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[2012] ZASCA 23
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Minister of Correctional Services v Lee (316/11) [2012] ZASCA 23; 2012 (1) SACR 492 (SCA); 2012 (3) SA 617 (SCA); [2012] 2 All SA 586 (SCA) (23 March 2012)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 316/11
Reportable
In the matter between:
THE MINISTER OF CORRECTIONAL
SERVICES
….............
Appellant
and
DUDLEY LEE
…..........................................................................
Respondent
Neutral citation:
The
Minister of Correctional Services v Lee
(316/11)
[2012] ZASCA 23
(23 March 2012)
Coram:
MPATI P, NAVSA,
NUGENT and SNYDERS JJA and NDITA AJA
Heard:
23 FEBRUARY 2012
Delivered: 23 MARCH 2012
Summary:
Delict –
prison authorities failing to take reasonable measures to prevent
contagion by tuberculosis – whether state
liable –
causation – not established that infection would have been
avoided but for negligent omission.
___________________________________________________________
ORDER
___________________________________________________________
On appeal from: Western Cape High
Court, Cape Town (De Swardt AJ sitting as court of first instance):
1 The appeal is upheld. The order
of the court below is set aside and substituted with an order
absolving the defendant from the
instance.
2 Each party will pay its own
costs both in this court and in the court below.
___________________________________________________________
JUDGMENT
___________________________________________________________
NUGENT JA (MPATI P, NAVSA and
SNYDERS JJA and NDITA AJA CONCURRING)
[1] The respondent in this
appeal, Mr Dudley Lee, was arrested in November 1999 on charges of,
amongst others, counterfeiting, fraud
and money laundering. He was
released on bail in February 2000 but arrested again in April 2000.
He remained in prison for more
than four years, during the course of
which he appeared in court about seventy times, before he was
acquitted and released in September
2004.
[2] Mr Lee was 54 years old and
in reasonable health when he entered prison. After he had been in
prison for a little more than
three years it was discovered that he
had pulmonary tuberculosis. The condition was treated and he was
declared to be cured after
about six months.
[3] After his release from prison
Mr Lee sued the state, nominally represented by the Minister of
Correctional Services, for damages
in the Western Cape High Court.
Essentially, he alleged that the prison authorities had failed to
take adequate precautions to
protect him against contracting
tuberculosis, that he had contracted the illness in consequence of
their omission, and that the
omission violated his right to
protection of his physical integrity under the common law, the
Correctional Services Act 8 of 1959,
and the Constitution.
[4] Notwithstanding the form in
which the claim was pleaded it was advanced at the trial, and before
us, as a delictual claim in
the ordinary course. At the trial the
monetary amount of the damages alleged to have been suffered was held
over for later determination,
and the trial proceeded only on the
question whether the state was liable for any such damages. The trial
court (De Swardt AJ)
held that the state was indeed liable and made a
declaration to that effect.
1
The Minister now appeals with the
leave of that court.
[5] Before turning to the issues
that arise in this case it is convenient to provide a brief
explanation of pulmonary tuberculosis,
and an account of the
circumstances in which Mr Lee came to discover that he had contracted
it.
[6] The explanation is taken
largely from the evidence of Professor Paul van Helden, a research
scientist qualified in chemistry,
biochemistry and microbiology, who
has researched the disease for many years. The relevant part of his
evidence is conveniently
encapsulated in his expert summary, which
was expanded upon orally at the trial, and much of what follows is
taken from that document.
[7] Pulmonary tuberculosis is
caused by the micro-organism Mycobacterium tuberculosis. Transmission
in humans occurs by inhalation
of the organism. Once inhaled it will
in some cases be destroyed by the host, in other cases it will take
hold but be kept in check,
in which case it might remain dormant for
many years and then be triggered into multiplying and causing active
disease, or it will
immediately take hold, multiply, and manifest in
active disease.
[8] A person who has been
infected with the organism will not transmit it unless it has
progressed to active disease. Organisms
might then be transmitted in
droplets of sputum that are carried through the air when they are
expelled from the lungs, for example
by coughing or spitting. The
carrier will continue to be contagious until the concentration of
organisms is reduced sufficiently
by medical treatment, which
generally occurs about a fortnight after treatment begins.
[9] Active disease develops
progressively. As it advances it presents itself in the form of
persistent coughing, shortness of breath
and chest pain, loss of
appetite and loss of weight, general malaise, and night sweats and
fever. The common diagnostic tool is
a sputum test. A sample of
sputum is expelled from the lungs then cultured and examined for the
presence of the organism. While
the presence of organisms confirms
the presence of the disease the contrary is not necessarily true. A
negative test confirms the
absence of organisms from the sample, but
the sample might not be representative of the host, which means that
a negative result
is not confirmation of the absence of the disease.
