About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2019
>>
[2019] ZAFSHC 110
|
|
Van Deventer v Botha (1523/2014) [2019] ZAFSHC 110 (4 July 2019)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 1523/2014
Appeal
No: A211/2018
In
the matter between:
ADRIANA
SALOMINA VAN
DEVENTER
Applicant
and
HENNIE
BOTHA
Respondent
CORAM:
DAFFUE, J
et
MATHEBULA, J
et
LOUBSER, J
HEARD
ON:
24 JUNE 2019
JUDGMENT
BY:
DAFFUE, J
DELIVERED
ON:
4 JULY 2019
I
INTRODUCTION
[1]
Two questions have to be decided in this appeal. First, whether
a Boer mastiff (boerboel in Afrikaans) acted contrary
to the nature
of domesticated animals and dogs in particular when it attacked and
bit an adult man several times and if so, whether
the attack and
resultant injuries caused or materially contributed to the man’s
death in hospital ten days later.
[2]
The matter came before an acting judge of this Division who dismissed
the plaintiff’s action. It was firstly found
that the dog
did not act contrary to its nature and secondly, that the injuries
sustained (“the wounds”) did not cause
the death of the
deceased given his medical condition prior to the attack.
[3]
Lekale, J, who was allocated the unsuccessful plaintiff’s
application for leave to appeal in the absence of the acting
judge,
granted leave to appeal, costs to be costs in the appeal.
II
THE PARTIES
[4]
Mrs Adriana Salomina van Deventer, a widow residing at Brakpan,
Gauteng when action was instituted, previously from Bloemfontein,
is
the appellant in this appeal, she being the unsuccessful plaintiff in
the trial court. She was represented before us by
Adv PJJ
Zietsman as was the case during the trial.
[5]
Mr Hennie Botha, the respondent and successful defendant in the trial
court is a major male, previously employed and resident
in
Bloemfontein, but now employed at Halfway Ford, Kuilsrivier, Western
Cape. He was duly represented by legal representatives
during
the trial and the application for leave to appeal. Notwithstanding
being fully informed of the appeal and served with the
appeal records
on 5 September 2018 after withdrawal of his attorneys of record and
informed of the appeal hearing in that the notice
of set down was
served upon him on 29 March 2019, he failed to give notice to oppose
the appeal or to file heads of appeal.
The deputy sheriff of
Kuilsrivier South on both occasions served the relevant documents on
respondent personally. Respondent
did not appear when the
matter was called and subsequently heard by us.
III
BRIEF FACTUAL MATRIX
[6]
Several aspects are either common cause or have been proven on a
balance of probabilities. Contrary versions will be
highlighted.
[7]
During the afternoon of 8 April 2011 Mr David van Deventer (“the
deceased”) was bitten several times by the dog,
Capone (also
spelt Kepone in the record) (“the dog”). Respondent
was the owner of the dog.
[8]
The attack on the deceased, to be referred to as “the
incident,” occurred at respondent’s smallholding in
Bainsvlei, Bloemfontein in the presence of the deceased’s
employees, the appellant, the deceased’s sister, respondent’s
wife at the time, as well as respondent’s mother in law and
possibly the children of the parties.
[9]
Mrs Susan van Deventer, the deceased’s sister and the
deceased’s wife, Mrs A S van Deventer, the appellant in the
appeal, testified about the incident on behalf of appellant. Dr
A van Aswegen testified as expert on behalf of the appellant.
Mrs Karen Botha, respondent’s wife at the time (the parties
became divorced after the incident, but before the trial) testified
for respondent about the incident and Prof JBC Botha presented expert
testimony on behalf of the respondent.
[10]
Respondent’s smallholding was fenced-off with devil’s
fork and an iron sliding gate provided entrance to
the premises.
This was locked at night, but merely closed during the day.
Respondent had two dogs, a bitch named Lulu
and her off-spring,
Capone. Both dogs were described by Mrs Botha as “very
loving, playing with my children.
I have never had any
aggression with any of those two dogs.” According to Mrs
Susan van Deventer, the deceased’s
sister to whom I shall refer
as Susan to avoid confusion, Capone was well-known to her. She
and Mrs Botha were friends for
many years and she generally attended
“DVD movie evenings” at respondent’s premises on
Friday evenings. She went
to the Botha’s smallholding early the
particular Friday afternoon and took appellant’s son, Juandré,
with her.
