About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2011
>>
[2011] ZASCA 32
|
|
Premier of the Western Cape Province and Another v Loots NO (214/2010) [2011] ZASCA 32 (25 March 2011)
Links to summary
THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Case No: 214/2010
In
the matter between:
THE
PREMIER OF THE WESTERN CAPE PROVINCE
................................
FIRST
APPELLANT
DR
K DU PLESSIS
....................................................................................
SECOND
APPELLANT
v
JOHANNES
HENDRIK LOOTS NO
.......................................................................
RESPONDENT
Neutral citation:
The
Premier of the Western Cape Province v Loots NO
(214/2010)
[2011]
ZASCA 32
(25 March 2011)
Coram:
Streicher, Brand, Maya,
Shongwe and Theron JJA
Heard:
11 March 2011
Delivered: 25 March 2011
Summary: Medical negligence –
unsuccessful sterilisation operation – unforeseen complications
during birth process leaving
mother severely disabled –
liability of medical doctor and his employer – issues relating
to negligence and remoteness
of damage.
________________________________________________________________
ORDER
________________________________________________________________
On appeal from:
Western Cape
High Court (Cape Town) (Traverso DJP sitting as court of first
instance):
The appeal is dismissed with costs.
________________________________________________________________
JUDGMENT
________________________________________________________________
BRAND JA
(STREICHER,
MAYA, SHONGWE and THERON JJA concurring)
[1] This appeal has
its origin in a delictual claim for damages arising from an
unsuccessful sterilisation operation. But the claim
is not for
child-raising expenses that ensued from unwanted conception as could
be anticipated from precedent in matters of this
kind.
1
Instead, it
resulted from the harm suffered by the mother during the subsequent
birth process that went terribly wrong.
[2] The respondent
brought the claim in the Western Cape High Court as
curator
ad litem
for
Mrs Johanna Cecilia Erasmus. He was appointed in that capacity
because the tragic events giving rise to the claim left Mrs Erasmus
brain damaged and unable to manage her own affairs. The first
appellant is the Premier of the Western Cape who takes delictual
responsibility for medical practitioners employed by the Department
of Health in that province. On 21 January 1999 the second appellant
was so employed as a clinical assistant in the Department of
Obstetrics and Gynaecology at the Tygerberg Hospital. On that day
he
performed the sterilisation operation on Mrs Erasmus which ultimately
led to these proceedings.
[3] In the High Court the matter came
before Traverso DJP. By agreement between the parties she was asked
to determine the issues
pertaining to the appellants’ liability
first while the quantum of damages allegedly suffered by Mrs Erasmus,
stood over
for later determination. At the end of the preliminary
proceedings she decided that the appellants were liable for such
damages
as the respondent may prove at the resumed hearing of the
matter. The present appeal against that judgment is with the leave of
this court.
[4] The background
facts are quite straightforward and largely undisputed. In fact, the
appellants presented no evidence at the
trial. At the time of the
sterilisation operation on 21 January 1999, Mrs Erasmus was one month
short of her 38
th
birthday. She and
her husband already had three children and they decided that they
could not financially afford any more. She therefore
went to the
Tygerberg Hospital to be sterilised. The operation performed by the
second appellant involved a laparoscopic occlusion
of both fallopian
tubes. It was later discovered, however, that the second appellant
had mistakenly occluded the round ligaments
of the patient instead of
her fallopian tubes. This meant, of course, that she had not been
sterilised at all.
[5] As a result of second appellant’s
mistake, the patient fell pregnant soon thereafter. When this was
confirmed in April
1999, Mrs Erasmus was about eight weeks pregnant.
At that time Tygerberg Hospital presented her with the option to
terminate the
pregnancy, which she and her husband refused for
religious reasons.
[6] The pregnancy was uneventful until
5 November 1999. On that date, however, the tragic train of events
started which left the
patient in a permanent vegetative state,
completely unable to care or think for herself. First she was
admitted to Tygerberg Hospital
for high blood pressure. Then followed
an emergency Caesarean section because of foetal distress. The baby
was severely compromised
and did not survive.
[7] Wisdom of hindsight revealed that
either shortly before, during or after the Caesarean section, Mrs
Erasmus must have developed
what is known to medical experts as
amniotic fluid embolism (AFE). It occurs when foetal antigens entered
the maternal circulation.
