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[2011] ZASCA 84
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MEC for the Department of Health for the Province of Kwazulu-Natal v Franks (329/10) [2011] ZASCA 84 (27 May 2011)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 329/10
In the matter between:
THE MEC FOR THE DEPARTMENT OF HEALTH
FOR THE PROVINCE OF KWAZULU-NATAL
.............................................
Appellant
and
DENISE FRANKS
.....................................................................................
Respondent
Neutral citation:
The MEC for the Department of Health v
Denise Franks
(329/10)
[2011] ZASCA 84
(27 May 2011)
Coram:
NAVSA, PONNAN, SNYDERS, THERON JJA AND MEER AJA
Heard:
09 May 2011
Delivered:
27 May 2011
Summary:
Delict - factual causation not established –
inferences from facts in civil matters.
ORDER
On appeal from: KwaZulu-Natal High Court (Pietermaritzburg) (Patel J
sitting as court of first instance):
1 The appeal is upheld with costs, including the costs of two
counsel.
2 The order by the court below is set aside and replaced with the
following:
‘
The plaintiff’s action is dismissed
with costs, including the costs of two counsel.’
JUDGMENT
SNYDERS JA (Navsa, Ponnan, Theron JJA and Meer AJA concurring)
[1] The KwaZulu-Natal High Court, Pietermaritzburg (Patel J sitting
as court of first instance) decided that the appellant was
to be held
liable for the paramedics in his employ having transmitted the Human
Immunodeficiency Virus (HI Virus) to the respondent,
Ms Franks, at
the scene of a collision in which she was injured and a pedestrian
was killed. The appellant was given leave to appeal
by the court
below. The conclusion reached by the court below is wrong for the
reasons that follow.
[2] On 31 August 2000 the respondent was a passenger in a vehicle
that was travelling to Durban on the N3 highway. At approximately
18:30, near the Mooi River Toll Plaza the vehicle collided with a
pedestrian, Mr Mthalane, the deceased, causing his death. The
respondent, sitting in the front passenger seat, suffered fractures
to her skull and several lacerations to the left side of her
scalp
apparently due to the fact that her head struck the windscreen of the
vehicle.
[3] Two paramedics in the employ of the appellant attended to the
respondent at the scene of the collision and took her by ambulance
to
the Pietermaritzburg Medi-Clinic where she received further
treatment. After her discharge from hospital on 5 September 2000
she
returned to her home in Johannesburg. Approximately three weeks later
she experienced curious symptoms and approximately another
three
weeks later the symptoms were identified as classic sero-conversion
as a result of having contracted the HI Virus.
[4] The doctors treating the respondent informed her that the window
period for the HI Virus to manifest in sero-conversion symptoms
and a
positive blood test is three to six weeks from the date of infection.
Calculating backwards from 10 October 2000, when she
was first
diagnosed, and adopting a process of reconstruction and elimination,
the respondent concluded that she could only have
been infected as a
result of the treatment she received at the scene of the collision,
from the paramedics in the employ of the
appellant. It was her
friend, Ms Ritchie, who was a passenger in the same vehicle, who
planted the idea with the appellant that
the infection possibly
occurred at the scene of the collision.
[5] The respondent’s cause of action is based on the alleged
negligent causation of bodily harm by the appellant’s
employees, acting within the course and scope of their employment.
The respondent pleaded a positive allegation of fact that the
deceased was infected with the HI Virus at the time of the collision
and that the appellant’s employees negligently caused
the
transfer of the virus from the deceased’s body to her.
[6] During the hearing of the appeal both counsel were agreed,
correctly so, that it was essential for the respondent’s case
to have established the fact that the deceased was infected with the
HI Virus. No direct factual proof was introduced at the trial,
hence
the respondent’s counsel relied on four circumstantial facts
and a process of inferential reasoning for his submission
that the
court below correctly found that the deceased was infected with the
HI Virus. Firstly, that the deceased had recorded
the telephone
number of an organisation called AID for AIDS in his diary. Secondly,
that the incidence of infection with the HI
Virus in KwaZulu-Natal
was high. Thirdly, that the collision and treatment received as a
result thereof is the only occasion at
which the respondent could
have been infected with the HI Virus. Fourthly, that the evidence of
the sequence of events at the scene
of the collision established the
opportunity for the respondent’s infection.
