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[2010] ZAGPPHC 301
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Brits v B Braun Medical (EDMS) BPK (17666/2005) [2010] ZAGPPHC 301 (10 February 2010)
IN THE HIGH COURT
OF SOUTH AFRICA
(NORTH GAUTENG.
PRETORIA)
CASE
NO 17666/2005
DATE:
10 FEBRUARY 2010
CHARLOTTE MARIA
BRITS
........................................................
PLAINTIFF
And
B BRAUN MEDICAL
(EDMS) BPK
........................................
DEFENDANT
JUDGMENT
SITHOLE AJ
(A) INTRODUCTION
[1] On 26 May 2005
the plaintiff instituted an action In this Court against the
defendant for damages in the amount of R516 193
74 ansing from a
personal injury allegedly suffered by her as a result of the surgical
implantation of two pins, one after the
other in her knee The
plaintiff is a 78 year old lady and the defendant is a South African
company which imports, sells and or
distributes a product called ‘the
Huckstep nail" to hospitals and surgeons for use in orthopaedic
surgery I shall refer
to this product as "the pin'
[2] The defendant
raised a special plea of prescription in respect of the first pin. In
terms of a pre-trial minute of a Rule 37
conference held on
8 May 2007, the
parties agreed to separate the defendant’s special plea (to
which the plaintiff replicated) from the rest
of the issues in terms
of Uniform Rule 33(4). These issues would be postponed sine die and
only the special plea is set down for
separate adjudication.
(B) THE FACTUAL
BACKGROUND
[3] On or about
April 2001 and at Union Hospital in Alberton, the plaintiff underwent
a surgical operation during which a surgeon
called Dr Dave Barnes
removed her septic knee-prosthesis and implanted a pin to effect an
arthrodesis of her knee, which is a recognised
function of such pin.
[4] Sometime during
October 2001 the said pin got broken while it was in situ in
plaintiffs knee. Soon thereafter Dr Dave Barnes
surgically removed
the broken pin at South Rand Hospital in Johannesburg and replaced it
with a new, second pin, this time surgically
implanted by means of
screws.
[5] On 29 May 2002
it was discovered and confirmed in a letter to plaintiffs attorneys
that the first pin had broken as a result
of a crack in the metal of
which it was made.
[6] Sometime during
March 2003 the second pin, with which the first had been replaced,
also got broken. The plaintiff alleges that
the second pin also broke
as a result of a crack in the metal of which it was manufactured.
[7] As a result of
the above occurrence, on or about June 2003 one Dr Charles Latenbach
of Milpark Hospital, Johannesburg, surgically
removed the broken
second pin and replaced it with a special fixator which was
specifically made for the plaintiff.
[8] The issue of
prescription relates only to the plaintiffs case in respect of the
first pin, in that the defendant, who bears
the onus of proof,
contends that the plaintiff’s action had to be instituted
during October 2004 (ie before the 9th or at
the latest 17 October
2004) to avoid that action from becoming prescribed.
[9] The plaintiff,
on the other hand, contends that if anything, prescription started
running on 29 May 2002, that is, on the date
on which plaintiffs
attorneys were informed of the crack in the metal of the pin by the
SABS affiliated company called Test-House,
and that summons was
issued timeously on 26 May 2005, that is, three days before the
prescription ran out.
(C) THE ISSUE TO
BE DECIDED BY THE COURT
[10] It is clear
from the foregoing factual background that this matter involves a
special plea of prescription in a delictual action.
The question
which, therefore, has to be determined by this Court is the precise
date on which the period of prescription in respect
of the plaintiffs
claim began running.
(B) THE EVIDENCE
[11] Counsel for the
plaintiff, Mr B P Geach SC, handed up the following documents at the
inception of the trial:
Exhibit A1 - a
pre-trial minute Exhibit A2 - defendant’s pre-trial agenda
Exhibit A3 - plaintiff’s response to the defendant’s
pre-trial agenda.
