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[2023] ZAECMKHC 133
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Manziya v Member of the Executive Council, Department of Health, Eastern Cape and Another (950/2012) [2023] ZAECMKHC 133 (28 November 2023)

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IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
CASE
NUMBER.: 950/2012
In
the matter between:
NKULULEKO
NATHANIEL MANZIYA
Plaintiff
And
MEMBER
OF THE EXECUTIVE COUNCIL,
DEPARTMENT
OF HEALTH, EASTERN CAPE
First
Defendant
MEDICAL
SUPERINTENDENT, SETTLERS
HOSPITAL,
MAKHANDA
Second
Defendant
JUDGMENT
Beshe
J
Introduction
[1]
Plaintiff’s left leg was amputated above the knee on the 4
November 2009 at Uitenhage Provincial Hospital. Alleging that
this
was as a result being mistreated by defendants’ employees both
at the Settlers Hospital, Makhanda and at Provincial
Hospital,
Kariega formely Uitenhage, by breaching their duty or care, plaintiff
is now suing the defendants. This is on the basis
that they are
liable for damages he suffered as a result of his leg being
amputated.
The
Parties
[2]
Plaintiff is an adult male residing at [....] N[....] S[....],
K[....], K[....]. First defendant is the Member of the Executive

Council for the Department of Health, Eastern Cape. Second defendant
is the Medical Superintendent of Settlers Hospital, Makhanda,

formerly known as Grahamstown.
Pleadings
[3]
Plaintiff pleaded that he visited Settlers Hospital on 19 October
2009 and Provincial Hospital on 27 October 2009 where he entered
into
an agreement with employees of the defendants who undertook to
provide him with medical care in respect of an injury he had

sustained to his left leg. And that in providing him with such
medical care, they will do so with such professional skill, care
and
diligence as can be reasonably expected of a hospital and its medical
and nursing personnel. Further that it was within the
knowledge of
the parties in concluding these agreements that in the event of
defendants’ employees breaching this agreement,
plaintiff will
suffer damages. In the alternative, plaintiff pleaded that the
defendants, by accepting the plaintiff as a patient
at either
Settlers Hospital or Uitenhage Provincial Hospital, defendants and or
their employees were under a duty of care to provide
him with the
requisite medical care with such professional skill, care and
diligence as can be reasonably expected of a hospital
and its medical
and nursing personnel. After sketching the history relating to his
visits to both Settlers and Uitenhage Provincial
Hospitals, plaintiff
pleads that the defendants breached their agreements with him
alternatively their duty of care in the following
manner:
In
respect of Settlers Hospital, on 19 October 2009 he was prematurely
discharged. He was not admitted overnight for observation
of
circulation in his lower leg. Failed to observe that there was
significant swelling of his lower leg at the time of his admission

and treatment. Failure to apply a split plaster of paris to his leg,
despite the swelling and instead applied a circular plaster.
Failure
to advise him of the necessity to return to Settlers Hospital the
following day or soon thereafter for a circulation check
of his leg
and to communicate the importance of the said check as well as the
clinical signs to be on the lookout for signalling
impaired
circulation being present. Failure to ensure that a qualified medical
practitioner applied the plaster of paris to plaintiff’s
leg.
Failure to consider whether the application of a circular plaster may
result in serious medical complications such as acute
compartment
syndrome and to take steps to prevent same.
[4]
In respect of Uitenhage Provincial Hospital, plaintiff pleaded inter
alia that they did not pay attention to the fact that he
presented
with circular plaster of paris since 19 October 2009, complaining of
bleeding, swelling and suffered from septimea to
his leg. Failed to
categorise his condition as a serious medical condition. Take
cognisance of the fact that there were clear signs
of tissue changes
as well as reduced blood flow to his leg. Failed to recognise that
sloughing with associated cellulitis of his
leg was present and
timeously responding to that. Failed to perform an urgent fasciotomy
procedure on him timeously after his admission
in order to prevent
amputation on his leg. By failing to perform an urgent debridement
procedure on him timeously after admission
in order to prevent his
leg being amputated. And only did so on the 30 October 2009 after he
had developed advanced necrosis of
his lower leg which resulted in
the amputation of his leg. As a result of which he has suffered pain,
suffering, shock as well
as permanent disfigurement and loss of
amenities of life. Has incurred medical expenses and will incur
future medical expenses.
He has suffered past loss of income and will
in future suffer further loss of income.
[5]
The chronology of events pertaining to plaintiff’s visit to the
two hospitals was pleaded to have been the following:
He
was admitted to Settlers Hospital at ± 11h25 on 19 October
2009 for treatment of an injury to his left leg, to wit a slightly

