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2019
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[2019] ZAFSHC 184
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Gura v MEC for Health, Free State Province (4632/2015) [2019] ZAFSHC 184 (3 October 2019)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case number:
4632/2015
In
the matter between:
VUYOLWETHU
GURA
Plaintiff
And
MEC FOR HEALTH, FREE
STATE PROVINCE
Defendant
CORAM:
CHESIWE, J
HEARD
ON:
28,
29 & 31 MAY 2019
DELIVERED
ON:
3 OCTOBER
2019
JUDGEMENT
BY:
CHESIWE, J
[1] The
Respondent (Plaintiff in the main action) herein is suing the
Applicant (Defendant in the main action) for medical
negligence
which is alleged to have resulted in Plaintiff suffering
from emotional shock and trauma coupled with psychological
dysfunction in the form of post-traumatic stress and depression. For
ease of reference the parties will be referred to as they
appear in
the main action The As a consequence of suffering from
emotional psychological dysfunction aforesaid Plaintiff
alleges that
she has suffered both special and general damages all amounting to a
sum of R3 000 000,00 for which the
Defendant is held liable
by the Plaintiff.
[2] The Defendant
denied liability to Plaintiff’s claim as well as all the
material allegations submitted by the Plaintiff
but admitted that
there is a legal duty on the medical personnel and medical
practitioners employed by the Defendant at Bongani
Hospital to take
reasonable care to: attempt to, where possible, keep babies born at
the hospital alive; and to give medical assistance
and care to
mothers admitted to the hospital whilst giving birth to their
babies. The Defendant admitted that the Plaintiff
delivered a
male boy on 23 April 2014 and that Baby Gura was born weighing 500
grams at twenty three (23) weeks gestation and would
have no chance
of survival due to the low birth weight and prematurity.
[3] In terms
of Rule 37 the parties agreed not to separate the issues. Both
submitted their respective medical experts’
reports and these
were accepted by the court.
[4] The
Plaintiff testifies and called three witnesses to testify. The
Defendant closed its case without leading any
evidence and
immediately applied for absolution from the instance.
[5] Counsel
on behalf of the Plaintiff opposed the application and submitted that
the Defendant’s conduct is irregular
as its expert report both
on merits and quantum was submitted by agreement. Counsel
submitted that the Defendant cannot tender
evidence and then invoke
the principle of absolution from the instance.
[6] At the
commencement of the trial the Plaintiff testified that on the 21
April 2014, she went into pre-mature labour
and she was admitted at
Bongani Hospital on the same date at about 23:00. On arrival at the
hospital, the Plaintiff was seen by
Dr. Mopape who examined her and
instructed the nursing staff to administer medication to her without
discussing the treatment with
the Plaintiff. On 23 April 2014, she
was administered with medication on instruction of Dr. Moloi, and a
few hours later felt the
urgency to go to the toilet. Whilst in the
toilet she discovered she had vaginal bleeding. She called one of the
nurses for assistance.
The nurse examined her and immediately
informed her that she was 9cm dilated. The Plaintiff was taken to the
labour ward, but was
left outside the labour ward for many hours
without being attended to. According to the Plaintiff the nurse were
in their staff
room when she called them again for assistance. One of
the nurse came to her and told her to keep quite as she was
disturbing the
other patients in the ward. She explained to the nurse
that she felt something was coming out and she was not certain if it
was
the baby. The nurse stood at the foot of the bed without helping
her. She gave birth to the baby without assistance. The baby was
born
head first and then the rest of the body was delivered.
[7] The
Plaintiff said after the baby was born, it lay between her legs, in
pool of water and blood without moving.
The nurse then came and took
the baby without checking if it was alive. The nurse put the
baby in a waste plastic bag. The
Plaintiff requested the nurse to
hold the baby. The nurse took the baby out of the plastic bag
and put it on her chest and
at that moment she felt the baby move.
She told the nurse the baby moved. The nurse did not listen to the
Plaintiff, but instead
took the baby, placenta, and umbilical cord
and put everything in a waste bag.
[8] The
Plaintiff said a cleaner in the ward told her she heard the cries of
a baby in the waste bag and called for
assistance. The baby was taken
out of the waste bag and taken to the Neonatal Intensive Care Unit
(NICU). She mentioned that
the bay was alive for approximately
two days, and in that short period she was encouraged to express
breastmilk for the baby to
be fed via a feeding tube.