Exhibit B -
plaintiff’s bundle in respect of the special plea Exhibit C -
defendant’s trial bundle
[12] The plaintiff
was thereupon called to take the witness stand to testify for
herself.
She testified that
she is 77 years old having been born on 28 December 1929; that she
knows that this case concerns a pin in her
knee; that the pin was
inserted into her knee in April 2001 and that in October 2001 it
broke; that she does not know why it got
broken; that a second pin
was inserted to replace the broken one but it also broke; that it is
almost four years ago that the second
pin broke and yet she does not
know why it did so.
[13] Under
cross-examination by counsel for the defendant, Mr E J van Vuuren,
plaintiff admitted that before the first pin was implanted
in her
knee she had had fourteen operations on her leg; that in casu she has
been assisted by her daughter Charlotte Willemse;
that in October
2001 her daughter spoke to doctors about the broken pin and that she
knew that she has a claim against the defendants.
Upon being asked by
the Court how she knew that the pin is broken, she replied that she
heard a clapping sound and thereafter she
could not step on her foot
and that before that happened she could stand on her feet.
[14] The next
witness for the plaintiff was Mrs Elsie Magdalena Elizabeth
Kruger-Willemse. Her testimony is briefly that: she is
an attorney by
profession and that she is married to the plaintiffs grandson; during
2001 and 2002 she assisted the plaintiff with
her case about the
first broken pin; by then she was a candidate attorney at the legal
firm Wentzel, Viljoen & Swart Attorneys;
she confirmed all the
correspondence in exhibit B; she first ascertained whether plaintiff
has a claim in respect of the first
broken pin; she sent the broken
pin to the SABS for testing after it had been removed and replaced;
the defendants’ attorneys
were Lindsay Keller & Partners
and one Mr Weideman of that firm denied liability for the broken pin;
the firm Lindsay Keller
& Partners was, however, prepared to make
a 50% contribution towards the costs of having the broken pin tested;
it was only
on 29 May 2002 that a report of the SABS was sent to her
informing her about the cause of the breakage; she determined the
cause
of action for plaintiff’s claim after she had seen the
SABS report, that is, after 29 May 2002 and 30 June 2002.
[15] Upon
cross-examination she conceded that the SABS report is not that good.
It is a flimsy report, she said. She also admitted
that the plaintiff
knew that the pin is broken and the tests were in respect of the
first pin. She conceded that the reason why
the pin got broken is not
addressed in the SABS report; and that no agreement for the
interruption of prescription of plaintiff’s
claim was entered
into.
On being re-examined
by counsel for the plaintiff she confirmed that she has n objection
to the “flimsy” report of the
SABS which refers to “’n
kraak in die metaal van die pen” because only one metal pin was
sent in by her for testing.
[16] That was the
plaintiff’s case and thereupon defendant decided to close its
case as well, without leading the evidence
of any witness. Argument
ensued, with the onus resting on the defendant.
(E) THE
APPLICABLE LAW
[17] The law which
is applicable to the above set of facts is the
Prescription Act 68 of
1969
, in particular
section 12
thereof which states that:
“When
prescription begins to run
(1) Subject to the
provisions of ss (2) and (3), prescription shall commence to run as
soon as the debt is due.
(2) If the debtor
wilfully prevents the creditor from coming to know of the existence
of the debt, prescription shall not commence
to run until the
creditor becomes aware of the existence of the debt.
(3) A debt shall not
be deemed to be due until the creditor has knowledge of the identity
of the debtor and of the facts from which
the debt arises. Provided
that a creditor shall be deemed to have such knowledge if he could
have acquired it by exercising reasonable
care.”
Apart from the above
statutory enactment, the relevant case law is also applicable in this
matter.
