Barnard v Member of the Executive Council for Health And Social Development of the Gauteng Provincial Government (24977/12) [2015] ZAGPJHC 182 (28 August 2015)

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[2015] ZAGPJHC 182
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Barnard v Member of the Executive Council for Health And Social Development of the Gauteng Provincial Government (24977/12) [2015] ZAGPJHC 182 (28 August 2015)

HIGH
COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
REPUBLIC
OF SOUTH AFRICA
CASE
NUMBER: 24977/12
DATE:
28 AUGUST 2015
In
the matter between:
BARNARD,
BAREND
JACOBUS
.............................................................................................
Plaintiff
And
THE
MEMBER OF THE EXECUTIVE COUNCIL FOR
HEALTH
AND SOCIAL DEVELOPMENT OF THE GAUTENG
PROVINCIAL
GOVERNMENT
............................................................................................
Defendant
Coram:
WEPENER J
Heard:
27 July to 5 August 2015
Delivered:
28 August 2015
JUDGMENT
WEPENER
J:
[1]
The Plaintiff, a curatrix at litem for Barend Jacobus Barnard, seeks
damages form the defendant as a result of injuries sustained
by
Barnard in 2011. As is the case with the pleadings, and was the case
during evidence and argument, Barnard was referred to as
the
plaintiff and, for practical reasons, I too do so. The defendant is
the Member of the Executive for Health and Social Development
Gauteng
Province under who’s auspices the Tambo Memorial Hospital falls
and its the medical personnel are ultimately employed
by the
defendant.
[2]
In this matter there was also another hospital and staff members
involved in the treatment of the plaintiff, but liability as
a result
of actions at that hospital or its status were not canvassed in the
pleadings or argued, despite the pleadings alleging
that a breach of
duty of care occurred at the Tambo Memorial Hospital alternatively,
the Johannesburg Hospital (it’s proper
name being the Charlotte
Maxeke Johannesburg Academic Hospital). Whatever the true nature or
status of the Charlotte Maxeke Johannesburg
Academic Hospital may be,
there is nothing to suggest that the defendant can or should be held
liable for anything that might have
happened at that hospital or that
may have an impact on the plaintiff’s condition.
[3]
The common cause evidence is that during the evening of 21 May 2011,
the plaintiff’s brother assaulted him, inter alia
by ‘stomping’
down a foot onto the plaintiff’s head. This left the plaintiff
bleeding from his head and unconscious
for approximately fifteen
minutes. Thereafter, the plaintiff stood up and despite being dazed,
had some tea. A few minutes later
the plaintiff drove away in his
vehicle but returned home between 22h00 and 23h00. The plaintiff
seemed to be confused and after
taking a tablet, he went to sleep.
During the night the plaintiff woke up a few times and during the
first such incident, the plaintiff’s
son observed that the one
side of the plaintiff’s body was half paralysed and the
plaintiff did not speak or respond to his
son. His son formed the
impression that the plaintiff knew what he was doing. On the second
such occasion, the son observed that
the plaintiff was more paralysed
and still did not reply to him. On the third occasion, the
plaintiff’s son formed the impression
that half the plaintiff’s
body was 90% paralysed and that the plaintiff had no control over the
one side of this body. The
following morning the son was unable to
wake the plaintiff and in conjunction with the other family members
it was decided to call
an ambulance. Whilst the ambulance staff
attended to the plaintiff he opened his eyes but he could not talk.
[4]
From this point onwards the plaintiff essentially relied on that
which is contained in the hospital records and an interpretation

thereof by a neurosurgeon, Dr de Klerk who in his evidence stated
that his contrary opinion is a matter of interpretation, at least