[7] The respondent’s attorneys retrieved the deceased’s
diary and introduced it into evidence through the testimony
of his
father. Mr Mthalane identified the diary and the handwriting therein
as that of his son. The diary contains names and numbers
of
individuals and, what appear to be businesses. The names ‘Aid
for Aids (Bonitus)’ and a telephone number appear
twice in the
diary.
[8] The finding by the court below that the deceased was infected
with the HI Virus reads as follows:
‘
The plaintiff has at least at
a
prima facie
level made out a case that the
deceased may have had HIV or for that matter full blown AIDS. In his
notebook, it was shown in the
deceased’s own handwriting that
he had noted various HIV/AIDS helpline numbers. In cross-examination,
Prof. Smith conceded
that only two inferences may be drawn from these
notations in the deceased’s diary, namely, that either he was
an AIDS Councillor
or was himself infected with the virus. No
evidence was presented that he was an AIDS Councillor nor did
defendant’s Counsel
canvass this possibility with the
deceased’s father when he testified. People are not in the
habit of carrying these numbers
unless they have a particular
interest. Mthalane having any academic interest in the matter is far
fetched and can be easily discounted.
In my view and in the absence of evidence providing an
alternative explanation, the only reasonable inference in the
circumstances
is that Mthalane was HIV positive at the time of the
accident. The inference is further strengthened by the incidence of
HIV in
this province as testified to by Prof Smith and Dr Webber and
alluded to hereinbefore.’
[9] The reasoning of the court below is replete with errors. The
conclusion that it has been shown ‘prima facie’ that
the
deceased ‘may have had HIV’ does not satisfy the civil
burden of proof. Only one HIV/AIDS helpline number is contained
in
the deceased’s diary, repeated twice and not ‘various
HIV/AIDS helpline numbers’. The concession relied upon
from the
evidence of the expert witness for the appellant, Prof Smith, on what
inferences were to be drawn from the inscriptions
in the deceased’s
diary, was inadmissible. Prof Smith is a specialist virologist,
called as a witness to inform the court
of, amongst other things in
his field of expertise, the characteristics of the HI Virus, its
viability outside the body, the possible
ways of transfer of the
virus and the window period for finding evidence of the virus in the
bloodstream after infection. Whether
the deceased was infected with
the HI Virus is an inference sought to be drawn from an inscription
in a diary, not from facts within
the expertise of Prof Smith. Hence
the inferential reasoning from the inscription in the diary was
within the exclusive domain
of the court below and Prof Smith’s
evidence in that regard is inadmissible. To have expected the
appellant to have produced
evidence to eliminate some inferences was
tantamount to placing an onus of proof on the appellant. The reverse
should have been
done. The respondent was obliged to put the evidence
before the court that warranted the inference sought to be drawn. It
was for
the respondent’s counsel to have asked the deceased’s
father about the deceased’s marital status, interests,
morality, health and activities. Such information may have provided
the basis for preferring one inference over another. It was
furthermore a simple matter for the respondent’s legal
representatives to have followed up the telephone numbers in the
deceased’s diary and placed the outcome of the investigation
before the trial court. That the deceased may have had an academic
interest in the subject matter of the HI Virus was rejected as ‘far
fetched’ without explanation. This rejection is
unfounded in
view of the absence of any facts about the deceased. The trial
court’s conclusion that ‘the only reasonable
inference in
the circumstances is that Mthalane was HIV positive at the time of
the accident’ is untenable.
[10] The difference in standard of proof between criminal and civil
litigation has necessitated the adaptation of the second leg
of the
well known process of inferential reasoning stated in
R v Blom
1939 AD 188
at 202-203:
‘
In reasoning by inference
there are two cardinal rules of logic which cannot be ignored: (1)
The inference sought to be drawn must
be consistent with all the
proved facts. If it is not, the inference cannot be drawn. (2) The
proved facts should be such that
they exclude every reasonable
inference from them save the one sought to be drawn.’