Capone and Lulu usually roamed free on the
smallholding as was the case that day while the Botha’s
children and Juandré
were playing outside.
[11]
Appellant and the deceased arrived at the respondent’s
smallholding at about 17h00 in order to pick up Juandré.
The deceased was driving his LDV, commonly known as a bakkie.
He towed a trailer. Two of his employees were conveyed on the
back of
the bakkie. They entered through the sliding gate and parked
close to the house. The children apparently opened
the gate.
Appellant and the deceased disembarked while Susan, Mrs Botha and her
mother exited the house to meet them according
to the evidence of
Susan and appellant. When the dog (Capone) jumped
up against the bakkie the deceased reprimanded
it according to Susan.
Hereafter the dog attacked and bit the deceased on his hands, arms
and lower leg. The deceased eventually
received a rope from one
of his employees which he managed to put around the dog’s neck
to contain him. Susan assisted
him and later held the rope
whilst the deceased’s leg wounds were bandaged by appellant.
According to appellant she was talking
to Mrs Botha at the time, did
not observe the incident from the start, but only heard a
“commotion,” as she called
it, behind her. When she
turned around the deceased was already injured. As the deceased
was bleeding profusely from
his lower left leg, appellant ran into
the house in order to look for bandages to dress the wounds and stop
the bleeding.
Mrs Botha’s mother handed her a bandage
which she used to dress the wounds. Hereafter they left for the
hospital, but
on their way they stopped to offload the employees and
to disconnect the trailer, leaving it in possession of a friend.
Susan
remained behind on the smallholding.
[12]
Mrs Botha’s version contradicts that of Susan and appellant.
According to her, she came running out of the house,
screaming at the
visitors not to disembark. She testified that the deceased hit
the dog several times with a rope from behind
whilst it was standing
against the bakkie and this caused the dog to attack him. On
her version the dog was seriously provoked
by the deceased.
[13]
The deceased was immediately treated at the hospital, but his
condition worsened to such an extent that he passed away on 18
April
2011, ten days after admission. His death certificate indicates
that he died from natural causes with liver failure
as the immediate
cause and portal hypertension as secondary cause. The experts
agreed that the objective evidence indicated
this conclusion to be
incorrect. More will be said about this later.
IV
GROUNDS OF APPEAL
[14]
The first ground of appeal deals with the trial court’s finding
that the dog did not act contrary to its nature when
it attacked the
deceased, notwithstanding several common cause facts, alternatively
the proven facts,
inter alia
(a) that the dog was not
provoked, (b) the dog had never bitten anyone before, (c) the dog did
not have a propensity to bite people,
(d) the dog was present when
the children were playing on the premises the particular day.
It should have found that the
dog indeed acted contrary to its
nature.
[15]
Secondly, the trial court’s finding that the wounds did not
result in the death of the deceased, given his pre-existing
medical
status, is challenged to be incorrect and in this regard appellant
raised several factual and legal arguments arising from
the evidence
of the two experts, some of which will be considered hereunder.
In short, it is appellant’s case, based
on the evidence of Dr
Van Aswegen, that the wounds caused bacteraemia which in turn caused
peritonitis which triggered Type 1 Hepatorenal
Syndrome (“HRS”)
and this ultimately caused multiple organ failure and the deceased’s
death. Type 1 HRS
is characterised as a rapid and progressive
hepatorenal impairment triggered
inter alia
by a bacterial
infection. As Dr Van Aswegen testified, HRS “is a
syndrome where you have a patient with a liver that
is not working
well and then despite a normal kidney you have a functional kidney
failure” and “something precipitates
something and the
kidney fails without the liver actually becoming worse.”
In most cases, according to the expert,
Type 1 HRS is fatal and
virtually all patients die in about ten weeks and many much earlier.
[16]
Consequently, two issues need to be adjudicated and those are the
findings of the trial court pertaining to the
contra naturam sui
generis
principle,
i.e.
whether the dog, a domesticated
animal, acted contrary to its domesticated nature, and secondly,
whether the attack on the deceased
and the wounds sustained by him
caused his death. I need to point out immediately that
liability based on delict,
i.e.
the alleged negligence of
respondent as pleaded in the alternative in the particulars of claim,
does not have to be considered.
The trial court considered the
actio legis acquiliae
in paragraphs [21] to [24] of the
judgment, but it is not required to deal with the issue of
negligence. Fact of the matter
is that appellant does not rely
on respondent’s liability based on the
actio legis acquiliae
in this appeal. There is no evidence that respondent was
negligent.