regarding one of the recorded facts of the plaintiff’s
condition on 26 May 2011. It became the plaintiff’s case that
a
failure by the Tambo Memorial Hospital staff to identify the need for
a craniotomy earlier than the time when they did, caused
a delay in
the performance of a craniotomy which in turn, caused a deterioration
in the plaintiff’s brain pathology. This
delay, the plaintiff
submitted, exacerbated his condition after the initial assault and
caused him to suffer additional damage.
Medically, it was referred to
as a delay in the performance of a craniotomy on the plaintiff, which
exposed the plaintiff to raised
intracranial pressure for a prolonged
and unnecessary period of time. The defendant conceded that there was
negligence on the part
of the hospital staff in not performing the
craniotomy earlier, but denied that the delay in its performance
contributed to or
caused the plaintiff to suffer any damage.
[5]
In interpreting the hospital records Dr de Klerk concluded that it
showed deterioration in the condition of the plaintiff prior
to the
performance of the craniotomy while hospitalised at Tambo Memorial
Hospital. This, Dr de Klerk said, caused secondary brain
damage. The
defendant’s witnesses disputed such a deterioration and counsel
for the defendant submitted that it was not shown
that the
plaintiff’s condition deteriorated while at the Tambo Memorial
Hospital or that any brain pathology during that
period had been
shown to be causally connected to the plaintiff’s current
condition.
[6]
In support of his contention that his condition deteriorated during
the delayed period the plaintiff relied inter alia, on the
fact that
Dr de Klerk doubted the correctness of certain entries contained in
the hospital records. In particular, the recordal
of the plaintiff’s
level of consciousness prior to the craniotomy being performed, was
disputed. Dr de Klerk even disputed
an entry that the plaintiff had
supper on 25 May 2011. The factual basis of such dispute is absent
but also indicative of the fact
that Dr de Klerk’s opinion
should be approached with caution. What is important is that whilst
disputing some of the factual
entries in the hospital records, Dr de
Klerk also candidly stated that he might be wrong. Dr de Klerk’s
point of departure
due to his refusal to accept the entries in the
hospital records is consequently tainted.
[7]
In concluding that a delay in the performance of a craniotomy on the
plaintiff, which caused poor cerebral perfusion which,
in turn,
caused hypoxic insult to the brain, was causally linked to his
current deteriorating physical condition, Dr de Klerk relied
on
several factors. The first of such was his view that the plaintiff’s
condition deteriorated whilst in the Tambo Memorial
Hospital.
Indicative of the deterioration was inter alia, the doubtful
Glasgow Coma Scale (GCS) scores contained in the
hospital records. Dr de Klerk expressed the view that some of the
findings by the
personnel were wrong and he disputed all of the GCS
scores in the hospital records, although not the score recorded by
the anaesthetist
prior to a craniotomy being performed at the
Charlotte Maxeke Hospital.  A GCS is a score arrived at out of a
possible fifteen
points in order to determine the level of
consciousness of a patient. It is mainly used in neuro-trauma cases
and shows the level
of consciousness of a patient and, according to
Dr Karan, also a neurosurgeon, a good indication about the general
state of a trauma
patient. If there is a significant change in the
score it can be accepted that there are intra-cranial developments.
Dr Ranchod,
a specialist physician, testified that the outcome may
well be a subjective outcome and that it depends on the observation
of the
person performing the test. Dr Karan, was of the view that the
scores obtained by medical doctors would be of more value that those

obtained by junior staff. Nevertheless, I am of the view that the
direct evidence of the doctors, who treated the plaintiff, although

doubted by the plaintiff during cross-examination of the defendant’s
witnesses, cannot be faulted and should be accepted
above the
speculation of Dr de Klerk that the scores are all wrong. I am of the
view, like Dr Karan, that there were no reasons,
and none have been
indicated, why the hospital personnel would record incorrect findings
in a patient’s records. Although
mistakes can obviously occur,
none had been shown to have occurred and the probability of a number
of scores being incorrect, from
the day of admission to the day of
final discharge, based on an ex post facto reading of the records, is
in my view, so low that
it can be discarded as speculation rather
than a probability. This is so even by virtue of the fact that
witnesses who testified
before the court may have expressed a view
that they would have differed with a particular score by one point of
a particular reading,
taking into account that there was never a
score below 12 over 15. A variation between 12 over 15 and 13 over 15
is not significant.
Dr de Klerk said in cross-examination that there
could be many reasons for these slight variations. But the evidence
of Dr Karan
that a substantial variation which required intervention
was absent was not gain-said.
[8]
The significance of this finding lies in the evidence of Dr Karan
that the plaintiff’s GCS remained stable throughout
his stay at
the hospital (and even improved at certain stages) and there was
never a situation where the scale dropped to a point
such as 8 over
15, which would call for immediate or urgent medical intervention.
Counsel for the plaintiff cross-examined Dr Karan
and submitted that
there was indeed a variation and that Dr Karan’s evidence was
therefore unreliable. That of course, is
incorrect. Dr Karan’s
evidence was that the baseline of the GCS score remained stable
throughout. The fact that it improved
from time to time, was an
additional factor indicating that urgent intervention was not
necessary during the plaintiff’s
hospitalisation at Tambo
Memorial Hospital. The anaesthetist scored the plaintiff at 14 over
15 just before the craniotomy. The
assessment of the anaesthetist is
also significant. It was done at the Charlotte Maxeke Hospital and
not the Tambo memorial Hospital.
The anaesthetist would be directly
affected if there were complications due to a wrong scoring. The
latter scoring was not attacked
by Dr de Klerk as were the scores
recorded at Tambo Memorial Hospital. On the contrary, Dr de Klerk
failed to deal with the GCS
found by the anaesthetist just prior to
the craniotomy being performed. The only logical explanation for a
GCS of 14 over 15 is
found in the evidence of Dr Karan that the
plaintiff’s condition did not deteriorate whilst at the Tambo
Memorial Hospital
to the extent that it required an earlier
craniotomy or that an earlier craniotomy would not have had any
different outcome. There
was no rapid deterioration in the
plainitff’s condition and he remained stable throughout.
[9]
When assessing the role of the GCS of the plaintiff during his
hospitalisation, I will approach it on the basis that the GCS