In
Ocean Accident and
Guarantee Corporation Ltd v Koch
1963
(4) SA 147
(A) at 159B-D the adapted process of reasoning was stated
as follows:
‘
As to the balancing of
probabilities, I agree with the remarks of SELKE, J, in
Govan
v Skidmore,
1952
(1) SA 732
(N) at p. 734, namely “. . . in finding facts or
making inferences in a civil case, it seems to me that one may, as
Wigmore
conveys in his work on
Evidence
,
3
rd
ed., para. 32, by balancing
probabilities select a conclusion which seems to be the more natural,
or plausible, conclusion from
amongst several conceivable ones, even
though that conclusion be not the only reasonable one”.
I need hardly add that “plausible”
is not here used in its bad sense of “specious”, but in
the connotation
which is conveyed by words such as acceptable,
credible, suitable. (
Oxford
Dictionary
, and
Websters’s
International Dictionary
).’
1
[11] There is no single other fact about the deceased against which
to test the consistency of an inference sought to be drawn
from the
possession of a telephone number of an Aids help-line. The conclusion
drawn by the court below is pure speculation. The
mere possession of
a telephone number does not give rise to the probable inferences
sought to be drawn by the court below. Two
speculative propositions
were suggested during the trial. That the appellant was infected with
the HI Virus and that the appellant
was involved in assistance and
support for people infected with the HI Virus. The respondent
preferred the former, arguing that
it is improbable that the deceased
would have written down the number of an organisation that he worked
for. Equally valid or invalid
speculation does, however, arise. The
deceased could have been a social worker or community conscious
individual who referred people
with the HI Virus to the organisation
Aid for Aids or he could have been interested in the subject matter
and in search of information.
This exercise illustrates that in the
absence of any other facts one can only speculate and there exists no
indication why one
speculative proposition is more acceptable than
any of the others.
[12] Counsel for the respondent submitted that if the inscription in
the deceased’s diary is reconciled with the remaining
three
aspects mentioned in para 6 the conclusion that the deceased was
infected with the HI virus manifests as the most acceptable
of all
possible inferences. The trial court not only drew this inference,
but also found that it was strengthened by the ‘incidence
of
HIV in this province’. The evidence of Prof Smith was that ‘in
the year 2000, 20% of the male population of South
Africa was HIV
positive’. The court below accepted the following as common
cause in relation to the statistics:
‘
The prevalence of the HIV
virus in the male population in KwaZulu-Natal in and around 2000 was
according to the experts, and I do
not think it to be contravened,
was in the region of 30%.’
[13] This finding by the trial court is not being challenged by any
of the parties, but is, however, not reconcilable with an inference
that the deceased, a random member of the society, was part of the
statistical 30%. Although the prevalence of HI Virus infection,
relatively speaking, is very high, known to be of the highest in the
world, the incidence is more reconcilable with a conclusion
that the
deceased was probably not infected with the HI Virus. Therefore the
incidence percentage of HI Virus infection does not
assist the
drawing of an inference that the deceased was infected.
[14] Given the window period for infection to manifest, it is logical
to conclude that the respondent was likely to have been infected
towards the end of August, beginning of September. Uncontested
evidence by the respondent attempted to exclude her infection in
any
other way than through contact with infected blood at the scene of
the collision. She testified that she had been faithful
to her
husband during their 20 year marriage. She could not have been
infected through sexual intercourse as he has tested negatively
for
the HI Virus on several occasions after her diagnoses. She had a
dental extraction that required surgery and stitching two
days before
the collision. To exclude that as a cause she led the evidence of Dr
Spencer, a specialist in internal medicine and
infectious diseases,
that the incidence of infection during such a procedure is very low.
Dr Chite, a neuro-surgeon who practices
at the Pietermaritzburg
Medi-Cross testified that the prospects of her having been infected
whilst she was treated at the casualty
ward of that hospital after
the collision, was also very small.