V
EVALUATION OF THE TRIAL COURT’S JUDGMENT
[17]
I make some comments on the trial court’s findings under this
heading, but shall deal further with specific issues later
under the
next two headings. The trial court did not evaluate the
evidence of the two witnesses, Mrs Van Deventer and Mrs
Botha in
order to conclude which version, particularly that of Susan or that
of Mrs Botha, was preferred and for what reasons.
However, a
study of the judgment tends to lead the reader to the inevitable
conclusion that Susan’s version of the events
was accepted.
The trial court held that the dog was not provoked by the deceased,
but its reasoning is unconvincing.
It was found in paragraph
[16] that Mrs Botha “did not come forth as an untruthful and
dishonest witness nor had any dishonest
intention.” This
witness testified how she ran out of the house after observing the
approaching vehicle and shouted
“stop” several times in
order to allow her an opportunity to lock the dog away. She did
that as the dog had a
propensity to bite vehicles’ tyres.
For this reason Susan had to phone her brother to inform him to make
contact when
he arrives at the gate to enable the witness to lock
away the dog. She also testified that the deceased hit the dog
repeatedly
with a nylon rope whereupon the dog attacked and injured
him. However, in paragraph [24] and when dealing again with Mrs
Botha’s evidence, it was held that the “deceased’s
conduct in attempting to control the dog by using a rope cannot
be
attributed as provocation; the deceased was merely attempting to
contain the dog.” The trial court confused the
evidence.
On Susan’s version the deceased tried to contain the dog after
it had started attacking him and on that version
there was no
provocation. Mrs Botha’s evidence is to the contrary.
Bearing in mind the conclusion at which the
trial court arrived, it
is unnecessary to do an in-depth evaluation of the evidence, save to
state that Susan’s version is
not only credible, but more
probable and reliable than Mrs Botha’s version. Mrs Botha
did not present a reliable and
truthful version of the incident.
Crucial aspects of her version presented to the court were never put
to appellant and particularly
Susan for them to respond. There
was no reason to contain the dog in the manner described by Susan if
the dog was not aggressive
towards the deceased and had already
started attacking him. I would have expected Mrs Botha to
reprimand the deceased for
repeatedly hitting her dog, but that was
not her version.
[18]
The trial court’s view point in paragraph [20] that if the dog
had the propensity to attack, it would have bitten appellant’s
son who was on the premises for the first time that day, does not
correlate with the finding that the dog “must be regarded
as
not
having acted contrary to his nature.”
Precisely the opposite finding should have been made based on the
evidence of
Susan and Mrs Botha pertaining to the good nature of the
dog. A dog that never had any propensity to bite people acts
contrary
to its nature if it bites a person for no reason or without
being provoked.
[19]
The trial court considered the evidence of the two experts and
without properly evaluating the evidence concluded in paragraph
[37]
that “the plaintiff to strengthen her case would have called
the three doctors who treated the deceased to come and
testify.
Thus this makes it further difficult to have an overall view of the
cause of death …., as well as the absence
of blood cultures
and the post-mortem results. Further having regard to the poor
state of health the deceased was in before
the dog bite, it makes it
difficult to be persuaded that the dog bite caused the death of the
deceased.” In paragraph
[38] the trial court continued:
“A normal healthy person can survive a dog bite. The
deceased was sick even before
the dog bite.” It concluded
in the next paragraph that it was “not persuaded that the dog
bite caused the death
of the deceased given his pre-existing medical
history.” I shall deal with the expert evidence later,
but merely wish
to say at this stage that the fact that an old and
frail person of 80 or 90 years dies of an attack such as
in casu
,
while a young, healthy and strong person would have survived the
attack is no reason to dismiss a claim for lack of proving
causation.
Similar is the case where a baby is killed by a dog
in circumstances where an adult would have survived a similar attack,
save
for a few wounds being sutured and antibiotics administered.
The adage “you must take your victim as you find him,”
comes to mind and should be applied.
VI
ACTIO
DE PAUPERIE
[20]
An owner of a domesticated animal, such as the dog
in
casu
is
liable for damage caused by the animal without requiring proof of
negligence.
[1]
In
O’Callaghan
Innes, CJ concluded as follows:
“
By our law,
therefore, the owner of a dog that attacks a person who was lawfully
at the place where he was injured, and who neither
provoked the
attack not by his negligence contributed to his own injury, is
liable, as owner, to make good the resulting damage.”