[10] South Africa has a high
incidence of tuberculosis – one of the highest in the world. It
has been estimated that more
than half the population has been
infected by the organism at one time or another; though only in
relatively few cases will infection
progress to active disease. Dank
and poorly ventilated living conditions, close contact with those who
have active disease, and
an immune system compromised by poor
nutrition or other causes, are all conducive to transmission of the
disease.
[11] It comes as no surprise,
then, that prisons in this country present a favourable environment
for contracting tuberculosis.
Many prisoners will have entered prison
from socio-economic conditions in which there is a high incidence of
the disease; many
will not have had ready access to medical treatment
and be contagious; many will lack the acumen to detect the presence
of the
disease and take steps to have it treated; poorly ventilated
cells provide favourable conditions for expelled organisms to hover
in the atmosphere for long periods of time; notorious congestion,
with prisoners being confined in close contact for as much as
23
hours every day, provides ideal conditions for transmission; open
coughing, and spitting of mucus that, in some conditions,
is capable
of remaining infectious for three months or more, is not uncommon.
[12] Initially Mr Lee was housed
in a communal cell but for most of his incarceration he was housed in
a cell designed for occupation
by one person, but because of
congestion, most often he would share the cell with either one or two
other prisoners. He was not
aware of ever having shared the cell with
a prisoner who had tuberculosis. Nonetheless, isolation from other
prisoners at all times,
even if one is housed in a single cell, is
simply not possible. For example, at times prisoners would be
gathered together for
exercise, in which case, said Mr Lee, they
would be crowded together in a passage for some time, many prisoners
coughing and spitting,
before being released into the exercise yard,
which was itself congested. They would also be collected together in
a holding cell
prior to being transported for court appearances, then
packed ‘like sardines’ into a police van and transported
to
the courts, where they would pass the day in congested court
cells. On their return they would usually be placed together in a
holding cell, overnight, before returning to their allocated cells.
One can, without difficulty, envisage other situations in which
transmission might easily occur.
[13] Towards the middle of 2003
Mr Lee found himself to be coughing heavily and losing weight. He was
conscious of the risk of contracting
tuberculosis and he asked for a
sputum test to be done. The result was negative. But Mr Lee continued
coughing and he asked for
a second test. The result of that test was
also negative. Meanwhile, he had developed an inguinal hernia, which
he attributed to
stress induced by heavy coughing.
[14] He was sent to Victoria
hospital on 27 May 2003, where the hernia was surgically repaired,
and he returned to prison on 30
May 2003. At Victoria hospital, in
preparation for the operation, his chest and abdomen were x-rayed,
which revealed the presence
of tuberculosis.
[15] On his return to prison Mr
Lee was admitted to the prison hospital to recuperate from the
operation. There he was placed in
a communal cell, together with a
floating population of about eight or nine other prisoners. A sputum
test was ordered on 2 June
2003. The x-ray plates and a report were
received from Victoria hospital on 3 June 2003. The sputum test
returned a preliminary
positive result on 9 June 2003, which was
confirmed on 18 June 2003 once the sample had been cultured. On 10
June 2003 antibiotic
treatment was commenced, which continued for
about six months.
[16] It was put to Mr Lee
repeatedly in cross-examination that he remained in the prison
hospital throughout that period. On each
occasion Mr Lee repeated
that, while his recollection was hazy, he was sure that he had
remained in the hospital only until the
sutures were removed, which
was for a period of about ten days, and he then returned to his
section. The cross-examination was
misleading – though I do not
suggest that that was deliberate – because counsel had misread
Mr Lee’s written
medical record. His medical record reflects
that Mr Lee was discharged from the prison hospital and returned to
his section on
10 June 2003, the same day that treatment commenced.
That accords with Mr Lee’s recollection, and with the prison
record
of his movements from time to time, and with the
probabilities. The records reflect that he returned to the prison
hospital in
September 2003, for an unrelated condition. It might be
that he then remained there until January 2004 but that is another
matter.
[17] Effective management of
tuberculosis is relatively straightforward, according to the
evidence, at least in theory. What it
calls for is screening and
diagnosis to detect the disease, isolation of a carrier for so long
as he or she is contagious (generally
about two weeks after treatment
commences), and antibiotic treatment, generally for about six months.
But such a management regime
will be effective only if it is adhered
to strictly and consistently, which requires adequate support staff.
[18] The authorities at Pollsmoor
prison were pertinently aware of the risk to prisoners of contracting
tuberculosis. A considerable
part of the trial was taken up with
evidence advanced on behalf of the Minister purporting to show that
adequate systems were in
place in the prison to manage the disease.
The evidence advanced in that regard was that of Mr Gertse, a
qualified professional
nurse with further qualifications in primary
health care, who had worked at the prison hospital at the relevant
time, and that
of Professor van Helden.
