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[2010] ZAGPJHC 11
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Van Der Merwe v Premier of Gauteng (2007/16212) [2010] ZAGPJHC 11 (11 March 2010)
REPUBLIC OF SOUTH AFRICA
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
CASE NO: 2007/16212
In the matter between:-
MARKUS JOHANNES VAN DER MERWE Plaintiff
And
THE PREMIER OF GAUTENG Defendant
J U D G M E N T
MATHOPO, J
:
[1]
The plaintiff sued
the defendant, the Premier of Gauteng, for damages on the basis that
the medical staff at Steve Biko Academic
Hospital in Pretoria were
negligent in treating his injured right finger which resulted in the
amputation of the finger.
[2]
At the commencement
of the trial, by agreement between the parties, the issue of
liability was separated from the question of quantum.
I granted the
order in terms of rule 33(4) of the uniform rules of the High Court.
BACKGROUND
[3]
On the evening of
the 19
th
March 2007 at or around 21H30, the plaintiff sustained an injury to
his right index finger, after his finger got caught in a slamming
door at his house.
[4]
He attended at the
Unitas Hospital where he was seen by Dr Esterhysen at or around
21H50. Dr Esterhysen examined the plaintiff
and in the clinical
notes, noted that he had sustained a deep laceration of the right
index finger which spanned nearly the entire
circumference of the
finger, the finger was initially white, deformed and dislocated. He
reduced the finger and thereafter it
(finger) had a good capillary
refill (blood supply to the capillaries) and was warm and pink.
[
5] The plaintiff did
not have medical aid or funds to pay at Unitas Hospital which is a
private hospital. Dr Esterhysen personally
telephonically arranged
with Dr East of Steve Biko Academic Hospital for further treatment.
He handed the plaintiff two (2) envelopes
marked for the attention of
Dr East, one contained a referral letter and another set of X-rays.
[6] The plaintiff arrived at Steve Biko Hospital
at around 23H40 and after being admitted he was not attended to until
he was transferred
to the ward at or about 2H00.
[7] He was seen by Dr Coertze an orthopaedic
registrar in his final year and at 10H25, he performed an exploration
and debridement
procedure on the plaintiff’s right index finger
in order to “try and save the finger.” In his operative
note
Dr Coertze noted that the radial neurovascular bundle was severe
with a loss of ±1cm and the ulna neurovascular bundle was
intact but bruised. He also noted that the capillary refill of the
finger was better (after the operation). He also noted that
“if
dead amputation”. He did not attempt any revascularisation of
the damaged right index finger.
[8] The day after the operation i.e. 21 March
2007, Mr Van Der Merwe complained of a discoloured (blue) right
finger at 05:50 during
morning rounds. According to a doctor’s
note on 21 March 2007 at 05:50, it was found that the right index
finger had changed
colour from the previous afternoon. There was no
sensation on the tip of finger. In the nursing progress report it is
specifically
noted that at 00:30 on 21 March 2007 that the
plaintiff’s right hand’s fingers were not swollen and
were moving well.
Thereafter at 03:45 the nurse noted that the
plaintiff right index finger was turning blue Dr Kock was notified
and she saw the
plaintiff at 05:45.
[
9] The finger became
progressively worse and with the plaintiff in constant pain. Dr East
eventually saw him on the 23
rd
March 2007 and amputated him.
[10] The plaintiff’s case is that at no
stage from the time of his admission until the time of the first
operation on the
20
th
March 2007 at 10h25 was he ever advised by any medical practitioner
that if his finger was to be saved, the operation had to be
performed
within the first six hours of the injury. Further alternatively the
plaintiff avers that the medical staff at Steve
Biko Academic
Hospital, failed to inform him that they did not have the necessary
theatre facilities at that time to perform the
operation and
consequently failed to inform him that if he wanted the operation
done within that period he should consider alternative
hospitals in
the neighbourhood, i.e Kalafong Hospital, Pretoria West Hospital,
Medunsa Hospital or Chris-Hani Baragwanath Hospital
in Soweto.
[
11] The plaintiff
states that the defendant negligently and in breach of contract
through its servants or agents failed to treat
him with the
necessary skill as result of which sepsis developed in the right
index finger which resulted in the distraction of
the soft tissue in
the injury and finally the amputation thereof. In the amended plea
filed during the hearing and prior to the
closing of the plaintiff
case the following allegations are made:
6.1
“If
as alleged by the defendant, the medical staff at the Steve Biko
Academic hospital were too busy to timeously attend to
the plaintiff
and operate timeously on his injured right index finger, they should
have informed him that it was imperative to
operate on his finger
within six hours from the time of injury, that they would not be able
to operate on him within that time
and that if he wanted to have an
operation be done on his finger within six hour period he should
consider going to another hospital”.