displaced lateral malleolus fracture. He was examined by Doctor
Megafu who ordered a radiographic examination of his leg and
administered
a voltaren injection. At 12h40 Doctor Megafu examined
the radiograph taken of his injury and ordered a male nursing
assistant to
apply a plaster of paris cast to his lower leg. He was
thereafter discharged from Settlers Hospital without being advised to
return
thereto the following day for a circulation check. On 27
October 2009 he was admitted to Uitenhage Provincial Hospital
complaining
of pain in his left lower leg, whereupon the plaster cast
to his leg was removed, where amongst other things diminished blood
flow
to his lower leg was evidenced by a dark discolouration of his
leg. After being radiographed, his leg was immobilized with a
non-circumstantial
cast. At 10h30 on 28 October 2009 cellulites and
sloughing of his leg with blue discolouration was noted. Radiographic
examination
revealed a lateral malleolus fracture with mild
displacement without callies formation or evidence of union. On 30
October 2009
a debridement of his leg was performed. Puss was
observed draining from his leg. On 4 November 2009 an above the knee
amputation
was performed on his leg. He was discharged on the 11
November 2009.
[6]
In their plea the defendants raised three special pleas:
The
first one being that plaintiff’s amendment of his particulars
of claim to include allegations relating to negligence by
Uitenhage
personnel after his admission there, as being irregular in that it
did not comply with Rule 28. However, the said irregularity
was
condoned by the defendants with effect from the date of the purported
amendment (29 April 2019). Defendants plead that in terms
of Section
12 read with 10 and 11 of the Prescription Act,
[1]
the plaintiff’s claim in respect of the alleged negligence
relating to Uitenhage Provincial Hospital prescribed within three

years from November 2009 the date on which the negligence is alleged
to have occurred. As this claim amounted to an entirely new
cause of
action which was not pleaded before. In defendants’ second
plea, a point was taken that the plaintiff did not serve
the written
notice as required by Legal Proceedings against Certain Organs of
State Act
[2]
on the defendant.
Defendants’ third special plea relate to a complaint that the
amended plaintiff’s particulars of
claim in regard to his
admission in Uitenhage Provincial Hospital, a new claim, incorporated
the second defendant thereby constituting
an impermissible misjoinder
of second defendant.
[7]
In his replication to defendants’ special plea, plaintiff
denied that the alleged negligent mistreatment at the Uitenhage

Hospital relates to an entirely new cause of action. As it arises
from the same incident as pleaded by the plaintiff in his original

particulars of claim. Both hospitals fall under the authority and
control of first defendant. Plaintiff’s claim has not been