[19] I do not think independent
weight can be attached to the evidence of Professor van Helden on the
adequacy of health-care at
the prison. The opinions he expressed fell
outside his field of expertise; he had never visited the prison; and
he had no direct
knowledge of the facts, founding his opinions solely
on what he had been told by Mr Gertse.
[20] Mr Gertse spoke of
procedures that were said to have existed at Pollsmoor prison for
screening prisoners, and of facilities
that existed for isolation,
and of a system that existed for administering medication. Much of
that evidence was placed in issue
by two medical practitioners called
on behalf of Mr Lee, who had worked at the prison over a number of
years. Both spoke forcefully
of the poor state of health-care at
Pollsmoor prison at the relevant time.
[21] Dr Theron is a
well-qualified and long experienced medical practitioner. Early in
his career he worked for a while at a hospital
in KwaZulu-Natal under
the guidance of Dr Anthony Barker, who was renowned for his
diagnosis, treatment and management of tuberculosis.
From 1985 he was
a part-time District Surgeon (the title later changed to Clinical
Forensic Practitioner) and his duties included
attending at Pollsmoor
prison at night. From 1997 he commenced doing three two-hour sessions
a week.
[22] He said that from about 1998
he saw a gradual and continuing breakdown of health-care in the
prison, including the management
of tuberculosis, largely as a result
of insufficient qualified health-care personnel. His evidence
reflects active campaigning
on his part over some years for
corrective intervention but to little avail. In 1999, for example, he
presented a report to the
prison authorities on the poor state of
health-care in the prison, and pleaded for intervention. Later he
reported his concerns
to the Inspecting Judge,
2
and
then to a member of the parliamentary portfolio committee, but little
came of his exhortations. He said that from time to time
there were
interventions, but they were perfunctory and short-lived. What he
received for his efforts instead was legal proceedings
bought against
him by the authorities and his association with the prison came to an
end.
[23] Dr Craven was a general
medical practitioner who worked at the prison for five hours each
morning five days a week, from 1988
to September 2003, when he, too,
came into conflict with the authorities over the state of
health-care. His experience of health-care
at Pollsmoor prison was
consistent with that of Dr Theron. Campaigning on his part for
corrective intervention also came to nought.
Mr Muller, a
professional nurse who was formerly employed at the prison to
co-ordinate health-care, gave evidence to similar effect.
[24] The court below was
impressed by Dr Theron, Dr Craven and Mr Muller, whose evidence she
accepted as being honest and reliable.
She said that Mr Gertse was
not an impressive witness, and she rejected his evidence so far as it
was contradicted by others.
[25] I do not find it necessary
to go through the evidence of the witnesses in any detail. Any
suggestion that an effective programme
for managing tuberculosis
existed, at least so far as the isolation of contagious prisoners was
concerned, is belied by four events
that are revealed coincidentally
by the evidence.
[26] The first arises from the
ordinary practice adopted when prisoners were received from the
courts, which would generally be
in the late afternoon. Mr Gertse
said that upon their arrival the prisoners would be screened, but I
think the evidence discloses
that the screening was superficial, and
then placed overnight in a communal holding cell. The following
morning they would be examined
by the medical staff to assess their
state of health. That information would be recorded and they would
then be sent off to their
respective cells.
[27] An example of a document
recording the procedure was used by Mr Gertse by way of explanation.
That document records the examination
on 1 October 2003 of 29
prisoners who had been received at the prison. Two prisoners were
recorded as having tuberculosis. They
were sent off to a cell. Four
of the prisoners who were recorded as having no adverse medical
conditions were sent to the same
cell. (The other prisoners were
allocated to other cells).
[28] From that one may deduce
that on the evening of 31 September two prisoners with tuberculosis,
which must have been active or
it would not have been reported, were
confined in a cell with at least 27 other prisoners overnight.
Perhaps the prison authorities
were not then aware that the two
prisoners had tuberculosis, but if not, they certainly became aware
of that the following day.
That notwithstanding, at least four other
prisoners were then confined with them in the same cell. Perhaps
other prisoners also
occupied that cell but that is not disclosed by
the evidence.
[29] The other three events
concerned Mr Lee himself. I have pointed out that Mr Lee was
discovered to have tuberculosis at Victoria
hospital prior to his
operation, probably on 23 May 2003. By then he had been displaying
symptoms of the disease for some time.
When he returned to prison the
authorities, knowing his condition, placed him in a communal hospital
cell with a floating population
of about eight or nine other
prisoners who did not have the disease.
[30] If there had been any doubt
that he had active disease, it was dispelled by 10 June 2003, by
which time the preliminary result
of the sputum test had been
received, and a treatment regimen had commenced. Notwithstanding that
he could be expected to remain
contagious for a further two weeks, he
was returned to his cell in the section, and continued his ordinary
life. For at least two
weeks one other prisoner, and perhaps two, was
confined with him in the cell, for up to 23 hours a day if the
ordinary practice
was followed.