[15] The evidence tendered to exclude the respondent’s
infection during the dental procedure and the treatment at the
casualty
ward of the hospital is general and vague in its terms,
unrelated to the specific occasion of the respondent’s
treatment
and given by persons who were not present when she was
treated. It contributes little to the specifics of an investigation
of a
probable occasion of infection and should not have been elevated
to that. The evidence does, however, establish that, in general
terms, the incidence of infection at dental surgeries and casualty
wards of hospitals is small. But that is also true of the scene
of
the collision. The individuals who treated the respondent testified
to safe practises adopted to prevent the transfer of viruses
and
their evidence exclude the opportunity of transfer of blood from the
deceased to the respondent. Assuming for the moment that
the deceased
was infected with the HI Virus, the expert evidence, in general, was
that the virus had limited prospects to remain
viable after the
collision, considering that the deceased would have died five to ten
minutes after impact and that the viability
of the virus was
dependant on factors such as time passed since death, ambient
temperature and viral load. The influence of these
factors on a virus
outside the deceased’s body in congealed blood was even greater
and the chances of infection dependant
on the quantity of congealed
blood transferred. The evidence was that the ambulance arrived
approximately 40 minutes after the
collision. Prof Smith was of the
view that the HI Virus would not have remained viable outside the
body for longer than ten minutes.
Prof Martin, a virologist,
testified that the virus could have survived for longer, but the
length of time is uncertain. At best,
the evidence shows that the
chances of the virus surviving under the circumstances that operated
at the scene of the collision
and for the respondent to have been
infected in the way that she contends, are as small, if not smaller,
than at the average dental
surgery or casualty ward.
[16] The trial court made credibility findings about the evidence of
witnesses that testified to events after the collision and
arrived at
the conclusion that credible evidence on behalf of the respondent
showed that blood from the deceased was transferred
to the respondent
by the appellant’s employees. This is an irrelevant fact if it
was not established that the deceased was
infected with the HI Virus.
However, the court below used this factual finding to assist in
drawing the inference that the deceased
was infected with the HI
Virus, a conclusion defended by the respondent. This reasoning is
illogical as it begs the question and
amounts to the drawing of an
inference from an inference. Even if the reasoning was sound, the
appellant’s challenge of the
trial court’s evaluation of
the evidence and the conclusions arrived at should be considered.
[17] An appeal court is slow to interfere with
factual findings based on credibility, but if they are plainly wrong,
the appellate
court is at large to disregard the findings affected by
the misdirection and arrive at its own conclusion.
2
The discussion that follows will show that this
court is at large to disregard the rejection by the trial court of
the evidence
of the appellant’s witnesses.
[18] The trial court accepted the evidence of the respondent’s
friend Ritchie. The evidence of the two witnesses for the
appellant,
Mr Mahabeer and Mr Dayal, was rejected. Mahabeer was in the employ of
Toll Road Concessions (Pty) Ltd at the time, tasked
to provide
roadside assistance and first aid to stranded motorists. He held a
basic life support qualification which allowed and
enabled him to
provide first aid. Dayal was one of the two paramedics in the employ
of the appellant that arrived on the scene
and attended to the
respondent.
[19] The essential difference in the evidence of Ritchie on the one
hand and Mahabeer and Dayal on the other, involves the investigation
of an opportunity for blood from the deceased’s body to have
come into contact with the respondent’s open head wound.
The
court below accepted Ritchie’s evidence in the following terms:
‘
Her evidence was that the
ambulance personnel, i.e. the defendant’s employees, stopped at
the body of the deceased before
they came to assist the plaintiff.
She could not see what they were doing to the deceased, but saw that
they were “working
on him”. She assumed that they were
checking for vital signs. They also removed the body from the road
surface. They thereafter
came to the plaintiff and administered
treatment to her. Part of this treatment was an attempt to put an
IV-line in the plaintiff’s
arm. They also put a bandage on the
plaintiff’s head after manipulating the wound.’
[20] Mahabeer testified that he was the first person to arrive on the
scene of the collision. He put a dry dressing on the respondent’s
head wound, without ‘manipulating the wound’. The effect
of the rejection of Mahabeer’s evidence was that the
trial
court did not accept that he was on the scene and attended to the
respondent. Objective evidence introduced at the trial,
without any
objection, corroborates that Mahabeer was at the scene. A so-called
MVC Report, completed by the staff in the control
room that notified
Mahabeer of the collision and summonsed him to attend, was handed
into evidence. This document supports Mahabeer’s
evidence that
he was informed of the collision at 18:40 and arrived on the scene at
18:42. More importantly, it also contains other
information supplied
by Mahabeer at the time from the scene of the collision to the
control room. He confirmed this information
during his evidence,
namely that the breakdown service arrived at 18:46, the police at
19:05 and the ambulance of the appellant
at 19:30.
