A.M and Another v MEC for Health, Western Cape (4621/2014) [2018] ZAWCHC 113 (10 September 2018)

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[2018] ZAWCHC 113
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A.M and Another v MEC for Health, Western Cape (4621/2014) [2018] ZAWCHC 113 (10 September 2018)

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Certain
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Republic of South Africa
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: 4621/2014
Before:
The
Hon. Mr Justice Binns-Ward
Hearing: 19-20, 23 March, 16-19 April,
21-23 May, 6 August 2018
Judgment:
10 September 2018
In
the matter between:
A
M
First
Plaintiff
(in his personal capacity and on behalf
of
his minor son
J M
)
S
M
Second
Plaintiff
(in her personal capacity and on behalf
of
her minor son
J M
)
and
THE
MEC FOR HEALTH, WESTERN
CAPE
Defendant
Judgment
BINNS-WARD
J:
Introduction
[1]
This action concerns a claim for
compensation against the provincial health department arising out of
the tragically catastrophic
consequences of a head injury suffered by
a young boy.  The plaintiffs are the child’s parents.
They have sued
in a representative capacity on behalf of the minor
and also in their personal capacities.
[2]
Pursuant
to an agreement between the parties’ legal representatives, a
ruling was made in terms of Uniform Rule 33(4) shortly
after the
commencement of the hearing directing that the issues of negligence
and causality would be tried separately from, and
before, the
remaining issues in the action.  This judgment is confined to
the adjudication of those issues.  It was implicit
in the
parties’ agreement that they accepted that if causal negligence
on the part of the treating medical officer were established,
it
would be reasonable in the given context - in particular, the
defendant’s admission that the treating medical staff had
been
under a legal duty of care to treat the patient with professional
skill and care - that liability for such damages as the
plaintiffs
might prove would follow;
[1]
in other words, that the element of wrongfulness for the purpose of
delictual liability
[2]
would also have been established.
[3]
The plaintiffs alleged that the ultimate
consequences of the child’s injury followed directly upon the
professional negligence
of the duty registrar who initially examined
him when he was brought to the provincial hospital trauma unit.
A veritable
litany of grounds of negligence was pleaded in their
particulars of claim.  In his opening address, their counsel, Mr
van der Merwe
SC,
abridged these by explaining that essentially the plaintiffs’
case was that the duty registrar had been negligent
in the following
respects -
i.
by
failing to refer the child for radiographic examination, which would
have identified that he had sustained a linear skull fracture
in his
left temporo-parietal region and served (in counsel’s words) as
‘a red flag warning’ to the treating physician
to look
out for intracranial injury;
ii.
by
failing to keep the child under observation for a period after
initial examination and to reassess his condition at the end of
such
period before discharging him;
and
iii.
by
failing to give ‘a full and proper explanation’ to the
child’s father of the necessity to keep the child under

observation for signs of any deterioration in his condition after his
discharge from the trauma unit.
The first two of these grounds of alleged negligence involve an
examination, in a mainly uncontested factual context, of the
reasonableness
of the clinical judgment made by the treating doctor;
whilst, as will appear, the third turns more on a purely factual
determination.
The factual context
[4]
The plaintiffs’ son, J, fell and hit
his head against the hard road surface outside their home in
Heideveld, Cape Town during
the afternoon of 23 August 2011.
He was six years and eight months old at the time.  His 18-year
old elder brother,
Jason, who looking after him at the time, was
alerted to the incident when he heard J crying.  J’s
father was informed
by Jason about the accident when he returned home
from work at approximately 17h20.  J’s father’s
related that
he had been told that it had happened just after 16h00,
when J had been watching his cousin, Tyler, riding on a skateboard.
A
neighbour’s dog had escaped from its owner’s yard
and run into the road.  J had been tripped when the chain
attached
to the dog caught around his leg.
[5]
J’s father found his young son
sitting on the bed in the main bedroom.  He was dressed at the
time in the pyjamas into
which he had been changed from his school
clothes before the incident.  J burst into tears when he saw his
father and complained
that his head was sore.  He was able to
tell his father what had happened to him.  There was nothing in
the version of
events given to the J’s father by either of his
sons to suggest that J had lost consciousness at any stage after his
fall.
There was also nothing to indicate that he had vomited,
or had a seizure.  J’s reported ability to relate what had
happened
to him was inconsistent with his having experienced amnesia.
[6]
J’s father was concerned about the
size of the swelling that he observed on J’s head and decided
immediately to take
him to the nearby Red Cross War Memorial
Children’s Hospital, about 20 minutes’ drive away.
He described the
swelling as being about ‘the size of half a
tennis ball’, but conceded under cross-examination that he may
have previously
used the description ‘half an orange’ for
vivid effect.  He did not feel it to ascertain its consistency.
[7]
J
was examined by the registrar on duty in the paediatric hospital’s
trauma unit.  The documented record of his examination
and
treatment there that was put in evidence consists of the ‘trauma
unit record’ form completed by the duty registrar,
[3]
the ‘trauma register’
[4]
and the ‘head injury’ child patient discharge form that
is given to the child’s caregiver when a child with a
head
injury is discharged home from the trauma unit (‘the head
injury form’).
[5]
[8]
The
trauma unit record is a pro forma document that is filled in by the
treating doctor.  J’s form, which, save for the

particulars concerning his reception at the unit, was completed by
the duty registrar, recorded the following information:
i.
His reception in the
unit at 18h10 on 23 August 2011;
ii.
‘
Cause’:
Fall Stairs/Steps
iii.
‘
Place of
occurrence’: Own home inside
iv.
‘
Admission’:
Not admitted
v.
‘
Disposal from
trauma unit’: Home/GP
vi.
‘
Unconscious’:
No
vii.
‘
Shock’: No
viii.
‘
Resuscitation’:
No
ix.
‘
Anaesthetic’:
None
x.
‘
Self
Infliction’: No
xi.
‘
Abuse’: No
xii.
‘
Anatomy’:
Skull
xiii.
‘
Pathology’:
Closed tissue
xiv.
‘
ABBR Injury
Score (AIS)’: Minor
xv.
‘
Treatment’:
‘Advice/Medication/HIF’ [head injury form]
[The information provided in respect of (ii)-(xv) was provided by
selection from predetermined multiple choice possibilities embedded

in the standard form]
xvi.
‘
History’:
Pt’s foot
caught and he fell, bumping L side of head.  No LOC
[loss of consciousness],
no
vomiting, no seizures
.
xvii.
‘
Examination’:
Pt awake & alert
GCS 15/15
.
xviii.
Vitals: RR
[respiratory rate]
22;
HR
[heart rate]
92;
BP
[blood pressure]
104/68; T
[temperature]
36,1
°
C
.
[These readings were also recorded on a ‘child triage trauma
score’ document,
[6]
which scored admitted patients according to various criteria for
priority of treatment.  The triage trauma score document,
which
was completed by the nursing staff also reflected a notation that J’s
blood oxygen saturation was 99%.  The duty
registrar transcribed
the information concerning J’s vital signs from the triage
score document.]
xix.
Bump L temporal area
above & behind ear.
PEARL
[pupils
equal and reactive to light].
Congruent
N
[normal]
eye
movements
.
No other neurology
.
xx.
(P)
[Plan of
management]
-
Reassurance
-
HIF
[head
injury form]
-
F/U PRN
[‘follow
/ up’ and ‘pro re nata’ (i.e. ‘if
necessary’)]
[The italicised parts of the information given in xvi-xx above
represent the examining doctor’s handwritten notes, with the

meaning of the acronyms inserted by me in non-italicised script
between square brackets.]
The trauma unit record form contained a page with various anatomical
drawings, on which the treating physician could mark the position
of
any injury that had been noted.  The duty registrar omitted to
annotate that part of the document.  She conceded that
she
should have done so.  I did not, however, understand any of the
expert witnesses to seriously suggest that that the omission
had been
material in the current case.  The written notes adequately
described the position of the visible injury.
[9]
Inasmuch as the note on the trauma unit
record recording that the accident had happened ‘indoors’
was inconsistent with
the facts, it bears mention that in his
testimony J’s father used the word ‘floor’ instead
of ‘ground’.
That use of language could, in my
view, mislead the listener as to the locality of the incident.
That said, the occurrence
indoors of a skateboard-related incident
would be somewhat out of the ordinary, I would have thought.
The duty registrar’s
evidence was of no assistance in this
regard as she had no independent recollection of the history that she
took, other than that
evident from her notes on trauma unit record.
She was also unclear, six and a half years after the event, whether
she had elicited
the history from J’s father, or J himself.
She did, however, remember that she had been able to converse with J.
[10]
The Glasgow Coma Scale (‘GCS’)
score of 15/15 recorded on the trauma unit form indicates that J was
found by the examining
doctor to be fully conscious and alert.
In a patient over 4 years old the score is determined with reference
to the total
points achieved on testing using three indices: Eye
Opening (score 1-4), Verbal Response (1-5) and Motor Response (1-6).
An optimal response in respect of each index gives a total score of
15 (4+5+6) out of a possible 15 points (GCS 15/15), whereas
a total
lack of responsiveness on each index would give the lowest possible
total score of 3 (1+1+1) out of 15 (GCS 3/15).
[7]
[11]
It subsequently became apparent, in
circumstances to be discussed later in this judgment, that J had
sustained a linear skull fracture.
The fracture would not have
been palpable on physical examination, and was verifiable only upon
radiological examination by X-ray
or CT-scan.
[12]
The expert medical evidence indicated that
severe pain in the given circumstances could be indicative that the
patient had sustained
a skull fracture, and therefore be a pointer to
the need for a radiological examination to be undertaken.  An
elevated heart
rate or blood pressure reading is often indicative of
the incidence of significant pain.  It was common ground that
J’s
recorded vital signs, including heart rate and blood
pressure, were within acceptable ranges.  It was understandably
uncontested
that J must have been experiencing some degree of pain as
a consequence of his head injury.  However, his normal vital
signs
readings were supportive on the probabilities of the
reliability of the duty registrar’s evidence that he had not
offered
any complaint or shown any visible signs that his pain was
severe.
[13]
The trauma register reflects that J was
seen in the trauma unit between 18h15 and 18h30 and that he was
discharged home after being
given some Panado.  Panado is a
paracetamol-based mild analgesic.  The recorded information is
essentially consistent
with J’s father’s recollection of
the events, but there was doubt as to whether he correctly recalled
by whom the medication
had been administered.  He said that the
syrup had been administered by the doctor.  The duty registrar
did not, however,
recall having prescribed or administered Panado,
but said that this could have been done by the nursing staff in the
unit.
(The trauma register, in which the reference to Panado
appears, is in point of fact written up by the nursing staff, not the
attending
physician.)  Mr M testified that he was also given
medication in an orange and white box to take home with J.  He
understood
that the boxed medication was to treat pain and nausea.
The provision of the boxed medication was not noted in the hospital

records.
[14]
Some criticism was directed during the
trial at the ‘scantiness’ of the notes made by the duty
registrar.  The
register reflects that three other children with
injuries were received in the unit and also attended to by the same
medical officer
within 35 minutes of J’s arrival there.
Two of them were infants aged 2 years or younger and the other was
another
six-year old boy.  The other six-year old boy and one of
infants both arrived at the unit at 18h20, just five minutes after

the duty registrar commenced examining J.  Two of the three
other patients had head injuries.  I mention this because

Dr. Goosen, a general surgeon much experienced in trauma unit
work who testified at the instance of the plaintiffs, conceded
that
the detail of the notes that a treating doctor might make in the
trauma unit would be affected by the exigencies of the situation
in
which the physician was operating.
[15]
It is generally accepted, understandably
so, that head injury patients should be assessed as soon as possible
after arrival at an
accident and emergency unit.  And it appears
from the medical literature to which I was referred in the course of
the evidence
that infants under two years old are particularly
vulnerable to life threatening consequences from even relatively
minor head trauma,
and therefore requiring of especially urgent
assessment.  Notwithstanding her concession under
cross-examination that her
failure to expressly note certain matters
on the trauma unit record could not be ascribed to time constraints,
it seems clear to
me from the information in the trauma register that
the duty registrar would have been working under some pressure at the
time.
[8]
In this regard it is convenient to record at this point that the
registrar impressed in the witness box as a notably self-effacing

witness.  I should also mention that the opinion was expressed
by an expert witness, Prof Taylor, who testified at the instance
of
the defendant, that the notes made by the registrar were ‘adequate’
despite their scantiness.
[16]
J’s father testified, consistently
with the indications to that effect noted in the trauma register,
that the duty registrar
was able to attend to them immediately upon
their arrival at the trauma unit.  He said that he placed J in a
sitting position
on a bed and briefed the registrar as to what had
happened.  Mr M confirmed that J was also able to give his own
account of
the accident to the doctor.
[17]
J’s father left his son with the duty
registrar and went elsewhere in the building to collect J’s
patient folder.
He said that when he returned about 15 minutes
later the doctor informed him that she had examined J and determined
that it
would not be necessary to send him for a scan.  She said
that J would be ‘fine’.  The first plaintiff
confirmed
that he was given a copy of the head injury form when J was
released to be taken home.
[18]
It is evident from the copy of the head
injury form in the trial file
[9]
that it was signed by the trauma unit registrar, who also endorsed
her name and university degree qualifications (M.B., Ch.B.)
on
it.
[10]
J’s father said that he was unable to remember if the registrar
had signed and endorsed the document in his presence.
[19]
The
head injury form read as follows in English and Afrikaans:
NAME / NAAM:  [J’s surname and initial]
J
He / She has a head injury.
Bring your child back to hospital immediately at any
time of the day ir (
sic
) night if he / she should complain
of:-
-
a severe headache
-
become increasingly
difficult to wake
-
loose (
sic
)
consciousness
-
start vomiting
excessively
-
have fits or develop
paralysis
-
or in any way behave
peculiar (
sic
)
________________________________
Hy / Sy het ’n kopbesering.
Bring hom / haar onmiddelik – enige tyd van die
dag of nag terug na die hospitaal indien hy / sy :-
-
kla van ’n swaar
hoofpyn
-
meet (
sic
)
lomerig word of nie maklik wakker gemaak kan word nie
-
bewusteloos word
-
begin om op te gooi
-
stuiptrekkings
kry of verlam word of hom/haar ip (
sic
)
enige manier snaaks gedra (
sic
)
[11]
I
have quoted both the English and Afrikaans versions of the
instructions because they differ slightly in their detail.
English
is the home language in J’s family, but his father was
conversant with Afrikaans.  The English and Afrikaans versions