readings were in all probability recorded correctly. This view is
strengthened by the viva voce evidence of Drs Carrim, Ranchod
and
Mbuyane, who all confirmed their respective recordals of the
plaintiff’s GCS as documented in the hospital records. As
Dr
Mbuyane put it:
‘
But
I have seen the patient. There is no reason to write wrong notes’.
Dr
Mbuyane also referred to the similar score (albeit a higher and
improved score) found by the anaesthetist just before a craniotomy

was performed on the plaintiff. I will refer to this score again.
[10]
In considering a matter a court is also to keep in mind that direct
evidence of facts are of great value when determining an
issue.
Although Eksteen J referred to the reconstruction of a collision in
Motor
Vehicle Assurance Fund v Kenny
[1]
,
his remarks may well be applied to any factual circumstances. He
said
[2]
:
‘
Direct
or credible evidence of what happened in a collision, must, to my
mind, generally carry greater weight than the opinion of
an expert,
however experienced he may be, seeking to reconstruct the events from
his experience and scientific training. Strange
things often happen
in a collision and, where two vehicles approaching each other from
opposite directions collide, it is practically
impossible for anyone
involved in the collision to give a minute and detailed description
of the combined speed of the vehicles
at the moment of impact, the
angle of contact or of the subsequent lateral or forward movements of
the vehicles. Tompkins' concession,
therefore, that there are too
many unknown factors in any collision to warrant a dogmatic assertion
by an expert as to what must
have happened seems to me to have been a
very proper one. An expert's view of what might probably have
occurred in a collision
must, in my view, give way to the assertions
of the direct and credible evidence of an eyewitness. It is only
where such direct
evidence is so improbable that its very credibility
is impugned, that an expert's opinion as to what may or may not have
occurred
can persuade the Court to his view (cf
Mapota
v Santam Versekeringsmaatskappy Bpk
1977 (4) SA 515
(A) at 527-8 and
Madumise
v Motorvoertuigassuransiefonds
1983 (4)
SA 207
(O) at 209).’
[11]
The objective evidence in the form of impartial notes and the
evidence of the medical doctors far outweigh the speculative
evidence
of Dr de Klerk that all the GCS readings contained in the hospital
records were wrong or not ‘possible’. Once
this point of
departure is accepted, the evidence of Dr de Klerk that there was a
deterioration in the plaintiff’s condition
whilst at the Tambo
Memorial Hospital by relying inter alia, on the fact that the GCS
recorded in the hospital records were all
wrong, must be approached
with extreme caution because the GCS recorded over a period from
admission to discharge, remained stable
and never dropped below 12
over 15. Dr de Klerk’s steadfast refusal to accept the facts in
order to justify a conclusion
is a matter of concern and places a
question mark over his impartiality in this matter.
[12]
In so far as reliance was placed on the alleged incorrect recordings
of the plaintiff’s GCS, I am of the view, that such
reliance
was misplaced.
[13]
Although the evidence and cross-examination of witnesses concentrated
to a large extent around the GCS of the plaintiff during
his
hospitalisation and it being the principle factor relied upon before
me, other factors regarding the plaintiff’s condition
during
his stay at the Tambo Memorial Hospital were also canvased.
[14]
Dr Karan expressed the opinion that the condition of a patient is
monitored and is dependent on several factors of which the
GCS is but
one and, although an important factor, it should be seen in context
of a patient’s clinical condition. This was
also the evidence
of Dr de Klerk. The clinical condition of the patient is also
assessed with reference to other factors or vital
signs such as blood
pressure, respiratory rate, pulse rate, pupils that remained equal
and reactive, urine tests and the absence
of vomiting. An example is
that if a patient’s pupils remain reactive, there is no
life-threatening condition. The hospital
records in this regard
consistently show that the plaintiff’s pupils remained
reactive. It reinforces the view that the plaintiff
remained in a
stable condition at the Tambo Memorial Hospital. There are other
examples such as the blood pressure and lack of
change in the
plaintiff’s respiratory rate – the latter which is
affected by intra-cranial haematoma. The plaintiff
remained in a
stable condition throughout the period that he spent in the Tambo
Memorial Hospital. Throughout the plaintiff’s
stay at the
hospital these factors also remained constant. Clinically, the
plaintiff presented no symptoms which indicated that
he needed an
urgent craniotomy.
[15]
In addition, Dr Karan testified that if the plaintiff indeed suffered
a hypoxic ischaemic insult it would have caused the plaintiff’s