(F) CONTENTIONS
AND SUBMISSIONS ON BEHALF OF THE DEFENDANT
[18] With the
Court’s leave, counsel for defendant Mr E J van Vuuren, handed
up heads of argument and argued, inter alia,
that:
18.1 It is apparent
from the defendant’s complaints form and the plaintiff’s
attorney’s letter of 8 November 2001
that from the onset the
plaintiff certainly knew the identity of the debtor;
18.2 What remains to
be considered is whether the plaintiff had knowledge of the facts
from which the debt arises as required by
section 12(3)
of the
Prescription Act;
>
18.3 As early as
October 2001 the plaintiff knew that the pin had broken. That she
further knew that, in consequence, she required
medical treatment
which, inter alia, included surgical replacement of the pin - her
damages.
18.4 The material
fact in casu relates to the knowledge of the fact that the first pin
broke. That this fact was known to the plaintiff:
18.4.1 By 9 October
2001 when she consulted Dr Barnes and when X-rays were taken of the
fractured pin.
18.4.2 The aforesaid
fact was further confirmed when the broken pin was removed and
replaced on 17 October 2001.
18.5 Further
confirmation appears from the fact that a complaint was made against
the defendant.
18.6 The Court was
referred to the following case law for the meaning of the phrase
“cause of action” for purposes of
prescription:
18.6.1 Mckenzie v
Farmers’ Co-operative Meat Industries Ltd 1922 AD 16 at 23;
18.6.2 Evins v
Shield Insurance Co Ltd 1980 2 SA 814 (A) 838D-F; and
18.6.3 Truter and
Another v Deysel 2006 4 SA 168 (SCA) 174H-175A.
18.7 The running of
prescription was not delayed because the plaintiff waited for an
expert’s report which in itself did not
support her case.
18.8 Opinion
evidence as to why the nail broke relates to the reasons in the
expert’s opinion as to why the factual circumstances
(the
broken pin) exist.
18.9 Moreover,
plaintiff’s Test House report does not even lay “blame”
at defendant’s door, which, even
if it did, would merely
constitute evidence of an expert’s views that the defendant was
negligent.
18.10 The plaintiff
neither discovered nor presented any support for her contention as
pleaded that the pin broke as a result of
a crack in the metal from
which it was manufactured.
18.11 In short, the
plaintiff knew and believed, since October 2001 that:
18.11.1 The
defendant had supplied the pin that was used in her arthrodesis;
18.11.2 The pin
broke; and
18.11.3 She, as a
consequence, sustained damages which for instance included her
medical expenses.
18.12 Thus on
analysis of the facts of the matter, the plaintiffs claim had
prescribed. Reference is made to the Truter case, supra,
in support
of the proposition that plaintiffs case has prescribed.
18.13 The defendant
accordingly submits that its special plea of prescription ought to be
upheld with costs.
(G) CONTENTIONS
AND SUBMISSIONS ON BEHALF OF THE PLAINTIFF
[19] Counsel for the
plaintiff Mr B Geach contended and submitted that the defendant’s
special plea of prescription ought
to be dismissed with costs for the
following reasons:
19.1 Whereas the
date of the Text House report is 29 May 2002, the date on which
defendant’s summons was served is 26 May
2005. It follows that
such summons was served timeously within three years. This being the
case, did prescription start on 25 October
2001 or did it start on
29 May 2002? He
asked the rhetoric question.
19.2 That
section 12
of the
Prescription Act states
that prescription starts “as
soon as the debt is due” etcetera. The submission is made that
it was only when the Test
House report was released that the
plaintiff could be said to have gained knowledge from which the debt
arose.
19.3 The Court was
referred to the headnotes in the case Mulungu v Bowring Barclays &
Associates (Pty) Ltd and Another
1990 3 SA 694
(SWA) 697B.
19.4 Counsel
concluded that only one pin was sent to the SABS for testing and that
it had a crack on it, which could have been a
factory fault.
[20] In his reply,
counsel for the defendant submitted that there is no dispute about
the broken pin and that the Test House report
does not put a date to
the cracking of the particular pin.
