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[2015] ZASCA 105
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Kluever and Another v De Goede (20198/2014) [2015] ZASCA 105 (19 August 2015)
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SUPREME
COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No: 20198/2014
In
the matter between:
DR F KLUEVER
First Appellant
DR R H
BHAWANI
Second Appellant
MINISTER
OF
DEFENCE
Third Appellant
and
MICHIEL JACOBUS
DE GOEDE
Respondent
Neutral
citation:
Dr
F Kluever
v
De
Goede
(20198/2014)
[2015] ZASCA 105
(19 August 2015).
Coram:
Navsa ADP,
Mhlantla, Leach, Mbha and Zondi JJA
Heard:
08
May
2015
Delivered:
19 August 2015
Summary:
Delict
– medical practitioner – professional negligence
–surgical procedure resulting in high riding patella –
primary surgery improperly performed – medical practitioner
negligent – defence of contributory negligence dismissed
–
third appellant vicariously liable to compensate respondent.
ORDER
On
appeal from:
Gauteng
Division of the High Court, Pretoria (Van Niekerk AJ sitting as court
of first instance):
The
following order is made:
The
appeal is dismissed with costs including the costs attendant upon the
employment of two counsel.
JUDGMENT
Mhlantla
JA (Navsa ADP, Leach, Mbha and Zondi JJA concurring):
[1]
Michiel de Goede (Michiel) was a young and exceptional rugby player
who had been offered and accepted a five year contract to
play for
the junior team of the Sharks Rugby franchise from 2008. On 5 April
2007 he sustained what is best described as a freak
injury. It was
sustained in the dying minutes of a rugby game after Michiel had been
brought on as a substitute. It occurred without
contact with any
other player. Michiel was bending to receive a ball that had been
passed to him and probably because of his weight,
which was
considerable for his age, his leg gave way. It is uncontested that he
sustained a rupture of the patella tendon.
[1]
As a result he had to receive medical treatment at 1 Military
Hospital, Pretoria, which is under the control of the South African
National Defence Force (SANDF) and the third appellant, the Minister
of Defence (the Minister). Dr Khwitshana (Khwitshana) diagnosed
a
sprained knee. The error was discovered five days later after Michiel
had consulted Dr Boetie Thiart, (Thiart) an orthopaedic
surgeon at
Unitas Hospital who diagnosed a patella tendon rupture.
[2]
On 13 April 2007, the first appellant, Dr Felicia Kluever (Kluever),
an orthopaedic surgeon employed at the hospital, performed
surgery to
repair the ruptured patella tendon. After the operation Michiel’s
leg was placed in a brace which was removed
after six weeks on 25 May
2007. Kluever thereafter referred Michiel to Mr Phillip du Plessis,
(du Plessis) a physiotherapist employed
at the hospital, to commence
with a rehabilitation programme.
[3]
Du Plessis struggled to restore full flexion of the knee. This led
him during September 2007, to refer and accompany Michiel
for advice
to Mr Cornelius Liebel (Liebel), a biokineticist who had been
assisting Michiel with his sport conditioning prior to
his injury.
Liebel noticed that the right patella was slightly higher than the
left and accordingly informed the two of them. Out
of concern, du
Plessis further took Michiel to the High Performance Centre in
Pretoria. The physiotherapists there suggested that
the circulage
wire that had been inserted by Kluever during the surgical procedure
referred to above, be removed. At that stage,
it was thought that the
wire might be hindering the flexing of the knee. Du Plessis reported
this to Kluever who then scheduled
a second surgical procedure to
remove the circulage wire. This operation was performed on 1 October
2007 by the second respondent,
Dr R H Bhawani (Bhawani).
[4]
From October 2007 until December 2007, Liebel worked with du Plessis
to rehabilitate Michiel’s knee. No significant progress
was
made as they still could not achieve a complete range of movement of
the knee. Early in 2008 Michiel joined the Sharks Academy
in terms of
the contract referred to above. Mr Jimmy Wright (Wright), a
biokineticist employed at the Academy, attended to his
rehabilitation. Despite Wright’s efforts after rehabilitation,
Michiel could not regain the full knee function he had prior
to the
injury. Wright therefore referred him to Dr de Vlieg (de Vlieg), an
orthopaedic surgeon, who identified a ‘high riding
patella’
[2]
.