death within hours. He also testified that in the event of the
plaintiff’s suffering an additional neurological deficit while

hospitalised, his GCS would have decreased substantially. During
cross-examination Dr de Klerk gave three answers regarding this

aspect: one, that he did not know; two, that he did not have an
answer to this proposition and thirdly, that he did not agree.

Instead of selecting one of the answers given by Dr de Klerk which
were contradictory, I prefer to accept the clear evidence of
Dr Karan
that the steady GCS indicated no further neurological deficit that
required immediate intervention.
16]
The background of the plaintiff’s hospitalisation is also
relevant. The plaintiff’s son testified that the plaintiff
was
90% paralysed on his one side. The hospital admission form recorded
(without detailed particularity) that the plaintiff was
admitted with
limited movement and that he was semi-conscious. The history supplied
was that the plaintiff was assaulted and had
an overdose of sleeping
tablets. There was a superficial laceration above the left eye. A
further record shows that the overdose
was approximately 70
Alprazolon tablets, which Dr de Klerk regarded as ‘deadly in
nature’. Dr de Klerk agreed that
the fact that the medical
personnel concentrated on that immediate danger would be the
responsible thing to do. Dr de Klerk’s
criticism that no
stomach wash or blood test was done is if no consequence as this
plays no role in the plaintiff’s medical
condition. The tenor
of the evidence of the defendant’s witnesses was that the
overdose aspect required careful observation
and that the taking of
such an overdose would result in symptoms such as the plaintiff’s
drowsiness which was recorded in
the hospital records. Dr de Klerk
agreed with this evidence.
[17]
During the trial Dr de Klerk also testified that the plaintiff
developed hemiplegia on the right side, a further indication
that his
condition deteriorated. Dr de Klerk stated that the notes on 25 May
2011 gave the first indication that the plaintiff
had right sided
weakness. This evidence was obviously given to support his contention
that the condition of the plaintiff deteriorated
during the time that
he was hospitalised at Tambo memorial Hospital. This was also put as
a fact to Dr Karan in cross-examination.
The basis for the stance is
lacking. Dr de Klerk’s evidence on this point is clearly wrong.
The plaintiff’s son testified
that the plaintiff was 90%
paralysed on the one side and the hospital admission record, although
cryptically, notes on admission
that the plaintiff had limited
movement. This supposed indication of further deterioration of the
plaintiff whilst at the Tambo
Memorial Hospital was not pursued in
argument, but it was accepted as a fact that the hemiplegia was
present from the outset. It
does detract from the veracity of the
evidence of Dr de Klerk who relied on this factor to opine that the
plaintiff’s condition
deteriorated whilst in hospital.
[18]
Another factor on which the plaintiff relied to conclude that his
condition deteriorated was an alleged deterioration of the
brain from
the time that a first brain scan was done on 25 May 2011 until the
second scan was done on 1 June 2011. It is the plaintiff’s
case
that the second brain scan showed deterioration between these two
dates and that therefore the delay in the performance of
the
craniotomy caused damage to the brain. Dr de Klerk expressed his
opinion on his experience and certain literature. I had no
detailed
evidence of the underlying experience but the literature was referred
to. According to Dr de Klerk, he relied on
Youmans
[3]
being an authoritative work on Neurosurgery. He relied on the
following passage:
‘
To
further investigate the destructive effect of the haematoma and the
optimal timing of each evacuation, Nakayama and Colleagues,
studied
ICP in surgical treated patients with Putaminal ICH’s who
presented with severe neurological defects (semi-comatose).
Patients
with smaller haematomas evacuated before eight hours had lower ICP
than those with larger haematomas evacuated after eight
hours. In
this setting, high ICP correlated with death and poor outcome. In
this group, elevated ICP may reflect a secondary effect
of the
haematoma – induced alterations in microcirculation, because
experimentally these effects are more pronounced when
larger
