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[2016] ZAGPJHC 351
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Roets v Magabotha and Others (17156/2011) [2016] ZAGPJHC 351 (14 December 2016)

IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:
17156/2011
Reportable:
No
Of
interest to other judges: No
Revised.
In
the matter between:
ROETS,
JOHANNA
HERCULINA
Plaintiff
and
MAGOBOTHA,
SEBASTIAN KEITH McDONALD
First
Defendant
PEER,
ZANUL ABERDEEN
ABUBAKER
Second

Defendant
MEC:
HEALTH AND SOCIAL DEVELOPMENT,
GAUTENG
PROVINCE
Third
Defendant
Judgment
Van
der Linde, J
:
Introduction
and background
[1]
The plaintiff claims damages from the defendants caused by the
professional negligence of the surgeon who had performed
a total
right hip replacement on her, and that went wrong. The ultimate
result was that the plaintiff is now without an articulated
right
hip, and is wheel-chair bound, although the expectation is that in
the future she could undergo a revision procedure, involving
the
placement of a prosthesis that should relieve her from her current
immobility.
[2]
At the commencement of the trial I was asked to give and gave an
order separating the questions of merits and causation
from the other
issues, and directing that the two separated issues be heard first.
It was accepted that the third defendant is
vicariously liable for
any proven negligence of the first and second defendants.
[3]
The plaintiff herself testified and called Prof Van der Jagt as an
expert, whose expertise was accepted, and closed
her case. The
defendants applied for absolution from the instance. I gave a written
judgment in which I refused the application.
The defendants then
called only the first defendant, and closed their case.
[4]
The essential background is set out in the written judgment on
absolution. In a nutshell, it is that the plaintiff,
who had had a
left hip replacement, had a right hip replacement performed at Chris
Hani Baragwanath Academic Hospital (“CHBAH”)
on 10 June
2008. She thought it was performed by the second defendant but he
denies this; the first defendant accepts that in view
of that denial,
he (the first defendant) must have performed it, although he has no
independent recollection of having done so.
[5]
At the end of the day, not much, if anything, turns of this, because
the first defendant is a professor of orthopaedics
connected to the
academic hospital where the procedure was carried out and the leader
of the team that performed it. He, very properly,
accepted full
responsibility for whatever is found to have gone wrong in the
execution of the replacement.
The
evidence
[6]
Prof van der Jagt was the first witness. He proved his report and
testified to the relevant sequence of events.
The plaintiff had had
previous surgery by the first defendant. He had performed shoulder
surgery, back surgery, and a left hip
replacement on her. These were
successful, and she had faith in him. In time, a right hip
replacement become necessary, mainly
to alleviate complications
resulting from the back surgery. The plaintiff’s medical aid
would not respond, because the back
surgery had been carried out
shortly before.
[7]
The first defendant proposed that he perform the surgery at the
CHBAH, a provincial hospital, where he also practised.
She agreed.
After a false start in May 2008 (the plaintiff lost her nerve), the
procedure was carried out on 10 June 2008. She
was seen by a
physiotherapist soon after and, since displaying good recovery, was
discharged on 12 June 2008.
[8]
On 9 July 2008 the plaintiff fell. Her description of the event was
that suddenly her leg disappeared under her.
It is not clear whether
this was a dislocation that caused a fall, or whether she fell and
then dislocated her right hip. She was
readmitted to the CHBAH.
[9]
On 19 July 2008 the first defendant performed a closed reduction of
the plaintiff’s right hip. X-rays were
taken on 24 July 2008,
and again on 21 August 2008. In January 2009 the plaintiff saw the
first defendant again. She felt her recovery
was slow. Ultimately she
took a second opinion from Dr Steyn in September 2009. He advised a
revision, which he carried out on
21 October 2009. Earlier the same
month, on 12 October 2009, the plaintiff had a second dislocation of
the right hip.
[10]
The Steyn revision was not a success. The plaintiff developed sepsis.
On 4 November 2009 Steyn performed
further surgery on the plaintiff.
He removed the prosthesis he had placed in her hip, and inserted a
girdle-stone which serves
only to protect the hip, pending a further
revision in due course once the sepsis will have cleared. It left the
plaintiff in a
wheel-chair, because she now has no articulated
mechanism in the right hip.