[2]
[21]
It is trite that, bearing in mind the quoted judgments, appellant had
to prove that
(a) the ownership of the
dog vested in respondent at the time the damage was inflicted;
(b) the dog was a
domesticated animal;
(c) the dog acted
contrary to the nature of domesticated animals and in
particular dogs and
(d) the conduct of the
dog caused the appellant’s damage.
Clearly,
the respondent’s liability as owner of the dog is independent
of any fault on his part.
[22]
It is common cause that respondent was the owner of the dog when the
deceased was attacked. This allegation was never
seriously
attacked. It also appears from the evidence that when Mrs Botha
vacated the smallholding after their divorce, the
dog remained on the
premises which respondent continued to occupy. Respondent did
not testify to deny his ownership.
It is also common cause that
the dog was not kept as a vicious watch dog with the prime purpose of
securing the premises from potential
criminals. It was used to
visitors and children in particular. Its only threat to
visitors, according to Mrs Botha,
was the propensity to bite
vehicles’ tyres. This was never witnessed by her friend,
Susan, who often visited the Bothas
and it also did not occur the
fatal afternoon when the deceased and appellant arrived to fetch her
child.
[23]
Paragraphs (c) and (d) above are in contention as previously said.
Causation will be dealt with under the next heading.
Paragraph
(c) requires immediate attention. There is no onus on appellant
to show that the dog acted out of perversity or
inherent viciousness,
but merely that the conduct was foreign to the domesticated nature of
the particular class of animals which
has done the damage, to wit
dogs
in
casu
.
[3]
Appellant was also not required to explain the peculiar behaviour of
the dog. The
contra
naturam sui generis
requirement requires some unpredictable action from the domesticated
animal. Action that is to be expected as part of the
animal’s
natural behaviour does not qualify. In
Da
Silva v Coetzee
[4]
the plaintiff’s wife, whilst window-shopping, passed close to
the defendant’s employee, a security guard, who had a
dog on a
chain. The dog jumped up, attacked the woman from behind and
injured her. The defendant’s plea of provocation
was
dismissed by the High Court. That court found that the trial
magistrate incorrectly placed an onus on the plaintiff to
prove why
the dog behaved as it did, whilst the onus rested on the defendant to
prove that the dog acted in the said manner because
of the fault of
the plaintiff’s wife as held in
O’Callaghan
supra
.
[24]
Certain defences are available to the owner of a domesticated
animal. I referred to
Da
Silva supra
[5]
pertaining to provocation. The latest judgment in this regard
is
Van
der Westhuizen v Burger,
[6]
the
interesting case of the plaintiff who provoked an ostrich, then ran
away when he was chased, fell over a piece of wood, torn
his Achilles
tendon and as a result suffered damages. The SCA held,
correctly with respect, that the plaintiff’s provocation
constituted a defence. I am mindful of the fact that the ostrich was
a wild animal and not domesticated, but Ponnan, JA in his
minority
judgment (whilst agreeing with the majority) dealt with the defence
of provocation in respect of the
actio
de pauperie
with reference to
inter
alia O’Callaghan.
[7]
[25]
In the present case respondent pleaded provocation, but failed to
prove the defence. The trial court correctly found
that
provocation had not been proven, albeit incorrectly on Mrs Botha’s
version. This witness was the only witness
who testified that
the deceased repeatedly hit the dog with a nylon rope before he was
attacked. The court should have accepted
the version of Susan
above that of Mrs Botha based on credibility, reliability and the
probabilities. The appellant’s
evidence was not helpful
in this regard. She heard what she called a “commotion”
behind her back and her husband
saying that the dog was busy biting
him. When she turned the deceased had already fastened a rope
around the dog’s
neck. If she wanted to make up a version
to strengthen her case, she could have done so, but she refrained
from testifying
about the incident which she did not fully observe
from the beginning.
[26]
The negligence of a third party in charge of or in control of a dog
or other domesticated animal may present a possible
defence to the
owner of the domesticated animal.
[8]
Mrs Botha was apparently in control of the dog in the temporary
absence of respondent. It was not averred in the plea
that she
was negligent in any manner; consequently, it is not surprising at
all that no evidence was led by or on behalf of respondent
in this
regard. The facts in
Lever
v Purdy
[9]
are distinguishable from the facts
in
casu
.
