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[2023] ZAECBHC 35
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Khonongo v MEC for Health, Eastern Cape (326/2020) [2023] ZAECBHC 35 (23 November 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, BHISHO)
CASE
NO. 326/2020
In
the matter between:
MALUSI
KHONONGO
PLAINTIFF
and
MEC
FOR HEALTH, EASTERN CAPE
DEFENDANT
JUDGMENT
Rugunanan
J
[1]
A fractured elbow described in medical terms as a
severe intra-articulated fracture of the left distal humerus (the
injury) fixated
in theatre with percutaneous K-wires opined to be
substandard treatment leading to malunion, functional impairment and
ulnar nerve
palsy is at the focus of this litigation. The plaintiff,
an adult male, claims damages arising from the treatment administered
to him by medical staff of Frere Hospital, East London (the
hospital), after he was involved in a motor vehicle accident on 1
October
2018 in which he sustained the injury to his left elbow.
[2]
An overview of the material parts of the
plaintiff’s case are extrapolated from his particulars of claim
as follows:
‘
3.
[T]he plaintiff was admitted at Frere Hospital for surgery and
medical care after sustaining
a severe fracture of the left distal
supracondylar (“the fracture”) following a motor vehicle
accident that occurred
on the same date.
4.
On the 3
rd
of October 2018, surgery was performed on the
plaintiff, the fracture was treated and fixed by means of
percutaneous K-wire fixation
technique involving lateral to medial
fixation of the fracture, and plaintiff was discharged on the 5
th
of October 2018.
5.
On a follow-up visit to the hospital on the 22
nd
of
October 2018, plaintiff was examined and it was found at that stage
that the fracture had remained physically unchanged and
the fixation
in fact displaced. The plaintiff was further treated and discharged.
6.
On a further review at the hospital on the [27
th
]
of
January 2019, the percutaneous K- wires were still in situ however,
the bandages around the fracture were found soiled and the
elbow had
become stuff. Plaintiff was examined by a senior doctor, counselled
about this development and outcome and then discharged.’
[3]
This pleaded narrative of events is then followed
by the legal duty of care which the plaintiff alleges arose by
conduct or orally,
alternatively tacitly and/or impliedly in terms of
which the hospital staff were obliged to provide him with proper
surgery, medical
care, nursing care, advice, and supervision (the
treatment) with reasonable skill, care and diligence.
[4]
The particulars of claim thereafter disclose the
development of complications to the plaintiff’s injury which
are alleged
as follows:
‘
10.
Following the plaintiff’s medical review and discharge on the
[27
th
]
of January 2019 as aforesaid, the plaintiff’s fracture healed
badly leading to the development of a deformed and dysfunctional
elbow with excruciating pain.
11.
On the 24
th
of October 2019, x-rays were taken on the
plaintiff’s left elbow and the results revealed a malunion of
the supracondylar
fracture (distal humeral metadiaphysis) with
shortening and lateral displacement of the distal fracture fragment.
12.
The x-rays also revealed the existence of corticated bony fragments
in the antral medial
compartment with no evidence of any current or
immediately sustained fractures or dislocations and with no distinct
features of
joint effusion.’
[5]
Ensuing from the aforegoing are several grounds of
negligence. These are pleaded to elucidate the breach of the legal
duty of care,
the plaintiff alleging notably that the defendants
medical and nursing personnel:
‘
13.1
employed an inappropriate percutaneous K-wire paediatric fixation
technique to the fracture which caused
poor reduction from the
outset, resulting in the fracture healing inappropriately;
…
13.6
… failed to employ the most appropriate, reasonable, adequate
and recommended fixation treatment
techniques to the plaintiff’s
elbow injury;
…
13.10 …
failed to provide plaintiff with sufficient or effective
post-operative care and monitoring to ensure
that plaintiff recovers
appropriately and timeously.’
[6]
As a direct consequence of the substandard
treatment, negligence and breach of legal duty, the plaintiff alleges
the onset of sequelae
entailing,
inter
alia
:
‘
14.1
… a severe malunion of the supracondylar fracture after
undergoing surgery and treatment;
14.2 [the development] of
a very stiff, deformed, and dysfunctional elbow after the surgery and
treatment;
14.3 [the development] of
claw fingers, a weak grip, and loss of sensation as a result of
damages (sic) to the ulnar nerve due to
the deformity of the elbow;
[the development] of
lateral displacement and shortening of the distal fracture fragment,
after the surgery and treatment causing
serious functional impairment
of the elbow...’