[31] To the knowledge of the
authorities, Mr Lee could have been expected to be contagious until
at least about 24 June 2003. According
to the prison record of his
movements that was produced in evidence on behalf of the Minister, Mr
Lee was nonetheless sent off
by the prison authorities to attend
court on 19 June 2003, which would ordinarily have entailed being
closely confined with other
prisoners in a police van, then spending
a day with other prisoners in a court cell, and then being returned
in the van, possibly
with prisoners who were being taken to prison
for the first time. There is nothing to suggest that the excursion on
that occasion
did not take its usual course.
[32] There is no reason to think
that these were isolated lapses. If they happened on those occasions
how often, one might ask,
did they happen before and after? They
provide strong corroboration for the evidence of Dr Theron, Dr Craven
and Mr Muller, and
that of Mr Lee himself, that any management system
that might once have existed was in disarray. Indeed, in a moment of
disarming
candour, Mr Gertse conceded that what he had described was
the theory, but that was not how things had actually worked.
[33] The three elements of a
delictual claim that is founded on negligence are well established –
a legal duty in the circumstances
to conform to the standard of the
reasonable person, conduct that falls short of that standard, and
loss consequent upon that conduct.
3
[34] Turning to the first
element, negligent conduct will attract liability only if it is
wrongful – by which is meant that
considerations of public and
legal policy require that the negligent act or omission should be
held actionable for damages.
4
In
Pilkington
Brothers
5
this court cautioned that ‘[o]ur
law adopts a conservative approach to the extension of remedies under
the
lex Aquilia
’
.
6
While that remains true today,
the question whether the law should recognise an action must
‘necessarily now be informed by
the norms and values of our
society as they have been embodied in the 1996 Constitution.’
7
[35] The learned judge in the
court below held that negligent failure on the part of the
authorities to have reasonably adequate
precautions against
contagion, which was the foundation of the claim, ought indeed to be
categorised as wrongful, and I agree.
[36] A person who is imprisoned
is delivered into the absolute power of the state and loses his or
her autonomy. A civilised and
humane society demands that when the
state takes away the autonomy of an individual by imprisonment it
must assume the obligation
to see to the physical welfare of its
prisoner. We are such a society and we recognise that obligation in
various legal instruments.
One is
s 12(1)
of the
Correctional
Services Act 111 of 1998
, which obliges the prison authorities to
‘provide, within its available resources, adequate health care
services, based on
the principles of primary care, in order to allow
every inmate [of a prison] to lead a healthy life’. The
obligation is also
inherent in the right given to all prisoners by s
35(2)(e) of the Constitution to ‘conditions of detention that
are consistent
with human dignity’.
[37] Three reasons were advanced
on behalf of the Minister why those public duties should not
translate into a private action for
damages when they are not
fulfilled. The first was that to do so would impose an inordinate
burden on the state. Secondly, it was
submitted that to recognise a
claim for damages will expose the state to indeterminate liability.
Thirdly, it was submitted that
there are means other than a claim for
damages that enable prisoners to vindicate their rights. In my view
none of those bear scrutiny.
[38] The state already bears a
statutory and constitutional duty to see to the physical welfare of
prisoners so far as that is reasonably
possible. To recognise a
private action for damages adds nothing to that burden: it merely
recognises a particular consequence
if the obligation is not
fulfilled. It ought not to be overlooked that recognition of a
delictual remedy will not impose obligations
on the state that will
be too onerous to fulfil. What is required is no more than reasonable
conduct on its part.
[39] Limitless or indeterminate
liability raises its head in relation to claims for pure economic
loss, in which it is not possible
to determine where the consequences
of the negligent act might end. An example of that, taken from
English cases, is found in
Caparo
Industries Plc v Dickman
.
8
The question in that case was
whether an auditor owed a duty of care (in the English law sense,
which incorporates what in our law
is the element of wrongfulness) to
an investor who had relied upon the audited accounts of a company
that were alleged to be misleading.
One of the factors relied upon
for holding that the auditor did not owe such a duty was the
potential for indeterminate liability.
Lord Oliver of Aylmerton said
the following:
9
‘
As I have
already mentioned, it is almost always foreseeable that someone,
somewhere and in some circumstances, may choose to alter
his position
upon the faith of the accuracy of a statement or report which comes
to his attention and it is always foreseeable
that a report –
even a confidential report – may come to be communicated to
persons other than the original or intended
recipient. To apply as a
test of liability only the foreseeability of possible damage without
some further control would be to
create a liability wholly indefinite
in area, duration and amount and would open up a limitless vista of
uninsurable risk for the
professional man.’