[9] Under
cross-examination she explained that the nurses told her the baby was
a stillbirth and that the doctors and
nurse threw away the baby as
they believed that there was no hope for the baby. She insisted that
the medical staff treated her
and the baby inhumanly.
[10] The
three witnesses who testified on behalf of the Plaintiff all
testified that they were at the hospital to see
the baby and were
informed by the nurses the baby was a still birth. They found the
baby on a cold slab in a cold room. But
later the nurse took
the baby to another room where it was discovered that the baby was
still alive. The Plaintiff’s mother
said she was happy when she
was told that the baby is alive again. The baby was treated in NICU
from 23 April 2014 at 20:00 and
certified dead on the 25 April 2014
at 10:30. That was the Plaintiff’s evidence.
[11] The
Defendant without calling any witnesses made an application from the
bar for absolution from the instance,
which application was opposed
by the Plaintiff.
[12] The
Plaintiff’s contention is that the Defendant submitted its
expert report which was handed in as part
of the expert notices. Thus
the Defendant by submitting the expert report has led evidence by way
of the expert report and that
the Defendants still has assertions to
answer as the evidence of the Plaintiff and the witnesses remained
unchallenged. And on
that basis the application of the Defendant must
be dismissed.
[13] The
Defendant’s contention is that the Plaintiff’s evidence
does not proof any negligence against the
Defendant. Counsel on
behalf of the Defendant submitted that the hospital records show that
the baby was born at 23 weeks, weighing
500 grams and that the
Plaintiff was given the best treatment and medication by the hospital
staff. Thus there was no causal link
to support the Plaintiff’s
evidence. Counsel submitted that the Plaintiff’s cause of
action shifted from what was pleaded
in the particulars of claim, to
a claim of Ubuntu, and that Ubuntu is not an actionable action.
[14] Rule
39 (6) of the Uniform Rules provides that at the close of the
case for the Plaintiff, the Defendant
may apply for absolution from
instance, in which event the Defendant or one counsel on behalf of
the Defendant may address the
court and the Plaintiff or
Counsel on Plaintiff’s behalf may reply. The
defendant or her Counsel may thereupon
reply on any matter arising
out of the address of the plaintiff or her Counsel.
[15]
The correct approach for absolution to be applied by a trial at the
end of a Plaintiff’s case
was also formulated in the matter of
Gordon
Lloyds Page and Associates v Rivera and Another,
[1]
where
Harmse J, stated as follows: “
the
test for absolution to be applied by a trial court at the end of
plaintiff’s case was formulated in the case of Claude
Neon
Lights (SA) Ltd v Daniel
1976 (4) SA 403
at 409 G-H. When
absolution from the instance is sought at the close of the
Plaintiff’s case, the test to be applied
is not whether the
evidence led by the Plaintiff establishes what would finally be
required to be established, but whether there
is evidence upon which
a court, applying its mind reasonably to such evidence could or might
(not should, nor ought to) find for
the Plaintiff
.
The
plaintiff has to make out a prima facie case in the sense that there
is evidence relating to all the elements of the claim.”
[16] This
implies that the Plaintiff has to make out a prima facie case in the
sense that there is evidence relating
to all the elements of the
claim to survive absolution because without such evidence no court
could find for the Plaintiff.
[2]
As far as the inferences from the evidence are concerned, the
inference relied upon by the Plaintiff must be reasonable one, not
only reasonable one (Schmidt 93) The test has from time to time
been formulated in different terms, especially where the
court must
consider whether there is evidence upon which a reasonable man might
find for the Plaintiff.
[17] The
Plaintiff has to make out a prima facie case that there is evidence
relating to all the elements of the
claim, to survive absolution
because without such evidence no court could find for the Plaintiff.
The inferences relied upon by
the Plaintiff must be a reasonable one.
In Supreme Services Station v Fox Goodridge (Pty) Ltd,
[3]
the court said that:
“
According
to practice in this court in later years Judges become very loth
to decide what a reasonable court might do,
a judicial officer should
always therefore lean on the side of allowing the case to proceed.”