extinguished by prescription against the defendants. Alternatively,
so the replication goes, plaintiff pleads that he only became
aware
of the alleged negligent treatment at the Uitenhage Hospital upon
receiving the medico-legal report of Doctor P. A. Olivier
dated 5
July 2017 and therefore his claim has not prescribed. Regarding the
defendants’ second plea, it was pleaded that
the notices issued
on 21 January 2010 to first and second defendants contained
particulars of persons responsible for the negligent
treatment of the
plaintiff as being medical practitioners and or medical personnel who
treated the plaintiff at Settlers Hospital
and or Uitenhage
Provincial Hospital. In reply to defendants’ third special
plea, plaintiff pleaded that no damages are claimed
against the
second defendant in so far as it relates to plaintiff’s
treatment at the Uitenhage Provincial Hospital.
[8]
In my view, defendants’ special pleas are somewhat related and
can be dealt with as one. Had the claim been instituted
or had the
Uitenhage Provincial Hospital been cited as a defendant the special
pleas or one of them would have merit. The Uitenhage
Provincial
Hospital has not been joined as a party. I am inclined to agree with
the plaintiff that allegations or evidence regarding
plaintiff’s
treatment at Uitenhage is causally linked to the treatment he
received in Settlers Hospital. That although negligence
is alleged
against the medical staff at the Uitenhage Hospital, whether such is
found to exist will not make a difference or is
academic. The Member
of the Executive Council for Department of Health Eastern Cape is
responsible for both hospitals and therefore
vicariously liable for
the negligent actions of its employees. I am not persuaded that the
amendment to include allegations about
what occurred at Uitenhage
Provincial Hospital constitute a new cause of action. Had there been
a claim against the Uitenhage Provincial
Hospital, or a claim been
instituted against it, it could in those circumstances be said that
this was a new and different cause
of action. Even if it were to be a
new cause of action, I am not persuaded that the plaintiff would be
nonsuited to claim against
the Uitenhage Provincial Hospital by
virtue of the fact that his claim would have become prescribed by
effluxion of time. It appears
to be common cause that the details
about the alleged negligence by medical staff at Uitenhage Provincial
Hospital only came to
the fore upon receipt of Dr Olivier’s
report during 2019. In the said report Dr Olivier opined that
plaintiff received substandard
medical care at both Settlers Hospital
and Uitenhage Provincial Hospital. The latter hospital having failed
to perform a fasciotomy
which would have averted amputation of
plaintiff’s leg. There is however evidence that at that stage
as a result of the compartmental
syndrome, plaintiff’s leg
could not have been saved. It is trite that a debt does not become
due until the creditor acquires
knowledge of the identity of the
debtor and the facts from which the debt arises.
[3]
Before sight of Dr Olivier’s report, the plaintiff was not
aware of the facts giving rise to the alleged negligence by Uitenhage

Provincial Hospital; staff. This was not disputed by the defendants.
For these reasons and based on my conclusion regarding the
dispute
between the parties, defendants’ special pleas are dismissed.
Plea-over
[9]
Defendants admitted plaintiff’s allegations regarding his
admission at the two hospitals on the specific dates as well
as the
injury in respect of which he required medical attention. The duty
owed to the plaintiff by first defendant’s employees
as alleged
by plaintiff. It is denied that second defendant is correctly cited
as defendant in these proceedings. Treatment administered
to the
plaintiff at Settlers Hospital is admitted. Defendant denies that
plaintiff was not advised to return to Settlers Hospital
the
following day or immediately should he experience pain in his lower
leg. Defendants pleaded that the deterioration of plaintiff’s

condition, the amputation of his lower leg and any damages he may
have suffered as a result thereof is attributable solely to his

negligence having been negligent in one or more of the following
aspects:
By
failing to return to Settlers Hospital for a check-up immediately or
at all on experiencing pain in his lower leg.
By
making excessive use of his leg.
By
failing to take reasonable steps to care for his injured leg and
ensuring that the injury to and condition of his left leg did
not
deteriorate and by failing to take the prescribed medication.
Defendants
pleaded that plaintiff was discharged from Settlers Hospital in
accordance with normal and accepted procedure. Deny that
it was
necessary to admit him overnight. Further that even though swelling
in plaintiff’s leg was evidence it was not necessary
to split
the plaster cast. Furthermore, that when plaintiff presented at the
Uitenhage Provincial Hospital, he had full-blown compartment
syndrome
with necrotic muscles and a compression and fasciotomy would have
served no purpose. Defendants admitted that plaintiff
developed
compartment syndrome and ischaemia of his lower leg, sloughing of
skin and infection, and ultimately had to undergo an
above knee
amputation of his left leg. Breach of the duty of care by its
employees is denied by the defendants.
Evidence
[10]
Plaintiff, his wife, and Doctor P. A. Olivier who
is an orthopaedic surgeon testified in support of plaintiff’s