6.2
“They
failed to engage a duly qualified and experienced specialist vascular
surgeon” or a duly qualified and experienced
orthopaedic
surgeon versed in hand surgery”.
[12] The defendant denied all allegations of negligence.
DISPUTE BETWEEN THE PARTIES
[13] At issue between the parties and the focus of
the argument was whether the defendant in breach of the contract
negligently
failed
to treat the plaintiff
within the first six (6) hours of the injury, thus resulting in the
amputation of the right finger
EVIDENCE OF THE PLAINTIFF
[14] The plaintiff testified
that he is a builder, mechanic and does handy work and confirmed that
he attended Unitas hospital at 21H30 and arrived at Steve
Biko
Academic hospital at 23H40 after being referred by Dr Esterhysen, who
gave him two (2) envelopes marked for the attention
of Dr East, one
containing the referral letter and another his X-rays.
[15] Van Der Merwe testified that he told the
medical staff at the Emergency department that he has been referred
to Dr East but
he was told that Dr East was busy with other
operations. He also enquired on few occasions as to the availability
of Dr East and
he was again told that he (Dr East) was still busy in
theatre. His unchallenged evidence is that he was only seen by the
doctor
at 10H00 the following morning.
[16] At no stage was he ever advised by any
medical practitioner that if the finger was going to be saved, the
golden hours within
which it could be done was within the first six
(6) hours of the injury and neither was he informed that the medical
personnel
at the Steve Biko Academic Hospital and the available
theatres did not render it possible to perform such operation within
the
period and that if he wanted such an operation performed he
should consider going to other hospitals nearby.
[17] Professor Biddulph, a specialist hand
surgeon, who has performed the specialised surgery necessary to
revascularise an injured
finger such as the plaintiff gave evidence
in support of the plaintiff. His evidence was that there was an
unacceptable delay
of about eleven (11) hours before the finger was
operated and that if the operation had been performed within the six
(6) hour
period there was a chance that the finger could be saved.
In his report he conceded that there was an undue delay in performing
the operation unless there were compelling reasons such as the
availability of the surgical expertise, theatre facilities and
anaesthetists. It was further his evidence that if a theatre was not
available or the operation could not be performed timeously,
the
plaintiff should have been advised that if he wanted his finger to be
saved, he had to act within the golden period of six
(6) hours and
sought help from other hospitals.
[18] During cross examination he conceded that
when he prepared his report, he had not been furnished with the
Unitas documents/clinical
records written by Dr Esterhysen.
According to him these documents were furnished to him two (2) days
before the trial.
[19] Based on these documents which indic
ated
that on admission, at Unitas, the plaintiff’s finger was pink
and warm, he stated that the plaintiff should not have
lost his
finger because, the condition of the finger after Dr Esterhysen had
reduced it, showed a good blood flow and there was
a 75% chance of
saving the finger which the plaintiff could use though stiff and not
fully functional.
[20] Dr Serfontein, a partner in the practice
where Dr Esterhysen was partner before she emigrated to Australia in
1959, gave evidence
and confirmed that the Unitas documents are the
clinical notes of Dr Esterhysen. She gave evidence about the
procedure used at
the practice when a patient is referred to another
hospital or doctor. She produced a referral note which in terms of
their standard
practice is produced after the referring doctor has
spoken to the doctor to whom the patient is referred and the latter
doctor
has agreed to accept the patient. Cross examination of this
witness did not advance the defendant’s case. Her evidence
was
unchallenged.
[2
1] In the light of the
fact that Dr Esterhysen was not available to give evidence, the
plaintiff acting in terms of the provisions
of Section 34(1) of the
Civil Proceedings and Evidence Act 25 of 1965 (CPEA) submitted an
affidavit by Dr Esterhysen wherein he
confirmed the correctness of
his clinical notes referred to in evidence by Dr Serfontein.