(H) EVIDENTIARY
ANALYSIS AND FINDINGS
[21] It is common
cause that:
21.1 In April 2001
and at Union Hospital in Alberton the plaintiff had a pin implanted
in her knee to effect an arthrodesis of her
knee;
21.2 In October 2001
the said pin got broken while it was in situ in plaintiffs knee and
had to be removed and replaced with another
at South Rand Hospital in
Johannesburg, which second one also got broken at a later stage;
21.3 The plaintiff,
duly assisted by her grandson’s wife, went to see her attorneys
(Wentzel Viljoen & Swart) in Pretoria
in order to have the said
pin tested by the South African Bureau of Standards (SABS);
21.4 On January 2002
plaintiff’s attorneys wrote a letter to a Mr A P J Marais of
the SABS, Pretoria, which letter reads as
follows:
“IS: TOETS VAN
STAALPEN
Ons versoek u
hiermee om vermelde pen te onderwerp aan metalurgiese toetse. Ons
verlang onder andere verslae oor die volgende:
1. Moontlike
produksiefoute;
2. Installasiefoute;
3. Misbruik deur
Klient;
4. Moontlike redes
vir breek van pen;
5. Impak wat so
staalpen kan hanteer;
6. Materiaal waarvan
die staalpen vervaardig is;
7. Materiaal waarvan
die staalpen vervaardig behoort te word en
8. Enige verdere
verbandhoudende inligting
Ons vertrou u vind
bovermelde in orde en ontvang ons so gou doenlik ‘n verslag van
u.”
21.5 On 21 February
2002 the plaintiffs attorneys wrote a letter to the plaintiff giving
her a progress report as follows:
“Mevrou,
IS: USELF/B BRAUN
MEDICAL (PTY) LTD Met verwysing na bovermelde aangeleentheid doen ons
graag as volg verslag aan u.
Op 28 Januarie 2002
het ons die pen na die SABS geneem en opdrag gegee dat die pen
onderwerp word aan ‘n volledige stel toetse.
Meneer Danie
Weideman het ons intussen in kennis gestel dat B BRAUN Medical bereid
is om ‘n 50% bydrae tot die koste van
die toetse te maak.
Ons is tans in
afwagting van die verslae vanaf die SABS en stel u in kennis daarvan
sodra ons dit tot ons beskikking het.
Ons vertrou u vind
bovermelde in orde en kan u ons kontak indien u enige verdere navrae
het.”
21.6 In a letter
dated 29 May 2002, Mr A P J Marais, Manager: building materials,
packaging and fabrication technology of Test House,
an
SABS-affiliated company, reported to plaintiffs attorneys as follows
on the pin in question:
RE: BROKEN MEDICAL
INSERT With reference to, your letter dated 24th January 2002 the
following information
1 A medical insert
was received by TEST HOUSE. The insert was sealed in a medical paper
bag. (See photo 1)
2 The two pieces
when fit together does not form a straight line. (See photo 2)
3 The contact
surface between the two pieces show polished surfaces, which indicate
that the two pieces moved independently. (See
photo3)
4 When the two
pieces are placed on a horizontal surface a gap is observed on one
side. This indicates that material was lost in
the time the insert
was installed. (See photo4)
5 Damage or marks
were observed on both pieces (See photo 5).
6 No tensile stress
fractures were observed. The fracture surface is flat and straight.
The breaking of the
insert was because of a crack in the metal.
It is not possible
to determine what caused the crack in the devise.
Please contact us if
you have any questions at 012 428 7034 or maraisap@sabs.co.za.”
21.7 On 26 May 2005,
subsequent to receiving the Test House report, the plaintiff issued a
summons against the defendant for damages
arising from a personal
injury suffered by her as a result of the surgical implantation of
the two pins, one after the other, which
pins got broken in her knee.
21.8 The defendant
raised the special plea of prescription in respect of the first pin,
which is the subject matter of this decision.
21.9 The onus to
establish the defence of prescription rests on the defendant. [See
Mulungu v Bowring Barclays & Associates
(Pty) Ltd and Another
1990 3 SA 694
(SWA) 697B] [See also Gericke v Sack
1978 1 SA 821
(A)
827]
21.10 The
prescription issue relates only to the plaintiffs case in respect of
the first pin and that the remainder of the plaintiffs
case be
postponed sine die.