On 16 September 2008, he performed a remedial operation known as the
‘VY quadriceps plasty’
[3]
and brought down the patella. The damage found in the knee was
irreversible and it became clear that Michiel’s knee would
never be fully functional for him to play rugby. Sadly, his career as
a rugby player for the Sharks Rugby franchise came to an
end.
[5]
Consequently, Michiel instituted action against the appellants in
which he claimed damages arising from injuries sustained during
the
surgical procedure performed on 13 April 2007. In his particulars of
claim, he alleged that Kluever and Bhawani had been negligent
when
they performed the two surgical procedures referred to above. The
Minister was sought to be held vicariously liable for the
doctors’
actions as they were in the employ of the SANDF and were executing
their duties as such when performing these operations.
This latter
aspect is uncontentious.
[6]
In their plea, the appellants denied negligence and pleaded that the
medical services they provided to Michiel were performed
with care
and skill reasonably expected of medical personnel in their position.
In the alternative, the appellants pleaded contributory
negligence
and averred that Michiel had failed to attend scheduled appointments
with the medical practitioners and, contrary to
the advice of
Kluever, had undergone an extensive exercise programme that had
impaired the healing process.
[7]
The matter came to trial in the Gauteng Division of the High Court,
Pretoria before Van Niekerk AJ. At the commencement of the
trial, the
learned judge, at the request of the parties, issued an order in
terms of Uniform rule 33(4) separating the merits from
quantum. The
judge was therefore essentially called upon to determine the question
of negligence. Both parties adduced evidence
and called various
witnesses including expert witnesses. At the conclusion of the trial,
Van Niekerk AJ was unpersuaded by the
appellants’ defences. He
concluded that Kluever had been negligent in that she had failed to
place the patella in its correct
position on 13 April 2007; further
that she and Bhawani had failed to identify the issue after the
primary surgery; and that this
was the cause of the high riding
patella and the condition of Michiel’s knee as discovered by de
Vlieg in September 2008.
Moreover, the learned judge rejected the
Minister’s contention in relation to contributory negligence.
He therefore declared
the Minister liable to compensate Michiel for
any damages suffered by him, arising out of injuries sustained by
him, during the
operation of 13 April 2007. The appellants appeal
against these conclusions with special leave of this court.
[8]
This appeal turns on whether the findings referred to at the end of
the preceding paragraph are correct. Simply put, the question
is: was
there negligence on the part of the medical practitioners at 1
Military Hospital which led to Michiel’s present admitted
disability?
[9]
In order to arrive at a determination in relation to negligence, it
is necessary to deal with the background facts in some detail.
Michiel testified and relied on six other witnesses in support of his
case, namely du Plessis, Liebel, Wright, Mr David Jacobus
du Plessis,
who is the deputy headmaster and head rugby coach of Eldoraigne High
School, de Vlieg and Dr Anthony Birrel (Birrel),
an orthopaedic
surgeon. Kluever and Professor Kulule Lukhele (Lukhele), a chief
orthopaedic specialist at Charlotte Maxeke Hospital,
Johannesburg
testified on behalf of the appellants. At the outset, it is necessary
to record that there had been a misdiagnosis
by Khwitshana which
delayed the ruptured patella tendon from being attended to timeously.
It was also agreed by all experts who
testified that in order to
obtain optimal rehabilitation of the knee, it was best that a
diagnosis of a ruptured patella tendon
be done timeously and
preferably within a few days of the injury and the repair thereof
immediately. The background facts are set
out hereafter.
[10]
After Michiel’s injury, he was immediately taken to the
hospital. An x-ray image of the injured leg was taken and as
already
stated Khwitshana told him his knee was sprained. He was given
medication for pain and swelling and was instructed to return
after
two weeks for a check–up. The pain in his knee did not subside.
