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[2017] ZASCA 86
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Politis NO v Member of the Executive Council for Health, Limpopo (792/2016) [2017] ZASCA 86 (2 June 2017)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDG
MENT
Non
Reportable
Case
No: 792/2016
In
the matter between:
ADVOCATE
ALEXANDER POLITIS NO
APPELLANT
and
MEMBER
OF THE EXECUTIVE COUNCIL
FOR
HEALTH, LIMPOPO
RESPONDENT
Neutral
citation:
Politis
v MEC for Health, Limpopo
[2017]
ZASCA 86
(792/2016) (2 June 2017)
Coram:
Navsa,
Theron and Wallis JJA and Mbatha and Schippers AJJA
Heard:
15
May 2017
Delivered:
2
June 2017
Summary:
Delict
: premature discharge by doctor of patient from hospital due to
unlawful strike : patient had sustained multiple fractures
and was
due for orthopaedic surgery : died shortly after discharge : cause of
death not determined by pathologist : no reliable
expert evidence on
which negligence could be attributed to the hospital : inadequate
preparation of action for loss of support
: no thought given to
holding hospital liable on the basis of failure to have in place
emergency plans to deal with strikes : organisers
of strike not
joined as parties to litigation : in any event primary problem of
lack of evidence relating to cause of death not
overcome.
ORDER
On
appeal from:
Gauteng
Division of the High Court, Pretoria (Mothle J sitting as court of
first instance):
The
appeal is dismissed.
JUDGMENT
Navsa
JA (Theron and Wallis JJA and Mbatha and Schippers AJJA concurring):
[1]
On 7
August 2010 Ms Zodwa Mmatlaleng Mnisi was struck by a motor vehicle,
sustaining extensive injuries in consequence of which
she was
hospitalised at Philadelphia Hospital Dennilton, Limpopo. The
hospital falls under the control of the respondent, the Member
of the
Executive Council for Health, Limpopo Province (the MEC). It is
common cause that Ms Mnisi was discharged prematurely from
the
hospital on 19 August 2010, due to a strike by hospital staff. Sadly,
Ms Mnisi died that very day, leaving her two minor sons
Holiday
Karabo Mnisi and Ennocent Mnisi, to face the world without their
mother. At some stage in the past their father had been
shot and
killed. Fate has truly been unkind to them. At the time of the death
of the deceased, the two boys were eight and three
years-old
respectively. Their mother had been their only means of support. I
shall hereafter refer to Ms Mnisi as the deceased.
[2]
The appellant, Alexander Politis, a practising advocate, appointed
curator-ad-litem to the two minor children, instituted action
on
their behalf in the North Gauteng Division of the High Court,
Pretoria against the MEC, for damages for loss of support. The
claim
for loss of support, in a total amount of R482 000 was based on
a breach by the hospital of the legal duty owed to the
deceased by
the hospital’s medical staff, particularised as follows:
‘
(a)
It failed to provide her forthwith with emergency medical care and to
stabilise her condition;
(b)
It failed to ensure that she was treated with the necessary skill and
care of a hospital
treating a patient seriously injured in a motor
vehicle collision;
(c)
It failed to complete all necessary procedures and medical
interventions to ensure
the recovery of the deceased;
(d)
It failed to keep her in hospital until she had sufficiently
recovered and Dr Silky
Mulenge, acting in the course of and scope of
his employment with the Department, discharged her from hospital on
19 August 2010;
(e)
The deceased died at home on 19 August 2010 as a result of the
aforesaid breach of
duty by the Department, alternatively its
employees.’
The
appellant sought to have the MEC held vicariously liable.
[3]
The MEC’s case, as pleaded, was that there had been no
misconduct by staff at the hospital, either before the deceased’s
discharge, or in relation thereto. During the trial there appears to
have been an acceptance on behalf of the MEC that the discharge
was
premature and that the deceased ought to have been kept in hospital.
However it said that unlawful strike action and resulting
tension and
hostility by striking workers compelled the hospital to close and
discharge the deceased. Thus, so it was contended,
the MEC was
absolved from liability.