This judgment was relied upon by respondent’s legal
representatives in opposition of the application for leave to
appeal.
It is accepted with respect to be the law that if Mrs Botha or
another third party provided the dog with an opportunity
to injure
the deceased and failed to prevent it from doing so, respondent could
have relied upon such facts in defence of the claim.
Such a
defence was not pleaded, but more importantly, would be without merit
within the accepted factual matrix.
[27]
A final possible defence
in casu
is that the deceased’s
presence on the smallholding was unlawful. Respondent
pertinently pleaded that the deceased
entered the smallholding
without consent and that his presence was unlawful; alternatively he
pleaded that the deceased’s
presence was unlawful in that he
was requested to phone before entering the smallholding to allow the
person in control of the
dogs an opportunity to lock them away.
This defence is without merit. Respondent’s counsel
unsuccessfully made
a serious attempt during cross-examination of
Susan for her to concede that she had phoned the deceased before his
arrival at the
smallholding. It was put to her that both Mrs
Botha and her mother, Mrs Russell, would testify that Susan was
instructed
to phone the deceased to warn him not to enter the
premises unannounced. He had to phone upon his arrival at the
gate.
An order was even requested and granted for Susan’s
cellphone records to be obtained from the relevant cellphone
company.
Nothing came of this. Respondent’s legal
representative went so far as putting it to Susan that Mrs Botha and
her mother
would testify that when they saw the deceased’s
vehicle entering the smallholding, both of them ran out of the house,
shouting
(loosely translated from Afrikaans) “don’t get
out of the car” and “just stay in the car.”
This was also denied. The impression created by the
cross-examiner was that the dogs were vicious and would certainly
attack
the strangers if they dare exiting the vehicle. When Mrs
Botha testified, she stated that the reason for the request was
merely because she was afraid that her dog might be run over by the
vehicle as it was used to bite vehicles’ tyres.
VII
CAUSATION
[28]
I mentioned earlier that the fourth element to be proven to be
successful with the
actio
de pauperie
is causation. In
Skosana
[10]
Corbett,
JA (as he then was) defined causation in the law of delict. The
first requirement is a factual one relating to the
question whether
the negligent act or omission in question caused or materially
contributed to the harm giving rise to the claim.
The so-called
“but for” test applies. If factual causation is not
proven, it is the end of the matter.
The second requirement is
a sufficient link between the negligent act or omission and the harm
suffered, or put otherwise, legal
causation. A flexible
approach is followed in this regard as set out in
Standard
Chartered Bank of Canada
[11]
in which
“
factors
such as reasonable foreseeability, directness, the absence or
presence of a
novus
actus interveniens
,
legal policy, reasonability, fairness and justice all play their
part.”
[29]
In
Van
Duivenboden
[12]
the
SCA held that a plaintiff is not required to establish the causal
link with certainty, but merely that the wrongful conduct
was
probably a cause of the damage. This calls for
“
...
a sensible retrospective analysis of what would probably have
occurred,
based
upon the evidence
and what can be expected to occur in the ordinary course of human
affairs rather than an exercise in metaphysics.”
(emphasis
added).
[30]
The sentiments in
Van
Duivenboden
were
repeated in
Za
v Smith
[13]
by Brand, JA and the learned judge of appeal proceeded as follows:
“
Unlike
the court
a quo
,
I therefore do not think it can be found as a fact that the warning
measures proposed by Tromp (appellant’s expert)
would
be of no consequence. On the contrary, in my view, they would
probably have been effective. This means that, but
for the
respondents’ wrongful and negligent failure to take reasonable
steps, the harm that befell the deceased would not
have occurred.”
[31] In
Fourway
Haulage SA (Pty) Ltd v SANRAL
[14]
Brand, JA cautioned that the factors normally applied to consider
legal causation
“
should
not be applied dogmatically, but in a flexible manner so as to avoid
a result which is so unfair or unjust that it is regarded
as
untenable.”
[32]
In
SA
Hang and Paragliding Association v Beswink
[15]
Brand, JA again had an opportunity to consider and adjudicate a claim
based on delict. He explained the “but for”
test in
respect of factual causation and found in favour of the appellants.
He also dealt with legal causation or remoteness
and stated that this
is determinded by considerations of policy, it being a measure of
control or as he called it “a long-stop
where right-minded
people, including judges, will regard the imposition of liability in
a particular case as untenable, despite
the presence of all other
elements of delictual liability.” The ultimate question
to be asked
in
casu,
based
on Brand, JA’s reasoning further on in the paragraph as well as
in
Za
v Smith supra
,
is whether the attack of the dog and the wounds sustained by the
deceased as a result caused or materially contributed to his
death.