It is an unpredictable and unpreventable
event which occurs about one in 8 000 to 30 000 deliveries. Neither
the exact mechanism
of the complication nor its clinical presentation
requires elaboration, because it is not in issue that in this case
the AFE caused
severe haemorrhaging and cardiac arrest, which in turn
led to brain anoxia and eventually to the irreversible brain damage
that
Mrs Erasmus suffered.
[8] On behalf of the respondent, three
witnesses were called at the trial. They were Mrs Erasmus’
husband and two medical
experts. The one was a neurologist, Dr
Flemming, who testified about the patient’s present condition.
What it amounted to
is that among other things, she suffers from
dementia with poor memory and cognitive disability; she is virtually
blind; and unable
to walk and talk. This evidence as to her present
condition was confirmed in lay terms by her husband. As to the
future, Dr Flemming’s
prognosis is that her condition is
permanent. The other medical expert was a specialist obstetrician and
gynaecologist, Dr Dalrymple,
who testified about the laparoscopic
sterilisation procedure performed by the second appellant; what he
was supposed to have done;
and what he actually did. Ultimately Dr
Dalrymple expressed the opinion that the second appellant’s
failure to perform a
successful sterilisation must be ascribed to
negligence.
[9] Though the appellants also
indicated their intention to call a gynaecologist, Dr Van Helsdingen,
by filing a summary of his
expert evidence, he was in fact not
called. Neither did the second appellant give evidence himself. In
the event, Dr Dalrymple’s
evidence stood largely
uncontroverted. It can therefore be conveyed without elaboration.
According to Dr Dalrymple’s testimony,
the round ligaments are
organs lying physiologically adjacent to the fallopian tubes. They
are distinguishable from the latter
by two features. First, the
fallopian tube is free at one end while the round ligament is not.
Secondly, the free end of the fallopian
tube resembles the petals of
a flower that are known in medical parlance as fimbriae.
[10] Dr Dalrymple further testified
that one of the potential difficulties that may confront a surgeon
during the performance of
a laparoscopic tubal occlusion, is an
obstructed view. But in this case, the second appellant’s
contemporaneous notes indicated
that ‘visualisation was good’
and that he was able to identify the ‘fimbrial end of the
fallopian tubes’.
Accordingly, so Dr Dalrymple testified, the
second appellant had no reason to place the fallopian rings on the
round ligaments.
Nor did he have any reason not to verify, after the
procedure, that the occluding rings were indeed inserted in the right
place.
[11] Dr Dalrymple agreed with the
diagnosis expressed by Dr Van Helsdingen in his expert summary that
Mrs Erasmus’ condition
came about as a result of AFE. He also
agreed with Dr Van Helsdingen that AFE is an extremely rare
condition. In fact, he explained
that though he knew about the
condition, it was so rare that he did not consider it as a possible
cause when he prepared his own
expert report. That is why he did not
at that stage refer to AFE at all, but mistakenly ascribed the
calamity suffered by Mrs Erasmus
to maternal hypertension instead. In
response to a direct question in cross-examination he conceded that a
doctor in the position
of second appellant would probably not have
foreseen the complications of AFE as a consequence of a failed
sterilisation. This
concludes the factual narrative.
[12] Of the various
defences raised by the appellants in the high court they persisted in
only two on appeal. The first is that
the second appellant was not
negligent with regard to the consequences of the failed sterilisation
for which the respondent seeks
to hold him liable. The court a quo
rejected this defence essentially on the basis of Dr Dalrymple’s
expert opinion that
the second appellant was indeed negligent. If the
question posed is confined to whether the second appellant applied
the degree
of professional skill and diligence expected of members of
his profession
2
the correctness of
Dr Dalrymple’s opinion can, on the facts that he described,
hardly be open to doubt.
[13] But the
argument relied upon by the appellants in support of this defence was
somewhat more nuanced. For its legal basis the
argument rested on the
so-called concrete or relative approach to negligence. According to
this approach it cannot be said that
someone acted negligently
because harm to others in general was reasonably foreseeable.
3
A person’s
conduct can only be described as negligent with reference to specific
consequences. Yet, the relative approach
does not require that the
precise nature and extent of the actual harm which occurred was
reasonably foreseeable. Nor does it require
reasonable foreseeability
of the exact manner in which the harm actually occurred. What it
requires is that the general nature
of the harm that occurred and the
general manner in which it occurred was reasonably foreseeable. At
some earlier stage there was
a debate as to whether our courts should
follow the relative approach as apposed to the so-called abstract or
absolute approach
to negligence. But it now appears to be widely
accepted by academic writers, on good authority, that our courts have
adopted the
relative approach to negligence as a broad guideline,
without applying that approach in all its ramifications.