of the instructions both appeared, the one immediately above the
other on the obverse side of the single page document.  The

reverse side of the page contained instructions in isiXhosa.
[12]
[20]
J’s father testified in his evidence
in chief that he had been instructed to take the head injury form
home and read through
it, and that he should telephone the hospital
if he had any concerns.  He said that he had not been given any
explanation
as to the significance of the form’s content.
He did also say, however, albeit only under cross-examination and
having
been confronted with a note of the instructions that had been
given to one of the plaintiffs’ expert witnesses, that he had

been instructed to ‘monitor’ J.  He understood that
to mean that he should ‘watch’ or ‘keep
an eye on’
him.  He did not say what it was that he been told to watch out
for.  He resisted the proposition put
to him in
cross-examination that the trauma unit registrar would have acted in
accordance with her usual practice, which was to
expressly explain to
the patient’s caregiver the importance of looking out for signs
of drowsiness, sleepiness, vomiting,
seizures and worsening pain.
Under cross-examination, J’s father said that he ‘
didn’t
worry about
[the form]
too
much because the doctor told me he was fine
’.
[21]
It must be said, however, that J’s
father’s recollection of his exchanges with the duty registrar,
particularly whether
she had asked him questions about loss of
consciousness, vomiting or seizures, was hazy.  For example, he
said that she
may
have asked him about seizures, and that
if
she had, his answer would have been
‘no’.  It was evident that he did not pretend to any
recollection of the detail
of their conversation.  As already
mentioned, he was also unable to recall whether the duty registrar
had signed and endorsed
the head injury form with her name and
academic degrees in his presence, or not.
[22]
Mr M was also given a sick certificate in
terms of which J was booked off school until 26 August 2011
(i.e. for two days).
[23]
Upon leaving the trauma unit J’s
father carried his son to the car, even though the child was in a
condition to have walked
there unassisted.  He explained that he
had carried the child as a way of cossetting or comforting him.
He put J lying
down on the back seat of the car and then drove to
collect J’s mother from her place of work about 10 minutes’

drive away.  During the journey J complained that his head was
still sore, but soon went off to sleep.  His father said
that he
thought that the Panado syrup had made J drowsy.  The expert
evidence was that Panado can have a sedative effect on
a tiny
percentage of users.  Indeed, it is regarded as safe to
administer to head-injured patients because its effect is unlikely
to
mask developing symptoms of undiagnosed traumatic brain injury.  But
J’s father said that he had often used Panado
syrup in the past
to help his young children go to sleep at bedtime when they were
feverish or in pain.  He indicated that
if he had been warned to
be alert to signs of drowsiness in J he would have taken his son back
to the hospital immediately when
he fell asleep in the car.
[24]
J did not wake up when his mother got into
the car at approximately 19h00, and when she moved him onto her lap
he remained asleep.
On arrival at the family home J was carried
to his parents’ bedroom, where he usually slept with them in
the bed, and put
under the bedcovers.  He did not wake up at any
stage while being moved about.  He also remained asleep when his
parents
came to bed at approximately 21h30.  J’s father
said that he had not tried to awaken J before he retired to bed for
the night because he had not been aware that he should do so to check
on the child’s condition.  He had also not been
concerned
that J should use the lavatory, as the child would normally do before
retiring for the night.
[25]
It was J’s father’s habit to
take the child to the lavatory between 03h00 and 04h00 hours every
morning.  When
he tried to arouse J in the early hours of
24 August 2011 he was unable to awaken him, and noticed that he
was in what he
referred to as ‘a deep sleep – not a
normal sleep’.  He was concerned by this and immediately
telephoned
the hospital.   He testified that he used the
telephone number on ‘the page that they gave me’.  He
said that a woman, whom he was unable to identify, answered his
telephone call.  He said that she had asked when J usually
woke
up.  He told her that it was at 06h30.  She advised him
that if J were still in a deep sleep at 06h30, he should
bring the
boy back to hospital.
[26]
Very soon after his father’s
telephone call to the hospital J wet the bed and vomited.  His
parents changed his clothing
preparatory to taking him back to the
hospital.  J then suffered a seizure.  His parents rushed
him to the hospital,
where he was admitted.
[27]
The entries on the clinical notes in J’s
patient folder reflect that he arrived back at the hospital at 04h00
and was sent
by the duty registrar for an emergency CT-scan.
[13]
The neuro-surgeon on duty that night was summoned by telephone and,
according to the notes, began attending to J at approximately

04h20.
[14]
The CT-scan identified that J had a linear temporo-parietal
fracture under the swelling on the left side of his head.
It
also identified that J’s middle meningeal artery had been
damaged, which had led to intracranial bleeding and the resultant

development of an epidural haematoma.
[15]
The damage to the artery was associated with the fracture.
[28]
The displacing effect on the brain of the
increasing intracranial pressure caused by an epidural haematoma
eventually results, if
unchecked, in encephalic herniation, which
gives rise to the complicating consequences that in this case
manifested in J’s
resultant permanent disability.  J
underwent emergency surgery to make an opening in his skull
(a craniectomy) in order
to relieve the pressure within his
brain caused by the epidural haematoma.  But, as the CT-scan
confirmed, an uncal herniation
had by that time already
occurred.
[16]
[29]
Tragically, while the surgery saved J’s
life, the intervention was too late to avoid the consequences of the
damage already
caused by the intracranial pressure built up by the
expanding epidural haematoma.  J was rendered spastically
tetraplegic.
The medical witnesses engaged by both sides in the
case were agreed in their opinion that by the time J was brought to
the hospital
in the early hours of 24 August 2011 matters would
have already deteriorated too far for there to have been any hope at
that
stage of obtaining a better outcome.  They were also agreed
that the treatment that J received that morning was entirely
appropriate
and above criticism.
[30]
J’s father was unable to offer any
explanation why the clinical notes related to J’s treatment at
the hospital on the
morning of 24 August 2011 noted that J had
fallen from a skateboard (‘J-board’) when a dog’s
leash ‘got
caught under [the] wheel’,
[17]
or why the notice given by his attorney to the defendant, in terms of
s 3 of the Institution of Legal Proceedings against
certain
Organs of State Act 40 of 2002, had alleged that J had been admitted
for treatment at the hospital ‘following a skateboarding

accident’.
[18]
He denied that he had told his attorney, or any doctor that J had
fallen from a skateboard
.
The
provenance of this incorrect information was not satisfactorily
explained and remains a mystery.  One would have thought
that
the attorneys’ letter would have been written in accordance
with the instructions obtained by them from their clients,
the
plaintiffs.
[31]
I should also mention that in response to a
request by the defendant for trial particulars concerning ‘the
circumstances resulting
in J’s head injury’, the
plaintiffs alleged that J’s fall had happened ‘[w]hile J
was playing with his
skateboard, the leash of a large dog caught J’s
leg while the dog was running and J was as a consequence thrown onto
the
road, landing on his head’.  The pleaded version of
the occurrence therefore also differed from that related in the first

plaintiff’s evidence.  Neither of the persons identified
as having been present when J fell was called as a witness.
[32]
Before moving on to treat of the evidence
of the trauma unit registrar I should record that J’s father
made a generally satisfactory
impression on the witness stand.
I have no reason to doubt that he gave his evidence of the
events of nearly seven years
ago to the best of his recollection.
It was evident, however, that his memory was not always accurate and
reliable.
In addition to the matters I have already described,
he was disquietingly vague about whether or not he had met with the
expert
witness, Dr Goosen, at any time before the trial, even as
recently as 2015.  This served to indicate that he did not have

a good or reliable memory.
The evidence of the trauma unit registrar who attended to J on
the evening of 23 August 2011
[33]
The
duty registrar who attended to J in the trauma unit testified at the
instance of the defendant.  She had graduated with
her primary
medical degrees in 2006, and thereafter served the usual two-year
period as an intern, followed by one year’s
community service
as a qualified medical doctor and a subsequent period of about
18 months’ ‘pre-specialist work’
at the
Victoria Hospital in Wynberg.  She completed an ATLS course
[19]
in 2007 during her internship.  In August 2011, she had just
commenced serving her registrarship to qualify as an orthopaedic

specialist.  She has since qualified as an orthopaedic surgeon
and currently works as such with a speciality in paediatrics
at the
Red Cross Hospital.  It was not in issue that the duty registrar
had been appropriately qualified at the time to undertake
the initial
diagnosis and treatment of J when he was brought to the trauma unit.
The allegation in the amended particulars
of claim that she should
have summoned more senior medical personnel for assistance was not
supported, even by the plaintiffs’
expert witnesses.
[34]
The duty registrar testified that she had
knowledge at the time of the Guidelines for Integrated Management of
Head Injury at Red
Cross Hospital (third draft).
[20]
To the best of her recall the document had been included in an
information pack with which she had been briefed when she
commenced
working at the hospital.  However, she was not aware of, and had
not previously seen, the Head Injury Guidelines
Handbook for the
Western Cape to which extensive reference was made during the
evidence of the expert witnesses.  It was not
contended from any
quarter that a doctor on duty in the trauma unit should have followed
either of these guidelines on a prescriptive
basis.  Their
evident purpose was to encourage a standardised approach to
diagnostic and treatment questions, of which practitioners
would in
any event be expected to have a general knowledge that they would
bring to bear according to the exigencies of the varying

circumstances of each patient presenting for treatment.
[35]
The duty registrar also testified that the
Red Cross Hospital ‘Imaging Protocol for Head Injuries’
[21]
was prominently displayed on a wall in the trauma unit.  She
regarded the protocol as being of a generally prescriptive effect,