[7]
Save for the instances of negligence which the
defendant denies, the allegations aforementioned are to a large
extent not disputed,
more particularly the defendant admits that the
hospital falls under her jurisdiction and admits the duty of care
owed to the plaintiff.
[8]
At the commencement of the proceedings and by
agreement between the parties the trial of the matter proceeded on
the issue of the
defendant’s liability on the merits pursuant
to an order under uniform rule 33(4).
[9]
According to the parties’ rule 37 minutes,
it is common cause that the K-wire fixation procedure (the
procedure/technique)
was employed.
[10]
In summary, the plaintiff’s case is that the
procedure was inappropriate and substandard – its
utilisation by the
medical and nursing staff employed at the hospital
amounted to a negligent breach of the duty of care owed to him
causing him to
suffer complications and harm for which the defendant
is legally responsible.
[11]
While admitting that the K-wire procedure was
performed on the plaintiff, in disputing liability, the gravamen of
the defendant’s
case is pleaded as follows:
‘
18.
… [The] Plaintiff was accorded standard treatment, however
what appeared to be his problem was him not following instructions
given to him by hospital employees on how to handle his situation at
home.’
[12]
There are two legs to the defendant’s case:
(a)
the
K-wire fixation procedure was standard; and
(b)
the plaintiff did not accede to
advice/instructions given to him by hospital staff regarding the post
discharge management of his
injury.
[13]
As to
(b)
it may as well be mentioned that no version was
put to the plaintiff and the issue need not be dealt with further in
this judgment.
The unpleaded proposition put up during
cross-examination of the plaintiff that his complications and
sequelae were the result
of the motor vehicle accident was not
persisted with upon objection being taken.
[14]
In addition to the pleadings are the joint minutes
of the parties’ experts, namely orthopaedic surgeons Dr P
Mwangalawa and
Dr N Mzayiya who gave testimony respectively for the
plaintiff and the defendant. The minutes reflect the following
agreement (all
sic
):
‘
1.
Mr Malusi Khonongo was a passenger in a vehicle which was involved in
an accident.
2.
He sustained [a] severe intra-articulated fracture of the left distal
humerus
(elbow joint).
3.
He had closed reduction and fracture fixed with percutaneous K-wire
fixation
technique stabilised with a back slab for 3 months.
4.
The fractured elbow has healed with the deformity (malunion) and
stiffness.
5.
The elbow function, pain and osteoarthritis will progress further
requiring more
major surgical intervention like elbow arthroplasty.
6.
We both know and agree that the standard treatment for
intra-articular fractures
is (ORIF) Open Reduction and Internal
Fixation.
7.
We both agree that Mr Khonongo’s fracture did not undergo ORIF.
We disagree on the
following:
We differ on the choice
on the use of K-wire fixation technique in intra-articular fractures
in adults.
Dr Mwangalawa believes
that such technique is substandard.
DR Mzayiya is of the view
that the preferred treatment did not have impacts on complications Mr
Khonongo has.’
Applicable legal
principles for liability
[15]
The
plaintiff’s claim is founded on negligence, that is, upon the
absence of that reasonable skill and care which the law
requires
under the circumstances. In assessing the general level of skill of a
practitioner, reference must be made to the branch
of the profession
to which the practitioner belongs. In
Medi-Clinic
Ltd v Vermeulen
[1]
the Supreme Court of Appeal appositely quoted the following
dictum
as
regards the approach adopted by the English Courts:
‘
In
Bolam
McNair
J, in summarising the true test for establishing negligence on the
part of the doctor in medical negligence cases, said (at
122B - C):
“A doctor is not guilty of negligence if he has acted in
accordance with a practice accepted as proper by a responsible
body
of medical men skilled in that particular art. I do not think there
is much difference in sense. It is just a different way
of expressing
the same thought. Putting it the other way round, a doctor is not
negligent, if he is acting in accordance with such
a practice, merely
because there is a body of opinion that takes a contrary view. At the
same time, that does not mean that a medical
man can obstinately and
pig-headedly carry on with some old technique if it has been proved
to be contrary to what is really substantially
the whole of informed
medical opinion. Otherwise you might get men today saying: I don’t
believe in anaesthetics. I don’t
believe in antiseptics. I am
going to continue to do my surgery in the way it was done in the
eighteenth century. That clearly
would be wrong.” ’
[16]
It
follows that the logical starting point to any enquiry into
negligence commences with the standard of conduct of a reasonable
person. In
Mitchell
v Dixon
[2]
the court pointed out that:
‘
A
medical practitioner is not expected to bring to bear upon the case
entrusted to him the highest possible degree of professional
skill
but he is bound to employ reasonable skill and care and he is liable
for the consequences if he does not.’