[22
] It was rightly
submitted on behalf of the plaintiff that the notes were completed
contemporaneously on the 19 March 2007 when
he examined the
plaintiff. Dr Esterhysen stated that after he had reduced the
plaintiff’s finger and had established a good
blood flow to the
distal part of the finger with good capillary refill resulting in the
finger being warm and pink, he discussed
the plaintiff’s
condition with Dr Thiart, an orthopaedic surgeon on call at Unitas
Hospital with a view to have an open reduction
and internal fixation
to be performed on the finger. Dr Thiart could not proceed with the
operation because the plaintiff did
not have any funds to pay for the
costs of a private hospital, hence the referral to Dr East. In his
affidavit he also confirmed
that he was the author of the referral
letter marked for the attention of Dr East.
[23
] Counsel for the
plaintiff submitted that the affidavit was admissible as evidence
because the clinical notes were accurate and
made contemporaneously
and that Dr Esterhysen did not conceal or misrepresent the facts, I
agree. The affidavit in essence confirmed
the Unitas clinical
records which Dr Serfontein identified as being that of Dr
Esterhysen. Although Mr Motau raised objection
to the affidavit and
the Unitas documents, he did not submit any evidence to contradict
same. Consequently it is my view that
the objection is misplaced and
that the affidavit fulfills all the requirements of Section 34(1) of
Civil Proceedings and Evidence
Act.
EVIDENCE OF THE DEFENDANT
[2
4] In support of its
case, the defendant called Dr Le Roux to give expert evidence on its
behalf as well as Dr Coertze and Dr East
who performed an open
reduction and debridement operation and an amputation of the
plaintiff’s right index finger on the
20 March 2007 and 23
March 2007 respectively.
[2
5] Dr Coertze saw the
plaintiff on the 20 March 2007 at 10h00 and spoke to the plaintiff
about the need to operate on his finger
in an attempt to “try
and save the finger”. He advised the plaintiff that “if
the finger was dead” after
the operation, amputation would be
inevitable. Dr East performed the amputation on the 23 March 2007.
Although he testified that
he had no recollection about speaking to
Dr Esterhysen relating to the subsequent transfer of the plaintiff to
the Steve Biko Academic
Hospital, he did not deny that such a
telephone call could have been made. He gave evidence that on the
night in question, he
was busy with seven (7) emergency operations
until 05h00 the next morning, having started at 20h00, the previous
night. He said
there were three theatres at that time, namely
Orthopaedic, obstetrics and general trauma theatre (or cardio
theatre). The obstetric
theatre was not supposed to be occupied. The
other two theatres were busy and there was no theatre available to
accommodate the
plaintiff.
[2
6] He conceded during
cross examination that in the event of an emergency, he could call a
consultant orthopaedic surgeon who was
on standby to assist him. He
also conceded that surgeons in theatre rooms are able to take calls
during short breaks to attend
to emergency situations. He did not
contact the consultant or refer the plaintiff to another hospital
because according to him
there was no threat to life or limb.
Neither did he during the break, inform the plaintiff to consider
other hospitals if he wanted
to save his finger.
[27] Dr Le Roux, a specialist vascular surgeon who
has never performed a revascularisation of the vessels of the hand
operation
was of the view that vascular injury with injury on both
sides is extremely difficult to repair because with this type of
injury
the vessels occlude afterwards. He further stated that it is
difficult to make a decision or finding about the viability of a
finger based on the clinical assessment without being objectively
measured by way of instruments such as the pulse oximetry or the
Doppler flow. He opined that there was little capillary refill on
admission.
[28
] According to him
the finger could eventually die after four to six hours. Immediate
intervention could never have saved the finger.
He agreed with
Professor Biddulph that revascularisation was not attempted in South
Africa due to its modicum of success and with
10% chances of recovery
if successful. He testified further that if the plaintiff had been
taken timeously to the theatre an open
reduction operation which was
done by Dr Coertze as opposed to a revascularisation would have been
done, this is particularly so
because in South Africa
revascularisation of the digits is not done because it could make the
finger worse by trying a bypass,
hence such operation was not
attempted.
[29
] He opined further
that availability of theatre was always a problem in provincial
hospitals and stood by his earlier report that
no negligence could be
attributed to the medical staff at Steve Biko Academic Hospital even
after the Unitas document.
[30
] This is the
conspectus of the evidence which I must evaluate. The test to be
applied in an action for damages alleged to have
been caused by the
defendants negligence has been stated in two decided cases of the
Supreme Court of Appeals in
Groenewald v
Groenewald 1998 (2) SA at 1112G-J
the
court said the following:
“In
delictual claims of the nature involved in the present case two
separate questions arise:
Was the defendant at fault?
