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[2016] ZASCA 176
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MEC for Health, Eastern Cape v Mkhitha and Another (1221/2015) [2016] ZASCA 176 (25 November 2016)
THE SUPREME COURT
OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
reportable
Case
No: 1221/2015
In
the matter between:
MEC
FOR HEALTH, EASTERN CAPE
Appellant
and
ONGEZWA
MKHITHA
First
Respondent
ROAD
ACCIDENT
FUND
Second
Respondent
Neutral
citation:
MEC
Health, Eastern Cape v Mkhitha
(1221/15)
[2016] ZASCA 176
(25 November 2016)
Coram:
Cachalia
JA and Dlodlo and Schippers AJJA
Heard:
17
November 2016
Delivered:
25
November 2016
Summary:
Delict
– negligence – liability for – causation –
person unable to walk and confined to wheelchair after
medical
treatment for injuries sustained in motor collision –
negligence of hospital staff a
novus
actus interveniens
.
Leave to appeal – to be granted only if truly reasonable
prospects of success or compelling reason for appeal to be heard.
ORDER
On
appeal from:
Eastern
Cape Local Division of the High Court, Mthatha (Dawood J sitting as a
court of first instance):
The
appeal is dismissed with costs.
JUDGMENT
Schippers
AJA (Cachalia JA and Dlodlo AJA concurring):
[1]
This
is an appeal against the dismissal of a special plea by the
appellant, the Member of the Executive Council for Health: Eastern
Cape Province (the MEC), that he is not liable in law for damages
sustained by Ms Ongezwa Mkhitha, the first respondent (the
plaintiff),
as a result of a collision between two motor vehicles in
Ngcobo on 23 January 2011. The plaintiff was a passenger in one
of the vehicles.
[2]
The
plaintiff sued the second respondent, the Road Accident Fund (the
Fund) and the MEC for damages in the sum of R5 million
as a
result of injuries sustained in the collision. The plaintiff’s
claim against the Fund is that the driver of the
insured vehicle
drove negligently and caused the collision. Consequently the Fund is
obliged to compensate her for damages in terms
of s 17(1) of the
Road Accident Fund Act 56 of 1996 (the Act). Her claim against
the MEC is based on negligence on the
part of the medical
practitioners employed by the Eastern Cape Department of Health at
Bedford Orthopaedic Hospital (BOH), where
she was treated a week
after the collision. In her particulars of claim the plaintiff
alleges that she received substandard
orthopaedic care at BOH.
More specifically, she avers that BOH failed to employ medical
practitioners with the requisite
skill and expertise; that they
failed to treat her properly; and that they were negligent. They
failed to ensure that two distal
interlocking screws were properly
placed when repairing a severe compound fracture of her left tibia
and did not take post-operative
radiographs, which would have shown
that a large fragment of bone was displaced. As a result of
this negligence, the plaintiff
alleges that she cannot walk, cannot
function independently, and will require knee surgery and various
forms of therapy and special
adaptive aids and devices.
[3]
The
Fund has conceded that the insured driver was negligent and that his
negligence caused the collision. Consequently, in
2014 the
court below made an order that the Fund is liable for the plaintiff’s
proved or agreed damages arising from the
collision.
[4]
The
MEC delivered a special plea in which he alleges that the Fund is
obliged to compensate the plaintiff for any loss or damage
suffered
as a result of any bodily injury caused by or arising from the
driving of a motor vehicle, if the injury is due to the
negligence or
other wrongful act by the driver or owner of the vehicle. The
damages that the plaintiff suffered, so it is
alleged, arose from the
driving of a motor vehicle, and therefore they the MEC is not liable
for any damages pursuant to the injuries
sustained in the collision.
In his plea on the merits the MEC also denied that the medical staff
at BOH were negligent and
put the plaintiff to the proof thereof.
[5]
The
plaintiff delivered a replication. In it she alleges that the
negligence of the MEC’s employees was an unforeseeable
intervening act that caused her to suffer harm, independent of the
negligence of the insured driver; and that the consequences
of the
negligence of the MEC’s employees were not caused by and did
not arise from the driving of the insured vehicle, and
were also too
remote to render the Fund liable for those damages.
[6]
At
the hearing of the special plea the plaintiff adduced the evidence of
Dr D K Kodi, an orthopaedic surgeon. In summary,
he testified
that in the collision the plaintiff sustained a head injury, a
fracture of the right femur and fractures of the right
tibia and left
tibia. She lost consciousness and was admitted to the intensive
care unit at Nelson Mandela Academic Hospital,
where she remained for
about a week. When she regained consciousness she was
transferred to BOH where she had surgery to
both legs. She
remained in hospital for about three months and was discharged in a
wheelchair.
[7]
Dr
Kodi said that the fracture of the plaintiff’s right femur was
not properly repaired. The fracture was not reduced,
and only
internal fixation of the femur was done. Consequently, a large
piece of bone was not aligned in the normal position
and as a result,
the knee joint is incongruent. This has caused a mechanical
block in the movement of the knee. Had
post-operative x-rays
been taken, the problem could have been corrected and the need for
major surgery prevented. A distal
screw in the left tibia was
mal-positioned and fell out when the plaintiff removed her dressing.