[11]
On 10 April 2007, Liebel assessed Michiel. He suspected a serious
injury and referred him to Thiart. The latter examined Michiel
and
diagnosed a patella tendon rupture. He sent Michiel for ultra sound
imaging (the scan). The results of the scan confirmed his
diagnosis.
Michiel had to be treated at 1 Military Hospital because his father
is employed by the SANDF. Thiart therefore called
Dr Van der Spuy, an
orthopaedic surgeon employed at the hospital, who advised him of
Michiel’s condition and his diagnosis.
He referred Michiel to
Dr Van der Spuy and provided the hospital with the results of the
scan. Armed with these results, Michiel
and his father returned to
the hospital and presented the scan to Dr Van der Spuy. Michiel was
informed that an operation on his
knee would be performed on 13 April
2007. It is common cause that Thiart’s diagnosis was never
explored nor was Michiel’s
knee examined by Kluever before she
performed the primary surgery nor had she seen the scan taken at
Unitas Hospital. Kluever relied
on a hearsay diagnosis by another
doctor.
[12]
On 13 April 2007, the primary surgery was performed by Kleuver. She
qualified as an orthopaedic surgeon the year before she
performed the
operation. She met Michiel at the theatre. He related to her how he
had sustained the injury and pleaded with her
to repair his knee as
he wanted to carry on playing rugby. It is common cause that the
exchange with Michiel took place immediately
before surgery and
lasted no more than a few minutes. Kluever proceeded to perform the
operation in order to repair the ruptured
patella tendon. She
followed what she termed ‘the standard procedure’ during
surgery which was: She determined the
height of the patella by
feeling the left knee with her hand. She used an anterial incision
over the knee joint. She identified
the infra patella tendon which
was severely frayed and used circulage wire to approximate the ends
of the tendon. She repaired
the tendon in layers with a
non-absorbable suture material known as Ethibond 2 and also repaired
the paratendon, which is the top
layer that surrounds the tendon.
Upon completion, she applied a bandage and a brace which she fixed in
full extension. She instructed
Michiel to wear the brace for six
weeks.
[13]
After the operation, Michiel was monitored by Dr Alberts, who was
also in attendance at 1 Military. He was discharged on 15
April 2007.
Thereafter Kluever saw Michiel again as an out-patient on 24 April
2007 and removed the suture clips. She recorded
in the hospital file
that the brace would be removed after six weeks. On 25 May 2007, she
removed the brace and referred Michiel
to du Plessis for
rehabilitation. On his next visit, on 20 July 2007, Kluever recorded
that Michiel did not have any complaints
and was attending
physiotherapy. His range of movement was at a level of 70 degrees.
She told Michiel that he should continue with
physiotherapy sessions
and that she would allow him to attend biokinetics once his range of
movement had reached 90 degrees. It
does not appear that she had any
concerns during these visits about the height of the patella. It also
does not appear that she
scrutinised the height of the patella.
[14]
Du Plessis struggled to get full flexion of the knee and decided to
seek advice. During September 2007, he took Michiel to
Liebel who
noticed that the right patella was slightly higher than the left one.
Du Plessis took him to the High Performance Centre
for assessment.
The therapists at the centre suspected that the circulage wire in the
knee prevented Michiel from flexing the knee
beyond 90 degrees. They
suggested that the wire be removed. Du Plessis reported this to
Kluever who scheduled an operation for
the removal of circulage wire.
On 1 October 2007, Dr Bhawani removed this wire.
[15]
Liebel corroborated du Plessis’s testimony regarding the visit
during September 2007 as well as his observation and advice.
He
noticed that Michiel’s knee and quadriceps were quite wasted.
His sessions with Michiel commenced during October 2007
after the
circulage wire had been removed. They focused on light exercises. No
significant progress was made. He submitted a report
to Wright
shortly before Michiel moved to Durban.
[16]
At the beginning of 2008, Michiel joined the Sharks Academy. Wright
continued with his rehabilitation programme. However, Michiel
could
not regain the full knee function he had prior to the injury. As
there was no improvement, he referred Michiel to de Vlieg
who
identified the high riding patella.