[4]
The high court (Mothle J), after a consideration of the evidence
presented at the trial, held that there had been no negligence
in
relation to the treatment of the deceased during her hospitalisation.
Mothle J found further that a note by a nurse that the
deceased’s
sister had been counselled as to her further treatment at home was
adequate and that her premature discharge by
the doctor on duty that
day, acting on instructions from management, to discharge all
patients because of safety concerns, did
not constitute negligence.
He dismissed the appellant’s claims but did not order him to
pay costs.
[5]
It is against those conclusions and the resultant order dismissing
the appellant’s action that the present appeal, with
the leave
of the court below, is directed. The detailed background culminating
in the present appeal is set out hereafter.
[6]
As a result of the collision referred to in para 1, the deceased
sustained compound fractures of her right and left legs (right
and
left tibia). Her right ankle and pelvis were also fractured. She was
admitted to the Philadelphia hospital on the same day.
Despite the
allegations in the appellant’s amended particulars of claim set
out in para 2 above, it was unchallenged at trial
that up to and
until her discharge, the treatment by the medical staff at the
hospital, in stabilising the fractures and cleaning
the deceased’s
wounds and generally tending to her well-being, was adequate. The
medical doctor who testified in support
of the appellant’s case
acknowledged this. In light thereof, appellant’s counsel
rightly accepted, before us, that
he could not argue that the medical
treatment provided by the hospital, upon admission and for the 10
days thereafter until the
deceased was discharged, was unsatisfactory
or inadequate.
[7]
It is common cause that on the day of her discharge from hospital the
deceased was scheduled to have orthopaedic surgery in
relation to the
fractures sustained by her. The main purpose of the intended surgical
procedure was to stabilise one or more of
the fractures and to clean
her wounds. The strike had commenced the day before her discharge. On
the day on which the deceased
was scheduled to have the surgery,
hospital management issued an instruction to doctors at the hospital
to discharge all patients
because they feared that the strike was
gaining momentum and that striking hospital staff would enter the
hospital and forcibly
remove the patients still present in the
hospital as well as any medical staff that might be in attendance. As
such, there would
be no nurses in attendance to see to patient needs
nor would there be any support staff that could ensure clean bedding
and see
to it that patients were supplied with meals. Doctors were
instructed that after they had discharged patients they were to leave
the hospital grounds, including their living quarters, because the
hospital was unable to provide security and guarantee their
safety.
The strike was a nationwide strike and it appears that it affected
all public hospitals as well as related ambulance services.
[8]
On the day of the deceased’s discharge, her sister, Ms Shirley
Mnisi, received a telephone call from the hospital, instructing
her
to fetch the deceased and transport her home and return her to
hospital after the strike was called off.
[9]
Ms Mnisi arranged for a small private vehicle, with driver, to
collect the deceased and transport her home. Upon their arrival
at
the hospital they found the deceased still in bed. Ms Mnisi was
handed medication in the form of tablets with instructions on
how
often they were to be taken.
[10]
According to Ms Mnisi, they pushed the evidently mobile bed toward
the car-park. There she and the driver of the vehicle struggled
to
get the deceased into the car. Finally, Ms Mnisi, with a degree of
difficulty, pulled the deceased, into the vehicle.
[11]
They drove home slowly and the trip took between 15-30 minutes. Once
there, Ms Mnisi and the deceased’s son struggled
to get the
deceased out of the car and into the house. They placed her in a
chair. The deceased requested water to drink. She then
started
choking and was ostensibly short of breath. Suddenly she became
lifeless. A relative came into the house and determined
that she had
passed away.
[12]
During her testimony in the court below, Ms Mnisi confirmed that at
the time that she collected the deceased, striking hospital
workers
were active at the hospital gate.
[13]
A post-mortem was conducted on the body of the deceased on 26 August
2010. The contents of the post-mortem report, which the
parties
appeared to have agreed to admit into evidence, states that the cause
of death was ‘polytrauma (unnatural)’.
Counsel for the
parties and the doctors who testified during the trial on behalf of
both the appellant and the MEC were agreed
that the cause of death as
expressed in the post-mortem report was unhelpful and had no
evidential value in relation to the actual
cause of death.