claim. Mrs Fezeka Angeline Manziya was the first witness to testify
in support of plaintiff’s case. Her evidence revealed
the
following:
During
October 2019 she was in Makhanda with the plaintiff for purposes of
attending her mother’s funeral. On Friday the 18
th
being the day preceding the day of the funeral, plaintiff got injured
on his ankle which became swollen. The following day being
the 19
th
,
her brother-in-law drove her together with the plaintiff to Settlers
Hospital in Makhanda for medical attention. In view of the
fact that
plaintiff was walking with difficulty, a security guard brought him a
wheelchair. Once inside the hospital they were
attended by a female
employee who took the plaintiff to the X-ray department where his leg
was X-rayed or had a radiograph examination
done on his leg. The
official who took them to the X-ray room and had the report spoke to
a male nurse who thereafter applied a
plaster of paris cast on
plaintiff’s leg in Mrs Manziya’s presence. The male nurse
provided the plaintiff with crutches
which he used to walk albeit
with difficulty. They followed the male nurse to a room where there
was a doctor. The male nurse reported
to the doctor that he had
applied the plaster of paris cast on the plaintiff’s leg. At
the time, the doctor was some 4 to
5 metres from them attending to a
baby who was crying. He looked at them and gave the male nurse a
thumbs up sign from where he
was. Thereafter, the male nurse told
them to leave. She signalled at the security guard to bring the
plaintiff a wheelchair, which
he did. She thereupon asked the
security guard when the plaster of paris would be removed as they
were not from Makhanda. The security
guard said they should wait
whilst he enquires from the doctor. He came back and reported that
they could have it removed ay any
clinic. And off they went after
that. It also transpired that the plaintiff was provided with pain
tablets at the Settlers Hospital
which plaintiff took once they were
at his wife’s parental home. All this took place on a Sunday.
It was only on the following
Thursday that her brother-in-law drove
them to Kariega where their home is situated. Back home plaintiff
started to feel more pain
in his leg. He could not be taken to
hospital because ambulances could not access the informal settlement
at which they were staying
because it was raining. It was only on the
day following their arrival home that ambulance, after struggling to
get plaintiff’s
place, took him to Uitenhage Provincial
Hospital. At that stage the pain was getting worse. On arrival at the
hospital the plaster
on plaintiff’s leg was removed resulting
in blood and water oozing out of his ankle. The doctors questioned
plaintiff as
to why he delayed coming to hospital. Plaintiff was then
admitted to hospital. She went home and would visit him on daily
basis.
It became common cause that plaintiff’s leg was
ultimately amputated above the knee. She testified that at Settlers
Hospital
they were not told how to care for plaintiff’s injured
leg. During cross-examination it emerged that plaintiff’s ankle

was heavily swollen even on the Saturday preceding his visit to the
hospital. He was also in a lot of pain. The nurse who attended
to
them at Settlers Hospital spoke to her and not plaintiff. She was
present in the room where the male nurse applied the plaster
cast on
the plaintiff. That she forgot to mention that plaintiff was provided
with pain tablets at the hospital. Adding that the
tablets were
brought by the security guard after he had gone inside to enquire as
to when the plaster of paris will be removed.
Denied plaintiff was
given an injection. Denied plaintiff was examined by a doctor or
informed how to care for his leg. She testified
that if hospital
record indicates otherwise as suggested, they will have been
falsified, so would the doctor and nurse’s
statement.
[11]
In his evidence plaintiff confirmed attending at
the Settlers Hospital on 19 October 2019 after injuring
his leg two
days before that when he collided with a tent peg and fell. At the
stage when he visited Settlers Hospital his leg
was sore and swollen.
They proceeded to the hospital reception from where they were taken
to the X-ray department by a nurse without
being examined. A
radiograph of his leg was taken. The nurse examined the report and
informed him that they were going to apply
a plaster cast on his leg.
He was informed that he had sustained a fracture. A plaster cast was
then applied to his leg by a male
nurse, after which he was provided
with two wooden crutches and informed to go and get medication from
the dispensary. He was given
same by a nurse and told to go home. The
male nurse told him to go home and did not explain anything about the
condition and care
of his leg. He also suggested that the nursing
staff spoke to his wife. Once again, the security guard came to their
rescue as
he could not use the crutches properly by bringing him a
wheelchair. Back at his wife’s home the pain grew, and his wife
gave him the pain tablets they got from hospital. The following day
the pain grew worse. They remained in Makhanda for a week before
they
returned home to Kariega. Back in Kariega, the pain continued to
intensify. He was taken to Uitenhage Provincial Hospital
by an
ambulance where his leg had to ultimately be amputated.
[12]
During cross-examination, plaintiff suggested that
no one examined his leg nor the radiography report. The
male nurse
merely applied plaster of paris on his leg. He also stated that he
collected the pain tablets from the hospital pharmacy
that he was
told that the plaster of paris will be removed after 10 days. When he
told the hospital staff that he was from Kariega
he was told the
plaster of paris could be removed anywhere. Regarding his assertion
that no one examined his leg at Settlers Hospital,
his attention was
drawn to his particulars of claim where at paragraphs 5.2-5.3 it is
pleaded that he was examined by Dr Megafu
who ordered a radiographic
examination of the plaintiff. That he further administered a voltaren
injection. Furthermore, that he
examined the radiograph taken of
plaintiff’s injury and ordered a male nursing assistant to
apply a plaster of paris cast
to the plaintiff’s left lower
leg. It was put to him that even though his leg was painful after his
visit to Settlers Hospital,
he took a deliberate decision not to go
back to Settlers Hospital. He stated that he wanted to be treated
where he was working
and residing, at Kariega. It was during
cross-examination that plaintiff would retort that he did not recall
some of the things
that happened at Settlers Hospital because he was
in pain. He cannot recall if he was told he could go to any clinic
for a circulation
check. Whether he was told to come back the
following day for a circulation check, adding that he did not have
any document to
remind him of the said instruction. The same pattern
was followed by the plaintiff during questioning by court. He did not
recall
seeing the doctor. He does not recall seeing the doctor give a
thumbs up sign or at all on that day.
[13]
The next witness to testify in support of
plaintiff’s claim was Dr Peter Andrea Olivier, an orthopaedic

