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[2017] ZASCA 133
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Du Preez v Pretorius (949/2016) [2017] ZASCA 133 (29 September 2017)
THE SUPREME
COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case
No: 949/2016
In the matter between:
JARON DU
PREEZ
APPELLANT
and
EUGENE
PRETORIUS
RESPONDENT
Neutral citation:
Du Preez v Pretorius
(949/2016)
[2017] ZASCA 133
(29 September 2017)
Coram:
Lewis, Bosielo and Swain JJA and Molemela and Gorven
AJJA
Heard
:
1 September 2017
Delivered:
29 September 2017
Summary:
Delict: Medical negligence: pleadings:
causation: pleaded causation not established: appeal dismissed.
ORDER
On appeal from:
Gauteng
Division of the High Court, Pretoria (Janse Van Nieuwenhuizen J
sitting as court of first instance):
The
appeal is dismissed with costs, including the costs occasioned by the
employment of two counsel.
JUDGMENT
Gorven AJA
(Lewis, Bosielo and Swain JJA and Molemela AJA
concurring):
[1]
The
appellant was diagnosed with testicular cancer. On 3 November 2010,
his left testis was surgically removed. The surgeon referred
him to
an oncologist, Dr Slabber, but the appellant responded negatively to
his bedside manner. He decided to investigate alternative
therapies.
In doing so, he heard of insulin potentiation therapy (IPT) and came
across the respondent, a general practitioner who
administered this
alternative form of treatment. The respondent treated the appellant
between 10 November 2010 and 8
February 2011. The appellant
then abandoned this treatment and consulted a conventional
oncologist, Dr Rens. The latter administered
four cycles of
conventional chemotherapy. After this, the appellant’s cancer
was found to be in remission.
[2]
The
appellant sued the respondent in the Gauteng Division of the High
Court, Pretoria. I will deal with the causes of action later
in the
judgment. The parties agreed to a separation of issues under Uniform
Rule 33(4). The trial court was requested to determine
the issues
ventilated in the first 13 paragraphs of the particulars of claim.
Janse Van Niewenhuizen J dismissed the appellant’s
claim
with costs. The appeal before us is against this dismissal, with her
leave.
[3]
The
salient facts follow. As indicated, after his surgery, the appellant
was referred to an oncologist but did not establish a rapport
with
him. He came across another patient of his age who had developed a
kidney problem and required dialysis as a result of conventional
chemotherapy. He was also aware of the severe side effects of
conventional chemotherapy. Having researched IPT, the appellant
consulted the respondent on 8 November 2010. He handed the
respondent records including his CT scan and blood tests. These
indicated that he had stage III cancer with metastases. There is a
lack of clarity as to what the respondent informed the appellant
concerning the pros and cons of IPT. He did explain that, by using
insulin, lower doses of chemotherapy than the conventional ones
are
required to successfully treat cancer. The respondent estimated that
there was a high percentage chance of success if IPT was
administered. The respondent told the appellant of a previous patient
where IPT had been successful. The appellant visited the
patient who
confirmed this claim. The treatment of the appellant then commenced.
[4]
The
respondent administered IPT treatments on 9 occasions between 10
November and 9 December 2010. He then went on leave, interrupting
it
on 20 December 2010 for a further treatment. During the respondent’s
leave, the appellant, of his own volition, had another
doctor
administer IPT at least once. The respondent administered further IPT
treatments on five occasions, the last being on 8
February 2011. The
appellant did not arrive for his appointment for treatment on 22
February 2011.
[5]
During the time that the IPT
was being administered, the respondent obtained regular blood count
results. These showed up two tumour
markers; the Alpha-fetaprotein
count (AFP) and the Beta-human chorionic gonadotropin count (BHCG).
The target for AFP was in the
range of 0 to 10 and that for BHCG was
in the range 0 to 5. Both markers diminished relatively steadily
between the inception of
IPT and 11 January 2011. The AFP results
were within the target range from 24 December 2010 to 22 February
2011. The BHCG results
were in the target range on 17 December, 24
December and 3 January. Between 11 January and 22 February, however,
the BHCG count
rose steadily from 3 to 253.