[11]
Prof van der Jagt opined that the procedure carried out by Dr Steyn,
and the sepsis that followed on it,
is in effect a red herring. He
argued that sepsis is a risk in all surgical procedures, and that the
ultimate cause of the situation
in which the plaintiff now finds
herself, is the misalignment of the acetabulum during the first
procedure carried out at CHBAH
on 10 June 2008, some 15 months
earlier.
[12]
The witness said that the proper alignment of the acetabulum is
essential, because if not done, the patient
would be prone to
dislocation. He said that the X-rays of 24 July 2008 – the
earliest relevant X-rays available in the trial
– show the
position in which the acetabulum was immediately after the 10 June
2008 procedure, because there is no evidence
in the X-ray of the two
screws or the acetabulum having moved.  And in the position
there reflected, it is clear that the
acetabulum was poorly aligned,
since it was at an angle of about 80 degrees to the horizontal.
[13]
So he concluded that the procedure of 10 June 2008 was not only
substandard, but also the cause of the plaintiff’s
present
condition.
[14]
The plaintiff when she testified explained her trust in the first
defendant. She explained how he had promised
her that he would
himself perform the procedure at CHBAH. She explained how when she
called the first defendant after her discharge,
he was surprised at
it having occurred so soon. She said that the dislocation occurred
when she was standing with the aid of crutches,
talking to a friend,
when she suddenly felt her leg give away underneath her.
[15]
She explained how in time she felt her hip was not healing; how in
January 2009 she saw the first defendant
when he admitted that in
truth he had not performed the hip replacement. She said that she
took the second opinion, had the revision,
and how it was a failure
for the sepsis.  She explained how that has left her in her
present state of immobility.
[16]
The first defendant testified. He confirmed most of the plaintiff’s
evidence. He was uncertain as to
whether he had performed the
procedure of 10 June 2008 but accepted full responsibility for it. He
explained the closed reduction
he had performed on 19 July 2008, and
how he was able to observe the procedure by means of an Image
Intensifier. He was satisfied
that the reduction was a success.
[17]
He agreed that what was reflected in the X-rays of 24 July 2008,
after the closed reduction, was a misalignment
of the acetabulum and
of the polyethylene inner. Had he observed the acetabulum in that
position on 19 July 2008, he would have
recommended to the plaintiff
that she went for a revision. Although he thought the alignment was
between 67 and 69 degrees, in
his view it was nonetheless
unacceptable. He thought the standard was about 40 to 60 degrees.
[18]
He thought that he had seen the X-rays that Dr Steyn had obtained,
and that showed the plaintiff’s
hip as it currently presents.
There are still the two screw ends in the hip that had held the
acetabulum in place. He opined that
the screw heads could not have
been cut off during an operation, and argued accordingly that they
must have broken off during a
dislocation.
[19]
That being so, he thought that the X-rays of 24 July 2008 might have
reflected an acetabulum of which the
screw heads had already been
sheared during the plaintiff’s fall, implying that the
acetabulum was already loose and mobile
at that stage. This fact
would not have been visible on the X-ray, he said, nor would he
necessarily have picked it up when performing
the closed reduction of
the right hip on 19 July 2008.
[20]
The X-rays of 24 July 2008 also reflect that the polyethylene liner
had moved, hence the femoral head lodged
up into the top of the
acetabulum. He said that might have happened when after the closed
reduction that he had performed, the
plaintiff was being mobilised or
moved on and off hospital beds.
Discussion
[21]
The evidence having been led, and the witnesses having been
cross-examined, the essential issue between the
parties, at least on
the facts, must be understood against the following background. A hip
replacement involves the insertion of
a steel cup, fitted with a
polyethylene liner as a replacement socket into the hipbone. This is
called the acetabulum component
of the prosthesis.
[22]
The head of the femur is then cut off, and a metal spike, the top end
of which is ball-shaped, is inserted
and fixed into the femur. This
is called the femoral aspect of the prosthesis. The top end, or
ball-shaped end, of the femoral
aspect then fits into the acetabulum,
thereby completing the mechanical articulation of the replaced hip.
[23]
The success of the replaced hip is to a large extent dependent on its
ability to provide an articulated joint.
The leg must be able,
principally, to move forward and back in vertical fashion, off the
hip and its socket or acetabulum. The
face of the acetabulum must be
positioned at roughly 45 degrees to the horizontal, because the
femoral ball-shaped head presents
at a mirror-imaged angle from the
opposite end. In other words, for these two parts to match ideally,
their respective angles to
the horizontal must also match.