4
[14] For the factual basis of their
argument the appellants relied on the proposition that the harm which
the patient actually suffered
was not of a general kind reasonably
foreseeable. That proposition, in turn, rested mainly on the
concessions by Dr Dalrymple as
to the unforeseeability of AFE. The
general harm consequent upon a failed sterilisation, so the argument
went, was pregnancy and
the general risks associated with that
condition. But the harm that actually occurred resulted from AFE
which was not reasonably
foreseeable. Consequently, so the argument
concluded, neither the harm suffered by the patient nor the manner in
which it occurred,
are included in the category of what can be
regarded as generally foreseeable consequences.
[15] I do not agree with this
argument. As the appellants readily conceded, pregnancy was a
generally foreseeable consequence of
a failed sterilisation.
According to Dr Dalrymple’s testimony – which remained
unchallenged – pregnancy is a
dangerous condition associated
with a myriad of potential complications. One of these complications
was AFE. Although the particular
complication is rare, it must be
included under the general rubric of complications which was
reasonably foreseeable. It follows
that, in my view, the second
appellant was negligent with regard to the harm that Mrs Erasmus had
suffered.
[16] The second
defence advanced by the appellants was founded on the contention that
the causal link between the second appellant’s
negligence and
the harm suffered by Mrs Erasmus was too tenuous to justify the
imposition of delictual liability on them for that
harm. In this
regard it has by now become well settled that in the law of delict,
causation involves two distinct enquiries. First
there is the
so-called factual causation which is generally conducted by applying
the ‘but for’ test as described by
Corbett CJ in
International
Shipping Co (Pty) Ltd v Bentley.
5
As to the harm
suffered by Mrs Erasmus, it is common cause that it resulted from her
pregnancy. ‘But for’ the failed
sterilisation, the
inherent likelihood is that she would not have fallen pregnant. It
follows that ‘but for’ the second
appellant’s
negligence, Mrs Erasmus would not have suffered the harm. Factual
causation is therefore not the real issue.
[17] The real issue
turns on the second enquiry under the rubric of causation, namely,
whether the second appellant’s negligent
conduct is linked
sufficiently closely or directly to the harm suffered by Mrs Erasmus
for legal liability to ensue. This matter
is referred to by some as
remoteness of damage and by others as legal causation. Regarding this
issue it has been held by this
court that the criterion in our law
for determining remoteness is a flexible test, also referred to as a
supple test.
6
In accordance with
the flexible test, issues of remoteness are ultimately determined by
broad policy considerations as to whether
right-minded people,
including judges, would regard the imposition of liability on the
defendant for the consequences concerned
as reasonable and fair.
[18] But, as also
appears from the authorities to which the flexible approach owes its
origin and development, its adoption did
not result in a total
discard of the variety of tests, such as foreseeability, adequate
causation or direct consequences that were
applied in the past. These
tests still operate as subsidiary tests or pointers to what is
indicated by legal policy. Stated somewhat
differently, according to
the flexible test, the existing criteria of foreseeability,
directness and so forth should still be applied,
but in a flexible
manner so as to avoid a result which most right-minded people will
regard as unjust and unfair.
7
[19] In line with
this general approach, the appellants first relied on the direct
consequences theory. As developed in English
law, a key element of
this theory is the concept of a
novus
actus interveniens
.
For this element alone can break the causal link between cause and
consequences.
8
By its nature, a
novus
actus interveniens
or
independent intervening event, can take many forms, including conduct
on the part of the plaintiff following upon the wrongful
act of the
defendant. The independent intervening cause relied upon by the
appellants for its argument was the decision by Mrs
Erasmus not to
accept the offer of an abortion tendered by the Tygerberg Hospital
when she was about eight weeks into her pregnancy.
[20] The appellants
rightly accepted that the decision not to have an abortion could not
eliminate the second defendant’s
negligence as a factual cause
of the harm. It has already been determined that, but for that
negligence, the harm would not have
ensued. The fact that the refusal
of an abortion became another factual cause of the same consequence
does not detract from this
reality. Yet it is recognised in principle
that even where the plaintiff’s conduct does not break the
factual chain, it can
still interrupt legal causation. But in order
to qualify as a
novus
actus interveniens
in
the context of legal causation
,
the
plaintiff’s conduct must be unreasonable. Reasonable conduct on
the part of the plaintiff cannot free the defendant from
the
imputation of liability. Even unreasonable conduct on the part of the
plaintiff will not always absolve the defendant. Whether
it will do
so, depends on the facts of the particular case.