[14]
The remainder of the post-mortem report, whilst noting the deceased’s
pre-existing injuries, sustained when she was struck
by the motor
vehicle, repeatedly records that ‘no pathology was detected in
any part of the body examined by the forensic
pathologist’. The
list of organs examined by the pathologist is extensive. The
precipitous death of the deceased is unexplained
by the post
mortem-report. The report wrongly states that the body presented was
that of a male. One gets the impression that the
multiple injuries
sustained by the deceased when she was struck by the motor vehicle
led to the too ready conclusion that the death
was caused by
‘polytrauma (unnatural)’, without further scrutiny to
determine the actual cause of death.
[15]
During the trial the appellant’s case, curiously, was not that
the hospital ought to have had an emergency plan to deal
with
unlawful strikes by hospital staff of the kind in question, and that
its failure to do so led to the deceased’s death,
but rather
that instructions ought to have been properly imparted to the
deceased and/or her family by hospital staff in relation
to her
treatment at home and that doing so would have averted the death of
the deceased. This is an aspect to which I shall revert.
[16]
The appellant’s case was not conducted on the basis that
hospital staff were employed in essential services; that as
such, the
strike was unlawful and the hospital could have obtained an interdict
ordering staff to provide the necessary services
and that would
therefore have had as a consequence that the deceased would not have
lost her life. Moreover, the appellant’s
legal representatives
did not join, as a party to the action, the organisers of the strike,
either in the form of a trade union
or individuals, and seek to have
them held jointly and severally liable for the damages suffered in
consequence of the death of
the deceased.
[17]
The record shows that counsel for the appellant accepted, during the
trial, that the doctors had been compelled by the prevailing
circumstances – the strike – to discharge all patients,
including the deceased. Dr David Isigler, a witness who was
called in
support of the appellant’s case, testified to that effect.
Counsel on behalf of the appellant did not disavow that
attitude.
[18]
In my view the appellant could have been better served by his legal
representatives. In addition to what is set out in the
preceding
paragraphs, there appears to have been inadequate preparation of the
appellant’s case. First, I point to the appellant’s
initial un-amended particulars of claim. The paragraph, purportedly
laying a basis for the MEC’s liability read as follows:
‘
The
deceased died at home on 19 April 2010 as a result of a lack of
medical care of the injuries sustained during the collision.’
That
was the sum total of the initial basis of liability. It was lacking
in any particularity.
[19]
Thankfully, it was later amended and mutated to what is set out in
para 2 above. It warrants repeating that during the trial
there was
an acceptance on behalf of the appellant that treatment by hospital
staff up until the deceased’s discharge was
satisfactory and
adequate, that furthermore, the doctors were compelled to discharge
patients because of the strike. There was
also an acceptance that
ambulances could not have been provided because of the strike. The
trial then appears to have been conducted
on behalf of the appellant
primarily on the basis that upon discharge there had been a lack of
proper instruction by hospital staff
to the deceased and/or her
relatives. There was also a suggestion that liability attached to
hospital staff because no wheelchair
or crutches were provided when
the deceased was discharged. I shall, in due course deal with the
medical evidence in that regard.
[20]
It must have been abundantly clear to the appellant’s legal
representatives, at the outset, insofar as the appellant’s
treatment was concerned, including the question of proper
instructions in relation to post-discharge homecare, that the
evidence
of an orthopaedic specialist would be necessary. The
appellant’s legal representatives elected, probably due to
resource
and cost constraints and the limited quantum that was
involved, to look to a general practitioner instead, Dr David
Isigler, whose
experience consisted mainly in working in hospital
emergency units. The deceased’s sister and Dr Isigler were the
only witnesses
who testified in support of the appellant’s
case.
[21]
The medico-legal report prepared by Dr Isigler, is revealing. Under
the heading ‘opinion’, the following appears:
‘
4.1
For the purposes of the medico legal report,
comment
is confined to the discussion of the general management provided by
the attending doctors in the ward.