[17]
In deciding what is reasonable it was held in
Van
Wyk v Lewis
that the court will have
regard to the general level of skill and diligence possessed and
exercised at the time by the members of
the branch of the profession
to which the medical practitioner belongs.
[18]
A failure to observe a general level of skill and
diligence may be negligent if it is found that the failure would not
have been
occasioned by a reasonably competent practitioner
professing to have the standard and type of skill that the defendant
held himself
out as having.
[19]
A
medical practitioner would be negligent if they had failed to foresee
the possibility of injury to a patient in circumstances
where a
reasonable person in their particular circumstances would have
foreseen the possibility of injury to the patient and would
have
taken steps to avoid or prevent the injury. The first question to
consider is therefore whether there was a failure to comply
with the
required standard of conduct of a reasonable person (a medical
practitioner) in the particular circumstances.
[3]
[20]
In
assessing the issue of reasonableness and negligence, the court often
relies on the assistance of experts from the medical profession
in
navigating through the particular intricacies of the medical field.
Although medical opinion is of value to the court, the ultimate
decision of what is reasonable conduct in the circumstances is
reserved for the court. Where expert medical opinions, as they often
do, differ, the court will assess the evidence not by applying
scientific standards, but by applying the legal standard of balance
of probabilities.
[4]
[21]
In
doing so the approach taken in the evaluation of expert testimony is
founded on logical reasoning. In
Coopers
(South Africa) (Pty) Ltd v Deutsche Gesellschaft fur
Schadlingsbekampfung MBH
[5]
(
Coopers
)
it is authoritatively stated that:
‘
[A]n
expert’s opinion represents their reasoned conclusion based on
certain facts or data, which are either common cause,
or established
by their own evidence or that of some other competent witness. Except
possibly where it is not controverted, an
expert’s bald
statement of their 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.’
[22]
Differently
stated, a conclusion arrived at by an expert must be informed by
logical reasoning underpinned by admissible facts (see
generally
Michael
v Linksfield Park Clinic
[6]
2001 (3) SA 1188
(SCA) 1200I-1201B).
[7]
The evidence
[23]
With the parties being in agreement that the
standard treatment for intra-articular fractures is open reduction
and internal fixation
(ORIF), the issues to be decided by this Court
are whether the K-wire procedure was reasonable for an adult such as
the plaintiff,
and whether such treatment was causally connected to
the sequelae he experiences. On these issues the parties relied on
the testimony
of their respective expert witnesses whose
qualifications, credentials and experience were not disputed.
[24]
To a large extent the plaintiff testified in
support of the factual narrative contained in his particulars of
claim which has been
quoted earlier in this judgment. He was a
satisfactory witness. He testified that his elbow joint was wired and
his arm was fixed
in a solid plaster cast. He maintained that upon
discharge from the hospital on 5 October 2018 no instructions were
given to him
by the medical staff for the management of his elbow.
His discharge was followed by three follow-up visits. It is common
cause
that these took place on 22 October 2018, 10 December 2018, and
27 January 2019. There is nothing significant in his evidence
regarding
the treatment given to him on each occasion, save that
physiotherapy was recommended on the third visit – to which
treatment
he submitted.
[25]
The medical records indicate that plaintiff was
counselled about the outcome of his injury (the content of such
counselling is not
documented). In this regard he stated that he was
informed that his arm was stiff and although it would not function as
it previously
did, he was at no risk of an amputation. He maintained
that at no stage during any of his follow-up visits was he informed
by attending
medical/nursing staff that he was not taking proper care
of his arm, post-operatively. Overall, he confirmed that on each of
the
follow-up visits his arm was x-rayed and the plaster cast removed
and replaced with bandaging. As for his situation at present,
he
complained that his arm is functionally impaired. He is unable to
drive with ease nor is he able to use a spade when he does
home
gardening.
[26]
Cross-examination of the plaintiff was directed at
the issue of causation. In other respects, not mentioned herein, it
was unremarkable.