but accepted that she could, and indeed would be obliged to, depart
from it if the critical needs of a particular presented case
demanded
that.
[36]
The duty registrar testified that J would
have undergone a triage assessment
[22]
by qualified and experienced nursing staff when he arrived at the
trauma unit.  She pointed out that the records reflected
that he
had been categorised as falling into the green group, which indicated
that he had been determined to be a patient in the
lowest category
for priority of treatment.  Her own examination of the patient
gave her to believe that J had sustained ‘
a
minor injury with an extremely low risk of having a serious
underlying brain injury
’.
Later in her evidence she stated that she had considered the risk of
J developing an epidural haematoma to have been
‘
virtually
zero
’.  Assuming that the
swelling on J’s head did not have a boggy (used in its sense of
‘spongy’) or
fluctuant consistency, the medical
literature to which reference was made in the trial bore out the
reasonableness of the doctor’s
assessment.  I shall
discuss this in greater detail presently when I consider whether the
duty registrar acted reasonably
in not referring J for a radiological
examination.
[37]
The registrar was certain that she would
have investigated the consistency of the swelling on J’s head.
Her evidence
initially was that had it been fluctuant she would ‘at
the very least’ have made a note of that.  She later
explained
that she would have regarded a fluctuant swelling as
indicative of the possibility of an underlying skull fracture.
Had she
found that the bump was fluctuant she would therefore have
referred J for a CT-scan.  In this regard it perhaps bears
mention
that the registrar did refer another patient who presented at
the unit minutes after J’s arrival for a scan.
[38]
The duty registrar did not make a note of
the consistency of the swelling on J’s head.  I understood
that the main purpose
of the trauma record notes was to serve as a
record of diagnosis and treatment and a guide for subsequent
treatment of the patient
by the same or other clinicians if needs
be.  It was against that background that Prof Taylor stated
that the word ‘bump’
used by the duty registrar in the
note of her examination was in any event not one that he, as a
practitioner very familiar with
interpreting other doctors’
clinical notes, would ordinarily associate with a protuberance that
was fluctuant or boggy in
character.  I accept that there is
something in that.  Although the words are to a great extent
synonymous, one would,
I think, generally be more inclined to
describe a boggy enlargement very evidently caused by a collection of
fluid as a ‘swelling’
rather than a ‘bump’ or
a ‘lump’.  It has to be acknowledged though that the
basis for making any
such etymological distinction is intuitive,
rather than scientific. With the wisdom of hindsight it is easy to
highlight that the
debate could have been avoided had the duty
registrar inserted the adjective ‘fluctuant’ or
‘non-fluctuant’
before the word ‘bump’ in her
notes.  At the end of the day, the actual character of the
protrusion on J’s
head requires a factual finding on the basis
of the evidence adduced in the trial.  The significance of its
consistency is
undisputed; the onus of proving it burdened the
plaintiffs.
[39]
It was common ground that the duty
registrar did not carry out an otoscopic examination to determine
whether J had suffered a basilar
skull fracture.  Her
explanation for this omission, which attracted criticism from the
expert witnesses called by the plaintiffs,
was (i) that she
considered the occurrence of such an injury highly unlikely in the
context of the history she had been given
of how J had injured his
head, and (ii) that he did not exhibit any clinical signs such
as bleeding from the ears or ‘racoon
eyes’ pointing to
such an injury.  Prof Taylor testified that he would not
criticise the duty registrar in the circumstances
for not having
conducted such an examination.  He did so accepting her
explanation for her decision that it had not been necessary.
As
it was, J did not have a basilar skull fracture.
[40]
The criticism directed at the registrar’s
omission to do an otoscopic examination appears to have been elicited
in order to
underpin an argument that the duty registrar’s
examination of J had been superficial.  The emphasis laid by the
plaintiffs’
experts on the ‘scantiness’ of the duty
registrar’s clinical notes seems to have been intended to imply
the same
effect.
[41]
As mentioned, Prof Taylor, on the other
hand, whilst choosing not to quibble with the description of the
notes as ‘scanty’,
considered them to be adequate for
purpose.  The purpose of such notes, he explained, was to record
the patient’s condition
upon examination, and any treatment
provided, for the benefit of any other medical officer who might
subsequently have to attend
to the patient.  Save that I would
have thought that the registrar should have noted her finding in
respect of the consistency
of the swelling and the time interval
between injury and examination, I can find no fault with Prof
Taylor’s opinion that
the registrar’s notes adequately
served their purpose in the given circumstances.  In making this
assessment I had regard
to the medical literature referred to by the
expert witnesses in the course of the trial, which gave me an insight
into the factors
that might be considered materially significant in
the assessment of head injury patients presenting at accident and
emergency
centres soon after they had been hurt.
[42]
The doctor’s evidence concerning her
omission to have completed the section of the form marked ‘hours
since injury’
was unsatisfactory.  She initially sought to
explain the failure to complete the relevant part of the form by
saying ‘
So usually you would, as a
patient presents and often they come with a history, they don’t
really wait for you to ask, but
if it wasn’t clear from the
history given I would ask what happened, when, where.  That is
just a simple recipe basically
for establishing an injury history
’.
That, of course, did not provide an answer to the question why the
form was not completed in the relevant respect.
It was only
under cross-examination that it emerged that the witness did not
establish, and had no idea of, the time that elapsed
between J
sustaining the injury and presenting for examination in the trauma
unit.  Having regard to the established significance
in such
matters of a changing or deteriorating state in the hours subsequent
to time of injury, the omission to determine the length
of interval
between J’s fall and his arrival at hospital reflected poorly
on the quality of the history-taking aspect of
the examination.
[43]
The plaintiffs could make little of the
point, however, because had the doctor ascertained the information it
would have supported,
rather than detracted from, her assessment that
J was at a very low risk of having suffered a clinically important
brain injury.
This is so because it would have established the
objective fact that there had been no deterioration in his level of
consciousness
two and a half hours after his fall.  Thus, as Mr
van der Merwe
reasonably conceded in his oral argument, if the doctor had been
negligent in this regard, it was negligence in the air.
[44]
The duty registrar explained that the word
‘
Reassurance
’
that appears after the symbol
℗
that
prefaces the last section of her examination notes in the trauma unit
record was shorthand to minute that she had had a conversation
with
J’s father when she discharged the patient.  Her evidence
in this respect was as follows: ‘
I
do not recall the details …of this conversation, but my usual
practice would be to briefly mention all the salient risk
factors –
maybe not all of them come to think of it – but I do recall in
my general practice I would say look out for
drowsiness, for
sleepiness, vomiting and seizures or fitting as a sign of a
developing brain injury.  And I would also say
in that
conversation that if any matter of concern arises they should bring
the patient back in
’.  She
said that it was ‘possible’ that she had told Mr M to
read the head injury form.  She had no
recollection of having
signed the form, and was indeed surprised to have found her signature
on the discovered document.
It was apparently not her standard
practice to sign head injury forms.
[45]
The witness acceded to a proposition by the
plaintiffs’ counsel that her use of word ‘reassurance’
denoted ‘
something along the lines
of “look I didn’t find anything wrong so there is nothing
to worry about”
’.
However, the effect of that concession has to be assessed against the
evidence of Mr M that he was instructed by
the doctor ‘to
monitor’ J.  That, in turn, begs the question ‘how
likely would it be that an instruction
to monitor a patient would be
given without any indication of what it was that should be looked out
for?’  In my view,
the inherent probability is that a
clinician instructing a layperson to monitor a patient would advise
the person what it was that
they should look out for.
[46]
It was put to the duty registrar in
cross-examination that as she had no recall of the content of her
conversation with Mr M when
she discharged J, she was in no position
to contest his evidence that she had not told him to bring J back to
hospital if he showed
signs of drowsiness.  She acceded to the
proposition.  I understood her to make the concession on the
basis that if it
were to be accepted that Mr M had an actual
recollection of the conversation, whilst she did not, she would not
be qualified to
argue with him about its content.  In that
respect the answer was purely logical.  I did not understand the
answer, however,
to detract from the essence of her evidence in this
regard, which was that while she had no independent recollection of
the actual
content of the conversation, it was her practice to draw
attention to the features of concern for which a caregiver of a
head-injury
patient should look out for.  Drowsiness was one of
those.  In context, the witness was clearly asserting that she
believed
that it was improbable that she had not mentioned drowsiness
as a symptom that Mr M should look out for.
[47]
The witness did, however, concede ‘
that
it would have been reasonable to provide more information to the
father of what to look out for and also to stress the fact
of any
change or any worrying features, and more – have more emphasis
on the drowsiness - potentially waking I’m still
not 100% sure
about that  - but it would have been reasonable to give him more
information and perhaps have been more emphatic
about bringing him
back.  That would have been reasonable.
’
The duty registrar proceeded on this aspect:
‘…
I don’t know, I might be
mixing up current thoughts with thoughts back then.  I treated
him like I treated all minor
head injuries, with a perfunctory
[23]
but what I would consider sufficient
information and the head injury form, not expecting, not anticipating
in the least the …
’
(intervention)
Mr van der Merwe
:
‘
No, obviously not, you wouldn’t
have sent him home if you had anticipated.
’’
‘
Ja, so reasonable to have perhaps spent
more time, a little more time, explaining more. I will concede that
.’
Mr van der Merwe
:
‘
And that might have made a
difference
?’
‘
It may have made a difference, yes
.’
Mr van der Merwe
:
‘
Yes?
’
‘
And it may not have
.’
Mr van der Merwe
:
‘
It is likely on the facts of this
case that it would have made a difference
?’
‘
I don’t know
.’
[48]
In re-examination, the duty registrar
testified about her discharge instructions to Mr M as follows:
Ms Gassner
: ‘
And
then on the discussion you had with Mr M you said your usual
practice is to highlight what is concerning in cases of this
kind,
with minor head injuries.  What would the particular feature be
that you would highlight, what would be most concerning?
’
‘
So my usual practice would have been to
warn them about drowsiness, decreased level of consciousness,
vomiting and seizures
.’
Ms Gassner
: ‘
And
you say that is your usual practice.  Is there any reason why
you would have followed or not followed this practice in
the present
matter?
’ ----  ‘
No
’.
‘
Thank you, Dr xxx
’
[49]
In my judgment, the passages from the duty
registrar’s evidence that I have just quoted do not represent
any advance on her
position that she was unable to recall what she
said to J’s father and her professed belief in the
circumstances that she
would have acted in accordance with her usual
practice in such situations.  Her apparent concessions that she
could reasonably
have placed greater emphasis on certain things were
purely speculative in character, and therefore of no assistance in
determining
what actually happened.  The doctor was
understandably affected by the consequences that had befallen J and
it was clear to
me that her conscience was racked by thoughts of what
she might have been able to have done to avoid the tragedy.
Nothing
that she said by way of apparent concessions under
cross-examination detracted from the essence of her evidence, which
was ‘I
am unable to remember what I said, but I believe that it
would have been along the lines of what I habitually say in such
circumstances,
which is to tell the caregiver to watch out for the
tell-tale warning signs: drowsiness, loss of consciousness, vomiting
or fitting,
and to bring the patient back to hospital if any of them
manifest’.  Her evidence certainly did not amount to, nor
was
it intended by her to be understood as, an admission of
negligence.
[50]
The duty registrar agreed that she would
not have advised Mr M to periodically awaken J during the night.
The question was
put in the context of the suggestion by the
plaintiffs’ expert witnesses that J should have been wakened
periodically during
the night.  Her evidence was that had she
considered monitoring of that nature to be necessary, it would have
reflected a
level of concern on her part that would have decided her
against discharging the patient.  She would have admitted him as
an in-patient.  As she also pointed out, persuasively in my
view, a child that was wakened in the middle of the night would

probably be drowsy, which is one of the most important signs for a
need to return the patient to hospital.  Sending a child

assessed to be fit for discharge home with instructions that it be
woken in the middle of the night would conduce to many such
children
being unnecessarily returned to hospital by parents understandably
anxious about their drowsiness.
[51]
Prof Taylor was also clearly not an
enthusiastic proponent of the value of periodic night-time
awakening.  He said that
he might have suggested that J should
be woken once during the night, but stressed that periodically waking
a patient during normal
sleeping hours was of limited value because a
patient with an undiagnosed epidural haematoma might present as
normal one minute
and deteriorate catastrophically a moment later.
Much would depend on the extent of compensation by the brain for the
volume
of the bleeding into the patient’s intracranial space.
This could vary widely between individuals.  He said that
there
are cases in which a patient might show little in the way of symptoms
to raise concern before the cataclysmic occurrence
of a
decompensating herniation of the brain.  As mentioned, it is the
herniation of the brain consequent upon the mass effect
of an
enlarging haematoma that causes the sort of irreversible damage
manifested in J’s case.  Prof Taylor was
of the view
that advising a caregiver to awaken a patient at given intervals was
very much a matter for clinical judgment according
to the apparent
needs of the given case.
[52]
The example of a warning discharge
instruction form given in the (2008) eighth edition of the ATLS
manual gave the following information
concerning drowsiness as a sign
to looked out for: ‘
Drowsiness or
increasing difficulty in awakening patient (awaken every 2 hours
during period of sleep)
.
[24]
But the example is stated to be for use in the context of the
discharge of patients with ‘minor ‘ or ‘mild’

traumatic brain injury.  The document states that ‘minor
traumatic brain injury is defined by a history of disorientation,

amnesia, or transient loss of consciousness in a patient who is
conscious and talking’.  J did not have such a history.

The sample warning sheet in the subsequent edition of the manual,
published in 2012, omitted any reference to wakening the patient

every two hours.
[25]
Prof Taylor ventured that the omission of the prescription in
the later edition might have been in recognition of the
opinion
expressed in his view that there was no place for a hard and fast
rule applicable to every case.  The Western Cape
Guidelines, in
giving a summary of ‘signs that a person who has been
discharged within 48 hours from hospital following a
head injury
should go or be taken to their nearest Emergency Centre’,
[26]
make no mention of wakening the patient at any intervals or at all.
The NICE Guidelines also do not advise that head injury

patients should be regularly wakened during sleeping hours.  Dr
Edeling’s opinion was that the appropriate intervals
for
wakening a sleeping minor head injury patient to check for any
deterioration in consciousness could vary.  He postulated

intervals as long as four hours, but stated that he would have
counselled waking J every two hours because of the swelling on J’s

head and his assessment of the significance of the injury mechanism.
[53]
It is apparent that there is a diversity of
expert opinion and practice on the matter.  Bearing in mind that
J presented as
an ‘outlier case’ in respect of the
likelihood of having suffered a clinically important traumatic brain
injury, and
that the chances of his having done so could respectably
be statistically rated as 1/2000 or 0,05%, it does not seem to me
that
he would have been reasonably regarded as an obvious candidate
for frequent periodic awakening during the night.
[54]
In my judgment it has in any event not been
established as a matter of probability that waking J at pre-indicated
intervals during
the night would have led to J being returned to
hospital sufficiently early to allow the evacuation of the haematoma
before the
uncal herniation occurred.  J did prove difficult to
wake shortly before 4 o’clock in the morning, but those
attempts
were immediately linked in time to the manifestation of the
other symptoms – vomiting and fitting – that caused his

parents to rush him back to the emergency ward.  In my view, the
onset of drowsiness that caused J to nod off to sleep in
the car
after leaving the hospital and his remaining asleep when being
shifted about in the car when his mother entered the vehicle
and
thereafter while being carried into the house when his parents
reached home were the signs that should have alerted his parents
to
return him to the hospital without delay.  These were signs that
in my view should have concerned the plaintiffs had they
been advised
to look out for drowsiness, or when they read the head injury form.
The stage of possibly waking the child at
intervals during the night
should not have been reached on the facts of the case.
Pre-emptive action should have been taken
before then.
[55]
The duty registrar was unable to explain
why she had booked J off school for two days.  She said that
decisions to book a child
off school were often influenced by parent
requests, but she acknowledged that she would be guessing if she were
to venture that
had been the case in this instance.  The
question was not canvassed in any detail with Mr M, but he did
admit to spoiling
J and treating him as his ‘baby’.  In
the circumstances I would not have been surprised had he requested
extra
time for J to stay home.  Nothing turns on this.  I
do not accept the suggestion implicit in some of the questioning of

the doctor in cross-examination that the two days off school
indicated that she considered J’s condition to be any less
benign than she testified that she had considered it to be.  It
is after all common ground that the duty registrar conveyed
to J’s
father that she did not consider that the child’s injury was
serious.
The expert opinion witnesses
[56]
Two experts gave evidence in support of the
plaintiffs’ case; Dr Jacques Goosen, who is a general surgeon,
and Dr HJ Edeling,
who qualified and practised as a neurosurgeon, but
for the past 10 years has had an exclusively consultative practice,
predominantly
of a medico-legal nature. Prof Allan Taylor, who
was called by the defendant, is an associate professor of
neurosurgery at
the University of Cape Town.  Each of these
witnesses has impressive qualifications and extensive relevant
practical experience,
especially Dr Goosen and Prof Taylor.  Of
the three experts, Prof Taylor had the greatest depth of practical
experience in
the specialist field of neurosurgical work.  He
pointed out that at least 50 per cent of his clinical work was
trauma-related.
[57]
Dr Goosen has held senior appointments at a
number of hospitals.  He was Head: Department of Surgery at the
Ernest Oppenheimer
Hospital in Welkom between November 1987 and
August 1998 and also Head of the Spinal Unit at that hospital from
January 1996.
He was thereafter the senior specialist surgeon
at the trauma unit, University of the Witwatersrand and at the
Johannesburg
[27]
and Milpark Hospitals for three years until 2002, and from 2002 to
2012 he was the Principal Surgeon and Head: Trauma Unit, Johannesburg