[6]
The
appellant became increasingly concerned when the BHCG results climbed
beyond the target range. His wife, who was a theatre sister,
suggested that it was time to consult a conventional oncologist. As a
result, the appellant did not arrive for his treatment scheduled
for
22 February 2011. Dr Rens, an oncologist, was consulted and
commenced four cycles of conventional BEP chemotherapy.
Since the end
of that course of treatment, the cancer of the appellant has been in
remission.
[7]
The
appellant’s first cause of action was for negligent
misrepresentations inducing him to contract with the respondent and
his having suffered damages as a result. His second was characterised
as negligent conduct giving rise to a breach of the contract
between
the parties. The third was for damages caused by the negligent breach
of a legal duty arising from the doctor patient relationship.
[8]
Three misrepresentations were relied on to found
the first cause of action. The first was that the appellant was a
suitable candidate
for IPT treatment. The second was that the IPT
treatment would cure the appellant’s condition. The third was
that the appellant
would have to undergo between 10 and 14 IPT
treatments. These were not pleaded in the alternative. It was averred
that the three
together induced the appellant to undergo treatment at
the hands of the respondent. All three had accordingly to be proved.
[9]
The
representations were alleged to have been negligent, and to have
induced the appellant to contract with the respondent. It was
alleged
that, as a consequence, the appellant had suffered damages by
incurring unnecessary medical and hospital expenses. In order
to
succeed under this cause of action, therefore, the appellant had to
establish that the three representations were made, that
they were
false, that they were made negligently, that they together induced
the appellant to contract with the respondent and
that, as a
consequence, he suffered damages.
[10]
I
shall deal with the second and third representations first. The
second representation relied upon was that the IPT treatment would
cure the appellant’s condition. In his testimony, the appellant
denied that any such representation had been made. This was
confirmed
by the respondent. At most, the respondent gave an estimate that
there was a 90% chance of the IPT treatment being successful.
The
respondent testified that the estimate given to the appellant was
between 80% and 90%. It was clear from the evidence of both
of them,
in any event, that even the percentage mentioned was a mere estimate.
Quite clearly, it was not established that the representation
that
IPT could ‘cure’ cancer had been made.
[11]
The third representation was as to the number of
treatments required. It was averred that the respondent told the
appellant that
10 to 14 treatments would be required. Although the
appellant initially mentioned these numbers, he clarified on two
occasions
that the respondent told him that he could not specify the
number of treatments which would be required at that stage. This
could
only be assessed as the treatment progressed. This
representation was thus also not established.
[12]
As
for the first representation alleged, the respondent admitted having
told the appellant that he was a suitable candidate for
IPT
treatment. The appellant did not establish that the statement was
false. The only evidence sought to be introduced on this
issue was
that of a book on IPT to which the respondent had written the
foreword. Apart from the book not having been proved to
be
authoritative on the subject, the excerpt relied on did not assist
the appellant. He read a passage which described the ideal
candidate
for IPT as one where, along with other conditions, the cancer had not
metastasised. However, the passage went on to say:
‘This does not mean that patients
to whom one or more of these conditions do not apply, will not
benefit from IPT, it is only
the determination of the probable course
thereof which might not be so clear.’
[1]
This comes nowhere close to
showing that the respondent’s representation was false.
[13]
The expert witness called by the appellant, Dr
van Niekerk, conceded that he knew nothing about IPT. He contented
himself with the
assertion that there was no scientific basis for
IPT. As a result, he did not apply his mind to whether its use was
indicated in
the particular case of the appellant. What is
interesting is that he did concede that IPT may function to make the
cell or tissue
more permeable to chemotherapy. He mentioned in vitro
studies which show that this may improve the transport of drugs into
the
cell. He testified that the research was, however, still at an
experimental stage. His attitude was that it should not be used on
humans. He conceded under cross-examination that he was not in a
position to judge the efficacy and safety of IPT treatment.
[14]
When it was put to him that the respondent had
successfully treated someone with similar symptoms to those of the
appellant, he
was understandably unable to comment. He was forced to
concede that, whilst this treatment was being administered, the
markers
were reduced to within the target range for a period of time.
He was constrained to abandon his initial opinion that this was the
result of the surgery that preceded the treatment.
[15]
This means that, of the three representations
relied upon, only one was proved to have been made. This had in any
event been admitted.