[24]
Moreover, the ball-shaped end of the femoral head must fit snugly
into the polyethylene liner so as to ensure
a smooth articulation.
The liner must not shift out of its pat position within the
acetabulum, because if it does, the femoral
head shifts away from
centre, again endangering the functionality of the hip.
[25]
Of the problems that may occur if these three parts of the prosthesis
are not fitted as described above,
is that the hip may dislocate.
That makes for an unstable hip, and thus for compromised mobility.
[26]
Here, the plaintiff’s case is that the acetabulum was fixed,
when the hip replacement was performed,
at an angle of 80 degrees to
horizontal. That invited dislocations. The slow healing process of
the hip joint, and the pain she
continued to experience, led
eventually to the plaintiff seeking a second opinion, in the person
of Dr Steyn, who performed a revision
procedure. I revert below to
that procedure and its aftermath both of which formed the focus of
the judgment on absolution from
the instance.
[27]
At all events, whether the acetabulum was incorrectly fitted during
the operation is disputed, and forms
the central factual dispute. The
earliest relevant X-rays that are available were taken on 24 July
2008, five days after the plaintiff
was admitted after a fall
resulting in a dislocation of the contentious hip. The first
defendant reduced that dislocation on 19
July 2008.
[28]
The X-rays taken five days after the dislocation show that both the
acetabulum and the liner where misaligned
by that date. Yet the first
defendant explained that when he reduced the dislocation he was
assisted by an image intensifier, which
is an X-ray device that
enabled him to observe the parts of the hip as he was reducing it. He
considered that that reduction was
carried out successfully.
[29]
He said, in fact, that if he had observed then that all he could do
was to have fitted the femoral head into
the position in which it in
fact presented on the 24 July 2008 X-rays, he would have advised the
plaintiff to undergo a revision.
[30]
The misalignment presented by the 24 July 2008 X-rays comprised the
face of the acetabulum in the 80 degrees
orientation to the
horizontal, said Prof van der Jagt, and the femoral head not fitted
snugly in the middle of the acetabulum,
but pushed right up to the
top of the acetabulum. That implied, everyone accepted, that the
liner was no longer fitted snugly as
an inner to the acetabulum, and
must have been pushed out of the acetabulum, or at last partly so.
The X-rays of 21 August 2008,
just short of a month later also
present, despite its different perspective, a misaligned joint in the
respects just described.
[31]
So, essentially, the question is what caused the drastic change from
what the first defendant observed on
19 July 2008, and the
misalignment which the X-rays presented five days later on 24 July
2008? The first defendant suggested that
this could have occurred in
the process of mobilising the plaintiff post-operatively after the
reduction of 19 July 2008; or it
could have been that with the
plaintiff’s fall that led her to be re-admitted, the screws
broke off at their heads, causing
the acetabulum to have become loose
and tending to shift.
[32]
The other explanation is of course that the first defendant’s
observation after the reduction was not
as accurate as he thought it
was; and that in fact the original fit of the acetabulum was indeed
as bad as it presented in the
X-rays of 24 July 2008.
[33]
Ultimately it seems to me that, as matter of common sense, if the
screw heads were sheared during the plaintiff’s
fall and
dislocation of July 2008, the likelihood is that the acetabulum would
have had to have moved off the screws, and it would
have been loose
for a period of 15 months. It is surprising, if that were the case,
that the plaintiff did not experience more
dislocations during that
period.
[34]
That takes one back to the opinion of Prof van der Jagt who said that
in his opinion the X-rays of 24 July
2008 reflected an acetabulum
that had not moved; and that had the acetabulum or the screws moved
from when first they were fitted
slightly more than a month earlier,
lines would have been visible over the dome of the acetabulum and
around the screws. This evidence
was not discredited in
cross-examination, and it appears well-founded, since the movement
could conceivably have caused disengagement
with the adjoining bone,
that could be reflected as darker areas on the X-ray.
[35]
The plaintiff argued that the evidence of Prof van der Jagt should be
accepted; that the sepsis was irrelevant
because it is part of the
risk of any major surgery; and that the misalignment of the initial
surgery was therefore not only negligent,
but also the cause of the
plaintiff’s present condition.