[17]
On 16 September 2008, almost 18 months after Kluever had performed
the primary surgery, de Vlieg performed remedial surgery
on Michiel’s
right knee. He found a high riding patella and fibrous scar tissue
below the patella. He found the repair mechanism
performed by Kluever
to be still intact. She had used suturing material known as Ethibond
2 to suture the tendon. He regarded this
as being suturing material
of the wrong strength and was adamant that she should have used
Ethibond 5.0. He regarded her technique
as inappropriate considering
Michiel’s specific physical attributes. In his view, Kluever
did not give adequate consideration
to the fact that Michiel was
physically large and was a rugby player. He concluded that the reason
why the patella was found to
be situated too high was due to the fact
that the tendons were proximated by Kluever without taking into
account the correct height
of the patella, the elongated nature of
the torn tendon and without performing augmentation
[4]
.
In his view, the core problem was that at the time that Kluever
performed primary surgery to repair the ruptured patella tendon,
she
did not take care to ensure that the patella was placed properly.
This was due not only to the fact that she did not place
it back in
the groove precisely but also because she had not resorted to
augmentation, which would have facilitated the proper
placing of the
patella within the groove. De Vlieg said he would have physically
measured the patella height using a ruler as well
as compared it to
the right knee to ensure that it was similarly placed. He stated that
the damage he found in the knee was caused
by the wrong height of the
patella and that it had started an osteoporotic process within the
knee. He further stated that it was
irreversible and that it would
not have happened had the primary procedure by Kluever been performed
using the appropriate technique
and that this was foreseeable.
[18]
Dr Birrel’s views were that the procedure performed by Kluever
was inappropriate. According to him, she inter alia, failed
to take a
proper history of Michiel’s injury and failed to properly
prepare for the surgery. She did not perform augmentation.
She should
have confirmed the correct height of the patella either during the
operation or thereafter by requesting x-rays to be
taken and that had
she done so, she would have been able to rectify the situation by
repairing the high riding patella.
[19]
Prof Lukhele was called by the appellants to negate causality. In his
testimony, he made very important concessions, namely:
he would have
debrided the torn edges of the ruptured patella then approximated the
edges and augmented the suture had he performed
the surgery. If
Michiel’s knee was left with a high riding patella since the
primary surgery, then the damage would ensue
and such damage would be
irreversible and it would be foreseeable. He confirmed that if the
tendon was left elongated during the
primary surgery, the patella
would resultantly be too high. He accepted that a ruptured tendon
would lead to that tendon to be
already attenuated. He reserved what
he termed the ‘guestimate’ of the patella height to
experienced surgeons who have
at least five years’ experience
and that have acquired that particular skill.
[20]
The expert witnesses de Vlieg, Birrel and Lukhele prepared a joint
minute. They agreed on two points, namely: (a) that a successful
patella tendon repair required a treating surgeon to perform the
procedure in the appropriate manner; (b) the removal of the circulage
wire could not have had any effect on the patella and could not have
caused the high riding patella, especially since that wire
was
removed six months after the repair when the tendon was expected to
have healed. Lukhele further stated that the only possibility
for the
patella to have become high riding would be if the suturing and/or
repair of the tendon had failed.
[21]
They disagreed on the other issues. In this regard, de Vlieg and
Birrel were of the view that the standard procedure followed
by
Kluever was inappropriate. Furthermore they stated that Michiel would
have had a better prognosis had the surgery been performed
in the
manner they considered correct and lastly, that had the primary
surgery been properly performed, strenuous exercise by Michiel
would
not have caused the patella to move upwards.
[22]
On the other hand, Lukhele felt that the procedure performed by
Kluever was proper. He considered her method to be the standard
method. However, during his testimony, he did concede that it was
necessary to individualise the patient and apply the applicable
methods depending on the patient. He contended that a better
prognosis after surgery depended on biological factors. He did not
contest the view that strenuous exercise would not have caused the
patella to move upwards.