[40] We are dealing with a claim
for physical injury, which does not have the same potential. That the
negligent conduct might give
rise to claims from a significant number
of persons who are injured in the same way is not the same as
indeterminate liability.
Indeed, what is often called ‘product’
or ‘manufacturers’ liability exposes the manufacturer of
mass-produced
items to potential liability at the hands of a large
number of consumers, but this court nonetheless recognised such a
claim in
Ciba-Geigy
(Pty) Ltd v Lushof Farms (Pty) Ltd.
10
[41] As for the submission that
other means are available to prisoners to vindicate their rights I
think that is cynical. The prospect
of political support being
mobilised by prisoners to vindicate their rights, or of proceedings
being brought by prisoners for a
mandamus, which were the means
suggested, is remote.
[42] Prisoners are amongst the
most vulnerable in our society to the failure of the state to meet
its constitutional and statutory
obligations. It seems to me that
there is every reason why the law should recognise a claim for
damages to vindicate their rights.
To find otherwise would altogether
negate those rights.
[43]
Turning
to the question of negligence the classic test was articulated by
Holmes JA in
Kruger v
Coetzee
,
11
and has since been consistently
followed. In short, a person is negligent if he or she fails to take
reasonable steps to guard against
harm occurring if the harm is
reasonably foreseeable and a reasonable person in his or her position
would have taken those steps.
[44] The prison authorities were
well aware that prisoners might contract tuberculosis if reasonable
steps were not taken to prevent
it. I think I have made it clear
earlier in this judgment that the evidence establishes convincingly
that to the extent that any
system existed at all for the proper
management of the disease its application in practice was at best
sporadic and in at least
some respects effectively non-existent. I
return to the matter later in this judgment but for the moment I need
only say that I
agree with the court below that the prison
authorities failed to maintain an adequate system for management of
the disease and
in that respect they were negligent.
[45] That leaves the matter of
causation, which is more problematic.
[46] To succeed in an action for
damages a plaintiff must establish that it is probable that the
negligent conduct caused the harm.
It was said by this court in
Minister of Police v
Skosana
12
that the test in that regard is
‘whether but for the negligent act or omission of the defendant
the event giving rise to the
harm in question would have occurred’.
[47] Where the negligent conduct
is a positive act the application of that test is relatively
straightforward. Generally one would
mentally eliminate the negligent
act and assess whether the harm would then have occurred. But the
application of the test is more
problematic where the conduct takes
the form of an omission. In that case the defendant, by definition,
was obliged to initiate
reasonable action, and the question then is
what would have happened if that had occurred?
[48] That was explained by
Corbett JA in
Siman &
Co (Pty) Ltd v Barclays National Bank Ltd:
13
‘
In order to
apply [the test for factual causation] one must make a hypothetical
enquiry as to what probably would have happened
but for the unlawful
act or omission of the defendant. In some instances this enquiry may
be satisfactorily conducted merely by
mentally eliminating the
unlawful conduct of the defendant and asking whether, the remaining
circumstances being the same, the
event causing harm to plaintiff
would have occurred or not. If it would, then the unlawful conduct of
the defendant was not a cause
in fact of this event; but if it would
not have so occurred, then it may be taken that the defendant’s
unlawful act was such
a cause. This process of mental elimination may
be applied with complete logic to a straightforward positive act
which is wholly
unlawful. So, to take a very simple example, where A
has unlawfully shot and killed B, the test may be applied by simply
asking
whether in the event of A not having fired the unlawful shot
(ie by a process of elimination) B would have died. In many
instances,
however, the enquiry requires the substitution of a
hypothetical course of lawful conduct for the unlawful conduct of the
defendant
and the posing of the question as to whether in such case
the event causing harm to the plaintiff would have occurred or not; a
positive answer to this question establishing that the defendant’s
unlawful conduct was not a factual cause and a negative
one that it
was a factual cause. This is so in particular where the unlawful
conduct of the defendant takes the form of a negligent
omission. In
The
Law of South Africa
(
ibid
para 48) it is suggested that the elimination process must be applied
in the case of a positive act and the substitution process
in the
case of an omission. This should not be regarded as an inflexible
rule. It is not always easy to draw the line between a
positive act
and an omission, but in any event there are cases involving a
positive act where the application of the but-for rule
requires the
hypothetical substitution of a lawful course of conduct (cf Prof A M
Honoré in 11
International
Encyclopaedia of Comparative Law
c 7 at 74-6). A straightforward example of this would be where the
driver of a vehicle is alleged to have negligently driven at
an
excessive speed and thereby caused a collision. In order to determine
whether there was factually a causal connection between
the driving
of the vehicle at an excessive speed and the collision it would be
necessary to ask the question whether the collision
would have been
avoided if the driver had been driving at a speed which was
reasonable in the circumstances. In other words, in
order to apply
the but-for test one would have to substitute a hypothetical positive
course of conduct for the actual positive
course of conduct.’