9
[21] The initial
question is thus whether the decision by Mrs Erasmus and her husband
to refuse an abortion can be described as
unreasonable. The
appellants contended that it was.
10
I do not agree with
this contention. Because of their financial position, Mrs Erasmus and
her husband tried to prevent another pregnancy
by seeking a
sterilisation. As a direct result of the second appellant’s
negligence, they were confronted with an option
they tried to avoid.
That option was between having another child that they could no
afford or to have an abortion. For religious
reasons they found the
latter choice unacceptable, so they opted for the former. Had Mrs
Erasmus been advised that for medical
reasons the continuation of the
pregnancy could be dangerous to her own health and that of her unborn
child, the position might
have been different. But according to the
evidence of her husband, this was not the case. On the contrary, Mrs
Erasmus experienced
no health problems with her previous three
pregnancies and she had been advised of no medical reason to think
that this one would
be different. In these circumstances I find
nothing unreasonable about the decision of the Erasmus couple to
continue with the
pregnancy. It follows that application of the
direct consequences test seems to point to liability on the part of
the appellants
for the harm that Mrs Erasmus suffered.
[22] Next, the appellants relied on
the reasonable foreseeability test. Their argument in this regard
rested on the concession by
Dr Dalrymple that the complication of AFE
that led to the harm was so rare that it would not have been foreseen
by the reasonable
surgeon. The respondent’s answer to this
argument was that although the occurrence of AFE was not reasonably
foreseeable,
it formed part of a reasonably foreseeable harm of a
general kind.
[23] Under the
rubric of negligence I have already agreed with the respondent’s
proposition that the occurrence of AFE forms
part of the
complications associated with pregnancy that were foreseeable as harm
of a general kind. I do not believe, however,
that the foreseeability
criterion in the context of legal causation can be exactly the same.
Once we accept, as we must,
11
that foreseeability
plays a role in determining both negligence and legal causation,
logic dictates that the same criterion cannot
find application in
both instances. After all, repetition of exactly the same tests on
two occasions can serve no purpose other
than to confuse. Moreover,
the different roles performed by the enquiries into fault, on the one
hand and imputability of harm
on the other, are so fundamentally
different, that the appropriate criteria can hardly be the same.
12
Unfortunately our
law as it stands does not provide a clear picture of the content of
the foreseeability criterion in the context
of legal causation.
13
But as I see it, if
it means anything, it must mean foreseeability of the actual harm as
opposed to harm of a general kind.
14
[24] On this basis,
I accept that because of the unforeseen intervention of AFE, the
actual harm suffered by Mrs Erasmus was not
a reasonably foreseeable
consequence of second respondent’s negligence. On the other
hand, AFE is not unknown to the medical
science. Although it is rare,
it has happened before and will probably happen again. It is
therefore not the kind of ‘freakish
occurrence’ that has
never happened before, as was the case, for instance, in
S
v Bochris Investments (Pty) Ltd;
15
Sea Harvest
Corporation
16
and
Mkhatswa
v Minister of Defence
17
where the
consequences were held too remote for the imputation of liability.
[25] A further argument raised by the
appellants as to why they should not be held liable for the harm
suffered by Mrs Erasmus,
is that even if the sterilisation operation
had been performed without negligence, it was not a failsafe
operation. According to
the medical evidence, the risk of pregnancy
remained. If Mrs Erasmus became pregnant under these circumstances
the appellants would
not have been liable for the consequences.
Accordingly, so the appellants argued, it is unreasonable and unfair
to hold them liable
for consequences which might have occurred in any
event. I think there are two answers to this argument. First, the
fact that Mrs
Erasmus was not sterilised obviously resulted in a
marked increase in the risk of pregnancy. Second, it hardly lies in
the mouth
of a defendant whose wrongful conduct caused a particular
harm, to argue that the harm could in any event have resulted from
other
causes. If it were otherwise, the defendant who negligently
caused a motor vehicle accident could argue that accidents happen
every
day.
[26] Despite the arguments to the
contrary raised by the appellants, I therefore conclude that in all
the circumstances, considerations
of reasonableness, justice and
fairness dictate that they should be held liable for the harm
suffered by Mrs Erasmus. Since that
is also the conclusion arrived at
by the High Court, the appeal cannot succeed.
[27] It follows that the appeal is
dismissed with costs.