Her left leg is not straight
and there is a 15 degree angulation.
This is unacceptable in orthopaedic terms. There is obvious
mal-alignment with
shortening of the left tibia. Dr Kodi said
that there is hope that after reconstructive surgery, the plaintiff
will be able
to walk albeit with the aid of a walking stick or
crutch, but there is a certain degree of impairment that is
permanent.
[8]
In
Dr Kodi’s opinion, had the plaintiff received proper
orthopaedic care at BOH she would still have been able to walk,
albeit
with some permanent impairment. She would not, however,
have needed a wheelchair. The surgery which she now requires
to
her knee is entirely due to the negligence of the hospital staff.
The angulation of the plaintiff’s left leg is
also due to
substandard orthopaedic care for which BOH is responsible. Dr
Kodi’s evidence on these aspects was not
disputed.
[9]
The
court below dismissed the special plea. It held that although
the initial injury was caused by or arose out of the collision,
on
the evidence the substandard treatment of the plaintiff by the staff
at BOH was a
novus
actus interveniens
.
The Fund could therefore not be held responsible for the consequences
of that conduct.
[10]
Mr
Notshe, who with Mr Kunju appeared for the MEC, submitted that on a
proper interpretation of s 17(1) of the Act, the Fund is
solely
liable for the damages suffered by the plaintiff, because her
injuries were caused by or arose from the driving of a motor
vehicle. There was, they contended, a sufficiently real and
close link between the driving of the insured vehicle and the
harm
the plaintiff suffered as a result of her treatment at BOH, to
conclude that the harm arose from the driving of the insured
vehicle.
[11]
These
submissions have no merit. Mr Notshe ignores not only the basic
principles of causation but also the undisputed evidence
that the
negligence of medical staff at BOH caused the plaintiff harm.
[12]
The
liability of the Fund under s 17(1) of the Act to compensate the
third party for any loss or damage suffered as a result of
any bodily
injury caused by or arising from the negligent driving of a motor
vehicle, does not mean that the Fund is liable for
all the damages
which the third party sustains, merely because the initial injury
arose from the driving of a vehicle.
[13]
It
is trite that causation involves two distinct enquiries: factual and
legal causation. Generally, the enquiry as to factual
causation
is whether, but for the defendant’s wrongful act, the plaintiff
would not have sustained the loss in question;
whether a postulated
cause can be identified as a
causa
sine qua non
of
the loss. The second enquiry, legal causation, is whether the
wrongful act is linked sufficiently closely or directly to
the loss
for legal liability to ensue; or whether the loss is too remote.
[1]
[14]
Whilst
it is correct that the plaintiff would not been hospitalised but for
the negligent driving of the insured vehicle, as regards
legal
causation, the evidence clearly establishes that there was a
novus
actus interveniens
,
namely the negligent treatment of the plaintiff by the medical staff
at BOH after she sustained the injuries in the collision,
which
significantly contributed to the consequences of those injuries.
[15]
The
special plea was therefore rightly dismissed by court below. It
is plainly bad and had no prospect of success on appeal.
[16]
Once
again it is necessary to say that leave to appeal, especially to this
court, must not be granted unless there truly is a reasonable
prospect of success.
Section 17(1)
(a)
of the
Superior Courts Act 10 of 2013
makes it clear that leave to
appeal may only be given where the judge concerned is of the opinion
that the appeal
would
have a reasonable prospect of success; or there is some other
compelling reason why it should be heard.
[17]
An
applicant for leave to appeal must convince the court on proper
grounds that there is a reasonable prospect or realistic chance
of
success on appeal. A mere possibility of success, an arguable
case or one that is not hopeless, is not enough. There must
be a
sound, rational basis to conclude that there is a reasonable prospect
of success on appeal.
[2]
[18]
In
this case the requirements of 17(1)
(a)
of
the
Superior Courts Act were
simply not met. The uncontradicted
evidence is that the medical staff at BOH were negligent and caused
the plaintiff to suffer
harm. The special plea was plainly
unmeritorious. Leave to appeal should have been refused.
In the result,
scarce public resources were expended: a hopeless
appeal was prosecuted at the expense of the Eastern Cape Department
of Health
and ultimately, taxpayers; and valuable court time and
resources were taken up in the hearing of the appeal. Moreover,
the
issue for decision did not warrant the costs of two counsel.
[19]
In
the result, the following order is issued:
The
appeal is dismissed with costs.
_____________________
A
Schippers
Acting
Judge of Appeal
Appearances
For
the Appellant:
M Notshe SC (with V Kunju)
Instructed
by: State Attorney, Mthatha
State
Attorney, Bloemfontein
For
the First Respondent:
D Potgieter SC (with G Potgieter)
Instructed
by: Dayimani Sakhela Inc,
Mthatha
Eugene Attorneys,
Bloemfontein
For
the Second Respondent: D Potgieter SC (with G
Potgieter)
Instructed
by: Potelwa & Co,
Mthatha
[1]
International
Shipping Co (Pty) Ltd v Bentley
1990 (1) SA 680
(A) at 700E-I.
[2]
S v Smith
2012 (1) SACR 567
(SCA) para 7.