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[2023] ZAECQBHC 25
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Morris v van Niekerk (1922/2018) [2023] ZAECQBHC 25 (25 April 2023)

IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, GQEBERHA)
Case
No.:  1922/2018
In
the matter between:
SHERILLEE
MORRIS
Plaintiff
and
DR
NICO VAN NIEKERK
Defendant
JUDGMENT
ZIETSMAN
AJ:
[1]
On 28
May 2015 the defendant, a specialist surgeon, performed a
laparoscopic repeat Nissen fundoplication
[1]
on the plaintiff, causing a near fatal injury to her supra-hepatic
inferior vena cava (“IVC”), and further complications.

The plaintiff, Ms Morris, instituted an action in this court against
the defendant for damages arising from the allegedly negligent

conduct of the defendant, Doctor Nico van Niekerk
[2]
The trial proceeded on the merits and quantum, but
during the course of the trial the parties reached agreement on the
quantum,
subject to this court finding in favour of the plaintiff.
The agreed amount is R2 160 548.00.
[3]
The defendant admitted the contract as well as the
duty of care which was in existence between the plaintiff and
himself.
[4]
The
plaintiff pleaded various grounds of negligence in her particulars of
claim.
[2]
The plaintiff’s
counsel,
[3]
in their opening
address and heads of argument, abridged the various grounds by
explaining that the succinct issues to be determined
are, whether the
defendant was negligent:
“
4.1.
in not submitting the plaintiff to adequate preoperative conservative
treatment, and in performing laparoscopic
repeat Nissen
fundoplication (“the redo surgery”) on the plaintiff in
the absence of adequate proof that said conservative
treatment
had/would have failed;
4.2.
in his planning and execution of the redo surgery;
4.3.
in his treatment, planning and execution of the further surgery in
respect of the plaintiff’s incarcerated
hernia on 7 June 2015;
4.4.
generally, with regard to his treatment of the plaintiff, by failing
to act with such professional skill
as is reasonable for a specialist
surgeon;
and
whether any of the above caused the plaintiff to suffer damages
”
.
[5]
These
four grounds involve an examination of the reasonableness of the
clinical judgments made by the defendant. This exercise occurs
in a
mainly uncontested background, mostly because of the defendant’s
admissions in his plea and also by reason of his failure
to
testify.
[4]
[6]
The factual context follows.
[7]
It is
common cause that during 2009 the defendant submitted the plaintiff
for an endoscopy
[5]
. Considering
the results of the endoscopy, the defendant performed a laparoscopic
Nissen fundoplication procedure
[6]
(“the primary procedure”) on the plaintiff.
[8]
About three years later, in 2012, the plaintiff
again consulted the defendant, complaining of heartburn. The
defendant undertook
another endoscopy, the result being that he
observed grade A oesophagitis and a three centimetre recurrent hiatus
hernia.
[9]
Again
three years later, on 12 May 2015, the plaintiff consulted the
defendant with complaints of heartburn, reflux and nocturnal

awakening. It is common cause that the defendant did not refer the
plaintiff to a gastroenterologist after the consultation, for
further
investigations and a possible regime of conservative treatment such
as proton pump inhibitors (“PPI”), and
he also did not
submit her for any other tests, such as an endoscopy, barium contrast
study, a Barium meal 24 pH or any other motility
studies,
[7]
at any time, prior to taking the decision to perform the redo surgery
on 28 May 2015.
[10]
The defendant then, on 28 May 2015, without any of
the mentioned further investigations being conducted, performed the
redo surgery
on the plaintiff, causing a near fatal injury to the
plaintiff’s IVC, causing blood loss of approximately 1 300
millimetres.
A cardio-thoracic surgeon was called to perform an
emergency left-sided thoracotomy, failing which the plaintiff would
have bled
to death, due to the blood loss which caused her to be
critically ill from hypovolemic shock.
[11]
The plaintiff had to undergo further surgery to
repair her incarcerated hiatus hernia on 7 June 2015, which surgery
the defendant
performed laparoscopically, as opposed to an open
approach. During this surgery he caused a tear in the plaintiff’s
stomach.
[12]
The plaintiff suffered an ischaemic
injury/bilateral watershed infarct as a result of excessive blood
loss (haemorrhaging).
[13]
The
defendant, in his amended plea, admits that on 28 May 2015 he caused
an injury to the plaintiff’s IVC, but denies that
he was
negligent in causing the injury. He also denies that his conduct fell
short of the professional skill and care as is reasonable
for a
specialist general surgeon.