..……………………..
F D J BRAND
JUDGE OF APPEAL
APPEARANCES:
APPELLANTS:
R T WILLIAMS SC (with her C McDonald)
Instructed
by: The State Attorney, Cape Town
The
State Attorney, Bloemfontein
RESPONDENTS:
J S SANER
Instructed
by: De Vries Shield Chiat, Cape Town
Rosendorf
Reitz Barry, Bloemfontein
1
See
eg
Administrator, Natal v Edouard
[1990] ZASCA 60
;
1990 (3) SA 581
(A);
Mukheiber v Raath
1999 (3) SA 1065
(SCA).
2
See
eg
Van Wyk v Lewis
1924 AD 438
at 444;
Blyth v Van den
Heever
1980 (1) SA 191
(A) at 221A.
3
Which
would be sufficient on the so-called abstract or absolute approach.
See eg
Groenewald v Groenewald
1998 (2) SA 1106
(SCA) at
1112H-J.
4
See
eg
Sea Harvest Corporation (Pty) Ltd v Duncan Dock Cold Storage
(Pty) Ltd
2000 (1) SA 827
(SCA) paras 21-22;
Mkhatswa v
Minister of Defence
2000 (1) SA 1104
(SCA) paras 19-22;
Neethling, Potgieter & Visser
Law of Delict
5 ed (2006)
126-129; 8(1)
Lawsa
2 ed sv ‘Delict’ (J R Midgley
and J C van der Walt) para 117; Jonathan Burchell
Principles of
Delict
92 et seq; Neethling & Potgieter ‘Die toets vir
deliktuele nalatigheid onder die soeklig’
2001
THRHR
476
at 483-484; J Scott ‘The Definition of Delictual
Negligence Revisited: Three Recent Judgments of the Supreme Court of
Appeal’
2000
De Jure
362.
5
1990
(1) SA 680
(A) at 700E-G.
6
See
eg
International Shipping Co (Pty) Ltd v Bentley supra
at
701A-F;
S v Mokgethi
1990 (1) SA 32
(A) at 40I-41D;
Smit v
Abrahams
1994 (4) SA 1
(A) at 15A-G;
Sea Harvest Corporation
(Pty) Ltd v Duncan Dock Cold Storage (Pty) Ltd
2000 (1) SA 827
(SCA) at 847D-G; 8(1)
Lawsa
2 ed para 132; Neethling,
Potgieter and Visser
op cit
171
et seq.
7
See
eg
Fourway Haulage SA (Pty) Ltd v National Roads Agency Ltd
[2008] ZASCA 134
;
2009
(2) SA 150
(SCA) para 34.
8
See
eg P Q R Boberg
The Law of Delict
440-442; Neethling
Potgieter and Visser
op cit
189
et seq;
J C van der
Walt & J R Midgley
Principles of Delict
3 ed paras
134-135.
9
See
eg
Mafesa v Parity Versekeringsmaatskappy Bpk (in likwidasie)
1968 (2) SA 603
(O) at 605D-E;
S v Mokgethi
1990 (1) SA
32
(A) at 44B-47H;
Road Accident Fund v Russell
2001 (2) SA
34
(SCA) paras 20-25;
Groenewald v Groenewald
1998 (2) SA
1106
(SCA) at 1114.
10
The
appellants sought to find support in the decision of the English
Court of Appeal in
Emeh v Kensington and Chelsea and Westminster
Area Health Authority
[1984] 3 All ER 1044
CA. Save that the
decision also related to the refusal of an abortion – which
was incidentally held to be reasonable –
I find very little in
common between the two cases on their facts.
11
See
eg
Sea Harvest Corporation v Duncan Docks Cold Storage
supra
paras 21-22.
12
Cf
the reasoning by Streicher JA in
Sea Harvest Corporation
supra
para 3.
13
See
eg
Sea Harvest Corporation
(Scott JA) para 22; Neethling
Potgieter and Visser supra 188.
14
In
this context ADJ van Rensburg, ‘Normatiewe Voorsienbaarheid as
aanspreeklikheids-begrensingsmaatstaf in the Privaatreg’
1972
THRHR
56
suggests the criterion that, in order to be imputed to the wrongdoer
the actual harm must have been foreseeable with a ‘genoegsame
graad van waarskynlikheid’ ie a sufficient degree of
probability.
15
1988
(1) SA 861
(A) at 867D.
16
Supra
para 27.
17
2000
(1) SA 1104
(SCA) para 25.