[36]
The defendants’ central argument was that the misalignment had
not been shown, because the 24 July
2008 X-rays were not of 10 June
2008; but, more importantly, that the plaintiff had not shown legal
causation because the chain
of factual causation was interrupted by a
novus actus interveniens
, being potentially an over-muscular
closed reduction but, more likely, the sepsis.
Has
the plaintiff shown a misalignment during the hip replacement of 10
June 2008?
[37]
The evidence of Prof van der Jagt was pertinent: he said that the
acetabular component had not moved at all.
He said too that the
X-rays of 21 August 2008 showed that there had been some bone growth
at the top and the bottom of the acetabulum,
and that the screws were
tightly fitted, still then.  He therefore inferred from this,
extrapolating backwards, that the acetabulum
was in fact fitted in
this position during the hip replacement of 10 June 2008.
[38]
In argument this form of reasoning was attacked. It was said to be
reverse reasoning, inferring the cause
from the effect, instead of
the effect from the cause. It was said that the plaintiff should have
proved, but did not, the X-rays
taken immediately after the procedure
on 10 June 2008; this failure was said to be fatal to the plaintiff’s
case on negligence.
[39]
There can of course be little doubt that if those X-rays were
available, there would not have been a case,
at least not in the form
in which it was finally presented.  But that does not mean that
the reasoning was faulty. The fact
which is sought to be inferred, as
a first step, is whether the acetabulum had moved. That fact was
sought to be proved by the
opinion of Prof van der Jagt, who in turn
had drawn inferences from the fact and appearance of the X-rays.
[40]
His opinion that some bone growth had occurred, was the
function of an observation made by an expert.
He has been practising
for many years, and his demeanour was reasoned and quietly confident.
I accept that part of his evidence.
[41]
The next step in the reasoning is then to draw an inference from the
fact that the acetabulum had not moved
between 24 July 2008 and 21
August 2008. If it had not moved then, then absent evidence that it
had moved between 10 June 2008
and 24 July 2008, there is a
probability, perhaps derived from the loose presumption of a
continuing state of affairs, that the
acetabulum was in the same
position on 10 June 2008 as it was on 24 July 2008.
[42]
This form of reasoning is not reverse logic merely because the
inference sought to be drawn relate to events
that had occurred prior
in time to the facts from which the inferences are drawn. The
question remains simply whether the inferences
are the most probable
inferences from the proven facts.
[43]
It follows that I cannot fault the reasoning of Prof van der Jagt,
and I conclude that the acetabulum was
misaligned during the
procedure of 10 June 2008. It seems accepted, but at all events not
challenged, that the correct alignment
of the acetabulum is an
endeavour which a reasonably proficient orthopaedic surgeon is well
capable of achieving. The misalignment
of the acetabulum was thus
negligent.
Did
the sepsis break the chain of causation?
[44]
Prof van der Jagt opined and the first defendant accepted that an
acetabulum misaligned to the extent that
was evident here predicted a
revision. The Steyn procedure was therefore the effect of the prior
cause of the misaligned acetabulum.
Had the Steyn procedure been
successful, its cost would have been the result of the negligence of
the first defendant.
[45]
But it was not successful, because sepsis had set in, probably during
that procedure. That resulted in the
procedure having to be undone,
and the girdle-stone having to be fitted as a holding action. The
question is whether in these circumstances
the occurrence of sepsis
interrupted the causative chain of events.
[46]
First, the evidence. Prof van der Jagt said that although there is no
firm evidence as to when and where
the sepsis originated, the more
procedures one has, the greater the prospect of sepsis occurring. He
said that infections –
which result in sepsis – may have
been sub-clinical, and is a potential threat with every major
surgical procedure.
[47]
This opinion was not challenged. It is persuasive, one has to
conclude, because one knows how medical staff,
particularly in the
operating theatre, are seen to be taking steps to fight the presence
of infecting bacteria, the most common
cause of sepsis.
[48]
In these
circumstances, was the
actus
interveniens novus
?
In the judgment on absolution from the instance I identified the
requirements for a true
novus
actus interveniens
.
[1]
Where, as here, based on the evidence of Prof van der Jagt, the
sepsis was a risk inherent in the situation created by the
misalignment
of the acetabulum, namely a revision, the intervening
act is not
novus.
[49]
Prof Fagan,
discussing Hart and Honore’s Causation in Law,
[2]
explains
[3]
that in the South
African law of delict, causation is resolved by two distinct
enquiries: first, whether the act was a cause “
in
fact”
of the harm, determined by means of the but-for
[4]
test; and if so, second, whether the act was linked sufficiently
closely or directly to the harm for legal liability to ensue.