surgeon who testified virtually. He took the court through his report
compiled or prepared almost 10 years after the incident.
He had
assessed the plaintiff two years before preparing the report. In his
report, Dr Olivier stated that from the history gathered
from
plaintiff and clinical notes at his disposal, plaintiff was evaluated
by Dr Megafu. Presented with severe swelling on the
ankle. Given an
injection and referred for radiographs which were later studied by Dr
Megafu who ordered a male nursing assistant
to apply a circular cast
on his leg. Circulation appearing to have been adequate. He notes
that the plaster cast was applied by
a male nursing assistant and not
by a doctor. The latter further did not supervise the application of
the plaster, nor examined
the patient after the cast was applied. He
also notes from the clinical notes at his disposal that the plaintiff
developed an acute
compartmental syndrome. He opined that the
compartmental syndrome was a result of a circular cast that was too
tight. He further
opined that despite the presence of danger signs
the personnel, I would presume, at Uitenhage Provincial Hospital,
failed to perform
an urgent fasciotomy. He further explains that
circular cast is only applicable when there is no significant
swelling, a back slab
would have been more prudent than a circular
cast as it would allow for the swelling. Regarding the alleged
negligence/breach of
duty of care, Dr Olivier opined that the
plaintiff received substandard medical care at both hospitals inter
alia for the following
reasons:
It
was wrong to apply circular cast in the presence of swelling, making
acute compartmental syndrome a probability rather than a
possibility.
It would have been prudent to admit the plaintiff after a back slab
was applied so that circulation checks could be
done. The attending
doctor should have supervised the application of the plaster cast and
verify that there was adequate circulation
after the cast had been
applied. The doctor should have informed the plaintiff of the
possibility of acute compartment syndrome
developing and alerted him
to the so-called “red flag symptoms”. He is of the
opinion that the treatment at Uitenhage
Hospital was inadequate.
Amputation would have been averted by early surgical intervention of
performing a fasciotomy. Plaintiff
would not have developed gangrene
as he did. Further that the plaintiff should have been admitted and
only discharged once the
swelling had subsided as the hospital
records show that plaintiff has a severe swelling of the ankle.
[14]
Plaintiff’s case having been closed,
defendants opened their case by calling Professor Gert Jacobus
Vlok
whose credentials as an expert witness were not challenged. He too,
like Dr Olivier is an Orthopaedic Surgeon. As would appear
also from
his joint minute with Dr Olivier, there are aspects where they do not
agree. I will mostly touch on those aspects. Dr
Vlok examined the
plaintiff, it would seem on the 25 January 2013 after which he
compiled a report on 1 February 2013 as well as
on addendum thereto
on 8 May 2019. Both experts agree that compartmental syndrome is
characterised by swelling and crescendo-type
pain. Further that
plaintiff had developed full blown compartment syndrome which led to
the amputation which was performed at the
Uitenhage Hospital.
According to Dr Vlok, as opposed to Dr Olivier, a well-padded
circular cast was sufficient if the patient was
followed up the
following day, but he never returned to hospital in spite of the
increasing pain he suffered. Two expert witnesses
differ as to
whether it was necessary mandatory for the plaintiff to have been
admitted for his circulation to be checked. Professor
Vlok opined
that it was not mandatory in view of the fact that plaintiff was told
to come back the following day for circulation
check and also in view
of the fact that he was brought to hospital by private transport so
he would have had no problems presenting
at the hospital the
following day. Both doctors are sceptical about the above knee
amputation as opposed to a below knee but seem
to defer to the
doctors who conducted the amputation as to why this was necessary.
They also alluded to the delay in performing
the amputation although
they seem to agree that by the time plaintiff presented at the
Uitenhage Hospital, he already had developed
a full blown necrotic
compartmental syndrome with amputation being inevitable.
[15]
At the commencement of the trial, and by agreement
between the parties, statements made by the following
persons were
handed in and admitted as evidence:
(i)
Dr Magafu who was attached to the Settlers Hospital at the time of
the incident. Dr Megafu could not be located as he was reported
to
have gone back to his country of origin, Nigeria. However, following
the institution of these proceedings, the Department of
Health,
Eastern Cape provided those representing the defendants with a copy
of a statement that was deposed to by Dr Megafu in
relation to
plaintiff’s claim dated 23 April 2010.
(ii)
Male nurse Ngubo is confirmed to have passed on. He too had deposed
to a statement in relation to plaintiff’s claim on
21 October
2010.
(iii)
Nursing sister Mbangi who is reported to have moved to the Western
Cape. However, several attempts to get hold of her came
to nought.
She too deposed to a statement in relation to plaintiff’s claim
which is dated the 21 April 2010.
Regard
was had to the statements by those representing the defendants at the
time of the consultation with the three officials which
were held
during May 2012 prior to the preparation of the plea. The statements
were admitted in terms of Section 3(1)(c) of Law
of Evidence Act 45
of 1988. The statements in respect of which copies were provided to
defendants’ legal representatives
where reports submitted by
the officials concerned to the Department of Health, Eastern Cape,
concerning plaintiff’s claim.
Hospital records were also placed
before me regarding plaintiff’s treatment.
[16]
The salient features of Dr Megafu’s
statement are as follows:
Plaintiff
presented with pain and swelling on the lower left leg. On
consultation with him he gave a history of having slipped and
falling
and complained of pain and swelling. On examination, the ankle was
found to be slightly swollen and tender with other associated