[23]
Therefore, the first issue to be determined is whether Kluever and
Bhawani were negligent. The applicable legal test for determining
medical negligence was set out a century ago by Innes ACJ in
Mitchell
v Dixon
,
[5]
as follows:
‘
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; and he is liable
for the consequences if he does not.
’
[24]
Innes CJ restated this principle in
Van
Wyk v Lewis
,
[6]
and went on to say:
‘
And
in deciding what is reasonable the court will have regard to the
general level of skill and diligence possessed and exercised
at the
time by the members of the branch of the profession to which the
practitioner belongs.
’
[25]
In
Whitehouse
v Jordan and another
,
[7]
the House of Lords concluded that the statement that ‘a mere
error of judgment’ on the part of a medical practitioner
does
not constitute negligence was an inaccurate statement of the law.
Lord Fraser said:
‘…
.[
T]he
statement as it stands is not an accurate statement of the law.
Merely to describe something as an error of judgment tells
us nothing
about whether it is negligent or not. The true position is that an
error of judgment may, or may not, be negligent;
it depends on the
nature of the error. If it is one that would not have been made by a
reasonably competent professional man professing
to have the standard
and type of skill that the defendant held himself out as having, and
acting with ordinary care, then it is
negligent. If, on the other
hand, it is an error that a man acting with ordinary care, might have
made, then it is not negligence.
[26]
Regarding the manner in which the evidence of an expert should be
evaluated, Mthiyane JA in
Louwrens
v Oldwage
,
[8]
held:
‘
What
was required of the trial Judge was to determine to what extent the
opinions advanced by the experts were founded on logical
reasoning
and how the competing sets of evidence stood in relation to one
another, viewed in the light of the probabilities
.’
[27]
In
Medi-Clinic
v Vermeulen
,
[9]
Zondi JA, when considering the manner in which the expert evidence
should be evaluated, referred to the decision of
Michael
& another
v
Linksfield
Park Clinic (Pty) Ltd & another
2001 (3) SA 1188
(SCA) paras 36 to 39 and said:
‘
.
. . what is required in the evaluation of the experts’ evidence
is to determine whether and to what extent their opinions
are founded
on logical reasoning. It is only on that basis that a court is able
to determine whether one of two conflicting opinions
should be
preferred. An opinion expressed without logical foundation can be
rejected. But it must be borne in mind that in the
medical field it
may not be possible to be definitive. Experts may legitimately hold
diametrically opposed views and be able to
support them by logical
reasoning. In that event it is not open to a court to simply express
a preference for the one rather than
the other and on that basis to
hold the medical practitioner to have been negligent. Provided a
medical practitioner acts in accordance
with a reasonable and
respectable body of medical opinion, his conduct cannot be condemned
as negligent merely because another
equally reasonable and
respectable body of medical opinion would have acted differently.
’
[28]
Before us, counsel for the appellants, submitted that Kluever and
Bhawani exercised care and skill when they performed the
operations
on Michiel and that the methods and/or procedure adopted by Kleuver
during the first operation were within the standard
required of the
medical profession. He further contended that the patella was brought
down to the correct height during the primary
surgery.
[29]
This submission is against the weight of the evidence.
There
is an incremental accumulation of mishaps. First, on 5 April 2007 the
medical staff misdiagnosed the injury as a sprained
knee and told
Michiel to return after two weeks.
Secondly,
the conduct of Kluever before the operation leaves much to be
desired. She testified that she had qualified as an orthopaedic
surgeon in 2006 and conceded that she was not a knee specialist, yet
she did not adopt any measures to combat her relative inexperience.
On her own testimony, she confirmed that she saw Michiel for the
first time in theatre shortly before the surgery. She was aware
that
Michiel was a rugby player. This factor was not given adequate
consideration. He was physically large and greater attention
should
have been paid to the force that would be exerted on his knee. The
strength of the sutures ought to have been considered.
She did not
regard it necessary to take x-ray images of the injured knee prior to
or after the surgery.
She
failed to take a proper history of Michiel’s injury nor did she
examine him. The consultation with him was superficial.
She never
considered the x-ray image that had been taken on 5 April nor did she
see the scan sent by Thiart.