haematomas are evacuated.’
[19]
Dr de Klerk concluded that:
‘
(E)arly
evacuation of large intracranial haematomas, were they sub-dural,
exta-dural or intra-cerebral in nature, is of the utmost
importance’.
[20]
Dr Karan testified that the passage in
Youmans
does not relate
to trauma related cases such as was the case of the plaintiff. The
passage deals with deep-seated haematoma (Putaminal
inter-cranial
haemorrhage) which is a result of hyper-tension. Dr Karan testified
that a delay in performing a craniotomy may even
be deliberate
depending on several factors. There is nothing to gainsay this
evidence and the reliance on an incorrect passage
contained in the
authoritative work on neurological surgery would, in my view, be
fatal to the conclusions reached by Dr de Klerk.
[21]
The plaintiff’s case was eventually largely based on an alleged
deterioration in his condition due to a delay between
the diagnosis
of the inter-cranial pathology and the definitive surgery. However,
the defendant submitted that the plaintiff failed
to show that the
plaintiff’s condition deteriorated during his hospitalisation.
This was so, due to the inability of the
plaintiff to show that the
initial trauma, as a result of the assault, caused a lesser pathology
in the brain than that which was
eventually found. That this is so,
Dr de Klerk had to concede as there was no evidence of the nature of
the injury to the brain
as a result of the assault itself. To
overcome this, the plaintiff’s case was that there was
deterioration between the time
that the first brain scan was
performed to the time that the second scan was performed. This
deterioration, it was submitted, indicated
that the failure to
operate earlier caused additional damage to the plaintiff’s
brain as an earlier craniotomy could, to
some degree, have either
prevented or reversed secondary changes in the brain. The question
that the defendant posed was, additional
damage to what? This
question has not been answered in evidence before me. Dr de Klerk
highlighted the differences that he thought
were apparent between the
two brain scans. Dr Karan’s evidence was that the differences
(if they were difference, save for
the midline shift) were
illusionary. All the conditions were present during the first scan.
The shift in the midline could, but
did not, contribute to the
additional damage and had no clinical significance in this case as
the plaintiff’s clinical condition
remained stable. Dr de Klerk
agreed that the midline shift was ‘just’ one thing that
he noticed but he said that there
were much more important things
noticeable on the scans. The more important matters included the
contusions – which in all
probability were a result of the
assault - and blood in the lobes of the brain – also most
probably as a result of the assault.
This conclusion I reach by
virtue of the evidence of Dr Karan that application of force to the
head causes contusions and bleeding.
Due to the fractures in the
strong, thick bone of the zygomatic arch of the plaintiff’s
head, significant force was applied
to him. The only known force was
at the time of the assault. Dr Karan testified that the force used
caused an immediate significant
injury to the brain. The result is
that the midline shift has not been shown to have contributed to
deterioration in the plaintiff’s
condition whilst at the Tambo
Memorial Hospital.
[22]
In so far as there was a change in the brain area after the first
scan and at the time of the second scan, can it be said that
those
changes contributed to or caused the plaintiff’s current
condition? Dr de Klerk had no information regarding the severity
as a
result of the assault or primary injury. He conceded that he did not
know what the pathological deficit occasioned by the
primary injury
was. He did not take into account the fourteen hour delay from the
time of the infliction if the primary injury
to the time that the
plaintiff presented at the hospital. Without a proper point of
departure, Dr de Klerk’s evidence lacks
a basis for his
conclusion that the plaintiff’s chances of recovery from his
neurological deficit were compromised by the
delay. On the other
hand, the evidence of Dr Karan is based on accepted empirical data
contained in the plaintiff’s hospital
records.
[23]
I am fortified in the above finding by virtue of the following
factors. Plaintiff’s son testified that after the discharge

