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[2016] ZAECPEHC 51
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Lotter v Member of the Executive Council, Department of Health, Eastern Cape and Another (1429/2010) [2016] ZAECPEHC 51 (20 September 2016)
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE LOCAL DIVISION, PORT
ELIZABETH
CASE NO: 1429/2010
Date heard: 6 September 2016
Delivered: 20 September 2016
NOT REPORTABLE
In the matter between
CASPER
LÖTTER
Applicant
and
MEMBER OF THE EXECUTIVE COUNCIL,
DEPARTMENT OF HEALTH, EASTERN
CAPE
First Respondent
THE MEDICAL SUPERINTENDENT,
LIVINGSTONE HOSPITAL, PORT
ELIZABETH
Second Respondent
JUDGMENT
GOOSEN, J.
1.
The
applicant seeks leave to appeal against this court’s judgment
delivered on 2 February 2016 in which the applicant’s
claim
against the respondents was dismissed with costs. The notice of
application sets out a number of grounds upon which leave
to appeal
is sought. They essentially fall into five categories, namely:
a) That this court erred by
“going beyond a Rule 37 agreement” that the exclusive
issue of informed consent was to be
determined.
b) That the court erred in
ruling that the respondents do not bear the onus to establish that
informed consent was not obtained.
c) That the court erred in
finding that the balance of probabilities favours the respondents’
version;
d) That the court erred in
making a finding of credibility against the applicant; and
e) That the court
misdirected itself in finding that negligence had not been proved.
2.
In
order to succeed in an application for leave to appeal the applicant
must, with reference to the trial court’s findings
of fact
and/or its application of the law to those facts, establish that
there is a reasonable prospect that an appeal court may
come to a
different conclusion and accordingly that the applicant enjoys
prospects of success on appeal.
3.
In
this application the applicant does not take issue with the court’s
exposition of the applicable legal principles to be
applied nor to
the application of those legal principles to the facts. This lack of
challenge is significant, insofar as it bears
upon some of the
grounds upon which leave to appeal is sought.
4.
The
parties conducted the trial before the trial court on the basis that
all of the applicant’s previously alleged grounds
of negligence
which were set out in the particulars of claim, were abandoned, with
one exception. The exception related to the
alleged failure by the
respondents to inform the applicant of possible complications which
may arise from the performance of the
surgical procedure so as to
enable him to give his informed consent to the operation. On the
pleadings, therefore, and at trial,
the issue of informed consent was
integrally bound up with an alleged breach of a duty to inform the
applicant.
5.
In
dealing with the distinct elements of the applicant’s delictual
claim i.e. unlawfulness and negligence, it was held in
favour of the
applicant that whereas the issue of consent relates to the
unlawfulness element, the negligence element may be established
on
the basis of the negligent breach of a duty to inform or warn a
patient of inherent risk, even in the absence of alleged negligent
conduct in the execution of the surgical procedure. It was on this
basis that the respondents’ argument that the case must
fail by
reason of the applicant’s abandonment of the grounds of
negligence, was rejected.
6.
In
the light of this finding, which is not challenged, the reference to
“transcending a Rule 37 agreement” is nonsensical.
The
abandonment of the pleaded grounds of negligence did not constitute
an agreement that negligence was not in issue. The very
retention of
paragraph 11.12 of the particulars of claim kept the issue alive
between the parties and required determination by
the court.
7.
The
acceptance, by the respondents, of the duty to begin leading evidence
also did not constitute an acceptance of the onus in relation
to the
disputed issues. The onus remained upon the applicant to prove that
the respondents’ conduct was both unlawful and
negligent, a
proposition accepted by the applicant in argument before this court
at the re-hearing of the matter. The question
of where the onus lay
was in any event not decisive in the matter and there is no
suggestion, made by the applicant, that he enjoys
any prospect of
success on the basis of this court’s treatment of the issue.
8.
The
applicant’s central challenge to the judgment is founded upon
this court’s treatment of the evidence tendered by
the parties
and the finding that the probabilities favour the version of the
respondent regarding both the ambit of the warnings
conveyed to the
applicant and the nature of the consent furnished by him.
9.
It
was submitted by the applicant that this court had erred in its
finding of credibility against him. The submission was that this
court could not make such findings since it was in no better position
than an appeal court having to determine the matter upon
a record of
evidence. That is of course indeed so. Importantly the applicant
could point to no specific misdirection or error upon
which an appeal
court would come to a different conclusion in relation to the
assessment of credibility of the applicant. In any
event, credibility
is of course not solely a function of observation of the witness to
assess demeanour. Demeanour, it should be
pointed out, has its own
well recognised limitations as a touchstone of credibility. This
court was required by the parties to
consider the evidence as
tendered, and to decide the central factual issue in dispute between
the parties. It did not have a prior
finding relating to credibility
upon which to base its assessment. It was required to consider the
evidence as presented by the
witnesses and to evaluate the evidence
of each of the witnesses in the context of the evidence as a whole.
It was required to consider
issues of credibility and reliability in
relation to the disputed factual issues.
10.
In
the circumstances the evidence of the parties took the form of a
mutually destructive version. In assessing the versions well
established legal principles were applied. It was not argued that the
court had erred in doing so.
11.
The
reasoning processes which was applied is set out in detail in the
judgment. Apart from a general assertion of alleged error,
the
applicant did not point to specific misdirections in relation to the
treatment of the evidence. In argument the applicant made
much of
what he described as efforts by counsel for the respondents having
“introduced falsehoods” into the evidence.
Such
ad
hominem
attacks were a feature of the
argument at the rehearing of the matter and the argument in this
application. They are entirely without
merit and to his credit
respondent’s counsel, rightly, did not respond to them.
12.
In
relation to the court’s treatment of the credibility of the
applicant as a witness, all that was said in argument before
me was
that this court was wrong in its treatment of the evidence. I need
not of course be persuaded that I am wrong. I need only
be satisfied
that another court may reasonably come to a different conclusion. For
the reasons that follow, I am not so satisfied.
13.
In
evaluating the plaintiff’s evidence it was necessary to
consider the assertion by him that he was not warned of any possible
consequences of the repair surgery and that had he been informed he
would not have consented, in the light of the evidence as a
whole.
Relevant also was the manner in which the applicant had formulated
his claim and how he dealt with this in his evidence,
in particular
under cross-examination. It is not necessary to set out again in this
judgment the evaluation of the applicant’s
evidence. During
argument before me the applicant advanced no specific criticism,
either of the reasoning adopted or the consequence.
Instead the
applicant contended that his abandonment of reliance upon the alleged
sequelae
of the
procedure was based on the difficulty of proving his claims. He in no
way addressed the fact that his particulars of claim
contained
assertions of fact which were demonstrated at trial to be false. This
demonstration, which is apparent from the record
of the proceedings,
was the foundation for this court’s assessment and adverse
finding in relation to the applicant’s
credibility. That
adverse finding bears upon the reliability of the applicant’s
evidence in relation to the warnings and
the consent and was weighed,
as it was required to be done, in the overall assessment of the
probabilities.
14.
I
am satisfied that there is no prospect that another court will come
to a different conclusion in that regard. I am also satisfied
that
there is no reasonable prospect that a court of appeal will come to a
different conclusion as to where the balance of probabilities
lie. In
the result it follows that the applicant’s application for
leave to appeal cannot succeed.
15.
I
make the following order:
The application for leave
to appeal is dismissed with costs.
_________________________________
G.
GOOSEN
JUDGE
OF THE HIGH COURT
Appearances:
Applicant
In person
For the Respondents
Adv. C. J. Mouton SC
Instructed by the State Attorney