[33]
In
Lee
[16]
the Constitutional Court rejected the approach of the court
a
quo
that failed to follow the approach in
Van
Duivenboden.
Nkabinde,
J, the scribe of the majority judgment (there was a 5/4 split) dealt
with causation and the flexible approach to determine
factual
causation and accepted in paragraph [47] that the
“
most
recent, post-constitutional affirmations of that flexibility are to
be found in Van Duivenboden and Gore.” The
learned judge
concluded
in
paragraph [73] as follows:
“
A
court ultimately has to make a finding as to whether causation was
established on a balance of probabilities on the facts of each
case.
Causation will not always follow whenever a wrongful and negligent
omission is shown.”
[34]
I
am of the view that there is no reason why the “but for”
test for factual causation should be based on metaphysics.
It
is rather a matter of common sense as Brand, JA held,
[17]
taking into account the background of everyday-life experiences and
considering the matter in a practical manner. The appellant
merely had to prove on a balance of probabilities that the deceased
died on 18 April 2011 as a result of the wounds, or put differently,
that it was more likely than not that the deceased would not have
died on 18 April 2011, but for the wounds. The causal link
does
not have to be established with certainty. In order to consider
causation it is necessary to evaluate the expert testimony.
In
order to do so, it is useful to refer to the principles to be
applied.
[35]
Experts are frequently called in to assist our courts, but courts are
not bound by the opinion of an expert. An expert
must be called
as a witness on matters calling for specialised knowledge. It
is the duty of the expert to furnish the court
with the necessary
scientific criteria for testing the accuracy of the expert’s
conclusions so as to enable it to form an
independent judgment by the
application of these criteria to the facts proved in evidence.
See
Coopers
(South Africa) (Pty) Ltd v Deutsche Gesellschaft Für
Schädlingsbekämpfung MBH.
[18]
In the evaluation of the evidence of experts it is required to
determine whether and to what extent their opinions are founded
on
logical reasoning
.
[19]
This
approach has been consistently followed. In
Linksfield
[20]
the SCA warned presiding officers against adjudicating evidence by
applying the yardstick used by expert scientific witnesses who
tend
to assess likelihood in terms of scientific certainty.
Presiding officers should not be seduced to apply to the expert
evidence the standard which the expert applies, but instead, the
balance of probabilities must be ascertained based on a review
of the
totality of the facts.
[36]
In
Oppelt
v Department of Health
[21]
Molemela AJ (as she then was) criticised the court
a
quo
for deviating from the approach earlier adopted in
Linksfield
and
I quote:
“
[38]
First, Dr Newton testified that the dislocation of the spinal cord
causes pressure and obstruction in the spinal canal which,
when left
unattended, results in the secondary ischaemic injury to nerve cells,
to the extent that the cells cease to function.
This evidence passes
the reasonable and logical requirement for the acceptance of
expert evidence set in
Linksfield
. The Supreme
Court of Appeal erred when it concluded that the scientific evidence
that supports his theory is 'questionable'.
The conclusion deviates
from the
Linksfield
principle that where the logic
of a medical approach is not in dispute, the court must not
assess the cogency of scientific
evidence by scientific standards,
but by the legal standard of the balance of probabilities.
[41]
Fourth, the Supreme Court of Appeal fell into the trap of focusing on
scientific proof instead of assessing where the balance
of
probabilities lies, based on an evaluation of the whole evidence.”
[37]
In Medi-clinic v
Vermeulen
[22]
Zondi, JA, writing for a unanimous SCA bench, stated the following
with reference to the judgment of that court in
Michael
and another v Linksfield Park Clinic (Pty) Ltd:
“
An
opinion expressed without logical foundation can be rejected.
But it must be borne in mind that in the medical field it may not be
possible to be definitive. Experts may legitimately hold
diametrically opposed views and be able to support them by logical
reasoning. In that event it is not open to a court simply to
express
a preference for the one rather than the other and on that basis to
hold the medical practitioner to have been negligent.
Provided a
medical practitioner acts in accordance with a reasonable and
respectable body of medical opinion, his conduct
cannot be condemned
as negligent merely because another equally reasonable and
respectable body of medical opinion would have acted
differently.”
(emphasis added).