[49] That was said in a minority
judgment but it expresses no more than the logical application of
Skosana
and
not a principle of law. In any event it was repeated by the same
learned judge, in abbreviated form, and on that occasion writing
for
an unanimous court, in
International
Shipping Co (Pty) Ltd v Bentley.
14
There the learned judge said that
in determining the question of factual causation
‘…
one
must make a hypothetical enquiry as to what probably would have
happened but for the wrongful conduct of the defendant. This
enquiry
may involve the mental elimination of the wrongful conduct and the
substitution of a hypothetical course of lawful conduct
and the
posing of the question as to whether upon such an hypothesis
plaintiff’s loss would have ensued or not. If it would
in any
event have ensued, then the wrongful conduct was not a cause of the
plaintiff’s loss;
aliter,
if
it would not so have ensued. If the wrongful act is shown in this way
not to be a
causa
sine qua non
of
the loss suffered, then no legal liability can arise.’
15
[50] In considering the question
of causation the learned judge in the court below turned her
attention to whether Mr Lee had been
infected during the time he was
in prison, which the Minister had disputed. In support of that denial
the Minister placed store
upon the opinion of Professor van Helden
that Mr Lee was probably infected even before he was incarcerated,
and that the dormant
organism had then activated in prison, leading
to active disease. Much of his evidence was taken up with defending
that opinion,
which is unfortunate because in my view its foundation
is fallacious.
[51] The opinion expressed by
Professor van Helden was founded on no more than the prevalence of
tuberculosis, the suggestion being
that because a majority of people
who include Mr Lee have been infected with the organism at some time,
it is probable that Mr
Lee had been infected before he went to
prison.
[52] That a majority of people
within a particular group have been infected is no doubt of keen
interest to epidemiologists and
public health authorities but it
tells nothing of who the infected individuals are. The question in
this case is whether Mr Lee
was within the majority or within the
minority, not as a matter of statistical probability, but as a matter
of probable fact. The
court below was not misled by that fallacious
line of reasoning and found, as a probable fact, that Mr Lee
contracted tuberculosis
while he was in prison.
[53] Before us counsel for the
Minister did not pursue that line of fallacious reasoning and
correctly conceded that Mr Lee was
probably infected while he was
incarcerated, but he submitted that the matter does not end there. He
submitted that the evidence
does not exclude the possibility that Mr
Lee was infected in a police van while being taken to court, or in
the court cells, in
which case, so it was submitted, the prison
authorities were not responsible.
[54] If the prison authorities
send a prisoner off to court in a crowded police van, to pass the day
in a crowded court cell, when
they know, or ought reasonably to know,
that the prisoner is contagious, I cannot see why they would not bear
responsibility for
the consequences. But, countered counsel,
contagion might emanate from a prisoner who was not sent from the
prison, but who is
being taken to prison for the first time by the
returning van, which is true, but for reasons that will become
apparent I need
not deal with that possibility. I will assume in
favour of Mr Lee that he was probably infected by a prisoner who had
active tuberculosis
while under the control of the prison
authorities.
[55] Once having found that Mr
Lee was probably infected in prison the learned judge seems to have
considered that the causation
enquiry had been exhausted, because she
said nothing further on the issue. In that I think she fell into
error. The question was
not whether the incarceration caused the
harm, but whether it was caused by the negligent omission. Whether or
not he was infected
while incarcerated was a necessary but not an
exhaustive step in that enquiry. If he was not infected while
incarcerated then that
would obviously end the enquiry. But if he was
indeed infected while incarcerated the question still remains whether
he would have
been infected if there had been reasonable management
of the disease. Proof alone that reasonable precautions were not
taken to
avoid foreseeable harm, and that the harm occurred, does not
establish that the former caused the latter.
[56] Whether harm would have
occurred if reasonable action had been taken to avoid it entails a
two-stage enquiry of fact. First,
what would a reasonable person in
the position of the defendant have done to avoid the occurrence of
the harm? The second stage
of the enquiry, which is capable of being
decided only once the first has been answered, is whether the harm
would have been avoided
had that been done? The law does not demand
that a defendant must guarantee that foreseeable harm does not occur
– only that
he or she must take reasonable steps to avoid it.
Life has many hazards that will not be avoided even when reasonable
steps are
taken to do so.
[57] The question what ought
reasonably to have been done will usually be answered in the course
of determining whether the defendant
was negligent – because
his or her culpability cannot be evaluated without a standard first
being determined against which
to evaluate it – but that need
not always be so. In this case, for example, it cannot be gainsaid
that a consistent system
of some kind at least was required to screen
prisoners, isolate any that were found to be contagious, and
administer treatment.