It was put to the plaintiff that the attending
doctors at the hospital informed him that his injury could not be
conventionally
treated. Precisely what was meant by conventional
treatment was not put to the plaintiff, and the imputation was met
with a denial.
It was further put to him that a nursing attendant
informed him that his arm would never be normal due to the severity
of the injury.
The plaintiff admitted that he was informed that his
arm would never be normal but denied that it was due to the severity
of the
injury. He maintained rather that his expert witness informed
him that the treatment given to him at the hospital was ‘wrong’
and that his arm ought to have been restored to normal function.
[27]
I now deal with the expert evidence. To begin
with, in a report dated 7 August 2023 the contents of which he
confirmed, Dr Mwangalawa
described the plaintiff’s injury as an
‘unstable displaced comminuted intra-articular fracture of the
left distal humerus’.
By definition, this type of fracture is
characterised by the presence of three or more bone splinters. He
testified that the principle
in the orthopaedic management of an
unstable fracture is to achieve alignment of the bony fragments as
they were before the injury
occurred. The targeted objective is to
reduce the fracture to near normal as possible. The standard
procedure for achieving this
in adults is through open reduction
surgery with the use of plates and screws. The fixatives serve to
maintain anatomical alignment
and prevent displacement of bony
fragments.
[28]
Percutaneous K-wiring, on the other hand, is a
technique that does not involve open reduction surgery with the use
of plates and
screws. The technique entails the use of wires, with
varying diameters – the largest of which is 2mm – to hold
together
bony fragments. The procedure is unsuitable for ‘big
bones’ in adults – it is weak; it does not achieve
stability
and does not prevent displacement of fragments. It may
however be suitable for smaller bones such as those in the fingers or
toes.
The procedure has a negative outcome due to the fact that the
wiring will not withstand muscular tension and will fail.
[29]
Testifying on the plaintiff’s hospital
records, Dr Mwangalawa noted that the plaintiff was initially
scheduled to undergo
open reduction and internal fixation surgery. In
point, the records indicate that the plaintiff consented to
undergoing this procedure.
However it did not happen and the
percutaneous reduction technique entailing the use of K-wires was
resorted to. For the plaintiff,
this treatment was inappropriate –
it did not conduce to stable rigid fixation to achieve near
anatomical joint alignment.
The outcome was poor – the
plaintiff’s elbow is deformed and stiff, the fracture has
healed badly and the plaintiff
has ulnar nerve palsy. In that regard,
Dr Mwangalawa notes in his report that the K-wires were ‘inserted
blindly from a safe
side to a dangerous area leading to ulnar nerve
damage’. In all, Dr Mwangalawa maintains that the attending
medical personnel
ought to have known what the upshot would be for
the choice of treatment rendered to the plaintiff.
[30]
As for the plaintiff’s follow-up visits, Dr
Mwangalawa opined that on 22 October 2018 the plaintiff’s
injury was
noted in the hospital records as ‘swollen unchanged
displacement’. This meant that the treatment initially given
did
not achieve reduction. A reasonable intervention at that stage
would have entailed the removal of the percutaneous wire fixatives
and recourse to open reduction and internal fixation surgery. As for
the plaintiff’s second visit on 10 December 2018, the
hospital
records indicate inter alia ‘poor callus’ formation
(suggestive of non-union of the bony fragments); ‘remove
slab
and mobilise elbow’; and ‘keep K-wires in situ’. Dr
Mwangalawa was of the view that the removal of the slab
rendered the
plaintiff’s elbow joint movable and susceptible to
complications. Even at this point in time, the percutaneous
fixatives
could have been removed with open reduction and internal fixation
being resorted to as a corrective procedure for remedying
the
non-union of bony fragments in the joint complex. On 27 January 2019
the plaintiff presented with soiled bandages, and the
range of motion
of his elbow was diminished. The hospital records disclose that the
plaintiff was counselled about the poor outcome
of his injury. On
this occasion the dressings were removed and so too were the K-wire
fixatives. According to Dr Mwangalawa, there
was opportunity for
resorting to an osteotomy and the insertion of plates and screws to
stabilise the joint. In his opinion, the
hospital records indicate
that post operatively the medical and/or nursing staff knew that
there was still displacement of the
plaintiff’s fracture and
that they failed to take him back to theatre.
