear by Prosser. Speaking of a 1927 decision by Justice Holmes, he
had the following to say: "Especially noteworthy in this respect is the attempt Mr.
Justice Holmes, in Baltimore & Ohio Railway v. Goodman, to 'lay down a standard
once for all,' which would require an automobile driver approaching a railroad
crossing with an obstructed view to stop, look and listen, and if he cannot be sure
otherwise that no train is coming to get out of the car. The basic idea behind this is
sound enough: it is by no means proper care to cross a railroad track without taking
reasonable precautions against a train, and normally such precautions will require
looking, hearing, and a stop, or at least slow speed, where the view is obstructed." 19
  What commends itself for acceptance is this conclusion arrived at by the lower
court: "Predicated on the testimonies of the plaintiff's witnesses, on the knowledge
of the deceased and his familiarity with the setup of the checkpoint, the existence of
the tracks; and on the further fact that the locomotive had blown its siren or whistle,
which was heard by said witnesses, it is clear that Corliss Jr. was so sufficiently
warned in advance of the oncoming train that it was incumbent upon him to avoid a
possible accident — and this consisted simply in stopping his vehicle before the
crossing and allowing the train to move on. A prudent man under similar
circumstances would have acted in this manner. This, unfortunately, Corliss, Jr.
failed to do." 22
  WHEREFORE, the decision of the lower court of November 29, 1962 dismissing
the complaint, is affirmed. Without pronouncement as to costs.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro,
Capistrano, Teehankee and Barredo, JJ., concur.

  Then, barely seven years later, in 1934, came Pakora v. Wabash Footnotes

Railway, 20 where, according to Prosser, it being shown that "the only effective stop
must be made upon the railway tracks themselves, in a position of obligation
danger, the court disregarded any such uniform rule, rejecting the 'get out of the car'
requirement as 'an uncommon precaution, likely to be futile and sometimes even
dangerous,' and saying that the driver need not always stop. 'Illustrations such as
these,' said Mr. Justice Cardozo 'bear witness to the need for caution in framing
standards of behavior that amount to rules of law.... Extraordinary situations may
not wisely or fairly be subjected to tests or regulations that are fitting for the
commonplace or normal." 21

  What Justice Cardozo announced would merely emphasize what was set forth
earlier that each and every, case on questions of negligence is to be decided in
accordance with the peculiar circumstances that present themselves. There can be
no hard and fast rule. There must be that observance of that degree of care,
16 | T O R T S C A S E S 7 , 2 3 , 2 4 , 4 0 , 4 1
G.R. No. 115024             February 7, 1996
MA. LOURDES VALENZUELA, petitioner,
vs.
COURT OF APPEALS, RICHARD LI and ALEXANDER COMMERCIAL,
INC., respondents.
x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x-x
G.R. No. 117944             February 7, 1996
RICHARD LI, petitioner,
vs.
COURT OF APPEALS and LOURDES VALENZUELA, respondents.
DECISION
KAPUNAN, J.:
These two petitions for review on certiorari under Rule 45 of the Revised Rules of
Court stem from an action to recover damages by petitioner Lourdes Valenzuela in
the Regional Trial Court of Quezon City for injuries sustained by her in a vehicular
accident in the early morning of June 24, 1990. The facts found by the trial court are
succinctly summarized by the Court of Appeals below:
This is an action to recover damages based on quasi-delict, for serious
physical injuries sustained in a vehicular accident.
Plaintiff's version of the accident is as follows: At around 2:00 in the
morning of June 24, 1990, plaintiff Ma. Lourdes Valenzuela was driving a
blue Mitsubishi lancer with Plate No. FFU 542 from her restaurant at
Marcos highway to her home at Palanza Street, Araneta Avenue. She was
travelling along Aurora Blvd. with a companion, Cecilia Ramon, heading
towards the direction of Manila. Before reaching A. Lake Street, she noticed
something wrong with her tires; she stopped at a lighted place where there
were people, to verify whether she had a flat tire and to solicit help if
needed. Having been told by the people present that her rear right tire was
flat and that she cannot reach her home in that car's condition, she parked
along the sidewalk, about 1-1/2 feet away, put on her emergency lights,
alighted from the car, and went to the rear to open the trunk. She was
standing at the left side of the rear of her car pointing to the tools to a man
who will help her fix the tire when she was suddenly bumped by a 1987
Mitsubishi Lancer driven by defendant Richard Li and registered in the
name of defendant Alexander Commercial, Inc. Because of the impact
plaintiff was thrown against the windshield of the car of the defendant,
which was destroyed, and then fell to the ground. She was pulled out from
under defendant's car. Plaintiff's left leg was severed up to the middle of her
thigh, with only some skin and sucle connected to the rest of the body. She
was brought to the UERM Medical Memorial Center where she was found
to have a "traumatic amputation, leg, left up to distal thigh (above knee)".
She was confined in the hospital for twenty (20) days and was eventually
fitted with an artificial leg. The expenses for the hospital confinement
(P120,000.00) and the cost of the artificial leg (P27,000.00) were paid by
defendants from the car insurance.
In her complaint, plaintiff prayed for moral damages in the amount of P1
million, exemplary damages in the amount of P100,000.00 and other
medical and related expenses amounting to a total of P180,000.00,
including loss of expected earnings.
Defendant Richard Li denied that he was negligent. He was on his way
home, travelling at 55 kph; considering that it was raining, visibility was
affected and the road was wet. Traffic was light. He testified that he was
driving along the inner portion of the right lane of Aurora Blvd. towards the
direction of Araneta Avenue, when he was suddenly confronted, in the
vicinity of A. Lake Street, San Juan, with a car coming from the opposite
direction, travelling at 80 kph, with "full bright lights". Temporarily blinded,
he instinctively swerved to the right to avoid colliding with the oncoming
17 | T O R T S C A S E S 7 , 2 3 , 2 4 , 4 0 , 4 1
vehicle, and bumped plaintiff's car, which he did not see because it was
midnight blue in color, with no parking lights or early warning device, and
the area was poorly lighted. He alleged in his defense that the left rear
portion of plaintiff's car was protruding as it was then "at a standstill
diagonally" on the outer portion of the right lane towards Araneta Avenue
(par. 18, Answer). He confirmed the testimony of plaintiff's witness that after
being bumped the car of the plaintiff swerved to the right and hit another car
parked on the sidewalk. Defendants counterclaimed for damages, alleging
that plaintiff was reckless or negligent, as she was not a licensed driver.
The police investigator, Pfc. Felic Ramos, who prepared the vehicular
accident report and the sketch of the three cars involved in the accident,
testified that the plaintiff's car was "near the sidewalk"; this witness did not
remember whether the hazard lights of plaintiff's car were on, and did not
notice if there was an early warning device; there was a street light at the
corner of Aurora Blvd. and F. Roman, about 100 meters away. It was not
mostly dark, i.e. "things can be seen" (p. 16, tsn, Oct. 28, 1991).
A witness for the plaintiff, Rogelio Rodriguez, testified that after plaintiff
alighted from her car and opened the trunk compartment, defendant's car
came approaching very fast ten meters from the scene; the car was
"zigzagging". The rear left side of plaintiff's car was bumped by the front
right portion of defendant's car; as a consequence, the plaintiff's car
swerved to the right and hit the parked car on the sidewalk. Plaintiff was
thrown to the windshield of defendant's car, which was destroyed, and
landed under the car. He stated that defendant was under the influence of
liquor as he could "smell it very well" (pp. 43, 79, tsn, June 17, 1991).
After trial, the lower court sustained the plaintiff's submissions and found defendant
Richard Li guilty of gross negligence and liable for damages under Article 2176 of
the Civil Code. The trial court likewise held Alexander Commercial, Inc., Li's
employer, jointly and severally liable for damages pursuant to Article 2180. It
ordered the defendants to jointly and severally pay the following amounts:
1. P41,840.00, as actual damages, representing the miscellaneous
expenses of the plaintiff as a result of her severed left leg;
2. The sums of (a) P37,500.00, for the unrealized profits because of the
stoppage of plaintiff's Bistro La Conga restaurant three (3) weeks after the
accident on June 24, 1990; (b) P20,000.00, a month, as unrealized profits
of the plaintiff in her Bistro La Conga restaurant, from August, 1990 until the
date of this judgment and (c) P30,000.00, a month for unrealized profits in
plaintiff's two (2) beauty salons from July, 1990 until the date of this
decision;
3. P1,000,000.00, in moral damages;
4. P50,000.00, as exemplary damages;
5. P60,000.00, as reasonable attorney's fees; and
6. Costs.
As a result of the trial court's decision, defendants filed an Omnibus Motion for New
Trial and for Reconsideration, citing testimony in Criminal Case O.C. No. 804367
(People vs. Richard Li), tending to show that the point of impact, as depicted by the
pieces of glass/debris from the parties' cars, appeared to be at the center of the
right lane of Aurora Blvd. The trial court denied the motion. Defendants forthwith
filed an appeal with the respondent Court of Appeals. In a Decision rendered March
30, 1994, the Court of Appeals found that there was "ample basis from the evidence
of record for the trial court's finding that the plaintiff's car was properly parked at the
right, beside the sidewalk when it was bumped by defendant's car." 1 Dismissing the
defendants' argument that the plaintiff's car was improperly parked, almost at the
center of the road, the respondent court noted that evidence which was supposed to
prove that the car was at or near center of the right lane was never presented during
the trial of the case.2 The respondent court furthermore observed that:
Defendant Li's testimony that he was driving at a safe speed of 55 km./hour
is self serving; it was not corroborated. It was in fact contradicted by
18 | T O R T S C A S E S 7 , 2 3 , 2 4 , 4 0 , 4 1
eyewitness Rodriguez who stated that he was outside his beerhouse
located at Aurora Boulevard after A. Lake Street, at or about 2:00 a.m. of
June 24, 1990 when his attention was caught by a beautiful lady (referring
to the plaintiff) alighting from her car and opening the trunk compartment;
he noticed the car of Richard Li "approaching very fast ten (10) meters
away from the scene"; defendant's car was zigzagging", although there
were no holes and hazards on the street, and "bumped the leg of the
plaintiff" who was thrown against the windshield of defendant's care,
causing its destruction. He came to the rescue of the plaintiff, who was
pulled out from under defendant's car and was able to say "hurting words"
to Richard Li because he noticed that the latter was under the influence of
liquor, because he "could smell it very well" (p. 36, et. seq., tsn, June 17,
1991). He knew that plaintiff owned a beerhouse in Sta. Mesa in the 1970's,
but did not know either plaintiff or defendant Li before the accident.
In agreeing with the trial court that the defendant Li was liable for the injuries
sustained by the plaintiff, the Court of Appeals, in its decision, however, absolved
the Li's employer, Alexander Commercial, Inc. from any liability towards petitioner
Lourdes Valenzuela and reduced the amount of moral damages to P500,000.00.
Finding justification for exemplary damages, the respondent court allowed an award
of P50,000.00 for the same, in addition to costs, attorney's fees and the other
damages. The Court of Appeals, likewise, dismissed the defendants'
counterclaims.3
Consequently, both parties assail the respondent court's decision by filing two
separate petitions before this Court. Richard Li, in G.R. No. 117944, contends that
he should not be held liable for damages because the proximate cause of the
accident was Ma. Lourdes Valenzuela's own negligence. Alternatively, he argues
that in the event that this Court finds him negligent, such negligence ought to be
mitigated by the contributory negligence of Valenzuela.
On the other hand, in G.R. No. 115024, Ma. Lourdes Valenzuela assails the
respondent court's decision insofar as it absolves Alexander Commercial, Inc. from
liability as the owner of the car driven by Richard Li and insofar as it reduces the
amount of the actual and moral damages awarded by the trial court. 4
As the issues are intimately related, both petitions are hereby consolidated.
It is plainly evident that the petition for review in G.R. No. 117944 raises no
substantial questions of law. What it, in effect, attempts to have this Court review
are factual findings of the trial court, as sustained by the Court of Appeals finding
Richard Li grossly negligent in driving the Mitsubishi Lancer provided by his
company in the early morning hours of June 24, 1990. This we will not do. As a
general rule, findings of fact of the Court of Appeals are binding and conclusive
upon us, and this Court will not normally disturb such factual findings unless the
findings of fact of the said court are palpably unsupported by the evidence on record
or unless the judgment itself is based on a misapprehension of facts. 5
In the first place, Valenzuela's version of the incident was fully corroborated by an
uninterested witness, Rogelio Rodriguez, the owner-operator of an establishment
located just across the scene of the accident. On trial, he testified that he observed
a car being driven at a "very fast" speed, racing towards the general direction of
Araneta Avenue.6 Rodriguez further added that he was standing in front of his
establishment, just ten to twenty feet away from the scene of the accident, when he
saw the car hit Valenzuela, hurtling her against the windshield of the defendant's
Mitsubishi Lancer, from where she eventually fell under the defendant's car.
Spontaneously reacting to the incident, he crossed the street, noting that a man
reeking with the smell of liquor had alighted from the offending vehicle in order to
survey the incident.7 Equally important, Rodriguez declared that he observed
Valenzuela's car parked parallel and very near the sidewalk, 8 contrary to Li's
allegation that Valenzuela's car was close to the center of the right lane. We agree
that as between Li's "self-serving" asseverations and the observations of a witness
who did not even know the accident victim personally and who immediately gave a
statement of the incident similar to his testimony to the investigator immediately
after the incident, the latter's testimony deserves greater weight. As the court
emphasized:
The issue is one of credibility and from Our own examination of the
transcript, We are not prepared to set aside the trial court's reliance on the
testimony of Rodriguez negating defendant's assertion that he was driving
at a safe speed. While Rodriguez drives only a motorcycle, his perception
19 | T O R T S C A S E S 7 , 2 3 , 2 4 , 4 0 , 4 1
of speed is not necessarily impaired. He was subjected to cross-
examination and no attempt was made to question .his competence or the
accuracy of his statement that defendant was driving "very fast". This was
the same statement he gave to the police investigator after the incident, as
told to a newspaper report (Exh. "P"). We see no compelling basis for
disregarding his testimony.
The alleged inconsistencies in Rodriguez' testimony are not borne out by an
examination of the testimony. Rodriguez testified that the scene of the
accident was across the street where his beerhouse is located about ten to
twenty feet away (pp. 35-36, tsn, June 17, 1991). He did not state that the
accident transpired immediately in front of his establishment. The
ownership of the Lambingan se Kambingan is not material; the business is
registered in the name of his mother, but he explained that he owns the
establishment (p. 5, tsn, June 20, 1991). Moreover, the testimony that the
streetlights on his side of Aurora Boulevard were on the night the accident
transpired (p. 8) is not necessarily contradictory to the testimony of Pfc.
Ramos that there was a streetlight at the corner of Aurora Boulevard and F.
Roman Street (p. 45, tsn, Oct. 20, 1991).
With respect to the weather condition, Rodriguez testified that there was
only a drizzle, not a heavy rain and the rain has stopped and he was
outside his establishment at the time the accident transpired (pp. 64-65, tsn,
June 17, 1991). This was consistent with plaintiff's testimony that it was no
longer raining when she left Bistro La Conga (pp. 10-11, tsn, April 29,
1991). It was defendant Li who stated that it was raining all the way in an
attempt to explain why he was travelling at only 50-55 kph. (p. 11, tsn, Oct.
14, 1991). As to the testimony of Pfc. Ramos that it was raining, he arrived
at the scene only in response to a telephone call after the accident had
transpired (pp. 9-10, tsn, Oct. 28, 1991). We find no substantial
inconsistencies in Rodriguez's testimony that would impair the essential
integrity of his testimony or reflect on his honesty. We are compelled to
affirm the trial court's acceptance of the testimony of said eyewitness.
Against the unassailable testimony of witness Rodriguez we note that Li's testimony
was peppered with so many inconsistencies leading us to conclude that his version
of the accident was merely adroitly crafted to provide a version, obviously self-
serving, which would exculpate him from any and all liability in the incident. Against
Valenzuela's corroborated claims, his allegations were neither backed up by other
witnesses nor by the circumstances proven in the course of trial. He claimed that he
was driving merely at a speed of 55 kph. when "out of nowhere he saw a dark
maroon lancer right in front of him, which was (the) plaintiff's car". He alleged that
upon seeing this sudden "apparition" he put on his brakes to no avail as the road
was slippery.9
One will have to suspend disbelief in order to give credence to Li's disingenuous
and patently self-serving asseverations. The average motorist alert to road
conditions  will have no difficulty applying the brakes to a car traveling at the speed
claimed by Li. Given a light rainfall, the visibility of the street, and the road
conditions on a principal metropolitan thoroughfare like Aurora Boulevard, Li would
have had ample time to react to the changing conditions of the road if he were alert
- as every driver should be - to those conditions. Driving exacts a more than usual
toll on the senses. Physiological "fight or flight" 10 mechanisms are at work, provided
such mechanisms were not dulled by drugs, alcohol, exhaustion, drowsiness,
etc.11 Li's failure to react in a manner which would have avoided the accident could
therefore have been only due to either or both of the two factors: 1) that he was
driving at a "very fast" speed as testified by Rodriguez; and 2) that he was under the
influence of alcohol.12 Either factor working independently would have diminished his
responsiveness to road conditions, since normally he would have slowed down prior
to reaching Valenzuela's car, rather than be in a situation forcing him to suddenly
apply his brakes. As the trial court noted (quoted with approval by respondent
court):
Secondly, as narrated by defendant Richard Li to the San Juan Police
immediately after the incident, he said that while driving along Aurora Blvd.,
out of nowhere he saw a dark maroon lancer right in front of him which was
plaintiff's car, indicating, again, thereby that, indeed, he was driving very
fast, oblivious of his surroundings and the road ahead of him, because if he
was not, then he could not have missed noticing at a still far distance the
20 | T O R T S C A S E S 7 , 2 3 , 2 4 , 4 0 , 4 1
parked car of the plaintiff at the right side near the sidewalk which had its
emergency lights on, thereby avoiding forcefully bumping at the plaintiff who
was then standing at the left rear edge of her car.
Since, according to him, in his narration to the San Juan Police, he put on
his brakes when he saw the plaintiff's car in front of him, but that it failed as
the road was wet and slippery, this goes to show again, that, contrary to his
claim, he was, indeed, running very fast. For, were it otherwise, he could
have easily completely stopped his car, thereby avoiding the bumping of the
plaintiff, notwithstanding that the road was wet and slippery. Verily, since, if,
indeed, he was running slow, as he claimed, at only about 55 kilometers per
hour, then, inspite of the wet and slippery road, he could have avoided
hitting the plaintiff by the mere expedient or applying his brakes at the
proper time and distance.
It could not be true, therefore, as he now claims during his testimony, which
is contrary to what he told the police immediately after the accident and is,
therefore, more believable, that he did not actually step on his brakes but
simply swerved a little to the right when he saw the on-coming car with
glaring headlights, from the opposite direction, in order to avoid it.
For, had this been what he did, he would not have bumped the car of the
plaintiff which was properly parked at the right beside the sidewalk. And, it
was not even necessary for him to swerve a little to the right in order to
safely avoid a collision with the on-coming car, considering that Aurora
Blvd. is a double lane avenue separated at the center by a dotted white
paint, and there is plenty of space for both cars, since her car was running
at the right lane going towards Manila on the on-coming car was also on its
right lane going to Cubao.13
Having come to the conclusion that Li was negligent in driving his company-issued
Mitsubishi Lancer, the next question for us to determine is whether or not
Valenzuela was likewise guilty of contributory negligence in parking her car
alongside Aurora Boulevard, which entire area Li points out, is a no parking zone.
We agree with the respondent court that Valenzuela was not guilty of contributory
negligence.
Contributory negligence is conduct on the part of the injured party, contributing as a
legal cause to the harm he has suffered, which falls below the standard to which he
is required to conform for his own protection.14 Based on the foregoing definition, the
standard or act to which, according to petitioner Li, Valenzuela ought to have
conformed for her own protection was not to park at all at any point of Aurora
Boulevard, a no parking zone. We cannot agree.
Courts have traditionally been compelled to recognize that an actor who is
confronted with an emergency is not to be held up to the standard of conduct
normally applied to an individual who is in no such situation. The law takes stock of
impulses of humanity when placed in threatening or dangerous situations and does
not require the same standard of thoughtful and reflective care from persons
confronted by unusual and oftentimes threatening conditions.15
Under the "emergency rule" adopted by this Court in Gan vs. Court of Appeals,16 an
individual who suddenly finds himself in a situation of danger and is required to act
without much time to consider the best means that may be adopted to avoid the
impending danger, is not guilty of negligence if he fails to undertake what
subsequently and upon reflection may appear to be a better solution, unless the
emergency was brought by his own negligence.17
Applying this principle to a case in which the victims in a vehicular accident swerved
to the wrong lane to avoid hitting two children suddenly darting into the street, we
held, in Mc Kee vs. Intermediate Appellate Court,18 that the driver therein, Jose Koh,
"adopted the best means possible in the given situation" to avoid hitting the children.
Using the "emergency rule" the Court concluded that Koh, in spite of the fact that he
was in the wrong lane when the collision with an oncoming truck occurred, was not
guilty of negligence.19
While the emergency rule applies to those cases in which reflective thought, or the
opportunity to adequately weigh a threatening situation is absent, the conduct which
is required of an individual in such cases is dictated not exclusively by the
21 | T O R T S C A S E S 7 , 2 3 , 2 4 , 4 0 , 4 1
suddenness of the event which absolutely negates thoroughful care, but by the
over-all nature of the circumstances. A woman driving a vehicle suddenly crippled
by a flat tire on a rainy night will not be faulted for stopping at a point which is both
convenient for her to do so and which is not a hazard to other motorists. She is not
expected to run the entire boulevard in search for a parking zone or turn on a dark
street or alley where she would likely find no one to help her. It would be hazardous
for her not to stop and assess the emergency (simply because the entire length of
Aurora Boulevard is a no-parking zone) because the hobbling vehicle would be both
a threat to her safety and to other motorists. In the instant case, Valenzuela, upon
reaching that portion of Aurora Boulevard close to A. Lake St., noticed that she had
a flat tire. To avoid putting herself and other motorists in danger, she did what was
best under the situation. As narrated by respondent court: "She stopped at a lighted
place where there were people, to verify whether she had a flat tire and to solicit
help if needed. Having been told by the people present that her rear right tire was
flat and that she cannot reach her home she parked along the sidewalk, about 1 1/2
feet away, behind a Toyota Corona Car." 20 In fact, respondent court noted, Pfc. Felix
Ramos, the investigator on the scene of the accident confirmed that Valenzuela's
car was parked very close to the sidewalk. 21 The sketch which he prepared after the
incident showed Valenzuela's car partly straddling the sidewalk, clear and at a
convenient distance from motorists passing the right lane of Aurora Boulevard. This
fact was itself corroborated by the testimony of witness Rodriguez. 22
Under the circumstances described, Valenzuela did exercise the standard
reasonably dictated by the emergency and could not be considered to have
contributed to the unfortunate circumstances which eventually led to the amputation
of one of her lower extremities. The emergency which led her to park her car on a
sidewalk in Aurora Boulevard was not of her own making, and it was evident that
she had taken all reasonable precautions.
Obviously in the case at bench, the only negligence ascribable was the negligence
of Li on the night of the accident. "Negligence, as it is commonly understood is
conduct which creates an undue risk of harm to others." 23 It is the failure to observe
that degree of care, precaution, and vigilance which the circumstances justly
demand, whereby such other person suffers injury.24 We stressed, in Corliss
vs. Manila Railroad Company,25 that negligence is the want of care required by the
circumstances.
The circumstances established by the evidence adduced in the court below plainly
demonstrate that Li was grossly negligent in driving his Mitsubishi Lancer. It bears
emphasis that he was driving at a fast speed at about 2:00 A.M. after a heavy
downpour had settled into a drizzle rendering the street slippery. There is ample
testimonial evidence on record to show that he was under the influence of liquor.
Under these conditions, his chances of effectively dealing with changing conditions
on the road were significantly lessened. As Presser and Keaton emphasize:
[U]nder present day traffic conditions, any driver of an automobile must be
prepared for the sudden appearance of obstacles and persons on the
highway, and of other vehicles at intersections, such as one who sees a
child on the curb may be required to anticipate its sudden dash into the
street, and his failure to act properly when they appear may be found to
amount to negligence.26
Li's obvious unpreparedness to cope with the situation confronting him on the night
of the accident was clearly of his own making.
We now come to the question of the liability of Alexander Commercial, Inc. Li's
employer. In denying liability on the part of Alexander Commercial, the respondent
court held that:
There is no evidence, not even defendant Li's testimony, that the visit was
in connection with official matters. His functions as assistant manager
sometimes required him to perform work outside the office as he has to visit
buyers and company clients, but he admitted that on the night of the
accident he came from BF Homes Paranaque he did not have "business
from the company" (pp. 25-26, ten, Sept. 23, 1991). The use of the
company car was partly required by the nature of his work, but the privilege
of using it for non-official business is a "benefit", apparently referring to the
fringe benefits attaching to his position.
22 | T O R T S C A S E S 7 , 2 3 , 2 4 , 4 0 , 4 1
Under the civil law, an employer is liable for the negligence of his
employees in the discharge of their respective duties, the basis of which
liability is not respondeat superior, but the relationship of pater familias,
which theory bases the liability of the master ultimately on his own
negligence and not on that of his servant (Cuison v. Norton and Harrison
Co., 55 Phil. 18). Before an employer may be held liable for the negligence
of his employee, the act or omission which caused damage must have
occurred while an employee was in the actual performance of his assigned
tasks or duties (Francis High School vs. Court of Appeals, 194 SCRA 341).
In defining an employer's liability for the acts done within the scope of the
employee's assigned tasks, the Supreme Court has held that this includes
any act done by an employee, in furtherance of the interests of the
employer or for the account of the employer at the time of the infliction of
the injury or damage (Filamer Christian Institute vs. Intermediate Appellate
Court, 212 SCRA 637). An employer is expected to impose upon its
employees the necessary discipline called for in the performance of any act
"indispensable to the business and beneficial to their employer" (at p. 645).
In light of the foregoing, We are unable to sustain the trial court's finding
that since defendant Li was authorized by the company to use the company
car "either officially or socially or even bring it home", he can be considered
as using the company car in the service of his employer or on the occasion
of his functions. Driving the company car was not among his functions as
assistant manager; using it for non-official purposes would appear to be a
fringe benefit, one of the perks attached to his position. But to impose
liability upon the employer under Article 2180 of the Civil Code, earlier
quoted, there must be a showing that the damage was caused by their
employees in the service of the employer or on the occasion of their
functions. There is no evidence that Richard Li was at the time of the
accident performing any act in furtherance of the company's business or its
interests, or at least for its benefit. The imposition of solidary liability against
defendant Alexander Commercial Corporation must therefore fail.27
We agree with the respondent court that the relationship in question is not based on
the principle of respondeat superior, which holds the master liable for acts of the
servant, but that of pater familias, in which the liability ultimately falls upon the
employer, for his failure to exercise the diligence of a good father of the family in the
selection and supervision of his employees. It is up to this point, however, that our
agreement with the respondent court ends. Utilizing the bonus pater
familias standard expressed in Article 2180 of the Civil Code, 28 we are of the
opinion that Li's employer, Alexander Commercial, Inc. is jointly and solidarily liable
for the damage caused by the accident of June 24, 1990.
First, the case of St. Francis High School vs. Court of Appeals29 upon which
respondent court has placed undue reliance, dealt with the subject of a school and
its teacher's supervision of students during an extracurricular activity. These cases
now fall under the provision on special parental authority found in Art. 218 of the
Family Code which generally encompasses all authorized school activities, whether
inside or outside school premises.
Second, the employer's primary liability under the concept of  pater
familias embodied by Art 2180 (in relation to Art. 2176) of the Civil Code is quasi-
delictual or tortious in character. His liability is relieved on a showing that he
exercised the diligence of a good father of the family in the selection and
supervision of its employees. Once evidence is introduced showing that the
employer exercised the required amount of care in selecting its employees, half of
the employer's burden is overcome. The question of diligent supervision, however,
depends on the circumstances of employment.
Ordinarily, evidence demonstrating that the employer has exercised diligent
supervision of its employee during the performance of the latter's assigned tasks
would be enough to relieve him of the liability imposed by Article 2180 in relation to
Article 2176 of the Civil Code. The employer is not expected to exercise supervision
over either the employee's private activities or during the performance of tasks
either unsanctioned by the former or unrelated to the employee's tasks. The case at
bench presents a situation of a different character, involving a practice utilized by
large companies with either their employees of managerial rank or their
representatives.
23 | T O R T S C A S E S 7 , 2 3 , 2 4 , 4 0 , 4 1
It is customary for large companies to provide certain classes of their employees
with courtesy vehicles. These company cars are either wholly owned and
maintained by the company itself or are subject to various plans through which
employees eventually acquire their vehicles after a given period of service, or after
paying a token amount. Many companies provide liberal "car plans" to enable their
managerial or other employees of rank to purchase cars, which, given the cost of
vehicles these days, they would not otherwise be able to purchase on their own.
Under the first example, the company actually owns and maintains the car up to the
point of turnover of ownership to the employee; in the second example, the car is
really owned and maintained by the employee himself. In furnishing vehicles to such
employees, are companies totally absolved of responsibility when an accident
involving a company-issued car occurs during private use after normal office hours?
Most pharmaceutical companies, for instance, which provide cars under the first
plan, require rigorous tests of road worthiness from their agents prior to turning over
the car (subject of company maintenance) to their representatives. In other words,
like a good father of a family, they entrust the company vehicle only after they are
satisfied that the employee to whom the car has been given full use of the said
company car for company or private purposes will not be a threat or menace to
himself, the company or to others. When a company gives full use and enjoyment of
a company car to its employee, it in effect guarantees that it is, like every good
father, satisfied that its employee will use the privilege reasonably and responsively.
In the ordinary course of business, not all company employees are given the
privilege of using a company-issued car. For large companies other than those cited
in the example of the preceding paragraph, the privilege serves important business
purposes either related to the image of success an entity intends to present to its
clients and to the public in general, or - for practical and utilitarian reasons - to
enable its managerial and other employees of rank or its sales agents to reach
clients conveniently. In most cases, providing a company car serves both purposes.
Since important business transactions and decisions may occur at all hours in all
sorts of situations and under all kinds of guises, the provision for the unlimited use
of a company car therefore principally  serves the business and goodwill of a
company and only incidentally the private purposes of the individual who actually
uses the car, the managerial employee or company sales agent. As such, in
providing for a company car for business use and/or for the purpose of furthering
the company's image, a company owes a responsibility to the public to see to it that
the managerial or other employees to whom it entrusts virtually unlimited use of a
company issued car are able to use the company issue capably and responsibly.
In the instant case, Li was an Assistant Manager of Alexander Commercial, Inc. In
his testimony before the trial court, he admitted that his functions as Assistant
Manager did not require him to scrupulously keep normal office hours as he was
required quite often to perform work outside the office, visiting prospective buyers
and contacting and meeting with company clients. 30 These meetings, clearly, were
not strictly confined to routine hours because, as a managerial employee tasked
with the job of representing his company with its clients, meetings with clients were
both social as well as work-related functions. The service car assigned to Li by
Alexander Commercial, Inc. therefore enabled both Li - as well as the corporation -
to put up the front of a highly successful entity, increasing the latter's goodwill before
its clientele. It also facilitated meeting between Li and its clients by providing the
former with a convenient mode of travel.
Moreover, Li's claim that he happened to be on the road on the night of the accident
because he was coming from a social visit with an officemate in Paranaque was a
bare allegation which was never corroborated in the court below. It was obviously
self-serving. Assuming he really came from his officemate's place, the same could
give rise to speculation that he and his officemate had just been from a work-related
function, or they were together to discuss sales and other work related strategies.
In fine, Alexander Commercial, inc. has not demonstrated, to our satisfaction, that it
exercised the care and diligence of a good father of the family in entrusting its
company car to Li. No allegations were made as to whether or not the company
took the steps necessary to determine or ascertain the driving proficiency and
history of Li, to whom it gave full and unlimited use of a company car. 31 Not having
been able to overcome the burden of demonstrating that it should be absolved of
liability for entrusting its company car to Li, said company, based on the principle
of bonus pater familias, ought to be jointly and severally liable with the former for the
injuries sustained by Ma. Lourdes Valenzuela during the accident.
24 | T O R T S C A S E S 7 , 2 3 , 2 4 , 4 0 , 4 1

Finally, we find no reason to overturn the amount of damages awarded by the
respondent court, except as to the amount of moral damages. In the case of moral
damages, while the said damages are not intended to enrich the plaintiff at the
expense of a defendant, the award should nonetheless be commensurate to the
suffering inflicted. In the instant case we are of the opinion that the reduction in
moral damages from an amount of P1,000,000.00 to P800,000,00 by the Court of
Appeals was not justified considering the nature of the resulting damage and the
predictable sequelae of the injury.
As a result of the accident, Ma. Lourdes Valenzuela underwent a traumatic
amputation of her left lower extremity at the distal left thigh just above the knee.
Because of this, Valenzuela will forever be deprived of the full ambulatory functions
of her left extremity, even with the use of state of the art prosthetic technology. Well
beyond the period of hospitalization (which was paid for by Li), she will be required
to undergo adjustments in her prosthetic devise due to the shrinkage of the stump
from the process of healing.
functions of the lower limb. The sensory functions are forever lost. The resultant
anxiety, sleeplessness, psychological injury, mental and physical pain are
inestimable.
As the amount of moral damages are subject to this Court's discretion, we are of the
opinion that the amount of P1,000,000.00 granted by the trial court is in greater
accord with the extent and nature of the injury - physical and psychological -
suffered by Valenzuela as a result of Li's grossly negligent driving of his Mitsubishi
Lancer in the early morning hours of the accident.
WHEREFORE, PREMISES CONSIDERED, the decision of the Court of Appeals is
modified with the effect of REINSTATING the judgment of the Regional Trial Court.
SO ORDERED.
Padilla, Bellosillo and Hermosisima, Jr., JJ.,  concur.

These adjustments entail costs, prosthetic replacements and months of physical

and occupational rehabilitation and therapy. During her lifetime, the prosthetic
devise will have to be replaced and re-adjusted to changes in the size of her lower
limb effected by the biological changes of middle-age, menopause and aging.
Assuming she reaches menopause, for example, the prosthetic will have to be
adjusted to respond to the changes in bone resulting from a precipitate decrease in
calcium levels observed in the bones of all post-menopausal women. In other
words, the damage done to her would not only be permanent and lasting, it would
also be permanently changing and adjusting to the physiologic changes which her
body would normally undergo through the years. The replacements, changes, and
adjustments will require corresponding adjustive physical and occupational therapy.
All of these adjustments, it has been documented, are painful.

The foregoing discussion does not even scratch the surface of the nature of the
resulting damage because it would be highly speculative to estimate the amount of
psychological pain, damage and injury which goes with the sudden severing of a
vital portion of the human body. A prosthetic device, however technologically
advanced, will only allow a reasonable amount of functional restoration of the motor
25 | T O R T S C A S E S 7 , 2 3 , 2 4 , 4 0 , 4 1
G.R. No. L-32611             November 3, 1930
CULION ICE, FISH AND ELECTRIC CO., INC., plaintiff-appellee,
vs.
PHILIPPINE MOTORS CORPORATION, defendant-appellant.
Gibbs and McDonough for appellant.
Benj. S. Ohnick for appellee.
STREET, J.:
This action was instituted in the Court of First Instance of Manila by the Culion Ice,
Fish & Electric Co., Inc., for the purpose of recovering from the Philippine Motors
Corporation the sum of P11,350, with interest and costs. Upon hearing the cause
the trial court gave judgment in favor of the plaintiff to recover of the defendant the
sum of P9,850, with interest at 6 per centum per annum from March 24,1927, the
date of the filing of the complaint, until satisfaction of the judgment, with costs. From
this judgment the defendant appealed.
The plaintiff and defendant are domestic corporations; and at the time of the
incident with which we are here concerned, H.D. Cranston was the representative of
the plaintiff in the City of Manila. At the same time the plaintiff was the registered
owner of the motor schooner Gwendoline, which was used in the fishing trade in the
Philippine Islands. In January, 1925, Cranston decided, if practicable, to have the
engine on the Gwendoline changed from a gasoline consumer to a crude oil burner,
expecting thereby to effect economy in the cost of running the boat. He therefore
made known his desire to McLeod & Co., a firm dealing in tractors, and was told by
Mc Kellar, of said company, that he might make inquiries of the Philippine Motors
Corporations, which had its office on Ongpin Street, in the City of Manila. Cranston
accordingly repaired to the office of the Philippine Motors Corporation and had a
conference with C.E. Quest, its manager, who agreed to do the job, with the
understanding that payment should be made upon completion of the work.
The Philippine Motors Corporation was at this time engaged in business as an
automobile agency, but, under its charter, it had authority to deal in all sorts of
machinery engines and motors, as well as to build, operate, buy and sell the same
and the equipment therof. Quest, as general manager, had full charge of the
corporations in all its branches.
As a result of the aforesaid interview, Quest, in company with Cranston, visited
the Gwendoline while it lay at anchor in the Pasig River, and the work of effecting
the change in the engine was begun and conducted under the supervision of Quest,
chiefly by a mechanic whom Quest took with him to the boat. In this work Quest had
the assistance of the members of the crew of the Gwendoline, who had been
directed by Cranston to place themselves under Quest's directions.
Upon preliminary inspection of the engine, Quest came to the conclusion that the
principal thing necessary to accomplish the end in view was to install a new
carburetor, and a Zenith carburetor was chosen as the one most adapted to the
purpose. After this appliance had been installed, the engine was tried with gasoline
as a fuel, supplied from the tank already in use. The result of this experiment was
satisfactory. The next problem was to introduce into the carburetor the baser fuel,
consisting of a low grade of oil mixed with distillate. For this purpose a temporary
tank to contain the mixture was placed on deck above and at a short distance from
the compartment covering the engine. This tank was connected with the carburetor
by a piece of tubing, which was apparently not well fitted at the point where it was
connected with the tank. Owing to this fact the fuel mixture leaked from the tank and
dripped sown into the engine compartment. The new fuel line and that already in
use between the gasoline tank and carburetor were so fixed that it was possible to
change from the gasoline fuel to the mixed fuel. The purpose of this arrangement
was to enable the operator to start the engine on gasoline and then, after the engine
had been operating for a few moments, to switch to the new fuel supply. lawphil.net
26 | T O R T S C A S E S 7 , 2 3 , 2 4 , 4 0 , 4 1
In the course of the preliminary work upon the carburetor and its connections, it was
observed that the carburetor was flooding, and that the gasoline, or other fuel, was
trickling freely from the lower part to the carburetor to the floor. This fact was called
to Quest's attention, but he appeared to think lightly of the matter and said that,
when the engine had gotten to running well, the flooding would disappear.
After preliminary experiments and adjustments had been made the boat was taken
out into the bay for a trial run at about 5 p.m. or a little later, on the evening of
January 30,1925. The first part of the course was covered without any untoward
development, other than he fact that the engine stopped a few times, owing no
doubt to the use of an improper mixture of fuel. In the course of the trial Quest
remained outside of the engine compartment and occupied himself with making
distillate, with a view to ascertaining what proportion of the two elements would give
best results in the engine.
As the boat was coming in from this run, at about 7:30 p.m. and when passing near
Cavite, the engine stopped, and connection again had to be made with the gasoline
line to get a new start. After this had been done the mechanic, or engineer, switched
to the tube connecting with the new mixture. A moment later a back fire occurred in
the cylinder chamber. This caused a flame to shoot back into the carburetor, and
instantly the carburetor and adjacent parts were covered with a mass of flames,
which the members of the crew were unable to subdue. They were therefore
compelled, as the fire spread, to take to a boat, and their escape was safely
effected, but the Gwendoline was reduced to a mere hulk. The salvage from, the
wreck, when sold, brought only the sum of P150. The value of the boat, before the
accident occured, as the court found, was P10,000.
A study of the testimony lead us to the conclusion that the loss of this boat was
chargeable to the negligence and lack of skill of Quest. The temporary tank in which
the mixture was prepared was apparently at too great an elevation from the
carburetor, with the result that when the fuel line was opened, the hydrostatic
pressure in the carburetor was greater than the delicate parts of the carburetor
could sustain. This was no doubt the cause of the flooding of the carburetor; and the
result was that; when the back fire occurred, the external parts of the carburetor,
already saturated with gasoline, burst into flames, whence the fire was quickly
communicated to the highly inflammable material near-by. Ordinarily a back fire
from an engine would not be followed by any disaster, but in this case the leak
along the pipe line and the flooding of the carburetor had created a dangerous
situation, which a prudent mechanic, versed in repairs of this nature, would have
taken precautions to avoid. The back fire may have been due either to the fact that
the spark was too advanced or the fuel improperly mixed.
In this connection it must be remembered that when a person holds himself out as
being competent to do things requiring professional skill, he will be held liable for
negligence if he fails to exhibit the care and skill of one ordinarily skilled in the
particular work which he attempts to do. The proof shows that Quest had had ample
experience in fixing the engines of automobiles and tractors, but it does not appear
that he was experienced in the doing of similar work on boats. For this reason,
possibly the dripping of the mixture form the tank on deck and the flooding of the
carburetor did not convey to his mind an adequate impression of the danger of fire.
But a person skilled in that particular sort of work would, we think have been
sufficiently warned from those circumstances to cause him to take greater and
adequate precautions against the danger. In other words Quest did not use the skill
that would have been exhibited by one ordinarily expert in repairing gasoline
engines on boats. There was here, in our opinion, on the part of Quest, a
blameworthy antecedent inadvertence to possible harm, and this constitutes
negligence. The burning of the Gwendoline may be said to have resulted from
accident, but this accident was in no sense an unavoidable accident. It would not
have occured but for Quest's carelessness or lack of skill. The test of liability is not
whether the injury was accidental in a sense, but whether Quest was free from
blame.
We therefore see no escape from the conclusion that this accident is chargeable to
lack of skill or negligence in effecting the changes which Quest undertook to
accomplish; and even supposing that our theory as to the exact manner in which the
accident occurred might appear to be in some respects incorrect, yet the origin of
the fire in not so inscrutable as to enable us to say that it was casus fortuitus.
The trial judge seems to have proceeded on the idea that, inasmuch as Quest had
control of the Gwendoline during the experimental run, the defendant corporation
27 | T O R T S C A S E S 7 , 2 3 , 2 4 , 4 0 , 4 1

was in the position of a bailee and that, as a consequence, the burden of proof was
on the defendant to exculpate itself from responsibility by proving that the accident
was not due to the fault of Quest. We are unable to accede to this point of view.
Certainly, Quest was not in charge of the navigation of the boat on this trial run. His
employment contemplated the installation of new parts in the engine only, and it
seems rather strained to hold that the defendant corporation had thereby become
bailee of the boat. As a rule workmen who make repairs on a ship in its owner's
yard, or a mechanic who repairs a coach without taking it to his shop, are not
bailees, and their rights and liabilities are determined by the general rules of law,
under their contract. The true bailee acquires possession and what is usually
spoken of as special property in the chattel bailed. As a consequence of such
possession and special property, the bailee is given a lien for his compensation.
These ideas seem to be incompatible with the situation now under consideration.
But though defendant cannot be held liable in the supposition that the burden of
proof had not been sustained by it in disproving the negligence of its manager, we
are nevertheless of the opinion that the proof shows by a clear preponderance that
the accident to the Gwendoline and the damages resulting therefrom are
chargeable to the negligence or lack of skill of Quest.

