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2023
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[2023] ZAFSHC 31
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Brownless v MEC for Health, Free State Province and Another (2822/2013) [2023] ZAFSHC 31 (3 February 2023)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 2822/2013
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
REGINALD
HAROLD BROWNLESS.
Plaintiff
and
MEC
FOR HEALTH, FREE STATE PROVINCE
1
st
Defendant
MEC
FOR HEALTH,
MPUMALANGA
2
nd
Defendant
JUDGMENT
BY:
REINDERS J
HEARD
ON:
2 SEPTEMBER 2022
DELIVERED
ON:
3 FEBRUARY 2023
[1]
On a stormy evening roundabout midnight on 14/15 December 2010 the
plaintiff was travelling
towards Koppies (Free State Province) when
he lost control of his motor vehicle (“the accident”). As
a result of the
accident he was admitted to the Metsimoholo Hospital
in Sasolburg for treatment of his injuries. The aforementioned
hospital is
located in the Free State Province and resort under the
authority and control of the first defendant who had been cited on
that
basis as the first defendant. The plaintiff was accepted in the
early morning hours of 15 December 2010 as a patient at the hospital
where he received medical treatment. Hospital personnel consulted him
and he was administered an injection, ostensibly to control
pain.
X-rays were taken where after he consulted with a doctor who informed
him that there was nothing wrong with him. After analgesic
medication
was prescribed he was fitted with a soft sponge neck collar and
discharged.
[2]
The plaintiff in his amended summons avers that the first defendant
failed to diagnose
that he had sustained a severe cervical injury as
a result of the accident and had failed to treat him properly. Had he
been properly
diagnosed he would have received surgery and treatment
which would have reduced the stiffness and loss of rotation in his
neck
of which he suffers now or, put differently, the failure of the
first defendant to properly treat him exasperated the stiffness
in
his neck and loss of rotation.
[3]
The first defendant filed a plea and although liability was denied in
the plea, first
defendant on 21 January 2021 conceded liability at a
pre-trial conference.
In
this respect the minute reads as follows:
“
The first
defendant confirms that it has conceded the merits of plaintiff’s
claim (
sic
) insofar
and to such extent as the Honourable Court may and/or will order that
there was negligence on their part”.
[4]
The plaintiff in its summons joined a second defendant, the Member of
the Executive
Council for Health, Mpumalanga Provincial Government
under whose authority and control the Mpumalanga Provincial
Department of
Health falls and who in turn is in control of the
Witbank Provincial Hospital in the Mpumalanga Province.
[5]
The plaintiff avers that on 11 February 2011 he was admitted as an
outpatient to the
Witbank Hospital with complaints of neck and head
pain. The complaint in the summons against second defendant is that
the aforementioned
hospital failed to recognise and/or diagnose the
plaintiff suffered the cervical injury (the C2 type 3 body fracture)
and which
was a highly unstable cervical spine injury. As a result,
they failed to properly treat him resulting in the aforementioned
neck
stiffness and loss of 50% of rotation of his cervical spine.
Plaintiff ultimately, according to the amended summons, claims from
first defendant alternatively second defendant and in the further
alternative first and second defendants, jointly and severally,
the
one paying the other to be absolved damages in the amount of R 1 271
300,00 together with interest and costs.
[6]
The second defendant, contrary to the first defendant, denied
liability and persisted
therewith resulting in the trial before me.
[7]
At the pre-trial conference it was agreed that the question in
respect of the issue
of liability and quantum should be separated to
the extent that the issue in respect of the injuries, the extent of
damages (if
any) and calculation thereof stand over for later
determination and requiring of me to adjudicate the question of the
liability
of the defendants. Although the minute does not make
mention thereof, I was requested by plaintiff to make a determination
of the
defendants’ respective liability in terms of sec 2(1) of
the Apportionment of Damages Act 34 of 1956.
[8]
It is common cause on the pleadings that the two mentioned hospitals
fall under the
auspices of the respective defendants and that they
owed a legal duty towards plaintiff which included the duty to treat
the plaintiff
professionally. At the commencement of the trial I
granted an order by agreement that I will adjudicate the question as
to liability
only.
[9]
As stated the first defendant conceded liability and did not
participate in the trial.
Counsel for first defendant did have a
watching brief and at the conclusion of the trial requested leave to
address me on the adduced
evidence. As there was no objection, I
granted such permission. It suffices to say that first defendant
concluded its argument
by requesting me to come to “a proper
finding”. It was not suggested that I should dismiss
plaintiff’s claim
against first defendant or that I should
order absolution of the instance. In view of the concession at the
pre-trial conference
I am satisfied that I can and should not make
any such orders but am compelled to grant an order against first
defendant as I intend
to do at the conclusion of this judgment.
[10]
In my view there was no need for plaintiff to proceed with a full
blown trial once first defendant
conceded liability. Plaintiff’s
claim as framed against second defendant is in the alternative. On a
proper reading of the
prayers once first defendant is liable, second
defendant is not liable, being a claim in the alternative. For the
aforementioned
reason the trial was unnecessary. Plaintiff’s
explanation that the nature of the wording of first defendant’s
concession
left plaintiff with no choice but to continue with the
action against second defendant, does not convince me and as
mentioned first
defendant did not participate or oppose an order
which will declare it to be liable.
[11]
Notwithstanding my conclusion above in respect of second defendant I
will deal with what I perceive
to be the evidence against second
defendant. Almost two months after plaintiff’s discharge from
Sasolburg Hospital plaintiff
attended as outpatient at the Witbank
hospital where he was medically treated on seven occasions, the last
being in April 2011.
He informed the personnel that X-rays were taken
at Sasolburg Hospital but that there was no fracture seen on the
X-rays. He complained
of neck and head pain. On 11
th
February 2011 he was examined and X-rays were taken. Plaintiff
terminated his treatment and failed to return to his scheduled
appointment at orthotics on 19 April 2011.
[12]
Both the plaintiff and second defendant called orthopaedic surgeons
to testify and the two surgeons
compiled a joint minute dated 10
March 2022. The surgeons concluded that the diagnosis of an unstable
cervical fracture was missed
and treatment was based on a stable
fracture.
12.1 Dr A Olivier,
testifying on behalf of second defendant, opined that the treatment
given to plaintiff at Witbank Hospital
was proper as it pertains to
conservative treatment of a patient with a stable fracture. He
testified that no instability was detected.
12.2 Dr NA Kruger,
an orthopaedic spinal surgeon who testified as an expert witness for
plaintiff, made his conclusions as
to the unstable fracture amongst
others on X-rays taken at the Groote Schuur Hospital in May 2015.
12.3 It is common
cause that he performed a posture fixation fusion of C1 and C2
causing significant loss of movement. It
was agreed by the experts
that the fusion caused loss of 50% rotation of the plaintiff’s
neck.
12.4 In
cross-examination Dr Kruger made mention thereof that it is difficult
to opine what the conclusion at Witbank Hospital
should have been
without seeing the actual X-rays taken at Witbank Hospital. When
plaintiff testified he confirmed having been
in possession of the
X-rays (including his medical records at Witbank) which he all
provided, according to him, to Groote Schuur
Hospital. Those X-rays
and medical records were obviously of critical importance and could
have shed light on what the Witbank
Hospital had seen or should have
seen when they treated plaintiff. It is common cause that not only
medical records were kept,
but X-rays and the MRI scan was done by
the hospital. Both experts opined that a hospital would do what is
reasonably expected
of it in these circumstances by taking X-rays
and/or an MRI scan. This the second defendant had done. The imaging
evidence was
crucial to show the extent of the fracture, if any, and
obviously to make a diagnose as testified by Dr Kruger. Plaintiff was
placed
in possession of the documentation by second defendant on his
own version. To then fail to produce such evidence without any
explanations
at the trial and at the same time averring failure to
properly interpret such documentation in my view tantamount to a
trial by
ambush.
[13]
It is plaintiff who bore the onus to convince me that second
defendant was negligent. I am not
on a preponderance of probability
convinced of second defendant’s negligence and although I
cannot reject any of the experts’
evidence, I prefer the
evidence and conclusions reached by Dr Olivier. In respect of second
defendant I have already indicated
that in view of the formulation of
plaintiff’s claim as discussed supra, plaintiff is only
entitled to judgment against first
defendant, but if I am wrong, it
follows that I would have dismissed plaintiff’s claim against
second defendant on the evidence
for the reasons stated.
[14]
The trial proceeded before me for three trial days. The plaintiff
could have moved for judgment
against first defendant on the first
day of trial and there would have been no need to proceed against the
second defendant thereafter.
In as far as plaintiff will be
successful against first defendant, plaintiff will only be entitled
to costs limited up and until
the first day of trial and will the
order therefore so reflect.
[15]
I therefore make the following orders:
15.1 It
is declared that first defendant is liable to compensate plaintiff in
respect of damages suffered by plaintiff
consequent upon his
admission to the Sasolburg Hospital on 15 December 2010 and first
defendant’s failure to diagnose and
treat plaintiff’s
cervical injury sustained in the motor vehicle collision on the
aforementioned date.
15.2
First defendant to pay plaintiff’s costs
limited up and until 10 May 2022.
15.3
The plaintiff’s claim against second
defendant is dismissed with cost.
C
REINDERS, J
On
behalf of the Applicants:
Adv R van Wyk
Instructed by:
A Batchelor &
Associates
c/o McIntyre & Van
der Post
BLOEMFONTEIN
On
behalf of the first respondent:
Adv T Ntoane
Instructed by:
State Attorneys
BLOEMFONTEIN
On
behalf of the second respondent:
Adv DH Wijnbeek
Instructed by:
Adendorff Theron Inc
c/o Phatshoane Henney
Attorneys
BLOEMFONTEIN