from the hospital, the plaintiff’s speech was just like before,
he had trouble with his right leg and his arms were completely

normal. When Dr Karan assessed the plaintiff in July 2013, he found
that the plaintiff’s comprehension and languages functions
were
normal. Save for decreased vision in his visual fields, his clinical
nerves were normal. The upper limbs’ power was
5 over 5. Muscle
tone was normal. Sensation was intact and reflexes were normal. In
the lower limbs, the right leg power was 5
over 5. The left leg power
was 2 over 5. He had a foot drop. His co-ordination was normal. Dr
Karan concluded that the delayed
treatment did not cause major
neurocognitive and neurological defects as Mr Barnard’s level
of consciousness (the GCS) remained
the same. When hospitalised, Mr
Barnard had right hemiparesis, which completely resolved and he now
had a weakness in the left
leg which was not documented during his
hospital treatment at the Tambo Memorial Hospital. The cause of the
new medical condition
as a result of a new neurological deficit is
explained if one has regard to the statement of the plaintiff, and
his wife, that
the plaintiff suffered several strokes during 2013.
According to Dr Karan the left sided weaknesses which the plaintiff
later developed
was unrelated to the initial injury which caused
right sided problems. Because fibre threads cross in a person’s
body, problems
in the left side of the brain will cause right sided
weakness. The plaintiff’s later left sided weakness is
non-related to
his initial injury.
[24]
In addition, the case pleaded by the plaintiff is as follows:
‘
On
1 June 2011 and at Johannesburg Hospital a repeat CT scan showed much
the same condition as was found on 25 May 2011 at the Tambo
Memorial
Hospital.’
Relying
on
Fritz
v Minister of Safety and Security
[4]
,
counsel for the defendant submitted that the case for the plaintiff
shifted and was at variance with the case pleaded and that
the
version of the defendant should be accepted as true. I need not go
that far and reject the evidence of the witness (Dr de Klerk),
which
evidence is at variance with the pleadings. I am satisfied that it
was not the case of the plaintiff that there was a marked

deterioration between the two brain scans, resulting in damage. The
plaintiff’s pleadings were first signed on 12 June 2012,
a date
after Dr de Klerk’s first evaluation of the documentation on 24
November 2011. Even after several additional reports
by De de Klerk,
the pleadings remained as set out above. The case that the plaintiff
suffered additional damage due to the delay
in the performance of the
craniotomy, developed as a last resort. It is at variance with the
pleaded case that the second brain
scan showed much the same
condition as was found with the first scan which is, significantly in
line with the evidence of Dr Karan.
It also ignores the assertions of
the plaintiff and his wife that the plaintiff later suffered strokes.
Dr de Klerk reconstructed
the plaintiff’s condition on what he
believes the position to be after interpreting hospital records (and
believing parts
thereof to be wrong). He is much in the same position
as witnesses who reconstruct accident scenes, especially where it is
contradicted
by the direct evidence of medical doctors.
[25]
The plaintiff’s condition deteriorated some two years after his
discharge from hospital and he is now apparently wheelchair
bound.
But the evidence before me that the plaintiff suffered some further
problems after he was discharged from the Tambo Memorial
Hospital is
highly relevant having regard to the complete resolution of his right
hemiparesis after the craniotomy. The problem
with the left leg is
not as a direct result of the intracranial problems suffered in 2011.
At the outset of the trial, both parties
agreed that all the
medico-legal reports of the parties’ expert witnesses are to be
admitted by consent (save for the neurologists’
reports). Save
for the direct evidence of the plaintiff’s recovery as
testified to by his son and Dr Karan, an occupational
therapist’s
report filed by the plaintiff, states as follows:
‘
Mrs
and Mrs Barnard reported that his condition has been deteriorating
since the writer initially saw him in August 2013.’
(The
report was dated 25 July 2014)
They
reported that he suffered a stroke at the end of May 2013. He was
unable to walk or carry out personal care tasks for a period
of time.
His wife reported that he suffered a number of light strokes
thereafter. Both left and right sides of his body have affected.