For what consequences caused to the plaintiff in consequence of
the defendant’s conduct is the defendant liable in damages
to
the plaintiff?
For the purpose of answering the first question
the defendant would be held to be at fault as long as he intended to
cause harm
to the plaintiff, even if did not intend that the
consequences of such conduct would be to cause the kind of harm
actually suffered
by the plaintiff or harm of that general nature.
He would also be held to be at fault if a reasonable person in the
position of
the defendant would have realised that harm to the
plaintiff might be caused by such conduct even if he would not have
realised
that the consequences of that conduct would be to cause the
plaintiff the very harm she actually suffered or harm of that general
nature”.
In Sea Harvest Corporation (Pty) Ltd v Duncan
Dock Cold Storage (Pty) Ltd 2000(1) SA 827 (SCA) at 838I-839C, Scott
JA writing for
the majority of the court
said the following:
[21] A formula for determining negligence which has been quoted
with approval and applied by this Court time without measure is that
enunciated by Holmes JA in Kruger v Cotzee
1966 SA 428(a)
at 430E-F
it reads:
“For the purpose of liability culpa arises if-
a diligent paterfamilias in the position of the defendant-
would foresee the reasonable possibility of his conduct injuring
another in his person or property and causing him patrimonial
loss;
and
would take reasonable steps to guard against
such occur
rence; and
(b) the defendant failed to take such steps.”
[31
] In the light of the
above approaches and having regard to the present matter, two main
questions need to be considered
31.1
whether there was
negligence on the part of the medical staff at the Steve Biko
Academic Hospital who treated the plaintiff injury
to his right index
finger;
31.2
whether such
negligence caused or contributed to the loss of the right index
finger(i.e. amputation).
[32] The plaintiff’s action as formulated in
the particulars of claim is based on contract, it being a term of the
agreement
between the parties that the defendant’s medical
staff would treat and render such care, skill and expertise to the
plaintiff,
as could reasonably be expected from medical staff in the
circumstances. The plaintiff contends that it was a term of the
agreement
that the defendant’s medical staff would not act
negligently in their treatment and management of the plaintiff.
[33
] Mr Stroh for the
plaintiff submitted that this case revolves around the determination
of the probable progression of the plaintiff’s
right index
finger after it had been injured by him at approximately 21h30. He
argued that according to Dr Esterhysen, on admission,
the finger was
initially white but after reduction there was a good capillary refill
and the finger become warm and pink and plaintiff
at that time would
move his finger.
[34
] He submitted that
on the available evidence, Dr Coertze also noted in his operation
report that after the operation which he has
performed on the 20
March 2007 at 10h25 the finger’s capillary refill was better
than prior to the operation, thus criticizing
a note in the documents
of Steve Biko Academic Hospital made on the 20 March 2007 to the
effect that there was a blue index finger.
[35
] He contended
further that if the finger was blue as contended by the defendant, Dr
Coertze would not have considered any operation
on the 20 March 2007
because he stated that “if dead amputate” a colour blue
is an indication of an almost dead finger.
He argued that the good
or better capillary refill which was established by Dr Coertze during
the operation negate the fact that
it was dead but an improved colour
of the finger hence the operation.
[36
] Mr Stroh further
submitted that on the probabilities Dr East was informed about the
condition of the plaintiff particularly that
he had a good capillary
refill and that the operation had to be performed timeously to save
the finger and if Dr East was busy,
he should have arranged with
other doctors particularly the consultant who was on standby or Dr
Kitshoff to attend the plaintiff.
Alternatively not agreed to accept
the referral from Dr Esterhysen.
[37
] He argued that the
defendant through its agents or servants were negligent because the
plaintiff was not informed that he could
not be attended to timeously
and was also not informed that he should consider other hospitals
since the defendant agents or servants
were busy. To attend to the
plaintiff after 11 hours counsel contends, was conduct consistent
with negligence. He argued that
the conduct of Dr East fell short of
a reasonable man because having agreed to see and treat the
plaintiff, Dr East did not consider
it urgent to see the plaintiff or
at least refer him to another doctor or hospital for immediate
treatment.
[38
] Finally relying on
the evidence of Professor Biddulph, he submitted that the
probabilities are that the finger was still viable
when he attended
Steve Biko Academic Hospital and if the compelling reasons stated by
Professor Biddulph were present, at best
for the defendant was to
refer the plaintiff to other hospitals or inform him that the
hospital will not be able to treat him so
that he can make an
election. Failure to do so, counsel contended constitutes breach of
the agreement and negligence and that
the delay in attending to his
finger caused the amputation.
[39
] In support of his
argument, he referred me to the unreported judgment of Gorven J in
TANYA LEIGH BUNGE N.O. v MEC FOR HEALTH,
KWAZULU NATAL AND OTHERS
delivered on
the 8
th
October 2009. The ratio of this judgment is to effect, that the
hospital and/or doctors are obliged to warn the patient of the
seriousness and potential consequences of the patient’s
condition and in the event of them unable to perform the diagnosis
and care to
advise the patient
accordingly
. (my emphasis)
[40] He urged upon me to consider the evidence of
Professor Biddulph above that of Dr Le Roux because the latter had
never performed
a revascularisation of the vessels of the hand
operation and his evidence was not based on experience but on what he
learnt and
read on the subject.
[41
] Mr Motau on the new
ground alleged by the plaintiff of failure on the part of the
defendant to make alternative arrangement, submitted
that the
plaintiff failed to show:
that there were alternative hospitals which the plaintiff could have
considered
that such hospitals have available staff and theatre facilities to
perform the operation
that if the operation had been performed, the finger could have been
saved
Consequently he argued that
plaintiff
has failed to discharge the onus of establishing any negligence or
breach of agreement on the part of the defendant.
[42
] Mr Motau also
submitted that this new ground is undermined by the fact that it was
never raised by Professor Biddulph in his
report to found liability.
because in his report Professor Biddulph opined that the absence of
surgical expertise, unavailability
of theatres are compelling reasons
justifying the delay and excluding liability.
[43
] He argued further
that it is not enough for the plaintiff to say he was not afforded an
opportunity to make an election to found
liability without indicating
by way of evidence that the alternative hospitals actually had
theatre facilities available to treat
him.
[44
] He submitted that
it was improbable for Dr East to accept the call to treat the
plaintiff when he knew that he was busy with 7
operations. He argued
further that following the evidence of Dr East, the submission by the
plaintiff that he should have been
referred to other hospitals is
unsustainable because these hospitals were equally busy like the
Steve Biko Academic Hospital and
the plaintiff failed to discharge
the onus that on the day in question they could have treated him
promptly.
[45
] He urged upon me to
reject the evidence of Professor Biddulph because in his initial
report and before being provided with the
Unitas documents, he
concluded that no negligence could be attributed to the actions of
the defendant’s servants notwithstanding
the compelling reasons
mentioned in his report and the delay.
[46
] He submitted that
the evidence of Dr Le Roux, that the finger could have been amputated
even if he had been seen earlier should
be preferred because both
experts were ad idem that revascularisation is a daunting task and
never attempted in South Africa.
In particular urged me to accept Dr
Le Roux’s evidence, that due to the nature of the injury, the
nerves and vessels were
damaged thus the plaintiff was always a
candidate for amputation.
[47
] I accept that Dr
Esterhysen, after consulting with the plaintiff, he found good
capillary refill and the finger was warm and pink
and thereafter, he
telephonically contacted Dr East at Steve Biko Academic Hospital and
the latter agreed to accept the referral
from him. I also accept as
correct the probabilities that Dr East was told about the condition
of the plaintiff and that given
his condition his finger required
immediate or urgent attention. Dr East in his evidence when asked
about the telephone call and
referral letter did not deny it save
stating that he has no recollection of the call. I accordingly find
that the call was made
to him and accepted the referral.
[48] I do not think that Dr Esterhysen, given the
plaintiff’s condition, would have referred him to Dr East
without any prior
discussion. The objective facts reveals that the
necessary call was made to Dr East and he accepted the referral,
hence the plaintiff
was directly referred to him together with the
two letters marked for his attention.
[49
] I fail to
understand why Dr East accepted the referral when he knew that he
will be busy with seven (7) operations. At best for
him he should
have informed Dr Esterhysen or the plaintiff about his busy schedule.
Again and assuming that it was not possible
for him to treat the
plaintiff, he should have made the necessary arrangements with other
doctors to treat him given his tight
work schedule. This is
especially so because on his evidence, he conceded that there was an
orthopaedic consultant who was on
standby for emergency situations.
If the latter was also not available, at best for him in the
circumstances would have been to
advise the plaintiff to seek help at
alternative hospitals. To accept the urgent referral and not deal
with it or make alternative
arrangement is to my mind negligent.