[31]
The evidence of the defendant’s expert, Dr
Mzayiya, moves from the premise that the plaintiff sustained a high
energy injury,
hence the presence of multiple fragments would render
the use of the K-wire technique appropriate since it would be
difficult to
determine where each fragment belongs. Put otherwise Dr
Mzayiya appeared to suggest that anatomical alignment cannot be
achieved
in what he described as a ‘bag of bones’
scenario. When confronted by this during cross-examination Dr
Mwangalawa indicated
that such a statement is inconceivable from an
orthopaedic surgeon. I agree.
[32]
Dr Mzayiya accepted that the plaintiff was
initially scheduled to undergo open reduction and internal fixation
surgery but was of
the view that the decision at ground level amongst
the attending medical personnel might have changed. This line of
thinking is
speculative considering that no evidence was led from a
factual witness.
[33]
In cross-examination Dr Mzayiya conceded
inter
alia
that the percutaneous K-wire
fixation technique was inappropriate and inadequate for the purpose
of achieving stabilisation of the
plaintiff’s injury. The
concession came about after the witness embarked upon a series of
circuitous and evasive responses
to fairly straightforward questions.
When asked if poor callus formation meant that the bone was not
healing after 8 weeks on plaintiff’s
follow-up visit of 10
December 2018, he stated that one could not comment at 8 weeks. When
asked if he maintained that the K-wire
fixation procedure was the
best option for the plaintiff, he elected to list other treatments
that were of no relevance to the
plaintiff’s injuries. He
eventually conceded that he was speculating in that regard.
[34]
In assessing the experts’ evidence
specifically on the issue of negligence, I am of the view that the
evidence of Dr Mwangalawa
is to be preferred since it bears the
hallmark of logical reasoning and musters the threshold requirement/s
set out in
Coopers
.
[35]
In
the joint minutes, the experts are in agreement that the standard
treatment for the kind of injury sustained by the
plaintiff
is open reduction and internal fixation. It is trite that parties are
bound by the facts agreed upon in a joint minute
between their expert
witnesses (see
Glen
Marc Bee v Road Accident Fund
[8]
and
Thomas
v BD Sarens (Pty) Ltd
[9]
).
Dr Mwangalawa’s evidence logically proceeds from the
principle of the orthopaedic management of a fracture
such
as that sustained by the plaintiff – which principle recognises
open reduction and internal fixation surgery as the
standard for
achieving union and stability.
[36]
The deviation from employing the recommended
standard of treatment (and the unexplained departure therefrom owing
to the absence
of a factual witness), in circumstances where the
defendant’s medical and nursing personnel reasonably ought to
have foreseen
the consequences of the deviation and ought to have
taken steps to guard against such consequences, constitutes
negligence.
[37]
The final important question is to determine what
causal role did the negligence play in the complications besetting
the plaintiff
and the consequent damage suffered by him.
[38]
On
the causation issue, the question to be asked is what would have
happened if the negligent conduct or omission of the treating
staff
is mentally eliminated and hypothetically replaced with lawful
conduct. If the plaintiff established that in such event his
condition would on a preponderance of probabilities not have
happened, he would be entitled to recover his damages because
causation
will be regarded as having been established as a fact.
[10]
[39]
In
Minister
of Safety and Security v Van Duivenboden
[11]
the Supreme Court of Appeal aptly summed up the position in the
following terms:
‘
A
plaintiff is not required to establish a causal link with certainty,
but only to establish that the wrongful conduct was probably
a cause
of the loss, which calls for a sensible retrospective analysis of
what would probably have occurred, based upon the evidence
and what
can be expected to occur in the ordinary course of human affairs
rather than an exercise in metaphysics.’
[40]
In testifying as he did, Dr Mzayiya expressed the
view that despite open reduction and internal fixation being the
treatment of
choice it still carries the risk of complications such
as stiffness. He proffered no comment on the occurrence of the risk
of ulna
nerve palsy which materialised as it did for the plaintiff –
and indeed he was not asked to do so. Dr Mwangalawa’s thesis
of
the K-wires being inserted blindly into a dangerous area of the
fracture site stands uncontradicted.
[41]
A reading of the particulars of claim suggests
that the plaintiff’s pleaded case is that his complications are
the direct
consequence of the negligent substandard treatment
occasioned by the use of percutaneous K-wires which occasioned nerve
damage
and the onset of clawed fingers. A mental elimination of the
treatment rendered to the plaintiff and its substitution with the
agreed orthopaedic standard sensibly leads to the conclusion that the
plaintiff’s condition and its impediments would not
have
materialised.
[42]
I am therefore satisfied that causation is
established.