I have already found that if any system existed
at all its application in practice was at best sporadic and in at
least some respects
non-existent. On any standard that falls short of
what ought reasonably to have been done. But while that failure on
any standard
is sufficient to find that the prison authorities were
negligent it is not sufficient for determining whether the harm was
caused
by the omission. What needs to be established in addition is
what the prison authorities ought to have done: only from there can
one proceed to the enquiry whether that would have prevented Mr Lee
being infected.
[58] In the course of her
reasoning on the issue of negligence the learned judge in the court
below expressed what ought to have
been done in generalised terms.
She said the following:
‘
It appears to
me that in the context of the maximum security prison at Pollsmoor
[reasonable measures] would translate into the
proper screening of
incoming prisoners, inclusive of a physical chest examination;
separating out those who had, or were suspected
of having TB, or who
were obviously under nourished and vulnerable to TB; the provision of
adequate nutrition to those who were
undernourished and otherwise
vulnerable to TB; regular and effective screening of the prisoner
population, inclusive of examinations
by means of X-Rays and/or
physical chest examinations by means of a stethoscope, to identify
possible TB infection; isolation of
infectious inmates and effective
implementation of the DOTS system over the prescribed period of time.
According to the
evidence given at the trial of the matter, staff shortages remained a
problem throughout the time of the plaintiff’s
incarceration.
In my view, a reasonable person in the defendant’s position
would have realised that adequate staffing was
the key to the
prevention and control of TB and would have taken steps to ameliorate
the staff shortage as a matter of some urgency.’
[59] All that is true but in each
case it begs the question what would have been reasonable. So, for
example, while proper screening
procedures for incoming prisoners are
no doubt required, that begs the question
what
procedures might reasonably be expected in a large and congested
prison. And while regular and effective screening of inmates
will
clearly reduce the risk of contagion, what is reasonably regular and
effective when applied to some 4 000 prisoners?
It might be
tempting to
answer those questions by saying that what ought
to have been done was everything that would have avoided tuberculosis
being transmitted
but that would be fallacious. I have already
indicated that the prison authorities are not required to guarantee
that transmission
will not occur: only to take reasonable steps to
prevent it.
[60] Many factors would need to
be balanced against one another in determining what might reasonably
be expected in a large prison,
quite apart from what constitutes
medical best-practice: the security demands of the prison; the
financial resources that are available
to the prison authorities;
generally accepted practice amongst prison authorities; the extent to
which trained personnel are available;
the space available for
isolation; the incidence of the disease; and other factors besides.
What the enquiry would amount to is
a substantial and complex
systemic enquiry. The scant evidence in this case goes nowhere
towards conducting that enquiry.
[61] But whatever enquiry might
be conducted in that regard it seems to me that Mr Lee confronts at
least one insuperable hurdle.
From the evidence before us it is
apparent that whatever management strategies might be put into place
there will always be a risk
of contagion if only because diagnosis is
necessarily a precursor to intervention, and the disease might often
be diagnosed only
well after the prisoner has become contagious. I do
not think the prison authorities can reasonably be expected to
examine some
4 000 prisoners with such regularity and
thoroughness that tuberculosis will always be detected before the
prisoner becomes
contagious. Self-reporting will necessarily be the
only means for its detection in many cases. Once more, Mr Lee himself
is an
example of the time that can elapse before the risk of
contagion is detected.
[62]
Mr Lee
was alive to the risk of contracting tuberculosis and sensitive to
the need for early diagnosis. That notwithstanding, he
had been
coughing heavily, and had begun to lose weight, symptoms of
progression of the disease, before he asked for a sputum test.
It
would have been at least a week or two before the result was returned
and then it was negative. Some time went by before he
asked for a
second test and once more at least a week or two must have passed
before another negative result was returned. It was
only
coincidentally that the presence of the disease was then diagnosed. I
would be hard-pressed to find that the prison authorities
ought
reasonably to have isolated him from other prisoners immediately he
reported his symptoms, and then kept him isolated even
though the
first test was negative, and continued to do so even when the second
test was negative, and continued to do so until
coincidentally the
disease was diagnosed. All that time there was a real risk that Mr
Lee was contagious, but yet he was in close
contact with at least the
prisoner with whom he shared a cell, and probably others at times. If
the prisoner with whom he had shared
his cell had contracted the
disease from Mr Lee it is difficult to see on what basis it could be
attributed to fault on the part
of the prison authorities.
[63] If that much time elapsed
before Mr Lee was diagnosed, so much more might it be expected to
occur, even when sputum tests are
immediately positive, where the
prisoner concerned is less well-informed, and perhaps even
indifferent to taking prompt action
to avoid transmission, which I
think can be expected of at least some among the prison population.