4.2
Further opinion should be obtained by an Orthopaedic Surgeon
regarding current
acceptable
management of the presenting
fracture.
4.2.1
One defers to expert opinion regarding this matter.’
(My
emphasis.)
[22]
Notwithstanding its expressed limited purpose, the medical report
nevertheless went on to present a view in relation to the
cause of
death, once more, with the qualification that one should defer to
expert opinion and stated the following:
‘
4.3.3
It is recorded that while there were no apparent/obvious finding at
the time of post-mortem, no definitive diagnosis is forwarded
regarding the cause of death apart from “polytrauma”.
4.3.3.1
One defers to expert opinion regarding probable cause of death
however notes that the most likely cause of death, considering
the
nature of the injuries sustained, would be secondary to embolism
either resulting from prolonged immobilisation of an unstable
fracture of the right tibia or an acute Fat Embolism syndrome
following displacement of the fracture/fractures.
4.3.3.2
It is noted that she was not treated with prophylactic
anticoagulation either during the period of admission or at the time
of discharge.’
As
can be seen Dr Isigler disqualified his own views. I will, in due
course, deal with his evidence during the trial.
[23]
It must have been clear to the appellant’s legal
representatives that certainty regarding the cause of death of the
deceased would be paramount in the determination of the MEC’s
liability and that at the very least, the post-mortem report
with its
paucity of information required interrogation and the expert opinion
of a forensic pathologist. We were informed by counsel
on behalf of
the appellant that there had been no discussion with a forensic
pathologist.
[24]
During his evidence-in-chief Dr Isigler further diluted the value, if
any, of his report. When he was asked what led to the
deceased’s
death he initially said the following:
‘
[T]hat
is a very broad question. Essentially when you are looking at these
type of things ... one would have to consider
the entire
scenario…she sustained a number of fractures. From an
orthopaedic point of view
I
am not an expert
and I don’t really want to get into it….But something
happened between the time that she was discharged and the time
she
got home. Or something in and around that time that was of such a
nature to be significant and precipitous. So by the time
she was
discharged she was probably ok. But something happened. Having
considered all of the various options I think the most likely…
is that this was a massive event. This was as a result of a deep vein
thrombosis, DVT. A clot that developed over time, that gets
dislodged
and that causes massive compromise. It gets lodged between or
somewhere in the lungs, usually in the pulmonary artery.
As a result
there is a sudden compromise in respiratory function. In other words
the patient can’t breathe. Second to that
there is no oxygen
the patient dies.’ (My emphasis)
[25]
Dr Isigler accepted, during the trial, that ‘polytrauma’,
as it appeared in the post-mortem report, was not a medical
diagnosis
and was in fact worthless as a true indicator as to what led to the
deceased’s death. His evidence concerning the
alleged
inadequacy of the counseling of the deceased and/or her sister
received from hospital staff upon her discharge has to be
carefully
examined. He said that the deceased or her sister should have been
told about the number of times a day she was supposed
to take the
tablets handed to her. He accepted that the deceased had been advised
in that regard. He took the view that the seriousness
of the fracture
ought to have been explained and that care should have been taken to
ensure that she was comfortable and managed
properly. Significantly,
he was of the opinion that the deceased should have been supplied
with crutches or a wheelchair. He adopted
the attitude that
anti-coagulation medication ought to have been considered, which in
his view might have prevented her death.
Dr Isigler said that the
deceased’s obesity (78 kilograms), coupled with her prolonged
immobilization, meant that she was
predisposed to developing deep
vein thrombosis (DVT). In presenting this view he accepted that few
patients present clinically
with problems associated with DVT.
[26]
Dr Isigler accepted that the strike was nationwide and that support
services were not available. He acknowledged that people
were on the
rampage and that those were the circumstances under which the
deceased had been discharged. Dr Isigler testified that
he too would
have discharged the deceased, but repeated that it should have been
done properly. Importantly, counsel on behalf
of the appellants, in
putting to Dr Isigler that ambulances were not available because of
the strike appeared to accept that not
supplying an ambulance was
justified in the circumstances. In following up on a question and
prefacing another, counsel said the
following:
‘
Yes.