Hospital and Witwatersrand University.  He teaches at ATLS
courses
[28]
at the University of the Witwatersrand and was appointed as an
adjunct professor there in 2007.  He is currently the Director

of the Netcare Union Hospital trauma unit in Johannesburg.  He
has held leadership positions in various professional societies,

including the Trauma Society of South Africa and Advanced Trauma Life
Support, South Africa.  He has delivered many papers
and written
widely in peer reviewed professional publications, and contributed
book chapters in books on trauma published by, amongst
others, Oxford
University Press and the World Health Organisation.
[58]
Dr Edeling qualified as a neurosurgeon in
1992 after serving two years as a neurosurgical medical officer /
registrar at the (then)
Johannesburg General and Baragwanath
Hospitals.  He was a consultant neurosurgeon and lecturer at the
Johannesburg Hospital
and Witwatersrand University Medical School in
1993-94 and has been in private neurosurgical and medico-legal
practice since 1993.
He has not carried out surgical operations
since 2008.  He was for some time an ATLS instructor.
[59]
Prof Taylor qualified as a neurosurgeon in
1995.  In addition to his teaching post at the University of
Cape Town, he is also
the clinical head of neurosurgery at the Groote
Schuur Hospital and works privately at the Netcare-associated
University of Cape
Town Private Academic Hospital.  He has been
a visiting professor at the University of the Witwatersrand and at
Rush University,
Chicago.  He is President of the Federation of
South African Surgical Societies and is also the incoming president
of the
World Federation of Interventional and Therapeutic
Neuroradiology. He has authored over 50 peer reviewed publications
and book
chapters and has made more than 80 academic congress
presentations.  His publications include a contribution to an
article
in the (2000) SA Medical Journal entitled ‘Treatment of
head injuries in the public sector in South Africa’ and another

(co-written with D Roytowski) with the title ‘Malpractice
Litigation and defensive practice in Neurosurgery’.

Prof Taylor was a member of, and the ‘working author’
in, a technical group of specialist practitioners that produced
the
Head Injury Guidelines for the Western Cape (2008), to which copious
reference was made in the course of the evidence.
He also
contributed to a policy document entitled ‘Protocol for the
management of head injuries; A policy document to ensure
fair
distribution of limited resources’.
[29]
The legal principles pertaining to the adjudication of medical
professional negligence
[60]
In
Mitchell
v Dixon
1914
AD 519
at 525 it was held that:
…
a
medical practitioner is not expected to bring to bear upon the case
entrusted to him the highest possible degree of professional
skill
but he is bound to employ reasonable skill and care.
The
Constitutional Court’s judgment in
Oppelt
v Head: Health, Department of Health Provincial Administration:
Western Cape
[30]
formulated the
question in cases of this sort by way of the following general
proposition: ‘In respect of medical negligence,
the question is
how a reasonable medical practitioner in the position of the
defendant would have acted in the particular circumstances’.
[31]
The critical
questions in this regard in the current case are whether the duty
registrar, employing reasonable skill and care, should
have
appreciated that there was a clinically cognisable prospect that J
had sustained an intracranial injury and whether - according
to the
general level of knowledge then available to her as a medical
practitioner
[32]
- she unreasonably
omitted to take proactive steps to have pre-empted its late
diagnosis.  This is no more than a context specific
application
of the generally expressed test for negligence in
Kruger
v Coetzee
1966
(2) SA 428
(A) at 430E-H.
[61]
Expert
opinion evidence is usually of cardinal importance in equipping a
court to make the determination whether a medical practitioner
has
employed reasonable skill and care in the given context.  Our
jurisprudence on the adjudication of medical professional
negligence
in matters of diagnosis and treatment, and how to deal in that regard
with
conflicting expert opinion, has
followed the approach adopted in the leading English cases,
especially
Bolam v Friern Hospital
Management Committee
[1957] 1 WLR
582
,
[1957] 2 All ER 118
(QB);
Maynard v
West Midlands Regional Health Authority
[1984] 1 WLR 634
,
[1985] 1 All ER 635
(HL) and
Bolitho
v City & Hackney Health Authority
[1997]
UKHL 46
,
[1998] AC 232
,
[1997] 4 All ER 771
(HL).  See in this
regard
Michael & another v
Linksfield Park Clinic (Pty) Ltd & another
[2001] ZASCA 12
,
2001 (3) SA 1188
(SCA),
[2002] 1 All SA 384
,
especially at para. 34-40;
Medi-Clinic
Limited v Vermeulen
[2014] ZASCA 150
;
2015 (1) SA 241
(SCA), at para. 4-8;
Goliath
v MEC for Health
2015 (2) SA 97
(SCA),
at para. 8; and
Oppelt
supra
[33]
at para. 36 and 93.
[62]
Whilst
noting up the judgments referred to in the previous paragraph I came
across a useful summary of the applicable principles
in the selection
of quotations of the most pertinent dicta in the salient English
cases conveniently collected in the fairly recent
judgment of
Picken J in
John v Central
Manchester and Manchester Children's University Hospitals NHS
Foundation Trust
[2016] EWHC 407
(QB),
(2016) 150 BMLR 168
,
[2016] 4 WLR 54
, at para 41-44:
41. The position is as it was described in the
directions given to the jury by McNair J in
Bolam v Friern
Hospital Management Committee
[1957] 1 WLR 582
at page
586:
“
The test is the standard of
the ordinary skilled man exercising and professing to have that
special skill. A man need not possess
the highest expert skill; it is
well established law that it is sufficient if he exercises the
ordinary skill of an ordinary competent
man exercising that
particular art. Mr Fox-Andrews put it in this way, that in the case
of a medical man, negligence means failure
to act in accordance with
the standards of reasonably competent medical men at the time. That
is a perfectly accurate statement,
as long as it is remembered that
there may be one or more perfectly proper standards; and if he
conforms with one of those proper
standards, then he is not
negligent. Mr Fox-Andrews also was quite right, in my judgment, in
saying that a mere personal belief
that a particular technique is
best is no defence unless that belief is based on reasonable grounds.
That again is unexceptionable.
But the emphasis which is laid by the
defence is on this aspect of negligence, that the real question …
is whether the defendants,
in acting in the way they did, were acting
in accordance with a practice of competent respected professional
opinion. …
I myself would prefer to put it this way, that he
is not guilty of negligence if he has acted in accordance with a
practice accepted
as proper by a responsible body of medical men
skilled in that particular art . … Putting it the other way
round, a man
is not negligent, if he is acting in accordance with
such a practice, merely because there is a body of opinion who would
take
a contrary view.”
[34]
42. Lord Scarman put things pithily
in
Sidaway v
Governors Of Bethlem Royal Hospital
[1985] UKHL 1
;
[1985]
AC 871
[[1985] UKHL 1] when, at page 881F, he explained that “
a
doctor is not negligent if he acts in accordance with a practice
accepted at the time as proper by a responsible body of medical

opinion even though other doctors adopt a different practice”
.
In
Maynard v
West Midlands Regional Health Authority
[1984]
1 W.L.R. 634
, he stated at page 639:
“…
I have to say that
a judge’s ‘preference’ for one body of
distinguished professional opinion to another also professionally

distinguished is not sufficient to establish negligence in a
practitioner whose actions have received the seal of approval of
those whose opinions, truthfully expressed, honestly held, were not
preferred. If this was the real reason for the judge’s
finding,
he erred in law even though elsewhere in his judgment he stated the
law correctly. For in the realm of diagnosis and treatment
negligence
is not established by preferring one respectable body of professional
opinion to another. Failure to exercise the ordinary
skill of a
doctor (in the appropriate specialty, if he be a specialist) is
necessary.”
43. It is helpful also to have in
mind Lord Browne-Wilkinson's observations in
Bolitho
v City & Hackney Health Authority
[1997] UKHL 46
;
[1998]
AC 232
at pages 241G-242A :
“
.. in my view, the court is
not bound to hold that a defendant doctor escapes liability for
negligent treatment or diagnosis just
because he leads evidence from
a number of medical experts who are genuinely of the opinion that the
defendant’s treatment
or diagnosis accorded with sound medical
practice. In the
Bolam
case itself, McNair J.
[1957] 1 W.L.R. 583
, 587 stated that the
defendant had to have acted in accordance with the practice accepted
as proper by a ‘responsible body
of medical men’. Later,
at p. 588, he referred to ‘a standard of practice recognised as
proper by a competent reasonable
body of opinion’. Again, in
the passage which I have cited from
Maynard's
case
[1984] 1 W.L.R. 634
, 639, Lord Scarman refers to a ‘respectable’
body of professional opinion. The use of these adjectives -
responsible,
reasonable and respectable - all show that the court has
to be satisfied that the exponents of the body of opinion relied upon
can demonstrate that such opinion has a logical basis. In particular
in cases involving, as they so often do, the weighing of risks

against benefits, the judge before accepting a body of opinion as
being responsible, reasonable or respectable, will need to be

satisfied that, in forming their views, the experts have directed
their minds to the question of comparative risks and benefits
and
have reached a defensible conclusion on the matter.”
44. Having referred to certain authorities, Lord
Browne-Wilkinson went on at page 243A-D to summarise the position in
the following
way:
“
These decisions demonstrate
that in cases of diagnosis and treatment there are cases where,
despite a body of professional opinion
sanctioning the defendant's
conduct, the defendant can properly be held liable for negligence (I
am not here considering questions
of disclosure of risk). In my
judgment that is because, in some cases, it cannot be demonstrated to
the judge's satisfaction that
the body of opinion relied upon is
reasonable or responsible. In the vast majority of cases the fact
that distinguished experts
in the field are of a particular opinion
will demonstrate the reasonableness of that opinion. In particular,
where there are questions
of assessment of the relative risks and
benefits of adopting a particular medical practice, a reasonable view
necessarily presupposes
that the relative risks and benefits have
been weighed by the experts in forming their opinions. But if, in a
rare case, it can
be demonstrated that the professional opinion is
not capable of withstanding logical analysis, the judge is entitled
to hold that
the body of opinion is not reasonable or responsible.
I emphasise that in my view it
will very seldom be right for a judge to reach the conclusion that
views genuinely held by a competent
medical expert are unreasonable.
The assessment of medical risks and benefits is a matter of clinical
judgment which a judge would
not normally be able to make without
expert evidence. As the quotation from Lord Scarman makes clear, it
would be wrong to allow
such assessment to deteriorate into seeking
to persuade the judge to prefer one of two views both of which are
capable of being
logically supported. It is only where a judge can be
satisfied that the body of expert opinion cannot be logically
supported at
all that such opinion will not provide the benchmark by
reference to which the defendant's conduct falls to be assessed.”
[35]
[63]
It is also appropriate in deciding medical
negligence cases arising from the diagnosis or treatment of patients
for courts to be
mindful of the reference, with approval, in
Vermeulen
supra,
at para 33, to the following remarks made by Denning LJ in
Roe
v Ministry of Health
[1954] EWCA Civ 7
;
[1954] 2 All ER
131
(CA) at 139,
[36]
a case in which two men had been rendered permanently paralysed from
the waist down after they were administered a contaminated

anaesthetic:
These two men have suffered such
terrible consequences that there is a natural feeling that they
should be compensated.
But
we should be doing a disservice to the community at large if we were
to impose liability on hospitals and doctors for everything
that
happens to go wrong. Doctors would be led to think more of their own
safety than of the good of their patients. Initiative
would be
stifled and confidence shaken. A proper sense of proportion requires
us to have regard to the conditions in which hospitals
and doctors
have to work. We must insist on due care for the patient at every
point, but we must not condemn as negligence that
which is only a
misadventure.
In
the context of the facts of that case, Denning LJ’s
cautionary remarks should be understood as an enjoinder against