[8]
The defendant also admits that he caused a tear in the plaintiff’s
stomach during the surgery conducted on 7 June 2015, which
occurred
during the laparoscopic mobilisation of the stomach.
[9]
[14]
In
addition to the above,
[10]
the
defendant admits that the plaintiff (on 28 May 2015) experienced
sudden and severe bleeding into the thoracic cavity
intra-operatively.
He also admits that she was in need of a
cardio-thoracic surgeon to perform a left sided thoracotomy to repair
the injury to the
IVC and that she lost approximately 1 300
millimetres of blood during the surgery. He further admits that the
plaintiff required
post-operative ventilation and was hospitalised in
the Intensive Care Unit (“ICU”) of Netcare Greenacres
Hospital from
28 May 2015 to 7 June 2015, required further blood
transfusion, was critically ill from hypovolemic shock and had to
undergo further
surgery on or about 7 June 2015 as a result of
herniation of her stomach into the left thoracic cavity. Also, he
admits that following
the last mentioned surgery, the plaintiff was
again transferred to the ICU where she was put on full ventilation
and intubation,
and that she required further hospitalisation in the
ICU from 7 June 2015 to 13 July 2015. She was transferred to the
General Ward
on 13 July 2015, and remained admitted there until 27
July 2015. The defendant however denies that all of the
aforementioned were
as a result of his breach of the contract with,
or duty of care owed to, the plaintiff.
[15]
The plaintiff adduced the evidence of Professor
Sandie Rutherford Thomson, a specialist surgical gastroenterologist,
and Doctor
De Wit, a clinical neuropsychologist. The defendant
adduced no evidence. I return to this later.
[16]
Professor Thomson confirmed that he was reliant
upon the defendant’s clinical notes, theatre notes and x-ray
reports for his
evidence and opinion. The correctness and the content
of the aforementioned medical records were not placed in dispute.
[17]
Professor
Thomson testified that there was no indication in the defendant’s
clinical note of 12 May 2015 that he placed the
plaintiff on a course
of PPI treatment prior to making a decision to perform the redo
surgery. PPI usually presents a positive
outcome for patients with
reflux in which case they are not required to undergo surgery. In his
opinion, the defendant should have
referred the plaintiff to a
gastroenterologist for a multidisciplinary treatment plan prior to
considering revisional surgery.
In his words, “gastroesophageal
reflux disease is not life-threatening and there should never be a
rush to embark on this
type of revisional surgery”.
[11]
Therefore, the redo surgery was performed prematurely and in the
absence of the defendant, at least, instituting a proper trial
of
conservative medical treatment.
[12]
[18]
It is common cause that redo anti-reflux surgery
is a complex operation.
[19]
Professor Thomson testified that:
19.1.
With
regard to the planning of the redo surgery, he was adamant that the
defendant   should have referred the plaintiff
for
preoperative investigations such as an endoscopy and a barium
contrast swallow prior to making the decision to perform the
redo
surgery.  Not only does he consider these tests mandatory, but
the various academic literature that he referred to also
confirmed
this to be the case. He went as far to state that these tests were
the “absolute minimum” that one would
do before
revisional surgery.
[13]
19.2.
The defendant could not rely on the plaintiff’s
endoscopy from 2012 to make the decision to perform the redo surgery,
or to
plan for it, in 2015.
19.3.
In
fact, in one of the articles provided by the defendant, the following
is stated with regard to preoperative evaluation and
investigations:
[14]
“
Patients
who were candidates for reoperative antireflux surgery underwent a
comprehensive evaluation, with a complete history and
physical
examination; investigations performed included barium esophagram,
esophagogastroduodenoscopy,
[15]
oesophageal manometry, pH testing, and gastric emptying studies”.
[20]
Under
cross examination, Professor Thomson confirmed that a medical
practitioner needs contemporaneous investigations when the situation

is dynamic.
In
casu
,
the plaintiff’s situation was dynamic, because she put on
weight and the hernia could have become larger. Therefore, up
to date
information was necessary before proceeding with the operation.
[16]
[21]
It is common cause that the plaintiff did not
receive any preoperative testing prior to the defendant taking the
decision to perform
the redo surgery on 28 May 2015.
[22]
Despite
it being common cause that the redo surgery is a complex operation,
the defendant was the only surgeon in the theatre, assisted
by one
nurse and a general practitioner, the latter of which sole function
was to operate the video camera. Professor Thomson has
conducted
similar surgery himself, which surgeries they always involved two
specialists. Thus, there would be four individuals
present during the
redo surgery, being two specialist surgeons who have done this type
of procedure before, or a surgical gastroenterologist
and a camera
man, a separate camera man and a scrub sister.