She
relied
on the hearsay diagnosis of the injury by Thiart. She obtained this
information from a colleague of hers who had been briefed
by Thiart.
She never consulted a senior colleague or Thiart to discuss his
diagnosis or precautionary steps.
Eight
days had elapsed before the surgery was performed. This too had a
negative impact on Michiel’s treatment. The need to
perform
surgery to repair this type of injury immediately is highlighted in
the literature provided by the parties. In this case
the misdiagnosis
and the delay had a negative impact on a better prognosis.
[30]
During the operation phase, Kluever determined the height of the
patella by feeling the left knee with her hand and thereby
determined
what the correct height of the patella of the injured knee should be.
All the orthopaedic surgeons were ad idem that
her method in that
regard was incorrect. Lukhele called it a ‘guestimate’
but reserved it for surgeons with at least
five years’
experience who must have acquired that particular skill. Birrel and
de Vlieg were adamant that she should have
used either a measuring
device, such as a ruler or employed x-rays. She performed surgery on
a man that weighed 125 kilograms and
who was a rugby player, yet she
used suturing material of an inferior strength when she should have
used Ethibond 5 and performed
augmentation. She did not take into
account the correct height of the patella after the operation.
[31]
When she was asked to comment about an allegation that she failed to
place the patella back in its proper place after the surgery,
her
response was:
‘
Well,
I don’t think I left the patella high. Because of the
principles that I used when I performed the surgery which is not
always documented if its normal principles that you are using. So my
normal principles when suturing the intra patella tendon
is to
be able to feel the quadrilateral side
which
in this case was the left knee, so once you’ve pulled it down
with your stitches you feel the patella on the one side
and then
compare it to the left’.
[32]
In my view, this was a serious allegation that should have been met
with an unequivocal and confident response refuting the
allegations.
Instead, she left one in the dark.
[33]
Lukhele
when confronted with the undisputed fact that when de Vlieg opened
the knee, the repair of Kluever was still intact, but
the patella was
sitting high, responded that there could only be two reasons for the
high riding patella: Either the initial placement
of the patella was
incorrect and was left too high when the operation was done by
Kluever; or there was attenuation in the period
between the operation
and the time that de Vlieg operated in the patient.
In
my view, since the original repair was still intact when the
corrective surgery was done, the most probable cause is that the
patella was not left in the correct position during the operation
performed by Kluever. Thereafter, Liebel identified the high
riding
patella during September 2007. Wright noticed it early in 2008 and it
was eventually restored by de Vlieg in September 2008.
[34]
Lastly, Kluever had an opportunity to identify the high riding
patella when she received a report from du Plessis after his
visits
to Liebel and the High Performance Centre. However, she failed to do
so. She, again, did not examine Michiel’s knee
but merely
scheduled an operation which was conducted by Bhawani on 1 October
2007. Bhawani, too did not bother to examine the
knee and determine
why it could not flex beyond 90 degrees. All he did was remove the
circulage wire.
[35]
Cumulatively, and having regard to the effect of the misdiagnosis,
the improper procedure, the failure thereafter to detect
and identify
the high riding patella, and the evidence of all the orthopaedic
surgeons including Prof Lukhele, it is quite clear
that Michiel’s
present disability was due to Kluever’s negligence referred to
above. The failure by Kluever to place
the patella properly during
the primary surgery and the subsequent failure by her and Bhawani to
recognise and/or identify and/or
repair the high riding patella
subsequent to that operation caused Michiel to continue to suffer
pain in his knee. Furthermore,
this is the cause of the irreversible
damage to his knee as found by de Vlieg. The repair of Michiel’s
patella tendon could
have been successful had the operation been
performed with the necessary skill and care and/or the high riding
patella had been
timeously identified especially since du Plessis
continuously reported to and raised his concerns with Kluever.
[36]
Regarding the plea of contributory negligence,
counsel
for the appellants submitted that the patella had migrated upwards
because the original repair of the patella tendon failed
to heal
properly due to strenuous exercise. Furthermore, he submitted that
Michiel’s patella tendon became attenuated during
the period
between the operation by the Kleuver and the one performed by de
Vlieg.