symptoms. Not being certain of a definitive diagnosis, he ordered
analgesia and a left ankle X-ray – anterior, posterior,
and
lateral views. He carried on attending to other patients until he was
called a short while later by the nurse to view the X-rays
which
showed a simple fracture well aligned, of the distal end of the left
fibula. He then instructed a male nurse Ngubo who had
been regularly
applying plaster of paris casts for more than 5 years without any
adverse events, to apply a below knee plaster
of paris on the left
lower limb. He also told the plaintiff to come back the following day
for a circulation check, which instruction
he also recorded on the
clinical notes. After educating the plaintiff about the signs to
watch out for, as is routine in the emergency
and accident unit he
was discharged. Plaintiff did not present to him the following day.
Hospital records indicate that he did
not come to the hospital at any
other time. Had he reported to the hospital the following day for a
circulation check, the complication
of the plaster of paris which
resulted in compartmental syndrome would have been avoided.
[17]
Hospital records kept at the Settlers Hospital, in
particular the doctor’s notes make reference to
inter alia to:
-
for a circulation check tomorrow.
[18]
In his brief statement, nurse Ngubo states that he
applied a below the knee plaster of paris as per Dr Megafu’s

instruction. After applying the plaster of paris, he explained to the
plaintiff not to trample on the injured foot and to come
back the
following day for a circulation check, but he never saw him again.
[19]
Likewise, in her statement nurse Mbangi confirms
what was stated by Dr Megafu and male nurse Ngubo in their