It is just as likely as not
that Mr Lee was infected by a prisoner
who the prison authorities could not reasonably have known was
contagious. I cannot see
that it is possible in those circumstances
to find it having been proved that the negligent omission caused the
infection.
[64] The difficulty that is faced
by Mr Lee is that he does not know the source of his infection. Had
he known its source it is
possible that he might have established a
causal link between his infection and specific negligent conduct on
the part of the prison
authorities. Instead he has found himself cast
back upon systemic omission. But in the absence of proof that
reasonable systemic
adequacy would have altogether eliminated the
risk of contagion, which would be a hard row to hoe, it cannot be
found that but
for the systemic omission he probably would not have
contracted the disease. On that ground I think that the claim ought
to have
failed.
[65] There remains the question
of where the costs should fall, which lies within the discretion of a
court. Ordinarily the costs
of litigation will follow the result but
the nature of the case and the conduct of the litigation are
considerations that might
call for a different order.
[66] Mr Lee has certainly had a
hard time of it. For four years he was imprisoned while the state
mustered its case against him
and then the state failed. Meanwhile Mr
Lee knew that he was at risk of contracting tuberculosis in a prison
where the health-care
regime was breaking down. When it occurred he
had to manipulate and cajole at times to ensure that he consistently
received medication,
conscious that he would suffer adverse
consequences if he failed to do so. He had good reason to feel
aggrieved when he left prison
but his troubles were not yet at an
end.
[67] When he vented his grievance
by suing the state he was met with a defence on every leg of his
claim. The state contested that
Mr Lee had been infected in prison
with no substantial grounds for doing so. It contested the
allegations of an inadequate health-care
regime when it must have
known that it was defending the indefensible. The failing regime had
been repeatedly reported by its medical
doctors at high level,
various reports on the situation had been circulated, newspapers had
reported the position, a report of
an inspector from the office of
the Inspecting Judge that had been prepared some four years before
the matter came to trial disclosed
that tuberculosis management was
virtually non-existent, and so on. Yet the state persisted in
contending that all had been well
at Pollsmoor and acknowledged no
responsibility towards Mr Lee at any time. By adopting that approach
the state forced Mr Lee into
a trial that endured for about three
weeks, in which he was compelled to take up the time of professional
men to prove what was
incontestable.
[68] Mr Lee set out to vindicate
an important statutory and constitutional right and has done so
substantially. It is true that
his claim has failed but only on a
narrow factual point. The state has important responsibilities to its
citizens. It might not
always be able to fulfill them but then it
ought properly to recognise where it has failed.
[69] I think it would be most
unjust if, in view of the nature of the rights that are in issue, and
the manner in which the litigation
was conducted by the state, Mr Lee
were to be called upon to pay the state’s costs, and I intend
to order accordingly.
[70] 1. The appeal is upheld. The
order of the court below is set aside and substituted with an order
absolving the defendant from
the instance.
2 Each party will pay its own
costs both in this court and in the court below.
_________________
R W NUGENT
JUDGE OF APPEAL
APPEARANCES:
For appellant: I Jamie SC
D Pillay
Instructed by:
State Attorney, Cape Town
State Attorney, Bloemfontein.
For respondents: M Bridgman
Instructed by:
Jonathan Cohen & Associates,
Cape Town
Matsepes, Bloemfontein.
1
Reported
as
Lee v Minister of Correctional Services
2011 (6) SA 564
(WCC).
2
Appointed
under
s 86
of the
Correctional Services Act 111 of 1998
.
3
See
the line of cases cited in
First National Bank of South Africa
Ltd v Duvenhage
2006 (5) SA 319
(SCA) amongst others.
4
Trustees,
Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd
2006
(3) SA 138
(SCA) paras 11-13 and cases cited.
Trustees,
Two Oceans Aquarium Trust v Kantey & Templer
, para 12.
5
Lillicrap,
Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd
1985
(1) SA 475
(A).
6
At
500D.
7
Minister
of Safety and Security v Van Duivenboden
2002 (6) SA 431
(SCA)
para 17.
8
Caparo
Industries Plc v Dickman
[1990] UKHL 2
;
1990 (2) AC 605
(HL).
9
At
643C-D.
10
Ciba-Geigy
(Pty) Ltd v Lushof Farms (Pty) Ltd
2002 (2) SA 447
(SCA).
11
Kruger
v Coetzee
1966 (2) SA 428
(A) at 430E-F.
12
Minister
of Police v Skosana
1977 (1) SA 31
(A) at 35C-D.
13
Siman
& Co (Pty) Ltd v Barclays National Bank Ltd
1984 (2) SA 888
(A) at 915B-H.
14
International
Shipping Co (Pty) Ltd v Bentley
1990 (1) SA 680 (A).
15
At
700F-H.