This action was instituted about two years after the accident in question had
occured, and after Quest had ceased to be manager of the defendant corporation
and had gone back to the United States. Upon these facts, the defendant bases the
contention that the action should be considered stale. It is sufficient reply to say that
the action was brought within the period limited by the statute of limitations and the
situation is not one where the defense of laches can be properly invoked.

It results that the judgment appealed from, awarding damages to the plaintiff in the
amount of P9,850, with interest, must be affirmed; and it is so ordered, with costs
against the appellant.

Avanceña, C.J., Malcolm, Villamor, Ostrand, Romualdez and Villa-Real, JJ., concur.
28 | T O R T S C A S E S 7 , 2 3 , 2 4 , 4 0 , 4 1
[G.R. No. 143008. June 10, 2002
SMITH BELL DODWELL SHIPPING AGENCY CORPORATION,, Petitioner,
vs.  CATALINO BORJA and INTERNATIONAL TO WAGE AND TRANSPORT
CORPORATION, Respondents.
DECISION
PANGANIBAN, J.:
The owner or the person in possession and control of a vessel is liable for all natural
and proximate damages caused to persons and property by reason of negligence in
its management or navigation. The liability for the loss of the earning capacity of the
deceased is fixed by taking into account the net income of the victim at the time of
death -- of the incident in this case -- and that persons probable life expectancy.
The Case
Before us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court,
challenging the March 6, 2000 Decision 1 and the April 25, 2000 Resolution2 of the
Court of Appeals3 (CA) in CA-GR CV No. 57470. The assailed Decision disposed as
follows:
WHEREFORE, premises considered, the instant appeal is hereby DENIED. The
questioned decision of the lower court is hereby AFFIRMED in toto.  No
pronouncement as to costs. 4cräläwvirtualibräry
Reconsideration was denied in the assailed Resolution.
The Facts
The facts of the case are set forth by the CA as follows:
It appears that on September 23, 1987, Smith Bell [herein petitioner] filed a written
request with the Bureau of Customs for the attendance of the latters inspection
team on vessel M/T King Family which was due to arrive at the port of Manila on
September 24, 1987.
Said vessel contained 750 metric tons of alkyl benzene and methyl methacrylate
monomer.
On the same day, Supervising Customs Inspector Manuel Ma. D. Nalgan instructed
[Respondent Catalino Borja] to board said vessel and perform his duties as
inspector upon the vessels arrival until its departure. At that time, [Borja] was a
customs inspector of the Bureau of Customs receiving a salary of P31,188.25 per
annum.
"At about 11 oclock  in the morning on September 24, 1987, while M/T King Family
was unloading chemicals unto two (2) barges [--] ITTC 101 and CLC-1002 [--]
owned by [Respondent] ITTC, a sudden explosion occurred setting the vessels
afire. Upon hearing the explosion, [Borja], who was at that time inside the cabin
preparing reports, ran outside to check what happened. Again, another explosion
was heard.
Seeing the fire and fearing for his life, [Borja] hurriedly jumped over board to save
himself. However, the [water] [was] likewise on fire due mainly to the spilled
chemicals. Despite the tremendous heat, [Borja] swam his way for one (1) hour until
he was rescued by the people living in the squatters area and sent to San Juan De
Dios Hospital.
After weeks of intensive care at the hospital, his attending physician diagnosed
[Borja] to be permanently disabled due to the incident. [Borja] made demands
against Smith Bell and ITTC for the damages caused by the explosion. However,
both denied liabilities and attributed to each other negligence. 5cräläwvirtualibräry
The trial court6 (RTC) ruled in favor of Respondent Borja and held petitioner liable
for damages and loss of income. The RTC disposed as follows:
29 | T O R T S C A S E S 7 , 2 3 , 2 4 , 4 0 , 4 1
WHEREFORE, premises considered, judgment is hereby rendered ordering
[Petitioner] Smith Bell Dodwell [S]hipping Agency Corporation to pay [Borja]:
1. The amount of P495,360.00 as actual damages for loss of earning capacity:
2. The amount of P100,000.00 for moral damages; and
3. The amount of P50,000.00 for and as reasonable attorneys fees.
The cross-claim of [Petitioner] Smith Bell Dodwell Shipping Agency Corporation
against co-defendant International Towage and Transport Corporation and the
latters counterclaim against [Borja] and cross-claim with compulsory counterclaim
against Smith Bell are hereby ordered dismissed.7
Ruling of the Court of Appeals
Affirming the trial court, the CA rejected the plea of petitioner that it be exonerated
from liability for Respondent Borjas injuries. Contrary to the claim of petitioner that
no physical evidence was shown to prove that the explosion had originated from its
vessel, the CA held that the fire had originated from M/T King Family.  This
conclusion was amply supported by the testimonies of Borja and Eulogio Laurente
(the eyewitness of International Towage and Transport Corporation or ITTC) as well
as by the investigation conducted by the Special Board of Marine Inquiry and
affirmed by the secretary of the Department of National Defense. On the other hand,
the RTC, which the CA sustained, had not given probative value to the evidence of
petitioner, whose sole eyewitness had not shown up for cross-examination.
Hence, this Petition.8
The Issues
9
In its Memorandum,  petitioner raises the following issues:
1. Whether petitioner should be held liable for the injuries of Respondent Catalino
Borja.
2. Whether Respondent ITTC should be held liable for the injuries of Respondent
Catalino Borja.
3. Assuming without admitting that Respondent Catalino Borja is entitled to
damages, whether Respondent Borja is entitled to the amount of damages awarded
to him by the trial court.10cräläwvirtualibräry
Simply put, these issues can be summed up in these two questions: (1) Who, if any,
is liable for Borjas injuries? (2) What is the proper amount of liability?
This Courts Ruling
The Petition is partly meritorious.
First Issue:
Responsibility for Injuries
Petitioner avers that both lower courts labored under a misapprehension of the
facts. It claims that the documents adduced in the RTC conclusively revealed that
the explosion that caused the fire on M/T King Family  had originated from the
barge ITTC-101,  a conclusion based on three grounds. First,  the Survey Report
(Exh. 10) dated October 21, 1987 submitted by the Admiral Surveyors and
Adjusters, Inc., showed that no part of M/T King Family  sustained any sharp or
violent damage that would otherwise be observed if indeed an explosion had
occurred on it. On the other hand, the fact that the vessel sustained cracks on its
shell plating was noted in two Survey Reports from Greutzman Divers Underwater
Specialist, dated October 6, 1987 (Exh. 11), and during the underwater inspection
on the sunken barge ITTC-101.
Second,  external fire damage on the hull of M/T King Family  indicated that the fire
had started from outside the vessel and from ITTC-101.  The port side of the vessel
to which the ITTC barge was tied was completely gutted by fire, while the starboard
side to which the barge CLC-1002  was tied sustained only slight fire damage.
30 | T O R T S C A S E S 7 , 2 3 , 2 4 , 4 0 , 4 1
Third,  testimonial evidence proved that the explosion came from the barge of the
ITTC and not from its vessel. Security Guard Vivencio Estrella testified that he had
seen the sudden explosion of monomer on the barge with fire that went up to about
60 meters. Third Mate Choi Seong Hwan and Second Mate Nam Bang Choun
of M/T King Family  narrated that while they were discharging the chemicals, they
saw and heard an explosion from the barge ITTC-101.  Chief Security Guard
Reynaldo Patron, in turn, testified that he was 7 to 10 meters away from the barge
when he heard the explosion from the port side of M/T King Family  and saw the
barge already on fire.
We are not persuaded. Both the RTC and the CA ruled that the fire and the
explosion had originated from petitioners vessel. Said the trial court:
The attempts of [Petitioner] Smith Bell to shift the blame on x x x ITTC were all for
naught. First, the testimony of its alleged eyewitness was stricken off the record for
his failure to appear for cross-examination (p. 361, Record). Second, the documents
offered to prove that the fire originated from barge ITTC-101 were all denied
admission by the [c]ourt for being, in effect, hearsay (pp. 335 and 362). x x x Thus,
there is nothing in the record to support [petitioners] contention that the fire and
explosion originated from barge ITTC-101.11cräläwvirtualibräry
We find no cogent reason to overturn these factual findings. Nothing is more settled
in jurisprudence than that this Court is bound by the factual findings of the Court of
Appeals when these are supported by substantial evidence and are not under any
of the exceptions in Fuentes v. Court of Appeals;12  more so, when such findings
affirm those of the trial court.13 Verily, this Court reviews only issues of law.
Negligence is conduct that creates undue risk of harm to another. It is the failure to
observe that degree of care, precaution and vigilance that the circumstances justly
demand, whereby that other person suffers injury. 14 Petitioners vessel was carrying
chemical cargo -- alkyl benzene and methyl methacrylate monomer. 15 While
knowing that their vessel was carrying dangerous inflammable chemicals, its
officers and crew failed to take all the necessary precautions to prevent an accident.
Petitioner was, therefore, negligent.
The three elements of quasi delict  are: (a) damages suffered by the plaintiff, (b)
fault or negligence of the defendant, and (c) the connection of cause and effect
between the fault or negligence of the defendant and the damages inflicted on the
plaintiff.16 All these elements were established in this case. Knowing fully well that it
was carrying dangerous chemicals, petitioner was negligent in not taking all the
necessary precautions in transporting the cargo.
As a result of the fire and the explosion during the unloading of the chemicals from
petitioners vessel, Respondent Borja suffered the following damage: and injuries:
(1) chemical burns of the face and arms; (2) inhalation of fumes from burning
chemicals; (3) exposure to the elements [while] floating in sea water for about three
(3) hours; (4) homonymous hemianopsia  or blurring of the right eye [which was of]
possible toxic origin; and (5) [c]erebral infract with neo-vascularization, left occipital
region with right sided headache and the blurring of vision of right
eye.17cräläwvirtualibräry
Hence, the owner or the person in possession and control of a vessel and the
vessel are liable for all natural and proximate damage caused to persons and
property by reason of negligent management or navigation.18
Second Issue:
Amount of Liability
Petitioner insists that Borja is not entitled to the full amount of damages awarded by
the lower courts. It disputes the use of his gross earning as basis for the
computation of the award for loss of earning capacity. Both courts, in computing the
value of such loss, used the remaining years of the victim as a government
employee and the amount he had been receiving per annum at the time of the
incident.
Counsel for Respondent Borja, on the other hand, claims that petitioner had no
cause to complain, because the miscomputation had ironically been in its favor. The
multiplier used in the computation was erroneously based on the remaining years in
government service, instead of the life expectancy, of the victim. Borjas counsel
31 | T O R T S C A S E S 7 , 2 3 , 2 4 , 4 0 , 4 1
also points out that the award was based on the formers meager salary in 1987, or
about 23 years ago when the foreign exchange was still P14 to $1. Hence, the
questioned award is consistent with the primary purpose of giving what is just, moral
and legally due the victim as the aggrieved party.
Both parties have a point. In determining the reasonableness of the damages
awarded under Article 1764 in conjunction with Article 2206 of the Civil Code, the
factors to be considered are: (1) life expectancy (considering the health of the victim
and the mortality table which is deemed conclusive) and loss of earning capacity;
(b) pecuniary loss, loss of support and service; and (c) moral and mental
sufferings.19 The loss of earning capacity is based mainly on the number of years
remaining in the persons expected life span. In turn, this number is the basis of the
damages that shall be computed and the rate at which the loss sustained by the
heirs shall be fixed.20cräläwvirtualibräry
The formula for the computation of loss of earning capacity is as follows: 21
Net earning capacity = Life expectancy x [Gross Annual Income - Living
Expenses (50% of gross annual income)], where life expectancy =
2/3 (80 - the age of the deceased). 22cräläwvirtualibräry
Petitioner is correct in arguing that it is net income (or gross income less living
expenses) which is to be used in the computation of the award for loss of
income. Villa Rey Transit v. Court of Appeals23  explained that the amount
recoverable is not the loss of the entire earning, but rather the loss of that portion of
the earnings which the beneficiary would have received. Hence, in fixing the amount
of the said damages, the necessary expenses of the deceased should be deducted
from his earnings.
In other words, only net earnings, not gross earnings, are to be considered; that is,
the total of the earnings less expenses necessary in the creation of such earnings or
income, less living and other incidental expenses. When there is no showing that
the living expenses constituted a smaller percentage of the gross income, we fix the
living expenses at half of the gross income. To hold that one would have used only
a small part of the income, with the larger part going to the support of ones children,
would be conjectural and unreasonable. 24cräläwvirtualibräry
Counsel for Respondent Borja is also correct in saying that life expectancy should
not be based on the retirement age of government employees, which is pegged at
65. In Negros Navigation Co, Inc. v. CA,25  the Court resolved that in calculating the
life expectancy of an individual for the purpose of determining loss of earning
capacity under Article 2206(1) of the Civil Code, it is assumed that the deceased
would have earned income even after retirement from a particular job.
Respondent Borja should not be situated differently just because he was a
government employee. Private employees, given the retirement packages provided
by their companies, usually retire earlier than government employees; yet, the life
expectancy of the former is not pegged at 65 years.
Petitioner avers that Respondent Borja died nine years after the incident and,
hence, his life expectancy of 80 years should yield to the reality that he was only 59
when he actually died.
We disagree. The Court uses the American Experience/Expectancy Table of
Mortality or the Actuarial or Combined Experience Table of Mortality, which
consistently pegs the life span of the average Filipino at 80 years, from which it
extrapolates the estimated income to be earned by the deceased had he or she not
been killed.26cräläwvirtualibräry
Respondent Borjas demise earlier than the estimated life span is of no moment. For
purposes of determining loss of earning capacity, life expectancy remains at 80.
Otherwise, the computation of loss of earning capacity will never become final,
being always subject to the eventuality of the victims death. The computation should
not change even if Borja lived beyond 80 years. Fair is fair.
Based on the foregoing discussion, the award for loss of earning capacity should be
computed as follows:
Loss of earning = [2 (80-50)] x [(P2,752x12)-16,512]
32 | T O R T S C A S E S 7 , 2 3 , 2 4 , 4 0 , 4 1

capacity 3

= P330,240

Having been duly proven, the moral damages and attorneys fees awarded are
justified under the Civil Codes Article 2219, paragraph 2; and Article 2208,
paragraph 11, respectively.

WHEREFORE, the Petition is PARTLY GRANTED.  The assailed Decision

is AFFIRMED  with the following MODIFICATIONS:  petitioner is ordered to pay the
heirs of the victim damages in the amount of P320,240 as loss of earning capacity,
moral damages in the amount of P100,000, plus another P50,000 as attorneys fees.
Costs against petitioner.

SO ORDERED.