[5]
[50]
Legal
causation is determined by two sub-sets of considerations; first,
factors such as reasonable foreseeability, directness, and
the
absence/presence of a
novus
actus interveniens
;
and second, factors such as legal policy, reasonableness, fairness
and justice.
[6]
In the weighing
of these two sub-sets of considerations the first sub-set is
subsidiary to the second, meaning: “
So
if, for example, the foreseeability test yields a result that is
unfair and unjust, fairness and justice will prevail.”
[7]
[51]
This method
of determining causation has of course been revisited and re-arranged
by the Constitutional Court in Lee v Minister
for Correctional
Services.
[8]
That court held
that the but-for test was a tool, not a principle, and that
ultimately the enquiry was a common sense one as to
cause and effect.
[52]
Justice and fairness must obviously ultimately prevail, but it seems
to me that the present enquiry need
not even go that far, because the
initial misalignment fails, each step of the way, to clear the hurdle
to the next round of enquiry.
To begin with, the misalignment was
clearly a cause “
in fact”
of the ultimate harm,
being the current immobility: without it, the revision would not have
been performed, and without the revision,
sepsis would not have
occurred.
[53]
Moving on to the second enquiry, that is legal causation, the sepsis
was – on the evidence of Prof
van der Jagt – a reasonably
foreseeable event, since it may occur in any major surgery. Finally,
even if it had to come to
applying the yardstick of fairness and
justice, I have to say that on an overall view the events, it seems
to me that plaintiff’s
present state is a function of what had
gone wrong at the initial operation.
[54]
I bear in mind particularly the fact that two dislocations had
occurred; that a closed reduction after the
first dislocation was
undertaken; that the plaintiff’s hip continued to remain
painful and ineffective; and that given the
opinion of Prof van der
Jagt, supported by the view of the first defendant, a revision was
unavoidable and waiting to be performed.
[55]
It follows that in my view the plaintiff has discharged the onus of
proving causative negligence. I do not
believe that it has been shown
that any negligence can be ascribed to the second defendant.
Order
[56]
In the result I make the following order:
(a)   The
issues of negligence and causation are separated under rule 33(4)
from the other issues that arise between the
parties.
(b)   The
issues so separated are to be determined first, and the other issues
that arise are postponed sine die.
(c)    It
is declared that the first and the third defendants are liable,
jointly and severally, for such damages
as the plaintiff may prove as
having been suffered as a result of the total right hip replacement
performed at the Chris Hani Baragwanath
Academic Hospital on 10 June
2008.
(d)   The costs
of the hearing are to be paid by the first and third defendants,
jointly and severally.
(e)   The said
costs are to include the reservation and preparation costs of Prof
van der Jagt, who is declared to have
been a necessary witness.
WHG
van der Linde
Judge,
High Court
Johannesburg
For
the plaintiff: Adv. P. Uys
Instructed
by: Schoemans Attorneys
Golf
Gardens Office Park, Unit 2
Cnr
John Vorster and Marco Polo Streets
Highveld
X12
Centurion
Tel:
012 665 4807
Ref:
0992/ROE001
For
the first - third defendants: Adv. V. Notshe SC
Adv.
Kadjee
Instructed
by:  State Attorney
10
th
Floor, North State Building
Corner
Kruis Street
Johannesburg
Tel:
011 330 7678
Ref:
2090/11/P71
Dates
trial: 5, 6, 7, 8, and 9 December 2016.
Date
argument: 12 December 2016
Date
judgment: 14 December 2016
[1]
Paragraph [10] of the judgment, referring to SA Eagle Insurance Co.
Ltd v Cilliers (389/85)[1987] ZASCA 119 (30 September 1987),
per
Nestadt, JA.
[2]
Paper delivered at a colloquium held at the University of Cape Town
on 13 and 14 March 2009, subsequently published by
Siber
Ink
in 2011, sub nom, “Thinking About Law, Essays for Tony
Honore”, edited by Daniel Visser & Max Loubser.
[3]
Ibid, 51.
[4]
Also known as the
conditio
sine qua
non test.
[5]
Also known as legal causation.
[6]
Ibid.
[7]
Ibid.
[8]
2013 (2) SA 144
(CC).