judging such cases by the standards of wisdom of hindsight.
[37]
Any inclination to deduce from the tragic consequences of the
decision to discharge J without further investigation that
the
treating doctor
must
have been negligent must also be eschewed; cf.
Broude
v McIntosh and Others
1998 (3) SA 60
(SCA) at 75A-C and
Buthelezi v Ndaba
[2013] ZASCA 72
, 2013 (5) SA 437 (SCA).
Should J have been referred for a skull X-ray or CT-scan?
[64]
It was common ground between all the
medical witnesses that the only means of confirming that J had
sustained a linear skull fracture
was radiological investigation,
whether by X-ray or CT-scan.  The fracture would not have been
discernible by feeling the
skull bone around or underneath the
swelling on his head.  The only means of confirming that he had
a developing epidural
haematoma would have been by doing a CT-scan of
his brain.  It was also common ground that the presence of a
skull fracture
would be indicative of there being a material risk
that a clinically important traumatic brain injury could have been
sustained.
It follows that the duty registrar would have acted
negligently if her failure to refer J for radiological investigation
had been
unreasonable in the circumstances.
[65]
Dr Goosen testified that the existence of a
skull fracture multiplied the chances of underlying intracranial
injury being present
by forty times.  He said an X-ray would
have identified J’s skull fracture, whilst a CT-scan
investigation would have
shown the early onset of an epidural
haematoma.
[66]
Dr Edeling accepted that on presentation at
the trauma unit J’s apparent condition did not merit an
immediate CT-scan investigation.
He considered, however, that J
should have been kept at the unit for a period of observation before
any decision was made to discharge
him home.  He maintained that
this should have been the case irrespective of the period that had
intervened since the trauma
to the patient’s head had
occurred.  Dr Edeling maintained this position on the basis that
an important diagnostic indicator
of clinically important traumatic
brain injury was diminishing levels of consciousness.  He said
that a clinician could not
determine in a single examination at one
point in time whether the patient’s level of consciousness was
deteriorating; more
than one examination, with an interval in
between, was essential to any such determination.
[67]
Dr Edeling also emphasised that in his
opinion an X-ray of J’s skull should have been ordered.
He premised his view
on two papers, published in 2003 and 2005
respectively, in the Annals of the Royal College of Surgeons of
England.
[38]
Those papers show that in revised guidelines, published
in 1999, the Royal College of Surgeons suggested that skull
X-rays
should be done, even where CT was available, when a boggy swelling
was present ‘particularly in the parietotemporal
region’.
The later paper noted, however, that the NICE 2003 report questioned
the need to perform skull x-rays,
especially in hospitals in which CT
scanning facilities were readily available.
[68]
I do not consider the papers to which Dr
Edeling referred to have been particularly relevant to the point that
he was seeking to
make.  Their focus appears in fact to have
been the introduction of measures to reduce the number of skull
x-rays done in
head injury cases at the Royal Berkshire Hospital.
[69]
The medical literature to which reference
was made by the plaintiffs’ medical experts in the course of
their oral evidence
suggests that X-rays may have been more sensitive
for identifying bone fractures than CT-scans, but despite this it
also appears
that in facilities in which CT-scanners are available
(such as the Red Cross Children’s Hospital) CT-scans are used
rather
than X-rays.  Dr Edeling did not quarrel with the
proposition put to him in cross-examination, and later confirmed by
Prof Taylor,
that CT-scan investigation had become more
sophisticated since the turn of the century and that it has become an
adequate tool
for the identification of bone fractures.
[70]
An X-ray investigation would not, however,
identify the presence of an epidural haematoma.  Identifying the
skull fracture
using X-ray facilities would then have required a
further CT-scan investigation to confirm whether the fracture was
associated
with underlying intracranial complications constituting
clinically important traumatic brain injury.  Both types of
investigation
expose the patient to a level of high-energy
radioactivity.  Doing an X-ray followed by a CT-scan would thus
expose the patient
to a double dose of such radioactivity, with the
attendant potential of seriously adverse side-effects.  In the
circumstances,
Prof Taylor’s evidence that in modern
conditions, if a radiological investigation were considered necessary
in a given head
injury case, only a CT-scan investigation would be
undertaken, impressed me as cogent.
[71]
The
question whether a radiological examination of any sort should have
been undertaken at the instance of the duty registrar in
this case
has to be approached mindful of the widely accepted and well
established medical view that such examinations should not
be
resorted to without proper reason.  The literature referred to
during the hearing reports that the extent to which CT-scanning

should be used in the diagnosis of clinically important traumatic
brain injury in children presenting with minor head injury has
been
controversial.  Quite apart from the cost considerations,
[39]
this is because exposure to high-energy radioactivity brings with it
a certain (albeit very small) risk of inducing lethal malignancy

during the patient’s lifetime.  The risk is heightened in
persons younger than 18, and its measure is in directly inverse

proportion to their age; so the younger the patient the greater the
risk.  Having regard to these considerations, the object
of the
so-called PECARN study,
[40]
undertaken between 2004 and 2006, was to develop reliable predictive
rules in order to reduce the unnecessary use of CT-scanning
in
paediatric head injury patients who could be assessed on initial
presentation at a trauma unit to be at low risk of having sustained

clinically important traumatic brain injury.
[72]
It may be accepted as a matter of logic, I
think, that a CT-scan would, as a general rule, not be indicated in
circumstances where
the reliably established statistical probability
of the existence of a clinically important traumatic brain injury
being revealed
by it would be less than the statistically established
probability of the patient suffering damaging health consequences
from exposure
to the ionising radiation of computed tomography.
That, indeed, was the philosophy that informed the PECARN study, and
one
that was endorsed by Prof Taylor.
[73]
Having regard to the predictive rules
distilled in terms of the PECARN study, a CT-scan of J’s head
would not have been recommended.
A similar study undertaken for
the Pediatric Emergency Research Canada (PERC) Head Injury Study
Group, published in 182(4) (2010)
CMAJ
[41]
at 341ff, produced the so-called CATCH
[42]
clinical prediction rule, in terms of which J, as he presented when
he was first brought to the hospital, would also have been
excluded
as a patient recommended for CT-scan examination.
[43]
[74]
Dr Goosen maintained that he would
nevertheless have proposed a CT-scan in J’s case because the
attendant risks of doing so
(which, as I have noted, were low) fell
to be weighed against the massive impact of the consequences of a
failure to timeously
identify and treat an intracranial injury.
He considered that the features that underscored the need for a
radiological examination
in J’s case were the size and position
of the swelling on J’s head (which he postulated, and the
CT-scan scan confirmed,
was a subgaleal scalp haematoma) and the
reported mechanism of injury.  Dr Edeling would instead have
ordered a skull X-ray,
essentially for the same reasons that
Dr Goosen would have asked for a CT-scan.
[75]
It was common ground between all the
medical witnesses, including the duty registrar, that J should have
been referred for a CT-scan
if his scalp haematoma had been boggy or
fluctuant in character.
Scalp haematoma
[76]
It will be recalled that J’s father
had described the size of the swelling on J’s head as ‘half
the size of a
tennis ball’.  He was challenged as to the
reliability of his report on the size of the swelling.  It was
put to
him that the indication on the CT-scan of Jason’s head
on the following morning was that the swelling had a diameter of 8cm

with a depth of about 7mm.  The interpretation of the CT-scan
was not controversial.  The summary of evidence filed in
respect
of the late Prof Jonathan Peter, whom the defendant had intended
to call as an expert, but who became unavailable
due to ill health,
suggests that he had been instructed that the ‘bump’
noted by the duty registrar had been ‘approximately
the size of
an egg’.
[44]
The duty registrar testified that the bump had the
diameter of a small to medium size hen’s egg (± 4 cm),
but a height
of only about 1 cm.  There appeared to be unanimity
amongst the expert witnesses that during the course of the night,
between
the time that J was first examined in the trauma unit and the
time he was scanned after his readmission in the early hours of the

following morning, the protuberance of the swelling on J’s head
could very feasibly have subsided somewhat and its diameter
widened.
It did not appear to be in dispute, however, that J’s scalp
haematoma was on the large side.
[77]
A subgaleal haematoma is caused by blood
collecting in the galea aponeurotica, which is a layer of the scalp
that lies between the
deepest layer of the skin and the dense
underlying subcutaneous tissue and the pericranium (or cranial
periosteum) that covers
the skull bone.  It was common ground
that a subgaleal haematoma, if it is sufficiently large, can
sometimes present as a
swelling with a boggy texture on palpation.
Prof Taylor explained, however, that the swelling caused by such
a haematoma
could also present as a firm feeling bump.  He
illustrated the point using the example of a plastic bag half filled
with water,
which would be fluctuant in character on palpation
because the water would displace when the bag was pressed, and a
plastic bag
fully filled with water, which would feel firm when
pressed because the water in it could not be displaced.
[78]
Dr Goosen considered that the prominence of
the swelling described by J’s father (‘big and proud’,
as Dr Goosen
put it) would suggest that it was likely to have been
boggy, but conceded that he was in no position - apart from observing
that
it had not been noted by her on the trauma unit record - to
dispute what he was told would be the duty registrar’s evidence

that she had physically examined the swelling for consistency and
would have made a note if it had been boggy (or fluctuant) because

she would have regarded that as significant.  (It will be
recalled that the duty registrar did note the existence and position

of the ‘bump’ on the trauma unit record.
[45]
)
Dr Goosen also did not take issue with Prof Taylor’s
opinion that it was unlikely that a swelling of the
prominence
necessarily implied in the description given by J’s father
(approximately 3,5 cm
[46]
)
would have reduced to 7mm within 12 hours.  In Prof Taylor’s
opinion the scalp haematoma was unlikely to have exceeded
1 cm
in height before it started to dissipate.  Dr Goosen’s
view, however, was that the location and consistency
of the swelling
were more important diagnostic indicators than its size.  This,
indeed, seems to me to be generally consistent
with the literature to
which the court was referred in the course of the expert evidence.
Thus, a boggy scalp haematoma in
the temporo-parietal area of the
skull – where the bone is thinner than in other parts of the
skull – would be a more
significant marker of the possibility
of an underlying bone fracture associated with brain injury than
would a boggy scalp haematoma
on any other part of the scalp.
[79]
Dr Edeling on the other hand
considered that only a ‘very flat’ scalp haematoma would
not feel fluctuant or boggy.
His opinion was premised on his
view that any swelling caused by a collection of fluid would tend to
have a fluctuant consistency
and that it was only when there was too
little fluid in the haematoma to transfer the pressure of palpation
that the clinician
would not feel the fluctuant nature of the
swelling.  Dr Edeling’s reasoning would imply that
only a very small
scalp haematoma would not feel fluctuant.
[47]
If that were so, it would be puzzling why the emphasis in the
literature seems to be on the consistency rather than the size
of the
haematoma as an indicator of the need for radiological examination.
I must mention that, as was exposed in the course
of his
cross-examination, a consideration of the pre-hearing exchanges
between Dr Edeling and the defendant’s expert witnesses
shows
that Dr Edeling warmed to the topic of the likelihood of J having had
a boggy scalp haematoma rather late in the day if regard
is had to
the emphasis he placed on the issue in his oral evidence.  This
was despite his having been instructed from the
outset with a copy of
the radiological report on J’s CT-scan that reported that J had
a ‘[l]eft temporoparietal undisplaced
fracture with overlying
scalp haematoma’.
[80]
Professor Taylor explained - persuasively,
in my judgment - that the size of a subgaleal haematoma was not a
dependable indicator
of the likely character of its consistency.
His evidence was that a subgaleal haematoma would feel firm to the
touch if the
subgaleal space into which the bleeding occurred were
completely filled with blood.  Bogginess would present only if
there
were space into which the collected blood could displace when
the swelling was palpated.  He explained that the bleeding that

leads to the occurrence of subgaleal haematomas is usually caused by
damage to the blood vessels in the loose connective tissue
that
underlies the galea.  It is in situations where there has been
an avulsing (the witness used the expression ‘degloving’)

injury of that tissue that sufficient space is created for the
subgaleal haematoma to manifest as fluctuant.  The occurrence
of
such avulsing injuries is generally related to a high degree of
trauma having occurred to the area of the skull where the injury
was
inflicted.
[81]
Prof Taylor testified that very young
children are most vulnerable to an avulsing injury of the loose
connective tissue layer.
This is due to the relative thinness
of their scalps.  The witness also explained that the reason
that a boggy scalp haematoma
can indicate the heightened possibility
of an underlying bone fracture is because the type of trauma that is
commonly causative
of tissue-shearing injuries is also likely to
result in bone fractures; in other words, the type of trauma that is
liable to cause
the former is also liable to cause the latter.  I
do not overlook that the logical implication of this reasoning is
that the
fact that J did indeed have a skull fracture increases the
likelihood that his subgaleal haematoma would have been associated
with
an avulsing tissue injury, and that it could therefore very well
have been fluctuant.  Whether or not J did in point of fact

sustain an avulsing injury to the loose connective tissue layer in
the vicinity of his scalp haematoma was not established.
[82]
Accepting, as I do, that the swelling could
notionally have been either boggy or firm, its actual consistency
when J presented at
the trauma unit is a question of fact.  In
making a finding in that regard on the probabilities, I take account
that the protuberance
on J’s head would have been the most
focal physical evidence of his injury.  As noted, it was common
cause that it was
large.  Its appearance was the reason for his
father’s concern, and he would no doubt have communicated that
to the
doctor.  The duty registrar made an accurate note of the
existence and position of the lesion.  It is inherently unlikely

in the circumstances that she would not have examined the swelling
closely enough to be able to tell its consistency.  In
the
context of all these factors I am unable to reject her assertion that
the bump on J’s head could not have been fluctuant
because had
it felt boggy she would have sent him for a CT-scan.  I cannot
fault her for having no actual recall of the physical
examination of
the bump.  Her deductive reconstruction impressed me as honestly
given, and entirely plausible having regard
to the objectively
established circumstances.
[83]
Drs Goosen
and Edeling, who were supported in this respect by the
literature,
[48]
considered that the presence of a large scalp
haematoma in the temporo-parietal region of the skull could be, by
itself, a significant
pointer to the danger of there being an
underlying linear fracture in that part of the skull.  There was
furthermore, as I
have already noted, a documented association
between fractures of that part of the skull and the possibility of
injury to the middle
meningeal artery.
[84]
The pre-2011 medical literature to which
reference was made at the hearing seems, however, to indicate that it
is in respect of
infants
(that is children under the age of two years) that the presence of a
scalp haematoma is an indicator of the need for a CT-scan.
It
does not seem generally to have been regarded as, of itself, a
significant indicator in children older than two.  Indeed,
in
the investigation reported on in the 2016 article by Burns et al
supra,
[49]
(which was a secondary study to the PERC ‘CATCH rule’
study mentioned earlier) the observation was made that -
Studies that have investigated the
independent association between scalp hematomas and ICI [intracranial
injury] are … scarce
and at times contradictory. Some
significant limitations include retrospective study designs and
methodologic issues such as small
sample sizes and few positive
CT’s.  It is generally agreed that scalp hematomas in the
temporal/parietal regions
confer
the greatest risk for ICI, as do scalp hematomas of larger size.
With regard to
age,
children aged 0-6 months seem to be at highest risk of ICI when a
scalp hematoma is present.  However, since most studies
have
been limited to children to children aged 0-24 months, the clinical
significance of a scalp hematoma in children older than
24 months
presenting after blunt head trauma remains unclear.
(Footnotes omitted.)
(The words ‘independent association’ in the aforegoing
quotation fall in their context to be understood as meaning