statements, namely that after examining the plaintiff Dr Megafu
ordered X-rays of his left ankle as well as analgesia in the form
of
voltaren. After the X-rays were taken, Dr Megafu examined same and
ordered a below the knee plaster of paris to be applied.
The plaster
of paris having been applied, the plaintiff was told to come back the
following day and discharged. She however does
not say who told the
plaintiff to come back the following day.
Discussion
[20]
The dispute in this matter was properly identified
by plaintiff’s counsel Mr Le Roux as being whether
the
defendants are liable for damages suffered by the plaintiff as a
result of having lost his leg. As I indicated earlier in this

judgment, the defendants deny that they were negligent in the
treatment of the plaintiff alleging that he was the cause of his

misfortune in that he failed to return to Settlers Hospital amongst
other things. It is common cause that the plaintiff did no
go back to
Settlers Hospital on the following day. What remains in dispute is
whether or not he was told to return the following
day. In this
regard, the parties proffered divergent versions. Plaintiff and his
wife testified that they were not informed to
come back the following
day. In the statement deposed to by hospital medical and nursing
staff members, particular Dr Megafu and
nurse Ngubo state that they
told him to come back the following day for a circulation check. The
unfortunate consequence of the
witnesses not being available to give
viva voce evidence is that was not possible to get clarity on certain
aspects in this regard
such as: Did both Dr Megafu and nurse Ngubo
inform the plaintiff, at what stage(s), in what language? Was it
explained what a circulation
check entails? There is certainly no
suggestion that he was informed why he needed to have a circulation
check. And certainly,
no suggestion that he was informed of the red
flags to look of for and what they would be signalling including the
seriousness
thereof. There is no indication of this in their
statements as well as the hospital records. The plaintiff and his
witness may
have contradicted each other’s evidence in certain
aspects but in so far as plaintiff having been told to come the
following
day, they stated that he was not told.
[21]
Dr Olivier and Professor Vlok were not in
agreement as suggested by the former that it was necessary to
admit
the plaintiff to monitor his circulation, they are however in
agreement that there is a golden six-hour period after compartmental

syndrome has set it as the time within which decompression should be
done. Regarding whether it is necessary to admit the plaintiff,
it
appears from the evidence of the two experts that the extent of the
swelling of plaintiff’s leg would be one of the factors
to
consider in this regard. There is no clarity for the reason already
stated of the extent plaintiff’s swelling, as the
degree of
swelling recorded by the nurses differs from doctor’s
endorsement in this regard in the hospital records and the
doctor’s
statement in response to the complaint about the alleged negligence.
The two experts seem to also agree that the
patient in the case such
as this should be informed of the risk involved and danger should
compartmental syndrome set in. Professor
Vlok who has many years of
experience not only an orthopaedic and spine surgeon but as a
lecturer, testified that medical students
were taught to convey the
risks attaching to compartmental syndrome. He agreed that it was not
documented that these risks were
conveyed to the plaintiff anywhere.
As indicated earlier, it is not defendants’ case that plaintiff
was warned about the
“red flags” and risk involved in the
event of compartmental syndrome developing. So, it is not a case of
there being
divergent versions in this regard. Defendants’ case
is that he was told to come back the following day for a circulation
check.
[22]
This becomes important in determining whether the
plaintiff has proved his case on a balance of probabilities.
Has he
satisfied the court that on a balance or preponderance of
probabilities that his version is true and accurate and therefore

acceptable and that the version presented by the defendants is false
or mistaken and therefore falls to be rejected.
[4]
In the oft quoted matter of Stellenbosch Farmers’ Winery Group
Ltd and Another v Martell Et Cie SA and Others,
[5]
it was stated that for a court to come to a conclusion on disputed
facts it must make findings on (a) the credibility of various
factual
witnesses (b) their reliability, and (c) probabilities.
[23]
Regarding credibility of Mr and Mrs Manziya, they
no doubt contradicted each other on certain aspects. I
got the
impression that Mrs Manziya especially, wanted to paint a bleak
picture of plaintiff’s treatment at Settlers Hospital.