[43]
At the conclusion of the hearing the plaintiff
contended for a costs award to include the employment of two counsel.
In my view
the matter was not of such complexity as to necessitate
the employment of second counsel.
[44]
In the circumstances I make the following order:
1.
The separated issue of liability on the merits is
determined in favour of the plaintiff and the defendant is held
liable to pay
100% (one-hundred percent) of the plaintiff’s
agreed or proven damages suffered by him consequent to the medical
treatment
administered to the plaintiff upon his admission to Frere
Hospital on 01 October 2018.
2.
The issue of the plaintiff’s quantification
of damages is postponed
sine die
.
3.
The defendant is ordered to pay the plaintiff’s
costs of suit on a party and party scale in respect of the
determination of
the separated issue of liability on the merits as
follows:
3.1
Costs up to and including 01 September 2023.
3.2
The costs of consultations, travelling and
subsistence of the plaintiff’s expert witness and legal
representatives for the
purpose of consultation and trial.
3.3
The costs in 3.1 and 3.2 shall be limited to the
employment of one counsel.
3.4
The costs of reports, supplementary reports,
qualifying expenses, and joint minutes in respect of the plaintiff’s
expert witness
Dr Mwangalawa who testified on the issue of liability
on the merits.
4.
The costs shall include interest at the prescribed
legal rate from a date 14 (fourteen) days after allocator to date of
payment.
M S RUGUNANAN
JUDGE OF THE HIGH
COURT
Appearances:
For
the Plaintiff:
L
van Vuuren
and
Z Zito
, Instructed by Msitshana
Incorporated, East London, Tel: 043-722 0603 (Ref:
Msitshana/Mawande
).
For
the Defendant:
Z
Nabela
, Instructed by The State Attorney, East London, Tel:
043-706 5100 (Ref: 464/20-P16 (
Ngcama
)).
Dates
heard:
29,
31August 2023 , 01
September 2023
Date
delivered:
23
November 2023
[1]
2015 (1) SA 241
(SCA) at paragraph [6].
[2]
1914 AD 519
at 525;
Medi-Clinic
v Vermeulen
2015
(1) SA 241
(SCA) at 243B.
[3]
The
classic test has been formulated in
Kruger
v Coetzee
1966
(2) SA 428
(A) quoted from the headnote: ‘In an action for
damages alleged to have been caused by the defendant's negligence,
for
the purposes of liability
culpa
only
arises if a
diligens
paterfamilias
in
the position of the defendant not only would have foreseen the
reasonable possibility of his conduct injuring another in his
person
or property and causing him patrimonial loss, but would also have
taken reasonable steps to have guarded against such
occurrence; and
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.
Where
the defendant has foreseen the possibility and taken certain steps,
the
onus
is on the plaintiff to prove that there were further
steps which he could and should have taken.’
[4]
MM V
Netcare Hospitals (Pty) Ltd and Others
[2017] ZAGPPHC
474 para 81.
[5]
1976 (3) SA 352
(A) at 371F-G.
[6]
2001 (3) SA 1188
SCA 1200I-1202B.
[7]
In
PriceWaterhouseCoopers
Inc & Others v National Potato Co-operative Ltd & Another
[2015] 2 All SA
403
(SCA) para 98 the Supreme Court of Appeal cited with approval
the English case of
National
Justice Compana Naviera SA v Prudential Assurance Co Ltd (‘The
Ikarian Reefer’)
[1993] 2 Lloyd’s
Rep 68 [QB (Com Ct] at 81-82 in which the duties of an expert
witness were set out, namely; (1) Expert
evidence presented to
the court should be and should be seen to be the independent product
of the expert uninfluenced as to form
or content by the exigencies
of litigation…; (2) An expert witness should provide
independent assistance to the court
by way of objective unbiased
opinion in relation to matters within his expertise… An
expert witness in the High Court
should never assume the role of an
advocate; (3) An expert witness should state the facts or
assumptions on which his opinion
is based. He should not omit to
consider material facts which detract from his concluded opinion;
(4) An expert witness should
make it clear when a particular
question falls outside his expertise.
[8]
2018 (4) SA 366
(SCA) paras 64-66.
[9]
[2012] ZAGPJHC 161 para 9.
[10]
International Shipping Company (Pty) Ltd v Bentley
1990 (1) SA 680
(A) 700F-701G.
[11]
Minister
of Safety and Security v Van Duivenboden
2002
(6) SA 431
(SCA) para 26.