[17]
There should also be a plan to convert from laparoscopic surgery to a
thoracic open surgery should difficult adhesions be
encountered.
[18]
[23]
Professor Thomson referred to some anatomy
drawings. I find it apposite in the circumstances to include two of
the drawings. He
explained that the area where the injury occurred
was just above the diaphragm, and, in order to explain the
orientation, referred
to the following drawing.
[24]
[25]
The drawings above indicate where the hernia would
have been prior to the primary operation. The aim of the primary
operation was
to put the hernia back into the abdomen and close any
muscle defect. This is achieved by taking a piece of stomach, that is
lying
just under the diaphragm, and wrapping it around the piece of
oesophagus, which is then moved into the abdomen. The result is to

help stop the reflux of acid. That is what would have occurred in the
2009 operation.
[26]
As stated by Professor Thomson, the same situation
would pertain in 2015, except one would be unsure as to what exactly
is in the
chest, whether it is part of the stomach that has been
wrapped around the oesophagus (also referred to as “the wrap”)

or just the hernia itself. As I understood him, this uncertainty is
one of the reasons why the planning of the redo surgery is
so
important.
[27]
This second drawing indicates where the injury is
said to have occurred (the left side of the body is on the right in
the drawing,
and the right side on the left):
[28]
In this drawing the heart and lungs have been
excluded. The location of the IVC is evident from the drawing (also
indicated with
an arrow, which I inserted). It enters the diaphragm
and then there is about 2 centimetres of it, a very short distance,
before
it enters the heart.
[29]
Professor
Thomson explained that in a primary procedure, a surgeon will start
operating on the right hand side, but in a redo procedure
a surgeon,
knowing that the anatomy will be distorted on the right hand side as
a result of the primary procedure, will start operating
from the left
hand side, to avoid the majority of distortions, before working his
way across the right crura.
[19]
[30]
Professor Thomson explained how limited your
peripheral vision would be through a laparoscopic camera, inserted
into a person’s
abdomen, by referring to the following analogy.
When attending his daughter’s school concert and taking a video
of her singing,
in a group, his wife would prod him against his head
and ask if he was certain that he is taking a video of their
daughter. Since
his view was focused through the lens, he realised
that he should have been focusing somewhere else. That is what you
want to avoid
during an operation using a laparoscopic camera, the
misconception that you might be looking at the right area, whereas
you are
not.
[31]
Professor
Thomson then explained that, whilst readily acknowledging throughout
his evidence that he was obviously not present during
the operation
and emphasising that there is no operative note, for the defendant to
have caused the injury to the IVC, presumably
after he was through
the crura and somewhere in the chest, the defendant must not have
realised where he was. This is because,
had he known, he would not
have cut, or injured, the IVC.
[20]
[32]
I
pause to mention that while injuries to the IVC are recognised
complications, during primary and revision hernia surgery, it is,

according to Professor Thomson’s uncontested evidence,
extremely rare.
[21]
Professor
Thomson has not come across an injury to the IVC during his
career.
[22]
[33]
After
injuring the IVC, the defendant was required to enlist the assistance
of a cardio-thoracic surgeon to perform an emergency
left-sided
thoracotomy, failing which the plaintiff would have succumbed by
bleeding to death. During the time the defendant waited
for the
cardio-thoracic surgeon to repair the injury, the plaintiff lost a
substantial amount of blood, approximately 1 300
millilitres,
and was hypotensive. According to the defendant’s clinical
notes, he was not in a position to control the bleeding
and repair
the plaintiff’s IVC. The reasons for that would be, according
to Professor Thomson, that he was performing this
complex redo
surgery, without the assistance of another surgeon.
[23]
[34]
In his opinion, the fact that the site of the
injury required a thoracotomy to stop the plaintiff from bleeding to
death, suggests
that the defendant had lost his way during the
process of mobilising the recurrent hernia in the posterior
mediastinum. Changes
in the dimensions of the hernia and prior
inflammation would be contributing factors to getting lost.
[35]
According
to Professor Thomson, the prior assessments would not necessarily
have had any bearing on the actual injury as such, but
it would have
had a bearing on the planning and correct timing of the redo
surgery.
[24]
In his words:
“The barium and to some extent possibly the gastroscopy,
depending on how big the hernia looked in 2015, not
in 2012, might
have facilitated planning the operation. If the operation had been
better planned the injury might not have occurred”.
[25]
In other words, the planning might have helped to reduce the risk of
the injury. And the defendant ought to have known this.
[36]
Professor
Thomson testified that it was obvious that complications might occur
after the redo surgery, but more so in this instance
because the
intended procedure was not completed by the defendant since the
procedure eventually became an emergency and they had
to remove the
laparoscopic equipment and prepare for the open operation. The hernia
was still in the chest.
[26]
[37]
On 7 June 2015 the defendant, assisted by another
general surgeon, conducted the repair of the plaintiff’s very
current incarcerated
hiatus hernia (the fundoplication). The
defendant admits that he caused a tear in the plaintiff’s
stomach during this surgery,
which occurred during the laparoscopic
mobilisation of the stomach. It is Professor Thomson’s opinion
that this could in
all probability have been avoided by a
thoraco-abdominal approach, which would have allowed a better repair
of the large hiatus
defect.
[38]
Professor Thomson reasoned that the further
surgery on 7 June 2015 was unduly delayed. This is because there was
undoubted evidence,
having regard to the x-ray reports, of a septic
source in the left chest already on 2 June 2015. This was most likely
associated
with a complication of the fundoplication and should have
been investigated and explored earlier. The delay may have prolonged
the ICU stay of the plaintiff considerably. Also, it is apparent from
the records that the defendant was absent during the period
4 to 6
June 2015, which would have contributed to the delay in investigating
the plaintiff’s condition, the drain in her
chest was draining
significant amounts of fluid, and delayed the re-intervention on 7
June 2015 to repair the hernia.
[39]
Before I turn to the evidence of Doctor De Wit, I
will refer to the plaintiff’s current neurological condition,
which is common
cause.
[40]
The
plaintiff’s current neurological condition is outlined in the
admitted opinion and prognosis contained in the medico-legal
report
of Doctor Britz, neurologist.
[27]
[41]
The plaintiff’s neurological sequelae
following the incident in May 2015 is summarised by Doctor Britz to
be:
“
Mild
cognitive impairment – vascular type, with associated
complaints of dysphasia and word selection anomia (word finding

difficulty); mild dys-calculi; and a very severe post-traumatic
stress disorder. The plaintiff’s neurological deficit is
rather
in keeping with the so-called watershed infarct (bilaterally) that
occurred during the episode of hypotension (haemorrhaging).
The
neurological deficits (complaints of mild cognitive impairment and
dysphasia) are most likely permanent in nature”.
[42]
Doctor
De Wit testified that the following primary diagnosis can be made on
the plaintiff. Firstly, mild neurocognitive disorder
due to possible
brain injury as a result of possible prolonged sedation and/or oxygen
deprivation following respiratory failure
as a result of the
complications of the procedure on 28 May 2015. Secondly, the
plaintiff also qualified on the DSM-V
[28]
for a diagnosis of posttraumatic stress disorder.
[29]
The plaintiff’s persistent difficulties resulted in her being
continuously retraumatised by her lack of ability to function
at her
pre-morbid levels.
[43]
Doctor
De Wit further testified that during her assessment of the plaintiff,
it was apparent that the plaintiff struggled with word
finding and
often used tangential speech, requiring long explanations to describe
basic concepts, and she used words interchangeably.
Doctor de Wit
explained that this is caused by damage to the area of the brain
responsible for speech, causing extreme difficulty
forming words and
sentences. The condition is called Broca’s aphasia. The aphasia
is exacerbated by anxiety.
[30]
There is no treatment for this and it is a debilitating and
devastating injury.
[31]
[44]
The
plaintiff was easily overwhelmed and prone to anxious decompensation.
On the Brief Psychiatric Inventory Test, the plaintiff
scored a 6 for
anxiety, which indicates that her anxiety is severe, (since a score
of 7 is the highest and would indicate that
a person should be
institutionalised).
[32]
As a
result, Doctor De Wit diagnosed the plaintiff with chronic anxiety.
[45]
Doctor De Wit concluded that, taking into account
the plaintiff’s various diagnoses, she would not be able to
give evidence.
However, she conceded, when it was put to her in cross
examination, that the plaintiff would be able to testify with
accommodations.
This was, unfortunately, not further explored. It is
therefore not clear what these accommodations would entail.
[46]
That concluded the evidence adduced on behalf of
the plaintiff.
[47]
In
Member
of the Executive Council for Health & Social Development, Gauteng
v TM obo MM
[33]
the court held that:
“
[125]
The cogency of an expert opinion depends on its consistency with
proven facts and on the reasoning by which the conclusion
is reached.
In Coopers (South Africa) (Pty) Ltd v Deutsche Gesellschaft für
Schädlingsbekämpfung MBH this Court
held: ‘[A]n
expert’s opinion represents his reasoned conclusion based on
certain facts or data, which are
either
common cause, or established by his own evidence or that of some
other competent witness
.
Except possibly where it is not controverted, an expert’s bald
statement of his opinion is not of any real assistance. Proper

evaluation of the opinion can only be undertaken if the process of
reasoning which led to the conclusion, including the premises
from
which the reasoning proceeds, are disclosed by the expert.
’”
(My
own emphasis).
[48]
There is, in my view, no reason to doubt the
veracity of the evidence of Professor Thomson and Doctor De Wit.
[49]
The defendant adduced no evidence and closed his
case. Although the defendant took the stand, the plaintiff’s
counsel objected
to the defendant giving expert testimony without
having filed a notice and summary in terms of Uniform Rule 36(9)(a)
and (b).
[50]
In terms of rule 36(9)(a) and (b):
“
(9)
No person shall, save with the leave of the court or the consent of
all parties to the suit, be entitled to
call as a witness any person
to give evidence as an expert upon any matter upon which the evidence
of expert witnesses may be received
unless—
(a)
where the plaintiff intends to call an expert,
the plaintiff shall not more than 30 days after the close of
pleadings, or where
the defendant intends to call the expert, the
defendant shall not more than 60 days after the close of pleadings,
have delivered
notice of intention to call such expert; and
(b)
in the case of the plaintiff not more than 90 days after the close of
pleadings and in the case of the
defendant not more than 120 days
after the close of pleadings, such plaintiff or defendant shall have
delivered a summary of the
expert’s opinion and the reasons
therefor
”
.
[51]
It is
trite that rule 36(9) is designed to avoid a litigant being taken by
surprise in relation to matters in respect of which they
would in the
normal course of events be unable, before trial, to prepare their
case effectively so as to meet that of their opponents.
[34]
[52]
The defendant’s counsel contends that “
the
defendant attempted to lead the evidence of Dr Van Niekerk, but was
eventually precluded from doing so on the basis that an
expert
summary had not been filed on his behalf and that he was attempting
to give evidence of an expert nature in that his testimony
involved
facts and knowledge which a lay person would not possess
”
.
[53]
After the plaintiff’s counsel raised the
objection to the defendant giving expert testimony, and having heard
argument from
the plaintiff and defendant’s counsel, I made the
following ruling. That, if I were to find that the evidence
constitutes
expert evidence, or opinion evidence, I would have to
exclude it. Accordingly, the defendant had to elect what he intended
to do;
proceed without having filed a summary, alternatively, he had
to indicate whether he wanted to consider his position. I
specifically
stated that some of the defendant’s evidence, up
to that stage, constituted expert testimony.
[54]
The defendant’s counsel then requested that
the defendant’s evidence be interposed by the evidence of his
expert, Doctor
Marais.
[55]
I
considered the request and referred the parties to the judgment of
HAL
obo MML v MEC for Health, Free State
,
[35]
where the court held as follows:
“
[211]
… Until the factual basis for the experts’ evidence had
been established their opinions were inadmissible.
[214]
There may be cases where it is permissible, or even necessary in
order to set the scene for the court to appreciate
the issues, for
experts to give evidence at the outset of the proceedings when the
factual evidence on which they base their opinions
may still need to
be led. That will ordinarily be so where the factual dispute is
narrow and clear-cut and the expert can properly
express an opinion
on all relevant factual scenarios, without relying on disputed facts.
This was not such a case and nor are most
similar cases.
[215]
Where the facts are central to the opinions of the experts,
courts should require that those facts be led in evidence
before the
experts express their opinions. Primarily that is for the benefit of
the court, which is thereby placed in a position
where the expert’s
opinion can be assessed, and, if need be, queried or elucidated, in
the light of the factual material
before it.
”
[56]
I therefore made a further ruling that since the
factual basis for the expert’s evidence had not been
established, in other
words the defendant’s evidence, I would
not be acceding to the request that the defendant’s evidence be
interrupted
by the evidence of Doctor Marais.
[57]
The defendant’s counsel thereafter placed on
record that the defendant, “under protest”, closes his
case. It is
not apparent, in the circumstances, what was meant by
“under protest”. The word “under protest” is
defined
in the Oxford Dictionary as “unwillingly and after
making protests”. Self-evidently, the defendant made the
conscious
and deliberate decision, in consultation with his
experienced legal representatives, to close his case.
[58]
I want to make it clear, the defendant was not
precluded from adducing evidence. He was precluded from adducing
expert
evidence,
without first complying with the provisions of rule 36(9). The
plaintiff had already closed her case and the prejudice
to her was
obvious.
[59]
This
court is therefore faced with the scenario of an unconscious patient
who has suffered an admitted injury, and further admitted

complications. The spectre of negligence on the part of the defendant
looms large.
[36]
Still, the
onus was on the plaintiff to prove her case on a balance of
probabilities.
[60]
The
approach for establishing the existence or otherwise of negligence
was formulated by Holmes JA in
Kruger
v Coetzee
[37]
as follows:
[38]
“
For
the purposes of liability culpa arises if—
(a)
a diligens paterfamilias in the
position of the defendant—
(i)
would foresee the reasonable possibility of his
conduct injuring another in his
person
or property and causing him patrimonial loss; and
(ii)
would take reasonable steps to guard against
such occurrence; and
(b)
the defendant failed to take such steps.
.
. .
Whether
a diligens paterfamilias in the position of the person
concerned would take any guarding steps at all and, if
so, what steps
would be reasonable, must always depend upon the particular
circumstances of each case.  No hard and fast basis
can be laid
down.
”
[61]
As
alluded to above, although the onus was on the plaintiff to prove her
case, the defendant had a duty to adduce evidence to combat
the
prima
facie
case
made out by the plaintiff. The defendant had to advance an
explanatory account of the injury on 28 May 2015, and the further

complications thereafter. He failed to do so.
[39]
[62]
The conduct of the defendant is to be judged
against the standard of the reasonable surgeon performing a repeat
Nissen fundoplication,
unfortunately, this court is unable to judge
the defendant’s conduct, on his version, since he failed to
testify.
[63]
With
regard to the defendant’s failure to testify, the following was
said in
Ex
parte the Minister of Justice: In re Rex v Jacobson and Levy
:
[40]
“
Prima
facie evidence in its usual sense is used to mean prima facie proof
of an issue, the burden of proving which is upon the party
giving
that evidence. In the absence of further evidence from the other
side, the prima facie proof becomes conclusive proof and
the party
giving it discharges his onus.
”
[64]
In other words,
prima
facie
proof is evidence calling for an
answer.
[65]
The defendant should have foreseen the possibility
of his conduct, in proceeding with the redo surgery in the absence of
the plaintiff
having received preoperative conservative treatment and
his failure to refer the plaintiff for preoperative investigations,
resulting
in injury to the plaintiff and causing her loss. He failed
to take reasonable steps to guard against the rare complication of
injuring
the plaintiff’s IVC and causing further complications.
The result of which was that the defendant had to enlist the
assistance
of another surgeon, a cardio-thoracic surgeon, which he
should have done in the first place.
[66]
It has
been recognised that while the precise or exact manner in which the
harm occurs need not be foreseeable, the general manner
of its
occurrence must indeed be reasonably foreseeable.
[41]
[67]
It is astonishing that the defendant decided to
simply proceed with redo surgery in circumstances where the last
endoscopy, done
by him, was done three years prior. Also, knowing his
anatomy, he ought to have known that the situation is dynamic and
requires
up to date information before proceeding with this complex
surgery.
[68]
With
regard an inference of negligence, in
Goliath
v MEC for Health, Eastern Cape
[42]
the
court concluded as follows:
“
[19]
Thus at the close of Ms Goliath's case, after both she and Dr
Muller had testified, there was sufficient evidence
which gave
rise to an inference of negligence on the part of one or more of the
medical staff in the employ of the MEC who attended
to her. In that
regard it is important to bear in mind that in a civil case it is not
necessary for a plaintiff to prove that the
inference that she asks
the court to draw is the only reasonable inference; it suffices for
her to convince the court that the
inference that she advocates is
the most readily apparent and acceptable inference from a number of
possible inferences (AA Onderlinge
Assuransie-Assosiasie Bpk v De
Beer
1982 (2) SA 603
(A); see also Cooper and Another NNO v
Merchant Trade Finance Ltd
2000 (3) SA 1009
(SCA)). That being so,
the MEC, in failing to adduce any evidence whatsoever, accordingly
took the risk of a judgment being given
against him. After all, it
was open to the MEC to adduce evidence to show that while Ms Goliath
was undergoing surgery, reasonable
care had indeed been exercised by
his employees. That he did not do.
”
[69]
Returning to the four summarised grounds of
negligence advanced on behalf of the plaintiff, the evidence lends
support to a finding
that the defendant was negligent in not
submitting the plaintiff to adequate preoperative conservative
treatment, and in performing
the redo surgery on the plaintiff in the
absence of adequate proof that said conservative treatment had/would
have failed.
[70]
I also find that the defendant was negligent in
his planning (or lack thereof) and execution of the redo surgery
without the assistance
of another specialist.
[71]
On a conspectus of all the evidence presented, I
find that the defendant was also negligent in his treatment, planning
and execution
of the further surgery in respect of the plaintiff’s
incarcerated hernia on 7 June 2015.
[72]
Causally, the defendant’s conduct caused the
injuries and complications to the plaintiff whilst having regard to
the
boni mores
,
such action was clearly unlawful. The defendant failed to act with
such professional skill as is reasonable for a specialist
surgeon.
[73]
The defendant criticised the plaintiff for not
having testified.  What would she have testified about? She was
unconscious
when the defendant operated on her and the facts are
mostly common cause, and the quantum has been agreed upon.
[74]
I therefore find that the defendant’s
unlawful and negligent conduct caused the plaintiff damages, the
amount which has already
been agreed upon.
[75]
With regard to costs, the merits involved complex
and technical issues. By its very nature, the action involved
specialist medical
knowledge and expertise. The experts involved, by
both parties, come to twenty three. I am therefore satisfied, on a
consideration
of the relevant factors, that the employment of two
counsel by the plaintiff was justified in this case. There is also no
reason
why costs should not follow the result.
[76]
One final comment, I would like to extend my
gratitude to both the plaintiff and defendant’s counsel for
their comprehensive
sets of heads of argument.
[77]
The
following order is issued:
[43]
77.1.  the defendant
shall pay to the plaintiff an amount of R2 160 548.00 as
damages;
77.2.  payment of
the amount in paragraph 74.1 above shall be made directly to the
plaintiff’s attorneys of record, Meyer
Inc.’s trust
account, the details of which are as follows:
Name:
Meyer Inc.
Bank:
Standard Bank
Branch:
Port Elizabeth
Branch
code: 050017
77.3.  the defendant
shall pay interest on the amount referred to in paragraph 1 above a
tempore morae from date of judgment
to date of final payment;
77.4.  the defendant
is to pay the plaintiff’s taxed, alternatively agreed costs of
suit, such costs are to include:
77.4.1.
the costs of the reports and supplementary reports, if any, of:
77.4.1.1.
Dr M Locketz
77.4.1.2.
Dr P Pretorius
77.4.1.3.
Dr P Potgieter
77.4.1.4.
Dr F Naude
77.4.1.5.
Dr D Meintjies
77.4.1.6.
Dr F Visser
77.4.1.7.
Dr C Rossouw
77.4.1.8.
Dr H Vawda
77.4.1.9.
Dr Z Gani
77.4.1.10.
Dr M Marais
77.4.1.11.
Dr O Shenxane
77.4.1.12.
Dr H Prinsloo
77.4.1.13.
Dr RJ Keeley
77.4.1.14.
Professor PC Bornman
77.4.1.15.
Dr E de Wit
77.4.1.16.
Ms A van Zyl
77.4.1.17.
Mr D Pretorius
77.4.1.18.
Arch Actuaries
77.4.1.19.
Professor SR Thomson;
77.4.2.
the qualifying and reservation fees and expenses, if any, of:
77.4.2.1.
Dr M Locketz
77.4.2.2.
Dr P Pretorius
77.4.2.3.
Dr P Potgieter
77.4.2.4.
Dr F Naude
77.4.2.5.
Dr D Meintjies
77.4.2.6.
Dr F Visser
77.4.2.7.
Dr C Rossouw
77.4.2.8.
Dr H Vawda
77.4.2.9.
Dr Z Gani
77.4.2.10.
Dr M Marais
77.4.2.11.
Dr O Shenxane
77.4.2.12.
Dr H Prinsloo
77.4.2.13.
Dr RJ Keeley
77.4.2.14.
Professor PC Bornman
77.4.2.15.
Dr E de Wit
77.4.2.16.
Ms A van Zyl
77.4.2.17.
Mr D Pretorius
77.4.2.18.
Arch Actuaries
77.4.2.19.
Professor SR Thomson;
77.4.3.
the testifying and attendance fees of:
77.4.3.1.
Professor SR Thomson
77.4.3.2.
Dr E de Wit;
77.4.7
the costs of the employment of two counsel, where so employed;
77.5.   the
defendant is to pay interest on the plaintiff’s taxed or agreed
costs at the prevailing prescribed interest
rate per annum calculated
from 14 (fourteen) days after allocator or, written agreement, to
date of payment.
T.
Zietsman
ACTING
JUDGE OF THE HIGH COURT
Appearances:
For
plaintiff:
Adv. OH Ronaasen SC with adv. B Westerdale,
instructed by Meyer
Incorporated
For
defendant:        Adv. HB Ayerst
instructed by BLC Attorneys
Dates heard:
15, 16, 17 and 18 March 2021, 6 and 8 June 2022, 31 October 2022
and
20 November 2022
Date
delivered:        25 April 2023
[1]
Wrapping the top part
the stomach around the oesophagus and moving into the abdomen,
sometimes known as   a “wrap”
– see
record 15/03/2021 at p 86 lines 19 to 25 and p 87.
[2]
Particulars
of claim (as amended) paras 7.1 to 7.15.
[3]
The plaintiff was
represented by Senior and junior counsel.
[4]
This aspect will be more
fully dealt with hereinafter.
[5]
Also
referred to as a gastroscopy or oesophago-gastro-duodenoscopy (OGD),
which is a procedure used to visually examine a person’s
upper
digestive system – record 15/03/2021 at p 42 lines 18 –
23.
[6]
Anti-reflux
surgery.
[7]
Which
includes: pH metrimetry (to confirm whether acid reflux was
occurring) and manometry (to establish whether the patient has

difficulty swallowing, which is called dysphagia) – see record
15/03/2021 at p 45 line 14 to p 46 line 16.
[8]
Particulars
of claim para 7.12 read with the defendant’s plea para 17.1.
[9]
Particulars
of claim para 7.14 read with the defendant’s plea para 19.
[10]
Particulars
of claim paras 8 and 8.1 to 8.12 read with the defendant’s
plea para 21.
[11]
Record
15/03/2021 at p 38 lines 16 to 25.
[12]
Record
15/03/2021 at p 38 lines 16 to 25 and p 116 lines 16 to 20.
[13]
Record
15/03/ 2021 at p 77 lines 23 to 25.
[14]
Exhibit
A at p 144.
[15]
Another
term for endoscopy.
[16]
Record
17/03/2021 at lines 21 to 25.
[17]
Record
15/03/2021 at p 80 line 24 to p 82 line 11; and p 101 lines 7 to 18.
[18]
Record
15/03/2021 at p 108 lines 11 to 25 and p 110 lines 8 to 12.
[19]
Two
muscles which wrap around the oesophagus (which are, according to
Professor Thomson, like reinforced muscle).
[20]
Record
15/03/2021 at p 96 line 23 and p 97 line 7.
[21]
Record
16/03/2021 at p 11 lines 16 to 17.
[22]
Record 18/03/2021 at p
13 lines 19 to 20. Professor Thomson qualified as a surgical
gastroenterologist in 1999 and has been involved
in the academia and
public service ever since.
[23]
Record
15/03/2021 p 98 at lines 6 to 9, and p 99 lines 8 to 23.
[24]
Record
16/03/2021 at p 13 lines 15 – 18.
[25]
Record
16/03/2021 at p 14 lines 16 – 21.
[26]
Record
15/03/2021 at p120.
[27]
Exhibit
G.
[28]
Diagnostic
and Statistical Manual of Mental Disorders 5
th
Edition
(DSM 5) requires clinicians to list symptoms of post-traumatic
stress disorder (PTSD) according to five criteria and in
terms of
the presence or absence of symptoms.
[29]
Record
08/06/2022 p 18 lines 18 to 21 and p 19 lines 1 to 13.
[30]
Record
08/06/2022 p 6 lines 24 to 28, p 7 and p 8 lines 1 to 19.
[31]
Record
08/06/2022 p 53 lines 12 to 25; p 54 lines 1 to 9.
[32]
Record
08/06/2022 p 23 lines 13 to 24.
[33]
[2021]
JOL 50880
(SCA) at para 125 (footnote omitted).
[34]
Erasmus
Superior
Court Practice
at
D1-486.
[35]
2022
(3) SA 574
(SCA).
[36]
As
was the case in
Myers
v MEC Department of Health, Eastern Cape
2020
(3) SA 337
(SCA) at par 74.
[37]
1966
(2) SA 428 (A).
[38]
See
also
Oppelt
v The Department of Health Western Cape
2016
(1) SA 325
(CC) at paras 69 to 74.
[39]
Meyers
at
par 74.
[40]
1931 AD 466
at 478.
[41]
Sea
Harvest Corporation (Pty) Ltd and Another v Duncan Dock Cold Storage
(Pty) Ltd and Another
2000
(1) SA 827
at paras 21 to 22.
[42]
2015
(2) SA 97
(SCA) at par 19.
[43]
Submissions were made on
behalf of the plaintiff, that an order as set out herein should be
made, which order is not unusual.