Suggesting that he was not examined be it by nurses or Dr Megafu.
They were only told by a security guard upon enquiring when the

plaster case would be removed that they can go to any hospital.
Plaintiff suggested that he could not recall if he was examined
by
the doctor of the male nurse prior to X-rays being taken. Yet
plaintiff pleaded that he was examined by Dr Megafu. He could
not
recall whether he was ever in the same room as Dr Megafu after the
plaster case was applied, yet his wife said there was such
a stage
where the doctor albeit from a distance gave the male nurse a
thumbs-up sign about the plaster case. They contradicted
each other
as to how plaintiff received his medication to take home. According
to the plaintiff, he was told that the plaster of
paris could be
removed at any hospital. As regards whether they were alerted to the
dangers lurking following the application of
circular cast to his
ankle, there is not evidence that they were on the hospital records.
The defendants merely aver that plaintiff
was told to come back the
following day for a circulation check. And somewhat belatedly upon
being confronted with the alleged
negligence Dr Megafu in his
statement states:
‘
After
educating the patient on the signs to look out for as is routine in
our accident and emergency unit, he was discharged on
oral analgesia
(Brufen 400mg po tas) for one week.’
As
indicated earlier, this evidence could not be subjected to
cross-examination and therefore not much weight can be placed thereon

for the reasons stated earlier. It appears to have been meant for
damage control.
Regarding
the patient being told to come back the following day for a
circulation check, he points to the fact that this is clearly

indicated in the clinical notes. Nowhere do the clinical notes
indicate that he was “educated” on the signs to watch
out
for. I am of the view that the balance of probabilities favours the
plaintiff in this regard. Otherwise, what are the probabilities
of
the plaintiff having been made aware of the possible onset of
compartmental syndrome and the symptoms/signs that herald same,

neglecting to seek medical help for almost one week within which he
was experiencing pain. The pain may have been of varying degrees,
but
he still experienced the pain which had gotten worse when he was in
Uitenhage.
[24]
For all the reasons stated hereinabove, it is my
finding that the plaintiff has succeeded in showing on
a balance of
probabilities that the medical and nursing staff at Settlers Hospital
acted negligently by not exercising the requisite
duty of care in the
course of treating him in particular by not alerting him to the
possibility of compartmental syndrome and about
the red flags to be
on the lookout. And by so doing, failed to avert harm to the
plaintiff resulting in the amputation of his leg.
They failed to
communicate the importance of a circulation check. In my view in this
regard, they were negligent and or failed
in their duty of care and
diligence towards the plaintiff. Perhaps not so much by failing to
admit him overnight, or by not applying
a split cast or by having the
cast applied by a qualified medical practitioner. But certainly, by
failing to convey the importance
of a circular check and the
tell-tale signs to be on the look out for.
[25]
Accordingly:
Defendants’
special pleas are dismissed with costs.
The
defendants are liable to compensate the plaintiff for such damages as
he may prove that flow from the amputation of his left
leg, jointly
and severally the one paying the other to be absolved.
Defendants
are ordered to pay costs of suit jointly and severally the one paying
the other to be absolved.
N
G BESHE
JUDGE
OF THE HIGH COURT
APPEARANCES
For
the Plaintiff :                         Adv:

JD LE ROUX
Instructed
by:                              F

A SWANEPOEL ATTORNEYS
C/o DULLABH ATTORNEYS
5
Bertram Street
MAKHANDA
Ref:
Mr NN Dullabh / Mr M Wolmarans
Tel.:
046 – 622 6611 / 9966
For
the Defendant:                      Adv:

B Ford SC and Adv: Boswel
Instructed
by:
C/o WHITESIDES ATTORNEYS
53
African Street
MAKHANDA
Ref.:
Mr. G Barrow/gdp/C09289
Tel.:
046 – 622 7117
Date
Heard:                 17,
18, 19 April 2023
and 10 May 2023
Date
Reserved:           10
May 2023
Date
Delivered:           28
November 2023
[1]
Act
68 of 1969.
[2]
Act
40 of 2002.
[3]
Section 12(3)
of the
Prescription Act 68 of 1969
.
[4]
National
Employers’ General Insurance v Jagers 1984 (4) 440 at 437 ECD.
[5]
2003
(1) SA 11
SCA at 14.