[18]
The test to be applied in determining the question whether the
Defendant’s application for absolution
from the instance should
be granted is not whether the adduced evidence required an answer,
but whether such evidence held the
possibility of a finding in favour
of the Plaintiff. Consequently, at the absolution stage the
Plaintiff’s evidence
should hold a reasonable possibility of
success for her and should the court be uncertain whether the
Plaintiff’s evidence
has satisfied this test, absolution ought
to be refused.
[4]
[19] The
Plaintiff testified that there are outstanding hospital record of her
ante-natal care. Professor
Cooper, expert on behalf of
the Defendant also noted that no maternal records regarding antenatal
care, labour and delivery were
available. He further stated
that in his opinion that without the antenatal records and those of
labour and delivery, it
is not clear on what basis the gestation was
assessed and that the maternal notes would be important to give a
more complete picture
of the pregnancy and delivery. Thus
the missing hospital records leaves the Plaintiff’s questions
unanswered.
[20]
If absolution is granted, the Defendant is not called upon to answer
to the Plaintiff’s claim,
which could result in an unfair
result to the Plaintiff. If also granted a Legal Representative might
have to put a version before
court during cross-examination on the
basis that the witnesses of the Defendant will come and testify. With
the consequence that
the Defendant’s version is not tested.
Absolution from the instance should be granted lightly. In
circumstance where
the Plaintiff’s case is so weak that no
reasonable court could find in favour of the Plaintiff, absolution
from the instance
may be granted. However, in the ordinary course of
events, it will nevertheless be granted sparingly but when the
occasion arises,
a court should order in the interest of justice.
To the extent that the medical expert of the Plaintiff was of the
view that the Plaintiff should receive adequate compensation.
[21] It is trite
law that in a trial, evidence that is not challenged and is
subsequently accepted by the Court, can be used
by the Court in
proving or disproving either parties case provided that it is
relevant to the issues involved in the case.
If a point in
dispute is left unchallenged in cross-examination, the party calling
the witness is entitled to assume that the unchallenged
evidence is
accepted as correct.
[5]
[22] As a
general rule where absolution at the close of the case is refused, a
court should avoid unnecessary discussion
of the evidence.
[23] In
reaching a conclusion whether absolution should be granted, it is not
required of a court to critically look
at the evidence, as would be
required of a court at the end of trial. The onus on the court is
less stringent, as there should
only be evidence on which a court
could or might find for the Plaintiff.
[24]
Counsel for the Plaintiff correctly stated that the
Defendant submitted its expert report, which evidence
was submitted
by agreement between the parties. Thus under circumstances the
Defendant by way of submitting its expert report,
has tendered
evidence. Had the Defendant only allowed the reports of the
Plaintiff to be submitted, then it would have been
fair and proper to
make an application for absolution from the instance if the Defendant
had not submitted any evidence.
[25] This court in
applying its mind reasonably to the Defendant’s application,
simply cannot ignore the issues as raised
by the Plaintiff as these
have to be answered. In this instance the evidence by the Plaintiff,
where a court applying its mind
reasonably to such evidence, could or
might find for the Plaintiff. Based on the above the
application for absolution
from the instance therefore ought to be
dismissed.
ORDER
[26] In the result
the following order is granted:
1.
The application for absolution from the instance is dismissed with
costs.
S.
CHESIWE, J
On
behalf of the Plaintiff:
Mr. L Godla
Instructed
by:
Godla & Partners
C/O Matsepe Inc
BLOEMFONETEIN
On
behalf of the Defendant:
JMA Engelbrecht
Instructed
by:
State Attorney
11
th
Floor Fedsure Building
BLOEMFONTEIN
[1]
(384/98)
[2000] 2ASCA 33
2001 (1) SA 88(SCA)
[2000] 4 ALL SA 241
(A) (31
August 2000).
[2]
Marine & Trade Insurance Co Ltd v Van
Der Schyff 1972 (I SA 26 (A) Bewysreg 4
th
ed at 91-2.
[3]
1971 (4) SA 90
(RA) at 93 H.
[4]
Build-A-Brick BK en Ander V Eskom 1996 (1) SA (O)
at 123 A-E
[5]
President of the RSA v South African Rugby Football Union
2000 (1)
SA 1
(CC) at 37 B-E