‘independent of any other established indicator, such as loss
of consciousness, amnesia, or dangerous mechanism of injury
etc.’.)
[85]
The Burns study found that the presence of
a scalp haematoma was significantly associated with increased odds of
intracranial injury,
with the highest odds in infants less than six
months old.  It also found that temporal/parietal and occipital
scalp haematomas
had the highest odds of association with
intracranial injury.  It is important, however, when considering
the article by Burns
et al., to bear in mind (i) that J would
have been excluded from the study by reason of his head trauma not
having resulted
in ‘witnessed loss of consciousness, definite
amnesia, witnessed disorientation, [or] persistent vomiting (at least
two episodes
15 minutes apart)’ and (ii) that the study
acknowledges that previous literature characterised scalp
haematoma-associated
risk of intracranial injury with reference by
age to ‘three clinically relevant risk groups’, i.e.
patients under six
months old, those between 6 and 24 months and
those over 24 months;
[50]
and not older patients.  The first of the aforementioned
qualifications brings to mind the pertinence of the observation
stressed repeatedly by Prof Taylor that it is generally
misleading to see any of the accepted indicators in isolation; their

individual significance arises from their presentation as part of a
bigger clinical picture – that is in their association
with one
or more of the other indicators.
[86]
Dr Edeling found it ‘puzzling’
that scalp haematoma in the temporo-parietal region in patients older
than 2 years was
not documented as a risk indicator of intracranial
injury.  Prof Taylor’s evidence concerning the
pronounced vulnerability
of very young children – he was
referring to infants – to the type of avulsing injury that
gives rise to boggy scalp
haematomas and the heightened possibility
of underlying skull fractures seems to me to offer a possible answer
to the enigma.
[87]
The learning in the Burns study was not
available to the duty registrar in 2011, and Prof Taylor
testified, without contradiction,
that he was unaware that its
findings have in any event yet been adopted in any applicable
practice guidelines.  I consider
that Dr Edeling’s
quite assertive evidence concerning what he considered should have
been the clear significance to
the duty registrar of the presence of
a scalp haematoma has to be seen in the context of the bigger picture
that I have described.
The significance of the presence of a
scalp haematoma does not appear to have been as unambiguous as
Dr Edeling’s opinion
would suggest, certainly in respect
of patients older than two years of age.
[88]
I accept, however - and the duty registrar
professed to have been astute to this at the time - that the
consistency and location
of a swelling were something to which a
treating doctor should have had regard at the relevant time in the
making of the required
clinical judgment in respect of the diagnosis
and treatment of a head injury patient because it could be indicative
of an underlying
skull fracture.  In the duty registrar’s
judgment nothing about the size or consistency of the lump on J’s
head
gave her cause for concern.  On the documented learning,
she cannot be held negligent in those circumstances for not having

regarded the presence of a firm feeling haematoma as sufficient
reason - in the absence of other symptoms such as loss of
consciousness,
amnesia, vomiting or fitting, and subject to what I
shall deal with presently in respect of ‘mechanism of injury’
-
to have referred J for a CT-scan.
Mechanism of injury
[89]
Dr
Goosen was of the opinion that the manner in which J had been tripped
by the chain attached to an escaping dog suggested that
the injury
had been sustained in an incident involving a significant degree of
kinetic energy.  He pointed to medical literature
that
recognised high impact injury mechanisms such as (i) high-speed
road traffic accidents involving the patient either as
a pedestrian,
cyclist or vehicle occupant, (ii) a fall from a height of more
than three metres or (iii) a high-speed injury
from an object
[51]
as indicative of the need for a radiological examination in head
injury cases if they featured with one or more other indicators
in
the given case (such as repeated vomiting or a period of retrograde
amnesia), and as a factor meriting
consideration
of a radiological examination even if they featured on their
own.
[52]
[90]
Under cross-examination, however, Dr Goosen
conceded that J’s mechanism of injury would not have qualified
as ‘severe’
in terms of the categorisation used for the
purposes of the PECARN Study.  The effect of this concession, as
Dr Goosen
frankly acknowledged, was that J would not have
qualified as a patient for whom a CT-scan would ordinarily be
recommended in terms
of the findings of the PECARN study.  This
was because, having regard to his GCS score of 15/15, that he
had suffered
no loss of consciousness, had no history of vomiting,
showed no clinical signs of basilar skull fracture, was not suffering
from
a severe headache and that the mechanism of injury was
‘moderate’, the statistical likelihood of his having
sustained
a clinically important traumatic brain injury was less (<
0,05%, or 1 in 2000) than that of some estimates of the likelihood
of
his suffering a lethal malignancy (0,1% or 1 in 1000) as a
consequence of exposure to the ionising radiation of a
CT-scan.
[53]
The effect of J having been ‘an outlier case’
[91]
Dr Goosen acknowledged that J would have
been what he called ‘an outlier case’ in respect of the
statistical likelihood
of his having sustained a complicating injury;
his reported symptoms on examination in the trauma unit being
indicative of an extremely
low risk that he had sustained
intracranial injury.  Notwithstanding the recommendations made
in the PECARN study, however,
Dr Goosen would nevertheless have been
inclined, for the reasons he gave in his evidence in chief, to have
referred J for radiological
examination; alternatively, at the very
least, have detained him in the trauma unit for a period of two hours
and monitored him
periodically during that time for signs of any
deterioration in his condition.  (As mentioned, Dr Edeling would
have been
inclined to refer J for a skull X-ray, but in any event to
have kept him in casualty for observation for at least an hour.)
[92]
Inasmuch as Dr Goosen’s approach to
the need for a radiological examination differs from that generally
recommended in the
PECARN study and in terms of the CATCH rule, it
should in fairness to him be recorded that the PECARN study - which
analysed the
cases of more than 42 000 children in the United
States who had presented at 25 different treatment centres with a GCS
score
of 14/15 or 15/15 within 24 hours of head trauma - acknowledged
that there was ‘substantial practice variation’.

The Canadian PERC study made a similar observation.  I should
also record my impression that the statistical analyses in the

medical literature to which reference was made during the hearing,
while they are supportive of the reasonableness of the duty

registrar’s decision at the time of J’s examination in
the trauma unit that a CT-scan of his head was not required,
do not
provide a clear basis for discounting the approach advocated by Dr
Goosen.  Indeed, with the wisdom of hindsight, there
is no
denying that had it been followed J would probably have had his
epidural haematoma timeously evacuated and made a good recovery,
and
that the chances of his consequently incurring a malignancy from
exposure to radiation would in any event have been remote.
But
in answering the questions that have to be answered in this case the
court ‘must forbear from hindsight’.
[54]
The Red Cross Hospital Imaging Protocol
[93]
The
Red Cross Hospital has an ‘imaging protocol for head
injuries’.
[55]
It was issued by the hospital’s Clinical
Head of Radiology.  The trauma unit registrar who examined J
when he was first
brought in would have been expected to comply with
the protocol, but doing so would not automatically exclude negligence
if following
the prescripts of the protocol were not rationally
defensible in the particular case.
[94]
The
protocol provides as follows:
IMAGING PROTOCOL FOR HEAD INJURIES
Skull x-rays
Skull X-rays are
NOT
indicated in the
managing of head injuries in children in our setting.
CT HEAD INDICATIONS
-
GCS ≤ on assessment
at hospital
after
adequate resuscitation.
-
Abnormal drowsiness.
-
Focal signs
-
Penetrating injury
-
Suspected base of skull
fracture.
-
Clinical suspicion of
occipital / suboccipital fracture.
-
NAI [Non-accidental
injury]
-
Post-traumatic seizure.
-
Vomiting > times or
> 2 hours post injury.
CT is
not
indicated in the setting of falls,
abrasions or bumps on the head in the absence of indications
documented above.
This protocol was jointly agreed upon by the following
departments: Radiology, Neurosurgery and Trauma.
(Bold font and underlining reproduced as in the original.)
[95]
The Red Cross Hospital imaging protocol for
head injuries is, in its essential respects, consistent with the
advice furnished in
the ‘Head Injury Guidelines Handbook for
the Western Cape’ (September 2008, reviewed September
2010).
[56]
The introduction to the Guidelines Handbook explains that the
guidelines were adapted from the NICE clinical guideline
[57]
by a team of senior practitioners and consultant surgeons from the
main teaching hospitals in the greater Cape Town area and the

Universities of Cape Town and Stellenbosch.  As mentioned, Prof
Taylor was the ‘working author’ of the document.
Application
of the ‘Bolam / Linksfield’ test
[58]
[96]
The duty registrar’s decision not to
refer J for a CT-scan was compliant with the prescripts of the
hospital’s protocol
and the recommendations in the provincial
Guidelines Handbook.  The protocol and the guidelines are, in
turn, consistent with
a body of responsible and respectable
professional opinion documented in the medical literature to which
reference was made in
the hearing.  Applying the ‘
Bolam
/
Linksfield
test’ in order to make a determination in the face of
conflicting expert opinion, I cannot find on the given facts, which

indicate that J was reasonably assessed to have been at an extremely
low risk of having sustained a clinically important brain
injury,
that the duty registrar failed to exercise reasonable skill and care
in making the decision not to refer him for a radiological

examination.  Dr Edeling indeed ultimately conceded that he
would not quarrel with such a conclusion.
Should J have been kept under observation at the hospital for a
period after initial examination for reassessment of his condition

before being discharged?
[97]
The plaintiffs alleged in their particulars
of claim that the defendant’s personnel had been negligent –
·
In failing to re-examine J within
one hour, and
·
In failing to observe J every 15
minutes within the first two hours, and two-hourly thereafter.
[59]
[98]
The then applicable NICE clinical guideline
indicated that in cases of children presenting to an emergency clinic
with a head injury
in which no imaging was required the treating
physician should ‘use clinical judgment to determine when
further observation
is required’.
[60]
(I have already identified that according to the guideline imaging
was not required in J’s case.)
[99]
The NICE head injury guideline summary also
indicated that children who had sustained a head injury and had only
one of the following
risk factors –
·
Loss of
consciousness lasting more than 5 minutes (witnessed).
·
Abnormal
drowsiness.
·
Three or more
episodes of vomiting.
·
Dangerous
mechanism of injury (high speed road traffic accident either as
pedestrian, cyclist or vehicle occupant, fall from a height
of
greater than 3 metres, high-speed injury from a projectile or other
object).
·
Amnesia
(antegrade or retrograde) lasting more than 5 minutes.
should be observed for a minimum of four hours after the head
injury.  J was sent home, approximately two and half hours after

he had sustained his injury, having not manifested or been associated
with any of the listed risk factors by that stage.
[100]
Drs Goosen and Edeling would hold, however,
that the mechanism of injury in J’s case qualified as
‘dangerous’
or ‘severe’.  But that
categorisation is not supported by the PECARN study.  It also
does not obviously fit
with the ‘high-speed’ examples
given in the NICE guidelines.
[61]
Prof Taylor expressed the opinion that the mechanism of
injury was not dangerous or severe.  His view, which
corresponded
with that of the duty registrar, is more readily
reconcilable with the evident import of the examples given in the
guidelines.
I accept that those examples are unlikely to have
been chosen arbitrarily, and likely reflect a depth of experience
crystalised
from statistical analysis of a wide range of practical
experience.
[101]
The reference by Dr Goosen to the
recommendation in the ATLS manual that ‘[i]f patients are
asymptomatic, are fully awake
and alert, and have no neurologic
abnormalities, they may be observed for several hours, re-examined,
and, if still normal, safely
discharged’,
[62]
has also to be seen in the context in which the recommendation was
made, that is with reference to patients with evident ‘minor