[38]
The deceased was not a healthy man. He suffered from liver
failure and liver cirrhosis, an irreversible condition which
would
have led to his death ultimately, although the experts were in
agreement that he could live for a number of years.
He started
to feel ill two weeks before the incident, but still continued with
his normal business activities. He consulted
a doctor who
arranged for blood tests and on the day of the incident the doctor
informed him telephonically that according to the
results of the
blood tests he was suffering from jaundice. Notwithstanding his
illness, he was not bed-ridden. The Friday
prior to the
incident he and appellant were busy with restoration of a building
and in particular the painting thereof. The
deceased was even
on the roof, doing some repairs. Her version in this regard was
not challenged. The deceased was apparently
fit enough to do manual
labour and drive around.
[39]
I do not agree with the trial court that it should be held against
appellant for failing to call the three doctors that treated
the
deceased after the incident. The same applies to the absence of
blood cultures and a post-mortem examination and results.
The
critical question to be asked is whether the deceased would have died
on 18 April 2011, but for the wounds sustained ten days
earlier, or
put differently: but for the wounds, would Type 1 HRS have ensued and
would the deceased have passed away as a result
of that on 18 April
2011. Although the deceased was diagnosed with jaundice, the
fact remains that he would not have been
rushed to hospital for
treatment on 8 April 2011, let alone emergency treatment, was it not
for the wounds sustained.
[40]
The experts were in agreement that the available tests indicated
signs of renal failure 24 hours after admission at the hospital
and a
progressive worsening of the deceased’s renal functions
thereafter without a significant worsening of his liver functions.
Prof Botha conceded during cross-examination that the cause of death
was not liver cirrhosis and portal hypertension, but Type
1 HRS. It
was also agreed by the experts, based on the available evidence, that
the deceased’s white cell count increased
and as conceded by
Prof Botha, this was most probably as a result of an underlying
bacterial infection. He also conceded
that the deceased’s
white cell count was within normal limits upon admission and thus
excluding an underlying infection.
[41]
Prof Botha conceded that the most probable cause of the infection was
the wounds, but later tried to backtrack on the concession
in saying
that it was possible, but improbable. Despite his concession he
was not prepared to concede that the bacterial
infection of the
wounds caused the Type 1 HRS; instead he insisted that spontaneous
bacterial peritonitis was the most common infection
that induces Type
1 HRS. The professor did not at all deal with spontaneous
bacterial peritonitis in his written report,
neither provided a basis
for such conclusion in that report, nor did he do so in his evidence
in chief. Dr Van Aswegen was
neither cross-examined on this
aspect, nor was the professor’s proposition put to him for his
response. In my view
the professor resorted to speculation and
his version should have been rejected as not based on a logical
foundation where he disagreed
with the logical version of Dr Van
Aswegen.
[42]
Although Prof Botha’s wife suffered from the Type 1 HRS
syndrome, he never treated patients suffering from such illnesses.
His opinion that the onset of peritonitis following bacteraemia
within a 36 hour period was unlikely is based on unsubstantiated
facts and speculation as to when Augmentin was administered to the
deceased. Dr Van Aswegen, relying on multiple documented
case
studies and his experience, testified that bacteraemia follows quite
rapidly after a dog bite which leads to subclinical peritonitis
which
in turn leads to Type 1 HRS. This can occur within 24 hours of
a bacterial infection. His opinion that the onset
of bacterial
peritonitis triggering Type 1 HRS within a 24 hour period was both
possible and likely was not seriously attacked
in cross-examination.
[43]
I agree with Mr Zietsman that Prof Botha tendered
viva voce
evidence on aspects which was far removed from his written opinion.
Although Prof Botha made several concessions, his unwillingness
to concede that the admitted infection caused by the wounds induced
the Type 1 HRS, but rather relying on spontaneous bacterial
peritonitis without any evidence to support such contention, does not
take account of the probabilities of this case and reflects
negatively on the witness’ objectivity. As mentioned, the
deceased was actively involved with his business activities
and even
doing manual work immediately before the incident. On all
probabilities he would not be hospitalised that day, was
it not for
the wounds sustained.