[37]
I disagree. Michiel was, upon his discharge, immobile for six weeks.
Therefore, there can be no basis to suggest that he caused
the high
riding patella at that stage. Once the brace was removed, he was in
the care of du Plessis. Similarly, any argument that
the patella was
damaged during this stage will not assist the appellants because the
physiotherapist was in the employ of the Minister.
Be that as it may,
the evidence of the physiotherapist and the biokineticists, that they
did not perform strenuous exercises but
concentrated on the upper
body, remained unchallenged. By September 2007, five months after the
operation, the high riding patella
was identified.
[38]
Kluever speculated as to why the patella was high riding five months
after the operation and stated that the circulage wire
might have
stretched under strenuous exercise albeit there was no evidence of a
compromised wire. She further surmised that it
could have been due to
strenuous exercise. Her evidence in this regard is unsupported by any
evidence. Furthermore, de Vlieg found
her repair still intact 18
months after the operation. In my view, the repair would not have
been in that condition if Michiel,
the physiotherapists and
biokineticists had done strenuous exercises as alleged by Kluever. In
any event, this was mere speculation
on her part.
[39]
Therefore, I am satisfied that any exercises performed during the
sessions could not have caused the patella to become elongated.
This
is dispositive of the plea of contributory negligence.
[40]
In the result, the court a quo correctly upheld Michiel’s
claim. The appeal therefore fails.
[41]
Consequently I make the following order:
The
appeal is dismissed with costs including the costs attendant upon the
employment of two counsel.
__________________
NZ
MHLANTLA
JUDGE
OF APPEAL
APPEARANCES
:
For
Appellant:
A T Ncongwane SC (with him I P Ngobese)
Instructed
by:
The State Attorney
Pretoria
c/o
The State Attorney
Bloemfontein
For
Respondent:
J du Plessis SC (with him H A Percival)
Instructed
by:
Elmarié De Vos Incorporated
Pretoria
Webber Wentzel
Attorneys
c/o Honey Attorneys,
Bloemfontein
[1]
In
Chapman and Madison: Operative Orthopaedics, 2
nd
edition, Volume 4, a patella tendon is described as a ligament
connecting two bones- the tibia and the patella. A rupture of
the
patella tendon usually occurs at the inferior pole of the patella.
It results in an inability to actively obtain and maintain
full knee
extension. If the tendon does not heal properly and at the correct
length and tension, knee range of motion can be
altered
significantly and can prevent a return to pre-injury status.
Immediate surgical repair is recommended for optimal return
of knee
function and power. See also Campbell’s Operative
Orthopaedics, 10
th
edition, Volume 3.
[2]
According to Dr de Vlieg, a
patella runs in a groove on the femur and functions when the knee is
fully extended. The patella will
sit above the groove and as the
knee bends, the patella will move downwards and be captured by the
groove. A high riding patella
or patella
alta
occurs when the patella is situated or sitting well above the groove
and its point of engagement is delayed during the bending
of the
knee.
[3]
Dr de Vlieg testified that a VY
quadriceps plasty operation is a technique of lengthening the
muscle. The term “VY’
refers to the shape as the surgeon
will cut a V during surgery and when he or she pulls it down and
suture it back up, it becomes
a Y shape because it has been
elongated.
[4]
According to Dr De Vlieg
augmentation is a technique that is used to improve the grip of the
suture material within the tendon.
This is done to reinforce the
repair.
[5]
Mitchell v Dixon
1914 AD 519
at 525.
[6]
Van Wyk v Lewis
1924 AD 438
at 444.
[7]
Whitehouse v Jordan and
another
[1980] UKHL 12
;
[1981] 1 All
ER 267
(HL) at 281.
[8]
Louwrens v Oldwage
2006 (2) SA 161
(SCA) para 27.
[9]
Medi-Clinic v Vermeulen
(504/13)
[2004] ZASCA 150
(26 September 2014) at para 5;
2015 (1) SA
241
(SCA).