It was not proved, however, that this
representation was false. In the result, the first cause of action
was not made out.
[16]
The second two causes of action were pleaded in a
somewhat confused fashion. They were clearly conceived as relying on
the concurrent
actions in contract and delict which, in some
professional relationships, can lie on the same facts.
[2]
Be that as it may, it was alleged that various grounds of negligence
on the part of the respondent gave rise to damages under both
contract and delict.
[17]
After the pleaded allegations of negligence, the
foundation of these two causes of action was set out in paragraph 13
of the particulars
of claim:
‘As a consequence of the
aforegoing, the Plaintiff’s condition was not cured and the
Plaintiff had to undergo further
treatment in the form of “
BEP”
chemotherapy.’
This averment is that the
need for conventional chemotherapy was caused by the failure of the
respondent to cure the appellant.
The clear corollary of this is that
if there had been no negligence on the part of the respondent, the
appellant would have been
cured.
[18]
It
was quite properly conceded in argument that it cannot be said that
it was shown that any conduct of the respondent resulted
in the
cancer not being cured. Medical science does not speak of a cure. At
most it can be said that cancer goes into remission.
The entire
foundation of the appellant’s case was thus not established. In
any event, the appellant testified that he was
aware that, however
high the percentage chance of success might be, there was no
guarantee that the IPT treatment would lead to
remission. As such, it
was always a possibility that he would in any event have to undergo
conventional chemotherapy.
[19]
In
his evidence, the complaint of the appellant was that the IPT, and
the interruption in the IPT when the respondent was on leave,
both
caused resistance to conventional chemotherapy. This meant, according
to the appellant, that Dr Rens had to administer more
cycles of
chemotherapy than would otherwise have been necessary. Once again,
however, the evidence did not establish this contention.
Dr Van
Niekerk testified that if the appellant had sought treatment from him
at the outset, he would have administered four cycles
of
chemotherapy. This is precisely what was done by Dr Rens.
[20]
Since it was not proved that any conduct of the
respondent caused the appellant to sustain damages as pleaded, the
question of whether
the respondent was negligent need not be
considered. In these circumstances it would be what has been termed
negligence in the
air. Even if it had been proved that the respondent
was negligent in one or more of the respects pleaded, it was not
proved that
any such negligence resulted in the appellant not being
cured. Still less can it be said that it caused the appellant to have
to
undergo conventional BEP chemotherapy or additional chemotherapy.
No damages were therefore occasioned by any alleged negligence.
[21]
The appellant failed to prove that any conduct of
the respondent caused him to suffer damages either at a contractual
or delictual
level. This means that the second and third causes of
action were not established. There is therefore no basis on which the
appeal
can succeed.
[22]
In
closing, it bears repetition that when rule 33(4) is applied, the
issues for determination should be formulated clearly and an
order
should be issued.
[3]
The trial court did not, as it should have done, determine whether
any damage was caused by the respondent’s conduct. This
was the
result of an inappropriate approach to the separation of issues. A
failure to consider the consequence of a separation
leaves the
litigants and the court in an invidious position.
[23]
In
the result, the following order is made:
The
appeal is dismissed with costs, including the costs occasioned by the
employment of two counsel.
________________________
T R Gorven
Acting Judge
of Appeal
Appearances
For the Appellant:
EC Labuschagne SC (with him JG Van Der Merwe)
Instructed by:
Savage Jooste & Adams Incorporated, Pretoria
Webbers, Bloemfontein
For the
Respondent BP Geach
SC (with him D Keet)
Instructed by:
Van Niekerk Attorneys Incorporated, Pretoria
Honey Attorneys, Bloemfontein
[1]
My translation. The original reads ‘Dit
beteken nie dat pasiёnte op wie een of meer van hierdie
voorwaardes nie van
toepassing is nie, geen baat sal vind by IPT
nie, dit is slegs die vasstelling van die vemoedelike verloop
daarvan wat dalk nie
so goed sal wees nie.’
[2]
Lillicrap, Wassenaar & Partners v
Pilkington Brothers (SA) (Pty) Ltd
1985 (1) SA 475
(A) at 496D-H.
[3]
Absa Bank Ltd v Bernert
2011 (3) SA
74
(SCA)
para 21.