Because if they are on strike then it throws it out as an option.’
[27]
Dr Isigler was of the opinion that the patient should have been
accompanied to the car by the doctor discharging her, and that
the
doctor had to explain how she was to be moved. Under
cross-examination, Dr Isigler conceded that acceptable management of
the deceased was rightly within the province of ‘
orthopaedic
opinion’.
He was referred to his expert report in which he had said that he
deferred to the opinion of an expert regarding
the cause of death. He
accepted that in addition to the expert opinion of an orthopaedic
expert, the opinion of a forensic pathologist
was called for. He went
on to testify as follows:
‘
There
would also have to be determined by specific investigation which I
have no experience with . . . I would have to rely and
in a court of
law I would have to defer to the opinion of the pathologist as he
would have means as well as experience, which I
do not possess.’
[28]
Counsel on behalf of the MEC pressed Dr Isigler about the correctness
of his conclusion that a clot that had dislodged was
the cause of the
death of the deceased. Dr Isigler accepted that one should,
post-mortem, examine the deceased’s organs for
evidence of such
a clot. He testified that the heart should be examined and that one
should scrutinise the pulmonary vessels and
examine the lungs. The
following is a question posed by counsel on behalf of the MEC to Dr
Isigler:
‘
So
would I be correct that if the [sudden death] was a result of a clot
we would have found a huge clot somewhere located other
than those
areas that we have mentioned. . .That should have been the finding on
the post-mortem.’
[29]
Dr Isigler’s subsequent testimony is critical as he went on to
accept that from the post-mortem report, it appeared that
both lungs
had been examined and there had been no indication of a clot. He
stated the following:
‘
When
I read the report I could come to no formal conclusions as the cause
of death.’
He
conceded that if the cause of death had been a clot the pathologist
would have found evidence of it in his examination of the
deceased’s
organs. Dr Isigler accepted that no such evidence had been found. He
agreed that the post-mortem report did not
support his thesis,
‘either of DVT or embolism’. He went on to concede that
he had engaged in ‘speculation’
that ‘doesn’t
have a clinical basis’. A little later he testified as follows:
‘
I
couldn’t understand how can this lady die and yet on
[post-mortem] there is nothing to indicate why’.
[30]
When he was cross-examined about his earlier evidence that the
hospital should have provided the deceased with a wheelchair
or
crutches, Dr Isigler admitted that it was debatable whether the
deceased, with her multiple fractures, would have been able
to use
either. The possible use of crutches implicated the question whether
she could have balanced her body weight in relation
to the fractures
she had sustained. He thought that she might have been able to bear
down on her left side.
[31]
When it was put to Dr Isigler that because the deceased had sustained
a pelvic fracture a wheelchair had not been a viable
option, as the
deceased’s weight would bear down on her injury, he responded
by stating that there had been no indication
of a pelvic fracture.
When he was shown hospital records reviewing x-rays, he accepted that
the deceased had indeed sustained a
pelvic fracture and that the use
of a wheelchair would have caused her discomfort but, in what appears
to have been a common refrain
in his testimony, he stated that the
circumstances were not normal. He did, however, concede that the
failure to provide a wheelchair
could not have been said to have
contributed to the death of the deceased.
[32]
Under cross-examination about his suggestion that anti-coagulants
should have been considered to prevent a blood clot Dr Isigler
admitted that the deceased had in the recent past presented with a
low haemoglobin count and had required a blood transfusion.
He also
accepted that a low haemoglobin count was indicative of bleeding and
conceded that one should consider whether such medication
might
exacerbate bleeding in patients. He went on to say:
‘
The
anti-coagulation is a moo[t] point, it is a difficult one to make a
decision on…These were not normal circumstances.’
[33]
It was put to Dr Isigler that the treating doctor who had discharged
the deceased had taken into account the possibility of
internal
bleeding before deciding that anti-coagulants should not be
administered. He said he could not fault the doctor for that
decision. He also accepted that a patient could die precipitously if
his or her haemoglobin count dropped beyond a certain point.
