When Ugandan orthopaedic surgeon, Rodney Mugarura, received a WhatsApp message from the director of a hospital in Kampala, inviting him to take up operating rights there, he was intrigued.
In that WhatsApp message, the director, Simon Begumisa, said that the Paramount Hospital in Kampala ran many departments including one for orthopaedic surgery.
Begumisa said that the hospital typically worked with surgeons who were given operating rights and the right to charge professional fees. And the message went on to say that the hospital wanted to work with Mugarura on a similar basis.
Bills for operations not paid
The two subsequently met and agreed that Mugarura would be called in by the hospital ‘whenever his services were required.’
But though things went well initially, problems developed when Mugarura sent in two invoices for his work and the devices used in two operations, and these bills were never paid.
Though Mugarura pushed for settlement of his bills, the hospital simply failed to pay. Eventually, Mugarura went to court. The hospital was formally notified of the hearing date, but no legal representatives for the hospital pitched up in court when the matter was heard, nor were any written submissions received from the hospital’s lawyers.
Hospital ‘implored’ surgeon’s help
Given these circumstances, the judge hearing the matter, Patricia Asiimwe, said there were three questions to answer. First, did the two parties have a ‘valid and legally binding agreement’? Next, were the defendants (namely, the hospital and Begumisa, its director) in breach of this agreement and thus indebted to Mugarura? Finally, what remedy was available to the parties?
In his evidence, presented orally in court, Mugarura said that after the initial agreement with the hospital, he worked on several cases and had been paid soon afterwards.
Then, in June 2020, he was messaged by Begumisa, via WhatsApp, about a ‘complicated case’ that needed his attention. Begumisa ‘implored’ him to act urgently in relation to this case.
Payment for operations, devices, follow-up care, all still outstanding
The following day another text message from Begumisa asked that Mugarura should come to the hospital to review the case. Mugarura operated on the patient and provided the implants needed to carry out the surgery as well as doing follow-up and reviews.
In July 2020, he was again contacted by Begumisa to attend to a complicated case. Again, he did all that was necessary, operating and following up on the patient’s care.
Mugarura said the hospitals had invoiced the patients for payment for the medical services providing including the surgeon’s fees and the implants. But he still hadn’t been paid by the hospital and Begumisa, and a total of UGX 41,500,000 was outstanding.
Was there a written contract?
In deciding whether the two parties – the hospital and the surgeon – had a contract, the judge said that the law required that when a contract exceeded a certain amount, it had to be concluded ‘in writing’. Had this been done in Mugarura’s case? Yes, said the judge – the WhatsApp messages amounted to a written contract.
There were initial messages inviting him to operate at the hospital when called in to do so. Then he had received messages related to the two patients at the heart of the current dispute.
There was a clear back and forth about these patients, showing ‘that there was an offer made, which was accepted and that the services were provided’. Therefore, she concluded, ‘there was a contract.’
Was a contract, concluded via WhatsApp, valid?
The question to resolve was ‘whether such a contract, concluded via WhatsApp, is a valid contract.’
She said the Contracts Act provided that a contract would be ‘in writing’ if it was in the form of a data message, and accessible for subsequent reference, and in words.
Under the Electronic Transactions Act (ETA), a data ‘message’ meant data sent, received or stored by computer means. In this case, the data message had been stored on a mobile phone.
Was a mobile phone a ‘computer’?
This in turn raised the question of whether a mobile phone was a ‘computer’. The ETA definition of a ‘computer’ speaks of an ‘electronic … processing device … performing logical, arithmetic or storage functions’ and included ‘any data storage facility or communications facility …’.
The judge said that in her opinion, that definition included mobile phones, a view shared by decisions in other jurisdictions.
She also quoted the section of the ETA that says a contract won’t be held invalid merely because it was concluded via a data message. That section has a second part stipulating that a contract via data messaging will be said to be concluded ‘at the time when and the place where acceptance of the offer is received by the person making the offer’.
Therefore, she concluded, WhatsApp messages were ‘data messages’, and the court formally held, on this basis, that there was a valid contract between the two sides in the dispute she was considering.
Breach of contract?
Was the hospital in breach of contract? The hospital, via Begumisa, had proposed an arrangement under which Megarura was given operating rights for which he would charge professional fees. He had also been invited to handle two patients whose bills were still outstanding.
Asked by the hospital for details of the outstanding balance, Megarura had provided this information and it was clear from the negotiations that followed both that the services had been provided and that the money was owed by the hospital to Megarura. The two patients had also been invoiced directly for the spinal surgery that he had carried out.
There was no evidence that the money had been paid to Megarura, said the judge, and she therefore found there had been a breach of contract.
What should happen next? Megarura had asked for the outstanding amount of UGX 41,500,000 along with general damages of UGX 100,000,000 and costs. Asiimwe agreed to order payment of the outstanding balance with interest of 20% per annum. But though she also awarded him costs of the case, she didn’t order the general damages sought by Megarura, saying the interest would be enough to cater for his damages.
Far-reaching reminder that WhatsApp communication can be binding
The case brought by Megarura had raised two related issues. Though the hospital hadn’t filed any answer to his court claim, it was clear that the patients hadn’t paid. So, who would the law hold was responsible to settle the bills?
Megarura’s case was that as he had been brought in by the hospital to operate on the patients, it was the hospital that was finally responsible for paying his invoice. Central to this claim in turn was the question whether there had been a binding contract between Megarura and the hospital.
The court’s finding that WhatsApp exchanges amounted to a binding contract is a far-reaching reminder that agreements on this apparently casual communication medium are just as binding as though reached more formally and put on paper.