traumatic brain injury’ as defined.  J’s injury did
not fall within the definition because he did not present
with a
history of disorientation, amnesia, or transient loss of
consciousness.
[102]
The Western Cape Head Injury Guidelines
Handbook indicates that ‘low risk’ patients presenting in
the emergency centre
with a GCS score of 15/15 should be re-examined
within an hour to establish the need for imaging.
[63]
Professor Taylor, as one of the authors of the handbook, explained
that this provision, which he conceded might perhaps have
been better
worded, was intended to replicate the content of paras. 1.4.1.6
– 8 of the 2003 NICE Head Injury guidelines.
[64]
Those paragraphs provided that head injury patients found on initial
triage to be at low risk for clinically important brain
injury should
be reassessed ‘within a further hour by an A&E clinician’.
At the Red Cross Hospital patients
arriving in the trauma unit are
assessed for triage purposes by experienced nursing staff.  It
follows, as Prof Taylor confirmed,
that J’s subsequent
assessment by the duty registrar would have been the reassessment by
an A&E clinician within a further
hour contemplated in terms of
para. 1.4.1.8 of the NICE guidelines.  In any event, on a
purely linguistic construction,
the mention of the period ‘within
a further hour’ does not  imply that a further examination
should take place
after an interval of an hour, it connotes that an
examination by a clinician should happen within no more than an hour
after the
triage assessment.  That might be 5 minutes or 55
minutes after the triage assessment.  In the current matter an
examination
by a clinician commenced within 5 minutes of the triage
assessment.
[103]
In my judgment it was not established that
the duty registrar failed to employ reasonable skill and care in the
given circumstances
when she decided that it was not necessary to
keep J in the emergency ward for further observation.  The
statistics referred
to earlier would imply that if every patient
presenting as J did required to be kept at the trauma unit for
observation, 1 999
out of every 2 000 of them would be
detained there unnecessarily.  It was unchallenged that it was
not the established
practice at government hospitals in the Western
Cape to detain patients for observation in such circumstances.
I am persuaded
by the evidence of Prof Taylor that practical
considerations pertaining to the efficient use of limited resources
would militate
against keeping patients with an extremely low risk of
complications in for observation.  Prof Taylor emphasised
that
the logistical implication of keeping in for observation every
patient that might be at very low risk of subsequently developing

complications should be understood not only with regard to the
statistical odds applicable in a case like J’s, but also
bearing in mind the various other situations in which, if the
hospital authorities were expected to act consistently, it would be

necessary to detain patients at very low risk for observation.
The number of patients across the range of potential scenarios
that
would be unnecessarily detained would therefore in point of fact
greatly exceed the 1999 out of every 2000 that would have
to be kept
in in cases like J’s.
[104]
Dr Goosen argued, however, that the
extremely low risk of complications had to be weighed against the
extremely grave consequences
for the outlier example patient if,
against the odds, they did manifest.  That is true.  But in
my view, the practice
of discharging patients who are at extremely
low risk into the care of responsible persons who are adequately
informed to monitor
them for early signs of the complications that
might subsequently arise constitutes a reasonable, and apparently
widely accepted,
provision to meet Dr Goosen’s argument.
That the practice is indeed reasonable was in effect conceded by Dr
Goosen
who acceded (albeit with evident reluctance) to the
proposition put to him during his cross-examination that it would be
reasonable
to discharge a child patient who presented with a 15/15
GCS scale score, no loss of consciousness or amnesia and no vomiting
or
seizures.  It is to a consideration whether the practice of
discharging the patient subject to cautionary advice was adequately

complied with in this case that I therefore now turn.
Did the trauma unit registrar fail to give ‘a full and
proper explanation’ to J’s father of the need to keep the

child under observation for signs of any deterioration in his
condition after his discharge from the trauma unit?
[105]
It appears to be a generally applicable
practice internationally to provide a patient (or the patient’s
companion or caregiver)
who has been seen for a traumatic head injury
at an accident and emergency unit with a leaflet describing the
symptoms and abnormalities
that should be watched out for during the
24 hours following the patient’s discharge.  The head
injury form is used
for that purpose at the Red Cross Children’s
Hospital.
[65]
It is also generally accepted that the treating clinician should
review the content of the leaflet or form with the patient
or the
person caring for him or her before the patient is sent home.
The
ATLS for Doctors
,
Student Course Manual (2008)
[66]
states in this regard:
Ideally the patient is discharged to
the care of a companion who can observe the patient continuously over
the next 24 hours.
An instruction sheet directs both the
patient and the companion to continue close observation and to return
to the ED [hospital
emergency department] if headaches develop, there
is a decline in mental status, or focal neurologic deficits develop.
In
all cases, written discharge instructions should be supplied and
carefully reviewed with the patient and/or companion.
[67]
[106]
The Red Cross Children’s Hospital
guidelines state that ‘[p]arents of children who are fit for
discharge home should
understand the contents and importance of the
head injury form’.
[68]
It was not in dispute that the trauma unit registrar had been under a
duty to explain the significance of the content of
the head injury
form to J’s father.  The issue in dispute in this aspect
of the case was whether she did so adequately,
or at all.  It
was also contended that the head injury form was in any event so
badly worded that it failed to achieve its
purpose.
[107]
I reviewed the evidence concerning the
instructions given by the duty registrar to J’s father when J
was sent home earlier
in this judgment.  It will be recalled
that it is common ground that Mr M was told to monitor J, and that he
was given a copy
of the head injury form that the doctor had endorsed
with her name.  In contradiction of Mr M’s evidence
that he
was not informed that he should be concerned and return J to
the hospital if he became drowsy was the duty registrar’s
evidence
that a failure to have warned the first plaintiff about the
implications of signs of drowsiness would have been inconsistent with

her usual practice,
[69]
and accordingly unlikely.  She declined to concede the
correctness of the first plaintiff’s version of their
conversation.
The court was consequently faced with essentially
mutually conflicting evidence on a material fact.
[108]
The proper approach by a court in such a
situation was summarised in the following often cited passage in
Stellenbosch Farmers’ Winery Group
Ltd and another v Martell et Cie and others
2003 (1) SA 11
(SCA), at para. 5:
The technique generally employed by courts in
resolving factual disputes of this nature [i.e. where there are two
irreconcilable
versions] may conveniently summarised as follows. To
come to a conclusion on the disputed issues a court must make
findings on
(a) the credibility of the various factual witnesses; (b)
their reliability; and (c) the probabilities. As to (a), the court's
finding on the credibility of a particular witness will depend on its
impression about the veracity of the witness. That in turn
will
depend on a variety of subsidiary factors, not necessarily in order
of importance, such as (i) the witness's candour and demeanour
in the
witness-box, (ii) his bias, latent and blatant, (iii) internal
contradictions in his evidence, (iv) external contradictions

with what was pleaded or put on his behalf, or with established fact
or with his own extracurial statements or actions, (v) the

probability or improbability of particular aspects of his version,
(vi) the calibre and cogency of his performance compared to
that of
other witnesses testifying about the same incident or events. As to
(b), a witness's reliability will depend, apart from
the factors
mentioned under (a)(ii), (iv) and (v) above, on (i) the opportunities
he had to experience or observe the event in
question and (ii) the
quality, integrity and independence of his recall thereof. As to (c),
this necessitates an analysis and evaluation
of the probability or
improbability of each party's version on each of the disputed issues.
In the light of its assessment of (a),
(b) and (c) the court will
then, as a final step, determine whether the party burdened with the
onus of proof has succeeded in
discharging it. The hard case, which
will doubtless be the rare one, occurs when a court's credibility
findings compel it in one
direction and its evaluation of the general
probabilities in another. The more convincing the former, the less
convincing will
be the latter. But when all factors are equipoised
probabilities prevail.
[109]
I do not think that the conflict is
attributable to dishonesty on the part of either of the witnesses.
There was no basis
to prefer the candour or demeanour of the one
witness to that of the other.  The evidence of both of them,
although generally
satisfactory, was not without blemish.  I
was, in particular, struck by the demonstrable unreliability of J’s
father’s
memory in certain respects.  The unexplained
contradiction between the pleaded circumstances in which J was
injured and that
given in oral evidence was also of some concern.
The duty registrar’s evidence was affected by the passage of
time
since the relevant events and there were indications that she
sometimes had difficulty in distinguishing between what she actually

remembered and the influence on her thinking of discussions in which
she was involved in the course of trial preparation.  Another

aspect that detracted from her quality as a witness was the
occasional tendency to over-defensiveness.  In this regard I
have in mind her peculiar reluctance to admit that the swelling on
J’s head had been a scalp haematoma
[70]
and her initial equivocation about her failure to ascertain and note
the time that J had sustained his injury.
[110]
Both witnesses testified to the issue in
contest in respect of their respective recollections of their
conversation in a quiet and
non-confrontational manner.  The one
was sure that he was told nothing about drowsiness, whilst the other,
not pretending
to remember what had actually been said, was unable to
accept that she would not have traversed the obvious things that J’s

father should have been advised to look out for.
[111]
It was eventually common ground that the
doctor had said more than just that J would be ‘fine’
when she handed over
the head injury form.  The concession by Mr
M under cross-examination that he had been told to ‘monitor’
J stands
as proof that the duty registrar had been mindful, when she
assessed that there was ‘an extremely low risk’ that J
might have sustained a clinically important traumatic brain injury,
that there was nonetheless a possibility that signs that he
did in
point of fact have such an injury could manifest later.  This
therefore was not a case of a medical officer having
taken such an
optimistic view of the patient’s apparently benign condition
that she was blinded to the possibility that there
might in fact be
an undiagnosed problem that could reveal itself in a subsequent
deterioration in his state of being.
[112]
I find it improbable, in the context of an
exercise designedly directed at briefing a caregiver that problems
might become apparent
later, that the doctor would not have given any
indication of what signs to look out for in that regard.  To
merely say that
the caregiver should monitor the patient without
identifying what it was about his condition that should be watched
for would be
an improbably cryptic manner of communication.  The
very fact that the doctor expressed the necessity that J should be
monitored
is indicative that she would have had the symptoms that
would be cause for concern in mind.  It is improbable that in
instructing
Mr M what should be done she would have kept them to
herself.  The very notion of monitoring implies a purposeful
exercise.
It is difficult to conceive how monitoring could be
done if the person charged with doing it was not told what it was
that was
to be checked on.
[113]
The fact that the duty registrar endorsed
her name on the head injury form suggests to me that she must have
conveyed to J’s
father that he might need to return the child
to the hospital.  Why else would she do something to identify
herself as a point
of contact?  (She was due to remain on duty
at the hospital for a further 12 and a half hours after she sent
J home.)
I consider that is probable that in the context of
alerting the first plaintiff to the possibility that J might have to
be brought
back, the duty registrar would have informed him of the
circumstances that might make that necessary.  Dr Edeling
conceded
under cross-examination that if it were found that the duty
registrar had explained to J’s father that he should bring the

child back to hospital if it were drowsy or had any of the common
signs of an altered mental state, she would have complied with
what
he termed ‘a reasonable standard’.
[114]
J’s father said that had he been
warned to look out for drowsiness, he would have immediately returned
with J when the child
fell asleep in the car soon after they left the
hospital.  That is indeed in accord with the inherent
probabilities, provided
that he had sufficiently appreciated that
although J appeared to be alright, there was a possibility that he
might not be.
His evidence gave me the impression that what had
impacted on him most forcibly was the doctor’s reassurance that
J did not
appear to have sustained a serious injury.  That would
explain his readiness to attribute J’s drowsiness to the Panado

medication.
[115]
My impression that J’s father’s
relief at being told that J seemed to be fine could have resulted in
his discounting
the importance of watching out for signs of any
deterioration in J’s condition was underscored by the fact of
his failure
to be concerned about J not waking up when his mother
entered the car and shifted him, or when he was carried from the car
into
the house when they reached home.  Even if the depth of J’s
slumber did not strike him as significant at the time, I
would have
thought it should have become of concern when he read the head injury
form.
[71]
The form is not a model of draftmanship, but it did state clearly
enough that the patient should be immediately returned
to the
hospital if he/she complained of a severe headache, became
increasingly difficult to wake, or lost consciousness.
J had
complained of a continuing headache and had remained asleep when one
would have expected him to wake up when moved around.
Had J’s
father been sufficiently astute to his monitoring responsibility, I
would have expected him to have reacted to the
written warnings in
the circumstances, even if only by checking to see whether he could
wake the child up.  If the content
of the head injury form did
not move him to action, so also, very conceivably, might not oral
advice given to him to watch out
for drowsiness.
[116]
There are indeed shortcomings in the
wording of the head injury form, and the defendant would be well
advised to see to it that
it is replaced with an improved version.
It has not been proved, however, that any of the defects in the form
was causally
connected with the failure to get J treated for his
epidural haematoma in time to pre-empt the catastrophic consequences
of its
eventual mass effect.  It said enough, in my judgment, to
have alerted the plaintiffs to be concerned about J’s deep

slumber.
[117]
The last aspect to consider is the
allegation that when the duty registrar instructed the first
plaintiff to monitor J she did not
explain the position clearly
enough, and also that she did not do enough to make sure that he
understood the head injury form.
I have already dealt with
first part to some extent by finding that the inherent probabilities
attending the admission that Mr
M was told to monitor child support
the registrar’s assertion that she would have acted in
accordance with her usual practice,
which was to summarise the signs
to be looked out for.  In the face of my finding that the doctor
probably said more than
the first plaintiff’s evidence would
have me believe, and the duty registrar’s understandable
inability to recall exactly
what she did say, I am unable to find
that the plaintiffs have proved on a balance of probability that the
doctor failed to say
enough.  Certainly, the first plaintiff did
not come across as someone who would not have been capable of
understanding straightforward
instructions about the signs to look
out for as described by the doctor.  As to the second part, I
think it was apparent from
the first plaintiff’s own evidence
that he did not act on the warnings in the head injury form, not
because he did not understand
them, but because he had discounted the
possibility of there being anything amiss, coupled with his
unfortunate misapprehension
that J’s sleepiness was
attributable to the Panado that he had been given.
Conclusion
[118]
In the result, whilst I have great sympathy
for the heartrending situation in which the plaintiffs and their
family have found themselves
as a consequence of J’s tragic
accident, I am unable to find that they have discharged the onus of
proving on a balance of
probability that any damages that they and/or
J have incurred were caused as a result of the negligence of the duty
registrar or
the Red Cross Children’s Hospital.
[119]
Although the defendant was represented by
two counsel, he sought an order merely dismissing the action with
costs.
[120]
An order in the following terms will
therefore issue:
The action is dismissed with costs, which shall include the
reasonably incurred qualifying fees of Prof Taylor.
____________________
A.G. BINNS-WARD
Judge
of the High Court
APPEARANCES
Plaintiffs’
counsel:

J.A. van der Merwe SC
Plaintiffs’ attorneys:

Malcolm Lyons & Brivik Inc.
Cape Town
Defendant’s counsel:

B.D.J. Gassner SC
S.C. O’Brien
Defendant’s attorneys:

The State Attorney
Cape Town
[1]
Cf.
Oppelt
v Head: Health, Department of Health Provincial Administration:
Western Cape
[2015] ZACC 33
,
2015 (12) BCLR 1471
(CC),
2016 (1) SA 325
at paras.
53 and 97 and
Chapeikin
and another v Mini
[2016]
ZASCA 105
at para. 24.
[2]
The claim was also pleaded, in the
alternative, in contract.  Having resisted the proposition when
it was raised with him
during the opening address, the plaintiffs’
counsel eventually conceded in argument after the completion of the
evidence
that the claim pleaded in contract could not be sustained.
[3]
Tab 7, pp. 1-4 in the trial file.
The ‘trial file’ comprised of copies of the pleadings,
pre-trial minutes,
the expert witnesses’
curricula
vitae
, evidence
summaries and ‘joint minutes’, the relevant medical
records and the medical literature to which reference
was made in
the course of the oral evidence.  The documents were arranged
in separate sections of the trial file identified
by numbered tabs.
[4]
Tab 7, p. 31.
[5]
Tab 7, pp. 5-6.
[6]
Tab 7; p. 3.
[7]
Tab 9; p. 31.
[8]
In his heads of argument, the
plaintiffs’ counsel argued that J was the first patient in the
trauma unit for about two and
a half hours.  That is true, but
the duty registrar had been on duty for only ten minutes when J
presented as the first
of four patients to arrive at the unit within
a short period.
[9]
See note 3
above,
concerning the character of the ‘trial file’.
[10]
Tab 7; p. 5.
[11]
‘
He/She has a head injury.
Bring
him/her back to the hospital immediately at any time of the day or
night if he/she:-
-
complains of severe
headache
-
becomes more drowsy
or cannot be woken easily
-
becomes unconscious
-
starts to throw up
-
has seizures or
develops paralysis or in any manner behaves strangely
’
(My
translation.)
[12]
English, Afrikaans and
isiXhosa are designated as the official languages of the Western
Cape Province in terms of s 5 of
the Constitution of the
Western Cape, 1997 (Western Cape Act 1 of 1998).
[13]
Computed tomography.
[14]
Tab 7; p. 18.
[15]
The term ‘
extradural
haematoma
’
is also used to describe an epidural haematoma.  An epidural
haematoma is a build-up of blood in the intracranial
space between
the skull and the dura, which is the membranous outer encasement of
the brain.
[16]
The uncus forms part of the brain’s
temporal lobe.  The process of uncal herniation involves the
displacement of the
uncus within the brain.
[17]
Tab 7; p. 18.
[18]
Tab 7; p. 32ff, at p.33 (para. 2).
[19]
ATLS is the acronym for ‘Advanced
Trauma Life Support’.  ATLS is a system developed by the
American College of
Surgeons for the effective care and immediate
management of traumatically injured patients.
[20]
Tab 9; p. 1 ff.
[21]
Tab 7; p. 30, quoted in para. [94]
below.
[22]
‘
Triage’ is a medical
term applied to the system of assigning an order of precedence for
the treatment of multiple patients
according to the severity of
their injuries or condition.
[23]
It is plain from the context,
especially the following words ‘
but
what I would consider sufficient information
’
that the witness, whose first language, I suspect, is Afrikaans,
used the word ‘perfunctory’ in its accepted
sense of
‘brief’, and not in its primary sense of ‘carried
out without real interest, feeling, or effort’.
[24]
Tab 9; p. 78.
[25]
Tab 9; p. 103.
[26]
Tab 9; p. 29.
[27]
Subsequently renamed Charlotte Maxeke Hospital.
[28]
See note 19
above.
[29]
The plaintiffs’ counsel
argued, albeit faintly, that Prof Taylor’s authorship of the
Western Cape Guidelines and his
professional association with the
provincial hospitals detracted from his independence as an expert
witness.  The argument
was unconvincing.  The witness
described in unchallenged detail how the Guidelines were closely
informed by the content
of the internationally reputable NICE
guidelines and his evidence on matters of professional opinion was
generally supported
by the medical literature to which the court was
referred.  He had no prior knowledge of or contact with the
duty registrar
in the case and testified that he had met her for the
first time in the courtroom.
[30]
Supra, at note 1.
[31]
At para. 71.  See also,
amongst others,
Van
Wyk v Lewis
1924
AD 438
, at 461-2, quoted in
Goliath
supra, in para 15.
[32]
Oppelt
supra, at para. 109.
[33]
At note 1.
[34]
[1957] 2 All ER 118
(QB) at 121-122.
[35]
The ‘
Bolam
test’ has long since not been applied in deciding matters
(such as that in
Sidaway
)
in which the question is whether the medical officer was negligent
by failing to provide the patient with adequate advice concerning

the risks attendant on undergoing a type of treatment; see
Montgomery v
Lanarkshire Health Board
[2015] UKSC 11, [2015] 2 All ER 1031.
[36]
Also published on the Bailii
website: [1954] EWCA Civ 7.
[37]
Cf.
Oppelt
supra, at paras. 132 and 142-143.
[38]
SD Simon and RDA Dodds, ‘
The
use of skull X-rays in the accident and emergency department
’
Ann R Coll Engl 2003,85: 120-122 (Tab 9, p. 64 ff) and David Mossop
and Shanti Soysa, ‘
The
use of skull X-rays in head injury in the emergency department –
a changing practice
’
Ann R Coll Engl 2005, 87: 188-190 (Tab 9, p. 67 ff).
[39]
Dr Goosen conceded that the cost of
such examinations was a constraint in the context of public hospital
resources.
[40]
See N. Kuppermann et al,
‘
Identification
of children at very low risk of clinically-important brain injuries
after head trauma: a prospective cohort study
’,
an article on a study undertaken for the Pediatric Emergency Care
Applied Research Network (‘PECARN’) published
in
The
Lancet
, vol. 374
(October 3, 2009) at p.1160ff.  (Tab 9: p. 79ff of the trial
file.)  It was accepted by Dr Goosen and Prof Taylor
that
the PECARN study was ‘a high level study’ that could be
professionally referenced as reliable.
[41]
Canadian Medical Association
Journal.
[42]
Canadian Assessment of Tomography
for Childhood Head injury.
[43]
Tab 9; p. 216 ff; especially Box 1
(at p. 222).
[44]
Tab 4; p. 2, para. 2.2.
[45]
See para. [8]
above.
[46]
I have been guided by the
International Tennis Federation’s prescribed criteria for the
size of tennis balls.  See
ITF Rules of Tennis 2018; Rule 3
read with Appendix 1, whence it appears that, depending on the type
of ball used, the permitted
diameter ranges between 6,54 and 7,3
cm.
http://www.itftennis.com/technical/publications/rules/balls/appendix-i.aspx
(accessed on 31 March 2018)
The
2016 Burns study characterised any scalp haematoma more than 3 cm in
size (presumably in diameter) as ‘large’.
[47]
Prof Taylor agreed that it was
improbable that small scalp haematomas would feel boggy, but
rejected the notion that all
but very small examples of the
phenomenon would have a fluctuant consistency.
[48]
See Burns et al (for the PERC Head
Injury Study Group), ‘
Scalp
Hematoma Characteristics Associated with Intracranial Injury in
Pediatric Minor Head Injury
’,
Vol. 23(5) (2016)
Academic
Emergency Medicine
(Official Journal of the Society for Academic Emergency Medicine),
at p. 576 ff.  Tab 9; p.208 ff.
[49]
See note 48
above.
[50]
My understanding of the group ‘older than 24
months’ is that it comprehended ‘young children’,
identified
somewhere in the literature to which I was referred as
being children under 5 years of age.  See note 51.
[51]
See, for example, Figure 3
‘
Selection of
Children for CT head scan
’
in the (2014) Nice Guidelines at Tab 9; p. 33A of the trial file.
The 2003 NICE Guidelines gave the following examples
of ‘
dangerous
mechanism of injury
’:
‘
a pedestrian
struck by a motor vehicle, an occupant ejected from a motor vehicle
or a fall from a height of greater than 1 metre
or five stairs’
and indicate that
‘
a lower
threshold for height of falls should be used when dealing with
infants and young children (that is, aged under 5 years).
’
- Tab 9; p. 171 at §1.4.2.11.
[52]
See American College of Surgeons
Committee on Trauma,
ATLS
for Doctors
,
Student Course Manual 8
th
ed. (2008), Chap 6 s.v. ‘
Management
of Minor Brain Injury (GCS Score 13-13)
’
at p. 140.  Tab 9; p. 75 of the trial file.
[53]
The statistics are extracted from
the PECARN study (note 40
above).
[54]
Oppelt
supra, at para. 132 and 142-143.
[55]
Tab 7; p. 30.
[56]
Tab 9; pp. 9-32.
[57]
National Institute for
Clinical Excellence, ‘
Head
Injury: Triage, assessment, investigation and early management of
head injury in infants, children and adults
’;
Clinical Guideline 4 (June 2003).  Tab 9; pp. 156-191.
NICE (now renamed as the National Institute for
Clinical and Health
Excellence) is currently established in terms of s 232 of the
Health and Social Care Act (c. 7), 2012
(UK).  Its functions
currently include the giving of advice or guidance, provision of
information or making of recommendations
about any matter concerning
or connected with the provision of- (a) National Health Service
services, (b) public health services,
or (c) social care in England
in terms of regulations made under the Act (see s 237 of the
Act).
[58]
See paragraphs [61]
-[62]
above.
[59]
Para. 19.4.A.5 and 6.  Tab 1;
p.10.
[60]
Tab 9; p. 33A.
[61]
See note 51
above.
[62]
Tab 9; p.75.
[63]
Tab 9; p.21
.
[64]
Tab 9; pp. 166-167.
1.4.1.6 All patients presenting to A&E with a head
injury should be assessed by triage by a trained member of staff
within
a maximum of 15 minutes of arrival at hospital.  Part of
this assessment should establish whether they are high risk or low

risk for clinically important brain injury and/ or cervical spine
injury, using the guidance on patient selection and urgency
for
imaging (head and cervical spine – see later recommendations).
1.4.1.7 Patients found to be high risk on triage for
clinically important brain injury and/or cervical spine injury
should be
assessed within 10 minutes of triage by an A&E
clinician.  Part of this assessment should fully establish the
need to
request CT imaging of the head and/or imaging of the
cervical spine.  The guidance on patient selection and urgency
for
imaging … should form the basis for the final decision on
imaging after discussion with the radiology department –
see
later recommendations.
1.4.1.8 Patients with head injury who are discovered to
be at low risk for clinically important brain injury and/ or
cervical
spine injury on initial triage should be reassessed within
a further hour by an A&E clinician.  Part of this
assessment
should fully establish the need to request CT imaging of
the head and/or imaging of the cervical spine.  The guidance on
patient selection and urgency for imaging (head and cervical spine)
should again form the basis for the final decision on imaging
after
discussion with the radiology department.
[65]
See paragraph [19]
above for the content of the head
injury form.
[66]
See note 52
above.
[67]
Tab 9; p.75.
[68]
Tab 9; p.3.
[69]
The plaintiffs’ counsel
sought in argument to contend that there was little substance in the
duty registrar’s ‘usual
practice’ because she had
only worked in the trauma unit for about three weeks at the time of
J’s admission.
The contention ignored the witness’s
evidence that she had had extensive exposure to head injury cases in
earlier stages
of her career while working in Mthatha and at the
Victoria Hospital.
[70]
The plaintiffs’ counsel
suggested in argument that this had been because the duty registrar
seemed to think that a scalp
haematoma would always be boggy, and
that she would therefore have realised that a concession under
cross-examination that the
swelling on J’s head was a scalp
haematoma would contradict her assertion that had the ‘bump’
been boggy
she
would have noted it.  The relevant cross-examination of the
witness was not pressed to the point of obtaining such an

explanation from her.  But even if it had been, all that it
would have established was that the witness had an imperfect

understanding of the reason that some scalp haematomas were boggy
and others not.  It would also have given a reason why,
having
been of the view that had the swelling been boggy she would have
managed the treatment differently, she could not reconcile
her
conduct with a concession that it had been a scalp haematoma.
The witness did state that she was not an expert in head
injuries.
As should be apparent from the body of this judgment, I have
accepted the expert evidence of Prof Taylor that
scalp haematomas
may be fluctuant or firm irrespective of the largeness of their
size, and have decided the question concerning
the probable
consistency of J’s scalp haematoma on the basis of the
inherent probabilities in the context of the pertinent
established
or determined facts.
[71]
See paragraph [19]
above for the text of the form.