Neuro-physical and neuro-psychological deterioration was evident’
[26]
The plaintiff’s neurological assessment done by Mr Mallison
records that during late May 2014 the plaintiff suffered
an attack
that affected his right hand and right side of his face. The
plaintiff’s wife also advised Mr Mallison that the
plaintiff
suffered ‘a mild stroke on the left side and partially on the
right side.’ As result of this, Mr Mallison
said:
‘
Just
prior to the present assessment he purportedly suffered a further
neurological event which does not appear to have been fully

investigated or diagnosed. These neurological and neuro-cognitive
status, however, appears to have deteriorated further since then
and
it is not possible to distinguish on the basis of neuropsychological
assessment which difficulties have resulted from which
event.’
Despite
Mr Mallison continuing to state that it appeared that some of the
difficulties were pre-existing and have been exacerbated
by the later
event, he too was in no position to determine whether the assault or
whether a delayed performance of a craniotomy
was the cause of the
plaintiff’s condition prior to the later neurological events.
Indeed, Mr Mallison refers to the severity
of the brain injury of the
plaintiff without a distinction between the consequences of the
assault and the possible consequences
of a delayed craniotomy.
[27]
The evidence shows that the plaintiff recovered after the craniotomy
but suffered further medical events, which events have
not been shown
to be as a result of delayed medical intervention during 2011 –
as the plaintiff’s brain damage sustained
as a result of the
assault itself has not been shown to be a lesser nature than that
which was eventually found in the scans.
[28]
The plaintiff further attempted to introduce the fact that he
suffered from epilepsy which was as a result of the delayed
craniotomy. But such an inference would in direct conflict with the
evidence that he and his wife had reported that he suffered
several
strokes. It would also be in direct conflict with the evidence of Dr
de Klerk who testified that he was of the opinion
that epilepsy came
from whatever happened to the brain right from the very start before
the plaintiff was even admitted to hospital
and that the injury to
the surface of the brain can lead to epilepsy. Dr Karan agreed that
the contusion as a result of the assault
with consequent haematoma
resulted in an increased chance of epilepsy.
[29]
The result is that any later epileptic seizures suffered by the
plaintiff (if indeed he had such seizures) have not been shown
to
have had its origin in the delayed craniotomy and cannot be
attributed to the medical staff of the Tambo Memorial Hospital as
it
had its origin in the original assault.
[30]
Causation
In
ZA
v Smith
[5]
,
Brand JA said
[6]
:
‘
[30]
The criterion applied by the court a quo for determining factual
causation  was the well-known but-for test as formulated,
eg by
Corbett CJ in
International Shipping Co
(Pty) Ltd v Bentley
1990 (1) SA 680
(A)
at 700E-H. What it essentially lays down is the enquiry – in
the case of an omission – as to whether, but for the

defendant’s wrongful and negligent failure to take reasonable
steps, the plaintiff’s loss would not have ensued. In
this
regard this court has said on more than one occasion that the
application of the ‘but-for test’ is not based on

mathematics, pure science or philosophy. It is a matter of common
sense, based on the practical way in which the minds of ordinary

people work, against the background of everyday-life experiences. In
applying this common sense, practical test, a plaintiff therefore
has
to establish that it is more likely than not that, but for the
defendant’s wrongful and negligent conduct, his or her
harm
would not have ensued. The plaintiff is not required to establish
this causal link with certainty (see eg
Minister
of Safety & Security v Van Duivenboden
2002 (6) SA 431
(SCA) para 25;
Minister
of Finance v Gore NO
[2006] ZASCA 98
;
2007 (1) SA 111
(SCA) para 33. See also
Lee
v Minister of Correctional Services
[2012] ZASCA 30
;
2013 (2) SA 144
(CC) para 41.)’
[31]
In this matter, I am asked to find that, but for the delay in the
performance of the craniotomy, the plaintiff would not have
suffered
the consequences which he now suffers. Such a finding would be
against the preponderance of the evidence which I have
referred to.
The plaintiff’s claim consequently falls to be dismissed with
costs.
Wepener
J
Counsel
for Plaintiff: J.J. Wessels SC
Attorneys
for the Plaintiff: Munro Flowers & Vermaak Attorneys
Counsel
for Defendant: M.W. Dlamini
Attorneys
for Defendant: State Attorney Johannesburg
[1]
1984
(4) SA 432 (ECD).
[2]
At
436H-437B.
[3]
A
2004 edition.
[4]
2012
(2) SACR 451 (ECG).
[5]
2015
(4) SA 574 (SCA).
[6]
At
para 30.