[34]
During the latter part of his testimony Dr Isigler stated that the
deceased did not die of a fat embolism. He then confined
his
speculation to DVT being the cause of the death of the deceased,
which he reasoned was due to her being moved.
[35]
Asked what specific steps he would have taken to prevent the
deceased’s death he testified as follows:
‘
Explaining
to the patient how to move, how not to move. Demonstrating to the
patient basic techniques. Explaining to the patient
basic patient
education. Letting the patient’s relative know what the
problems are, what the potential complications are.
And potentially
giving them some information how to deal with problems.’
[36]
Towards the end of his testimony Dr Isigler said the following
concerning lack of proper instruction by hospital staff in relation
to the deceased’s discharge:
‘
Whether
educating the patient would have made a difference. I can’t
pass comment on that’
[37]
Dr Syznon Silkiewicz, the doctor who had treated the deceased during
her stay in hospital and who had discharged her, was the
only witness
who testified in support of the MEC’s case.
[38]
At the time of his testimony, Dr Silkiewicz was the head of the
Orthopaedic Department at the hospital. Dr Silkiewicz has a
specialist orthopaedic qualification obtained in Poland, which has
hitherto not been recognized in South Africa. At the time that
he was
treating the deceased he worked as deputy to the then head of
department.
[39]
He confirmed that the deceased had been discharged due to the strike
under the conditions described above, with 100 people
‘toy
toying’ and running around the hospital, and that doctors felt
unsafe. Dr Silkiewicz explained that at the time
of her discharge the
deceased had been in stable condition.
[40]
According to Dr Silkiewicz earlier surgery had been cancelled because
of the deceased’s low haemoglobin count and that
in consequence
she had to have a blood transfusion, comprising five units of blood.
When she was discharged she was provided with
double anti-biotic
medication. In response to the assertion by Dr Isigler regarding
anti-coagulation treatment, Dr Silkiewicz testified
that he was
familiar with anti-coagulation treatment but decided against it.
First, because the deceased had sustained a slight
head injury when
she was struck by the motor vehicle and such treatment might have
resulted in a head bleed. Furthermore, she had
sustained a pelvic
fracture which could cause deadly bleeding and thus anti-coagulation
treatment was contra-indicated. The drop
in haemoglobin levels was a
further factor that militated against it. He did not consider the
deceased obese but rather, as indicated
in the post-mortem report,
saw her as well-built. It was against that background that he did not
prescribe the anti-coagulation
medication.
[41]
Dr Silkiewicz was adamant that providing the deceased with a
wheelchair would have been inappropriate because of the pelvic
fracture she sustained. It would, in his view, have proved very
painful for her. Dr Silkieiwcz stated that even if he had considered
a wheelchair, which he still insisted was inappropriate, persons in
the department supplying wheelchairs were not in attendance
anyway.
Crutches, as far as Dr Silkiewicz was concerned were impractical,
given the extent of the deceased’s injuries. In
the
circumstances under discussion, according to him, there had been no
question of proper post-discharge home-treatment as he
had
anticipated that the patient was due to return. He testified that the
deceased could not have been transferred elsewhere because
of the
nationwide strike and said that there were no ambulances available.
Six patients in total had been discharged from the orthopaedic
department on the day in question.
[42]
Part of the cross-examination of Dr Silkiewicz was directed at
showing that better instructions could have been provided to
the
deceased’s sister in relation to the mode and manner of
transporting the deceased back to her home. Dr Silkiewicz stated
that
patients more often than not, were indigent and thus limited in the
means at their disposal.
[43]
That then is the full picture against which the appeal falls to be
adjudicated.
[44]
In
Evins v Shield Insurance Co Ltd
1980 (2) SA 814
(A) at 837
H-818A the basis for liability in relation to a claim for loss of
support is set out:
‘
An
essential and unusual feature of the remedy is that, while the
defendant incurs liability because he has acted wrongfully and
negligently (or with
dolus
)
towards the deceased and thereby caused the death of the deceased,
the claimant (the dependant) derives his right of action not
through
the deceased or from his estate but from the facts that he has been
injured by the death of the deceased and that the defendant
is in law
responsible therefor. Only a dependant to whom the deceased was under
a legal duty to provide maintenance and support
may sue and in such
action the dependant must establish actual patrimonial loss, accrued
and prospective, as a consequence of the
death of the breadwinner.’