[21] Dayal corroborated Mahabeer’s evidence when he testified
that he put a dry bandage on the respondent’s head wound
over a
smaller one that was already in place. Only a conspiracy to be
dishonest could account for the evidence by Mahabeer and
Dayal. It
was never suggested to either of them that their evidence was the
result of such a conspiracy.
[22] Criticisms of the evidence of Mahabeer and Dayal were advanced
on behalf of the appellant. Inconsistencies in their evidence
are on
lesser issues and to be expected of witnesses testifying almost five
years after the event. There are no indications inherent
in the
evidence of the two witnesses why their evidence should be rejected.
The trial court’s list of criticisms of their
evidence does not
go to the root of their evidence and is equally applicable to the
evidence of Ritchie. They all gave evidence
long after the event and,
to some degree, reconstructed the occasion. Mahabeer and Dayal were
assisted by documentation completed
at the time. They were also
assisted by the routine procedures always adopted by them in the
performance of their functions. Although
this collision was an event
that stood out for Ritchie as unusual, she was involved in the
collision and could not have been emotionally
untouched. These
factors are not determinative of the reliability of the evidence of
any of the witnesses and should not have motivated
credibility
findings.
[23] Dayal’s evidence of the sequence of events was that he and
his colleague arrived on the scene and first treated the
respondent
whilst wearing new gloves, thereafter and before loading her into the
ambulance he changed his gloves and went to the
deceased, checked the
deceased’s vital signs, pronounced him dead, returned to the
ambulance, discarded the gloves he used
when he checked the
deceased’s vital signs, loaded the respondent into the
ambulance and left. Both Mahabeer and Dayal’s
evidence
therefore exclude any opportunity for the actual transfer of blood
from the deceased to the respondent.
[24] Ritchie’s evidence was inherently no better than that of
the appellant’s witnesses. However, the court below ignored
crucial contradictions between the respondent’s pleadings and
Ritchie’s evidence, the only witness for the respondent
of the
events on the scene after the collision. In her particulars of claim
the respondent pleaded:
‘
The emergency medical
treatment performed by the said employees of the Defendant as set out
in paragraph 7 above, was performed
on the Plaintiff directly after
the said employees had:
8.1 carried the body of Mthalane from the surface of the
freeway where it was lying to the side of the freeway;
8.2 attempted to resuscitate Mthalane and/or
administered emergency medical treatment to him, which treatment
necessitated physical
contact between the said employees and the
blood of the body or corpse of Mthalane;
8.3 applied dressings and medication to the right leg of
Mthalane where it had been amputated.’
[25] The pleaded version was not supported by any evidence on behalf
of the respondent. This significant discrepancy in the respondent’s
case motivated an unopposed application for an amendment at the end
of the trial to insert a new paragraph 8.4 into the particulars
of
claim in the following terms:
‘
8.4 touched the body of the
deceased to look for vital signs.’
[26] If any witnesses’ reconstruction of the events led to
inconsistencies that affected the reliability of a version, it
was
that of Ritchie. There is no support in the evidence for a finding
that there was an opportunity at the scene of the collision,
for
transfer of blood from the deceased to the respondent’s open
wound.
[27] The respondent did not prove her case and should not have
succeeded in the court below. Therefore the following order is made:
1 The appeal is upheld with costs, including the costs of two
counsel.
2 The order by the court below is set aside and replaced with the
following:
‘
The plaintiff’s action is dismissed
with costs, including the costs of two counsel.’
_________________
S SNYDERS
JUDGE OF APPEAL
APPEARANCES:
For
appellant: Y N Moodley SC (with him T S I Mthembu)
Instructed by: The State Attorney, Kwazulu-Natal;
The State Attorney, Bloemfontein.
For
respondent: D T v R du Plessis SC
Instructed by: Hauptfleish Attorneys, Johannesburg;
McIntyre &
Van Der Post, Bloemfontein.
1
See
also
AA Onderlinge
Assuransie-Assosiasie Bpk v De Beer
1982
(2) SA 603
(A) at 614G-A and Scwikkard and Van der Merwe
Principles
of Evidence
3 ed 2009 p 538 para 30 5
3.
2
R
v Dhlumayo
1948 (2) SA 677
(A) at
705-706 and the wealth of subsequent cases that confirm the
principle.