[22] Whereas the
defendant, on the one hand, contends that the plaintiffs action had
to be instituted during October 2004 (ie before
the 9th or at least
on 17 October 2004) to avoid her action from becoming prescribed, the
plaintiff contends that her action was
instituted timeously within
three years on 26 May 2005 after having come to know of the Test
House report of the SABS on 29 May
2002.
[23] The question
that falls to be answered by the Court therefore, is: when, in
respect of the first pin, did extinctive prescription
commence to
run? To answer this question one would, of necessity, have to read
and understand the provisions of the relevant section
of the
Prescription Act 68 of 1969
and to take into account the fact that
the plaintiffs claim is subject to a three year extinctive period of
prescription.
[24]
Section 12
thereof reads as follows:
“When
prescription begins to run -
(1) Subject to the
provisions of ss (2) and (3), prescription shall commence to run as
soon as the debt is due.
(2) If the debtor
wilfully prevents the creditor from coming to know of the existence
of the debt, prescription shall not commence
to run until the
creditor becomes aware of the existence of the debt.
(3) A debt shall not
be deemed to be due until the creditor has knowledge of the identity
of the debtor and of the facts from which
the debt arises: Provided
that a creditor shall be deemed to have such knowledge if he could
have acquired it by exercising reasonable
care.” (Emphasis
added)
[25] In Truter and
Another v Deysel
[2006] ZASCA 16
;
2006 4 SA 168
, paras [11 ]-[16] at 173B-D and
174C-D, it was held that:
“Under
s 12
of
the Act prescription of a debt (which included a delictual debt)
began running when the debt became due and a debt became due
when the
creditor acquired knowledge of the facts from which the debt arose,
in other words, the debt became due when the creditor
acquired a
complete cause of action of the recovery of the debt or when the
entire set of facts upon which he relied to prove his
claim was in
place.”
[26] The question
arises, when did the plaintiff acquire knowledge of the facts from
which the debt arose? Evidence indicates that
as early as
on 17 October 2001
the plaintiff (duly assisted by her grandson’s wife, Mrs
Willemse, who described herself as her daughter)
had knowledge of the
identity of the debtor. This is clear from the Debtors SOP Complaint
form which was completed by Mrs Willemse
on her behalf.
Furthermore, in a
letter dated 8 November 2001 the plaintiff’s attorneys wrote a
letter to Mr Danie Weideman of the debtor’s
attorneys, which
letter is couched in the following terms:
“IS: MEV C.M.
BRITS / B BRAUN MEDICAL (PTY) LTD Bovermelde en ons skrywe van 26
Oktober verwys
Ons rig ‘n
vriendelike versoek aan u om so spoedig moontlik op gemelde skrywe te
reageer. Ons berig graag verder aan u dat
Mevrou Brits in die
tussentyd uit die hospitaal ontslaan is
Ons waardeur u
samewerking.”
Besides, the
plaintiff, under cross-examination admitted, inter alia, that in
October 2001 her daughter spoke to doctors about the
broken pin and
that she knew that she has a claim against the defendants.
[27] That being the
case, the next question begging for an answer is whether the
plaintiff had knowledge of the facts from which
the debt arose, as
required in
section 12(3)
of the
Prescription Act. In
her
evidence-in-chief the plaintiff testified that the first pin was
inserted into her knee in April 2001 and that in October 2001
it
broke and that she does not know why it got broken. This, in my
considered opinion, is indicative of the fact that in October
2001
the plaintiff had knowledge that the pin in question had broken. This
is why she sought medical treatment to have the pin
replaced.
Evidence of plaintiffs knowledge of the broken pin is also clear from
a radiological report dated
9 October 2001 and
compiled by Dr Antonet De La Rey. Such knowledge on the part of the
plaintiff was further confirmed when the
broken pin was removed and
replaced on 17 October 2001. The completion of the complaint form
referred to in paragraph 26, supra,
is also further evidence of the
knowledge of the fact that the first pin broke.