[5
0] I accept that
plaintiff arrived at Steve Biko Academic Hospital with a good
capillary refill. To delay and only take him to
the theatre the next
day at 10h25 is unacceptable. I agree with Professor Biddulph that
if the operation had been done within
the golden six hours, there was
a chance that the finger could be saved. Dr Coertze when he operated
on him the next day said
his sole purpose was to “try and save
the finger”, he repeated that in evidence in this court. In my
view if the operation
could not achieve any real purpose as the
defendant seem to suggest, I fail to appreciate why Dr Coertze
performed the operation.
Quite clearly, he knew or was alive to the
fact that the finger stood a chance of survival.
[51
] I accept that even
though revascularisation in South Africa is a daunting task and not
attempted in South Africa, if the plaintiff
had been informed at
Steve Biko Academic Hospital about it, he could have made alternative
arrangements. To treat him the way
the defendant’s agents did
and make him wait for eleven (11) hours before being operated is
totally unacceptable.
[52] I accept Professor Biddulph opinion that, the
plaintiff after the operation would not have acquired full use of his
hand but
as a labourer, mechanic and handyman, he could still use the
hand.
[53
] It is trite law
that a patient in a hospital is entitled to be treated with due and
proper care and skill. The degree of care
and skill that is required
is that which a reasonable practitioner would ordinarily have
exercised in South Africa under similar
circumstances.
[54
] The standard of
care, skill and diligence exhibited by a medical practitioner must be
in accordance with the test of reasonableness
which has clearly been
set out in two important decisions of the Supreme Court of Appeal,
Mitchell v Dixon
and
Van Wyk v Lewis.
In
this regard Chief Justice Innes set out the legal principle relating
to the standard of care, skill and diligence exhibited by
a medical
practitioner as follows in
Van Wyk
Lewis:
“
It was pointed out by this court, in
MITCHELL v DIXON
(1914 AD at 525)
that
‘a medical practitioner is not expected to bring to bear upon
the case entrusted to him the highest possible degree of
professional
skill, but he is bound to employ reasonable skill and care’ 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.
The
evidence of qualified surgeons or physicians is of the greatest
assistance in estimating that general level.”
[55
] It is cold comfort
for the defendant to allege that the plaintiff should have proved
that there were hospitals in the vicinity
with theatre facilities
available to take him. To adopt such an approach would be tantamount
to placing an onerous duty on the
plaintiff. Every right thinking
member of society who has been referred to a hospital by a doctor
expects to be treated promptly
with a respect and dignity.
[56
] I find that if it
was not possible for the defendant or its agents to treat the
plaintiff within the six (6) golden hours referred
to by Professor
Biddulph, they should have advised him so that he can make an
election. It is unacceptable for the defendant to
“shrug its
shoulder” and allege that since doctors were all busy with no
theatre facilities available, nothing could
be done to help the
plaintiff. The plaintiff was referred to Dr East. In my view Dr
East was informed and knew about the plaintiff’s
medical
condition which required immediate attention. To make him wait for
eleven (11) hours is not conduct of a reasonable practitioner
and
constitutes negligence. This inexplicable and unreasonable delay
ultimately caused the finger to be amputated.
[5
7] As to costs it was
submitted on behalf of the plaintiff that the services of senior
counsel was necessary. The defendant objected
and argued that the
mater was neither complex nor novel and that it did not warrant the
services of senior counsel. I do not agree.
In my view, the services
of senior counsel was warranted in this matter. I will accordingly
allow it.
[58] I therefore conclude that on balance of probabilities, the
plaintiff has succeeded in discharging the onus of proving negligence
on the part of the defendant.
In the circumstances I make the following order:
The defendant is
declared liable for any damages suffered by the plaintiff arising
out of his amputation following an incident on the 19 March
2007.
The defendant is ordered to pay the plaintiff’s costs thus far
such costs to include:
those occasioned by the employment of senior counsel; and
the reasonable taxable qualifying and reservation fees of the
plaintiff’s expert, Professor S Biddulph.
____________________________
RS MATHOPO
JUDGE OF THE HIGH COURT
Appearances:
For the Plaintiff : Adv. J STROH SC
Instructed by : Swart Redelinghys Nel & Partners
For the Defendant : Adv. T. MOTAU
Instructed by : The State Attorney Johannesburg
Date of hearing : 19 February 2010
Date of Judgment : 11 March 2010