[45]
A primary and insurmountable problem for the appellant is that the
cause of the deceased’s death was not established,
from which
one could determine whether the MEC was liable.
[46]
It might well have turned out that the inadequate post-mortem report,
concerning cause of death, could not subsequently be
remedied and
that consequently the appellant’s action was, in any event,
ill-fated. However, that avenue was not explored
by the appellant’s
legal representatives. This is clearly evidenced by their failure to
undertake even the most cursory consultation
with a forensic
pathologist, in conjunction with an orthopaedic specialist.
[47]
Dr Isigler’s evidence in relation to the cause of death was
unhelpful. He did not possess the necessary expertise, which
at the
outset he acknowledged in his expert report. After abandoning his
initial view that the death of the deceased might have
been due to a
fat embolism, he correctly conceded that his DVT thesis was not
supported by the post-mortem findings in that no
physical evidence of
a dislodged blood clot had been found by the pathologist in the
examination and post-mortem of the relevant
body parts. His report
and testimony at the trial in relation to the cause of death was
speculative, without a clinical basis,
and ultimately demonstrably
flawed.
[48]
In respect of the nature and manner of the deceased’s discharge
it is clear from what is set out above that the complaint
concerning
the use of a wheelchair and crutches is, for the reasons given by Dr
Silkiewicz, and conceded in part by Dr Isigler,
wholly unfounded. The
complaint about the failure to resort to anti-coagulation medication
too was fallacious.
[49]
I was careful to look to see if there was even the most tangential
reliable medical evidence that had the deceased not been
moved she
would not have died. The record reveals that there is none. The
problem is that without the cause of death established,
the alleged
failure to provide proper instructions is not of any assistance. In
any event, without the expert assistance of an
orthopaedic specialist
and/or a forensic pathologist, one is left in the dark as to what
instructions the hospital staff might
have conveyed which might have
prevented the death of the deceased. The test for negligence set out
in
Kruger v Coetzee
1966 (2) SA 428
(A) at 430E-G, could thus
never be met. It reads as follows:
‘
For
purposes of liability
culpa
arises if –
(a)
a
diligens
paterfamilias
in the position of the defendant –
(i)
would
foresee the reasonable possibility of his conduct injuring another in
his person or property and causing him patrimonial loss;
and
(ii)
would
take reasonable steps to guard against such occurrence; and
(b)
the
defendant failed to take such steps.
This
has been constantly stated by this Court for some 50 years.
Requirement
(a)
(ii)
is sometimes overlooked. 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
on the particular circumstances of each case.’
[50]
It is necessary to record that counsel on behalf of the appellant was
emphatic that in relation to striking hospital staff,
the appellant
placed no reliance on the decisions of the Constitutional Court in
K
v Minister of Safety and Security
[2005] ZACC 8
;
2005 (6) SA 419
(CC) and
F
v Minister of Safety and Security & others
2012 (1) SA 536
(CC), which dealt with an employee’s deviation
from duties in respect of which, depending on the circumstances, an
employer
might yet be held vicariously liable. This of course would
have involved the question whether the MEC bore any liability for the
conduct of the striking workers for not being at their posts and
being unruly, thus causing all the patients to be discharged,
including the deceased. In light of all the aforegoing, it is
unnecessary to deal with that question.
[51]
For all the reasons set out above the appeal must fail. In the
totality of circumstances counsel for the MEC rightly did not
seek to
recover the costs of the appeal.
[52]
The following order is made:
The
appeal is dismissed.
______________________
M S Navsa
Judge of Appeal
APPEARANCES:
For
the Appellant
T P Kruger SC (with him C D’Alton)
Instructed
by:
Bares
& Basson, Pretoria
Claude
Reid, Bloemfontein
For
the Respondent:
M C Erasmus SC (with him H A Mpshe)
Instructed
by:
State
Attorney, Pretoria
State
Attorney, Bloemfontein