[28] In the Truter
case supra, in paragraph [19] at 174H-175B the Supreme Court of
Appeal held, further, that for purposes of prescription
“cause
of action” means every fact from which it is necessary for the
plaintiff to prove in order to succeed in his
claim. It does not
comprise every piece of evidence which is necessary to prove those
facts; that an expert opinion that certain
conduct has been negligent
is not itself a fact, but rather, evidence (see paragraph [20] at
175B).
[29] In casu
plaintiff knew from the time the first pin got broken that she had a
potential claim against the defendant. This is
clear from the answers
she gave during her cross-examination. Such knowledge was not
dependent on the Test House report by experts
of the SABS. Neither
was the running of prescription delayed because the plaintiff awaited
such report, which, in any event, is
not supportive of her case.
[30] The expert
opinion evidence, in casu, as to why the pin broke relates to the
reasons, in the opinion of an expert, as to why
the factual
circumstances (the broken pin) exist. Moreover, the Test House report
does not lay any blame whatsoever at the defendant’s
door. Had
it done so, it would, in any event, merely constitute evidence of an
expert’s opinion that the defendant is negligent
and not a
fact, as per authority of the Truter case, supra in paragraph [20] at
175B.
[31] Besides, a
conspectus of the pleadings, ie the plaintiff’s particulars of
claim, indicates that plaintiff has neither
discovered nor presented
any support for her contention, as pleaded, that the pin in question
broke as a result of a crack in the
metal of which it was fabricated.
[32] It was further
held in the Truter case, supra, in paragraph [21] at 175E-F that the
plaintiff in that case had not lacked capacity
to appreciate that a
wrong had been done to him, and the running of prescription could
therefore not be delayed on that ground.
If one applies this finding
to the present case, Mrs Brits had also not lacked capacity to
appreciate that a delictual wrong had
been done to her (even if she
was assisted by her grandson’s wife, Mrs Willemse). So,
prescription had to take its course
without let or hindrance.
[33] Again, in the
Truter case, supra, it was held further in paragraph [22] at
175G-175A, that in accordance with the “once
and for all”
rule a plaintiffs cause of action was complete as soon as he
sustained some damage, not only in respect of the
damage actually
sustained, but also in respect of any damage yet to be sustained. On
the authority of this finding, there is no
doubt in my mind that the
“once and for all” rule is equally operative, without
variation, in casu.
(I) CONCLUSION
AND ORDER
[34] In the light of
the foregoing evidentiary analysis and the applicable case law
(mainly the Truter case, supra) I am constrained
to arrive at the
ineluctable conclusion that, on the facts, the plaintiff had since
October 2001 had knowledge and was aware that:
34.1 The defendant
had supplied the pin which was used in an operation of the
debridement of her left knee joint and arthrodesis;
34.2 The said pin
broke in plaintiffs knee sometime in October 2001 and had to be
replaced;
34.3 The plaintiff
consequently sustained damages which included her medical expenses;
34 4 Plaintiffs
claim in respect of the pin in question prescnbed in October 2004,
which prescription started running in October
2001 as soon as she
acquired knowledge of the facts from which the debt arose and not
after knowing the contents of the Test House
report;
34.4 Accordingly the
defendant s special plea of prescription has to be upheld
(35) In the result,
the following order is hereby made the defendant's special plea of
prescription Is upheld with costs and the
plaintiff s case is
postponed sine die
ACTING JUDGE OF
THE NORTH GAUTENG HIGH COURT
I agree
JUDGE OF THE
NORTH GAUTENG HIGH COURT
Heard on 16 May
2007
For the
Plaintiff' Adv 8 Geach
Instructed
bv: Messrs Wentzel Viljoen & Swart Pretona
For the
Defendant Adv E J van Vuuren
Instructed
bv Messrs Macintosh Cross &
Farquharson,
Pretoria Date of Judgment: