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[2023] ZAFSHC 486
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Brownless v MEC for Health: Free State and Another (2822/2013) [2023] ZAFSHC 486 (14 December 2023)
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Case No: 2822/2013
Reportable:
NO
Of Interest to other
Judges: NO
Circulate to
Magistrates: NO
In the matter between:
REGINALD
HAROLD BROWNLESS
Plaintiff
and
MEC
FOR HEALTH: FREE STATE
1
st
Defendant
MEC
FOR HEALTH: MPUMALANGA
2
nd
Defendant
HEARD
ON:
13 September 2023
JUDGMENT
BY
:
MHLAMBI, J
DELIVERED
ON:
14 DECEMBER 2023
[1]
The plaintiff was involved in a motor accident when the motor vehicle
he drove overturned on 14 December
2010 on the Koppies Road, Free
State. He was admitted to the Metsimaholo Hospital at Sasolburg for
the treatment of his injuries
in the early hours of 15 December 2010.
[2]
He instituted a claim against both the defendants based on wrongful
and negligent medical treatment.
The first defendant conceded the
merits of the plaintiff’s claim while the claim against the
second defendant was dismissed
with costs. On 3 February 2023,
Reinders, J granted an order declaring that the first defendant was
liable to compensate the plaintiff
for the damages he suffered
“
consequent upon his admission to the Sasolburg Hospital on
15 December 2010 and the first defendant’s failure to diagnose
and treat his cervical injury sustained in the motor vehicle
collision on that date.”
[3]
On 13 September 2023, the quantum trial served before me and the
parties handed up a draft order indicative
that the parties had
settled certain aspects of the plaintiff’s claim which they
wished should be made an order of court.
The plaintiff’s past
and future medical and related expenses were settled in the amount of
R 130 400.00 and his past
loss of earnings at R 550 000.00.
The document further regulated the taxed or agreed costs, fees and
expenses of all the plaintiff’s
experts, counsel, payment
provisions and contained the relevant account details. The only issue
for determination was the general
damages. Once the sum of the
general damages was established, it would be inserted in the Draft
Order which I marked Annexure “X”
which would then be
made an order of the court.
[4]
The plaintiff’s counsel contended that an
award of R1 000 000 in general damages would be
reasonable
in the circumstances, especially if one took into consideration the
dicta
in
Daniels
v Minister of Defence
[1]
relating to the cavalier attitude of the Health Services in this
instance. The plaintiff was taken from the accident scene by
ambulance to the hospital where he was kept in an area that looked
like a staff kitchen and was left unattended for several hours
despite constantly calling out for help and complaining about the
pain in his neck and head. He veered in and out of consciousness.
Later, he was taken to a ward, given an injection and x-rays taken. A
doctor informed him that there was nothing wrong with him,
prescribed
analgesic medication, put his neck into a soft spongy collar and he
was discharged.
[5]
He was admitted to the Witbank Hospital on 11 February 2011 as an
outpatient as the neck and head pain persisted.
In May 2011, he
consulted Dr Kruger who informed him that he had sustained a type 3
fracture of his C2 vertebrae as a result of
the accident. During
argument, Ms Van Wyk, on behalf of the plaintiff, referred to
authorities and submitted that the facts agreed
upon by the experts
enjoy the same status as facts which are common cause on the
pleadings. Where the experts reach an agreement
on a matter of
opinion, the litigants are, likewise, not at liberty
[2]
to repudiate the agreement.
[6] The joint
minute between Dr NA Kruger and Prof GJ Vlok on 08/09/2023 recorded
the following points of agreement:
“
1.
We agree that the plaintiff sustained injuries on 15 December 2010 in
the motor vehicle accident as outlined in our respective
reports.
2. We agree he
was initially seen at Sasolburg (Metsimaholo) Hospital on 15/12/2010
where the C2 fracture was missed by clinicians.
We
agree that there were no radiological images available from Sasolburg
and no radiologist reports.
3. We agree that
the plaintiff was treated with analgesia and a cervical collar.
Prof
Volk’s opinion that thus acceptable for an undisplaced C2 type
3 peg fracture.
We
agree that displaced type 3 Peg fractures are treated with cervical
traction.
We
agree that cervical fusion for Type 3 peg fractures is only required
when there is failure of conservative treatment.
We
agree that the C1-C2 posterior instrumented fusion is the preferred
technique and 50% of cervical rotation is lost.
4. We agree that
the plaintiff then presented at Witbank Hospital on 11
th
of February 2011 where his x-ray was noted to have C2 compression and
a fusion of C5/6.
We
agree that no note was made of fracture displacement.
We
agree that the plaintiff was discharged in a hard collar with a
follow-up appointment.
5. We agree that
the plaintiff was again seen at Witbank on 23
rd
of March
2011 where stenosis was diagnosed on his lumbar spine MRI.
We
agree that no further notes or investigation were made on his
cervical spine by Witbank.
6. We agree that
the follow-up at Witbank was suboptimal.
7. We agree that
the plaintiff presented at Groote Schuur Hospital on 05/05/2011 with
a displaced C2 type 3 fracture.
8. We agree that
the plaintiff had an MRI scan which showed cord signal changes and
that a cervical fusion was done 30/05/2011
C1/C2 posterior
decompression fusion and the plaintiff was discharged on 23/06/20211.
9. We agree that
the C1/2 joint has been successfully fused clinically and
radiologically.
10. We agree
that currently the plaintiff’s main complaints are neck
stiffness and pain, paraesthesia mostly in his
arms, and painful
restricted movement in his right shoulder.
11. We agree
that the plaintiff uses daily analgesia, has minimal function
impairment, and can perform light work.
12. Regarding
imaging:
We
agree that the plaintiff has C1-C2 posterior instrumented fusion,
there is a pre-existing C5/6 fusion, a C7/T1 grade 1 listhesis
and
severe multi-level degenerative changes.
We
agree there are degenerative in the right shoulder.
We
agree there is a L5/S1 spondylolisthesis and degenerative changes in
the lumbar spine.
13. We agree
that C1/2 fusion loses 50% of cervical rotation and this can cause
accelerated sub-axial spine degeneration.
14. We agree
that the plaintiff’s neck stiffness is multifactorial and
aggravated by his age, smoking habits and previous
cervical fusion
C5/6.
15. We agree
that the current recommendation treatment should be daily analgesia
lifelong (estimated to be another 9 years)
and physiotherapy for the
next 4 years.
[7]
The points of apparent disagreement are:
7.1 Professor
Volk’s opinion was that the C2 fracture was undisplaced and
that it was acceptable for an undisplaced
C2 type 3 peg fracture to
be treated with analgesia and cervical collar.
7.2 Dr Kruger’s
opinion was that the fracture being missed by Sasolburg did not imply
that it was undisplaced, only that the
doctors were not able to
interpret the x-rays properly. An undisclosed low energy type 3 peg
could be treated in hard collar but
not advisable with high energy
injuries due to the high displacement risk, worsened by compliance
issue with follow-up. Preferred
treatment cervical traction.
7.3 Professor
opined that the plaintiff chose not to attend follow-up appointments
due to problems with transport.
7.4 Even though Dr
Kruger agreed with the above, he wished to put this in context that a
patient who had been told that there
was no fracture of his neck and
reassured that hard collar treatment alone was adequate.
[8] Ms
Wright, on behalf of the first defendant, submitted that the
plaintiff should only be compensated for
damages caused by the first
defendant’s failure to diagnose and/or timeously treat injuries
sustained by the plaintiff in
a motor vehicle accident. The first
defendant should not be held liable for the injuries or sequelae
which followed the injuries
sustained in the motor vehicle accident.
The plaintiff should not be compensated for the neck injury which was
not treated at the
Witbank hospital up until his admission to the
Groote Schuur hospital.
[9]
She contended that the plaintiff, before the motor vehicle accident
under discussion, sustained injuries
that affected his quality of
life. He underwent an earlier C5/C6 cervical fusion which is
exacerbating the loss of rotation in
his spine. The pain and
discomfort caused by the recent injury to his arm should be ignored
when determining an appropriate award
for general damages. His back
and neck have become troublesome in various areas. The only area
related to the injuries sustained
in the accident is the C2 area and
its missed diagnosis by the first defendant. The parties’
orthopaedic surgeons agreed
that the plaintiff’s neck stiffness
was “
multifactorial and aggravated by his age, smoking
habits and previous cervical fusion C5/C6”.
These factors,
which contribute to the degeneration of his spine, should not be
placed at the door of the first defendant.
[10]
The amount to be awarded as compensation can only be determined by
the broadest general considerations and the figure arrived
at must
necessarily be uncertain, depending upon the Judge’s view of
what is fair in all the circumstances of the case.
[3]
Both parties referred me to various authorities, for which I am
grateful, to assist me in arriving at a fair and just award. The
question that arises is, in line with the judgment, which injuries
and to what extent should the plaintiff be compensated for general
damages. The points of disagreement between the experts are, in my
view, not serious but accentuate the missed diagnosis at the
Metsimaholo Hospital and the sub-optimal follow-up at the Witbank
Hospital.
[11] In the
original summons, an amount of R 325 000.00 was claimed under
general damages for shock, pain, suffering
and loss of amenities of
life. This was a globular amount claimed as it was alleged not to be
practicable to apportion a specific
amount to each head of damages.
In the amended particulars of claim the amount was amended to R
1 000 000.00. It is indeed
so, as contended by Ms Wright,
that the court is not called upon to compensate the plaintiff for his
neck injury but for the first
defendant’s failure to diagnose
and treat his cervical injury sustained in the motor vehicle
accident. It goes without saying
therefore that the delay in properly
diagnosing and effecting proper treatment to the plaintiff on his
arrival at the Metsimaholo
Hospital contributed and prolonged the
shock, pain, and suffering. Such delay contributed to his ultimate
loss of amenities of
life.
[12]
Ms. Wight submitted furthermore that when the plaintiff was first
examined by the orthopaedic surgeon in 2012,
he complained of a weak
grip in his hands. When he was recently examined by the same surgeon
(Dr Kruger) in August 2023, it was
noted that he indicated no
specific complaints of clumsiness or weakness of grip.
[4]
In the joint minute, both experts agreed that the plaintiff used
daily analgesia, had minimal functional impairment and could perform
light work. The occipital pain was now only present episodically.
[13] Ms Van Wyk
submitted that though the experts agreed that the neck stiffness was
multifactorial and aggravated by his
age, smoking habits and a
previous C5/6 fusion, the following must be noted:
13.1
The neck stiffness was not the only struggle for the plaintiff;
13.2
The fact that he is older can also be ascribed to the delay in which
this case came to conclusion;
13.3
His age, smoking and previous fusion were all pre-existing factors
which fall within the “egg-skull”
doctrine and that the
defendant “
must take his victim as he finds him”;
13.4
The previous fusion of the C5/6 vertebrae was performed several years
prior to the accident
and did not affect the plaintiff’s
day-to-day life, earnings or earning capacity.
[14] In as
much as the first defendant has to bear the brunt for the cavalier
attitude of its employees, a number of
factors as indicated above
mitigate against the payment of the full claim as demanded by the
plaintiff. It is evident from the
expert reports that the second
defendant was fortunate not to have been held contributorily liable.
The plaintiff's own behaviour
and personal factors also contribute to
the gravamen or seriousness of his condition. Having considered all
of the above, I am
of the view that a fair apportionment of the
general damages to be paid by the first defendant should be allowed
in the amount
of R 580 000.00.
[15] The
parties have agreed on the costs which have been included in the
draft order.
[16] The
following order issues:
Order:
1.
The defendant shall pay the plaintiff the
sum of R 580 000.00 in respect of general damages.
2.
The draft order marked “X” is
made an order of court.
MHLAMBI, J
On
behalf of the plaintiff:
Adv.
R Van Wyk
Instructed
by:
McIntyre
Van Der Post Attorneys
12
Barnes Street
Bloemfontein
On
behalf of the defendant:
Adv.
GJM Wright
Instructed
by:
State
Attorney
49
Charlotte Maxeke Street.
Bloemfontein
[1]
[2016]
JOL 36275
(WCC) paras 154-158.
[2]
Bee
v Road Accident Fund 2018 (4) SA 366 (SCA).
[3]
Sandler
v Wholesale Coal Suppliers Ltd
1941 AD 194
at 199; Southern
Insurance Association v Bailey NO
1984 (1) SA 98
(AD).
[4]
Expert
Bundle page 104 (3
rd
paragraph from the top).