[44]
In summary, Dr Van Aswegen’s opinion was not properly
considered by the trial court. Liver failure on its own does
not cause HRS. Furthermore, biochemically and clinically, the
deceased did not suffer from an acute deterioration of his
liver
functions. Dr Van Aswegen testified with reference to objective
evidence that by the time of his death, the deceased’s
liver
did not significantly decrease in its function, but his kidneys
totally decreased in function. This was in essence
common cause
between the experts. The trial court should have found, based
on the evidence of Dr Van Aswegen, that the wounds
caused bacteraemia
which in turn caused sub-clinical peritonitis which induced Type 1
HRS and this ultimately caused multiple organ
failure and the
deceased’s death. Therefore, the trial court erred in
concluding that causation was not proved because
the deceased was
ill, his immune system compromised and the wounds sustained did not
cause his death, “given his pre-existing
medical history.”
I refer to my earlier criticism which I do not intend to repeat.
[23]
The trial court was unfortunately persuaded by the following
statement by Prof Botha pertaining to the deceased’s injuries:
“
These would not
normally be regarded as being serious or life threatening and I would
have expected a healthy patient with normal
reactions that the wounds
would heal without any …(inaudible) if they were treated
adequately and with combative care.”
VIII
CONCLUSIONS
[45]
The two issues to be considered in this appeal, to wit liability
based on the
actio de pauperie,
specifically whether the dog
acted
contra naturam sui generis
and causation, have been
dealt with in detail. I am satisfied that the trial court erred
in finding against appellant on
these two issues and therefore the
appeal must succeed.
[46]
Appellant as the successful party is entitled to the costs of the
appeal as well as the costs in the trial court.
IX
THE ORDERS
[47]
Consequently the following orders are made:
1. The appeal succeeds
with costs.
2. The order of the trial
court is set aside and substituted with the following orders:
“
1.
The defendant is liable for payment to the plaintiff of all her
proved or agreed damages.
2.
Defendant is liable for plaintiff’s party and party costs of
the merits trial, such costs to include the reasonable preparation,
qualifying, reservation and attendance fees of Dr A van Aswegen.”
_________________
J
P DAFFUE, J
I
concur
_________________
M
MATHEBULA, J
I
concur
_________________
PJ
LOUBSER, J
On
behalf of Appellant: Adv PJJ ZIETSMAN
Instructed
by: Honey Attorneys
BLOEMFONTEIN
On
behalf of Respondent: No appearance
[1]
The leading cases are O’Callaghan NO v Chaplin
1927 AD 310
at
329 and Coetzee & Sons v Smit
1955 (2) SA 553
(A) at 558A.
[2]
At
329 and approved in numerous judgments, inter alia Solomon and
another NNO v De Waal
1972 (1) SA 575
(AD) at 581D and further.
[3]
Van
Niekerk v Jantjes
[1996] 2 All SA 517
(E) at 519f – 520a;
Loriza Brahman en ‘n ander v Dippenaar
2002 (2) SA 477
(SCA)
at paras [18] – [20].
[4]
1970
(3) SA 603
(TPD) at 604E-G.
[5]
Ibid.
[6]
2018
(2) SA 87
(SCA) at par [20].
[7]
At
par [36].
[8]
Lever
v Purdy
1993 (3) SA 17
(A) at 25G – 26A.
[9]
Ibid.
[10]
Minister
of Police v Skosana
1977 (1) SA 31
(A) at 34E-G.
[11]
Standard
Chartered Bank of Canada v Nedperm Bank Ltd
[1994] ZASCA 146
;
1994 (4) SA 747
(A) at
764I – 765A.
[12]
Minister of Safety & Security v Van Duivenboden
2002 (6) SA 431
(SCA) at par [25].
[13]
2015 (4) SA 574
(SCA) at par [32].
[14]
[2008] ZASCA 134
;
2009
(2) SA 150
(SCA) at par
[34]
.
[15]
2015
(3) SA 449
(SCA) at par [37].
[16]
Lee
v Minister of Correctional Services 2013 (2) SA 144 (CC)
[17]
Za
v Smith op cit at par [30]. See also Van Duivenboden par [25]
and Lee par [41].
[18]
1976 (3) SA 352
(A) 370H – 372A.
[19]
Michael and another v Linksfield Park Clinic (Pty) Ltd and another
2001
(3) SA 1188
(SCA) paras [36] – [40] and Medi-clinic v
Vermeulen
2015 (1) SA 241
(SCA) at paras [5] – [8] & [25],
[26] & [31].
[20]
Op
cit at par [40].
[21]
2016 (1) SA 325
(CC) paras [38] – [41].
[22]
Op
cit at par [5].
[23]
Par
[19] supra.