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[2019] ZAECELLC 2
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Ndaliso v Member Of The Executive Council Of The Department Of Health Of The Eastern Cape Government, Bhisho (EL 478/2012, ECD 1178/2012) [2019] ZAECELLC 2 (22 January 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(EAST
LONDON CIRCUIT LOCAL DIVISION)
CASE
NO. EL 478/2012
CASE
NO. ECD 1178/2012
In
the matter between:
BONISILE
CHRIS NDALISO
Plaintiff
and
MEMBER
OF THE EXECUTIVE COUNCIL OF THE
DEPARTMENT
OF HEALTH OF THE EASTERN CAPE
GOVERNMENT,
BHISHO
Defendant
JUDGMENT
MBENENGE
JP:
[1]
The plaintiff suffered a fracture of his right patella after having
been involved in a motor
vehicle accident during September 2004.
He was initially admitted to the Cofimvaba Hospital but later
transferred to Frere
Hospital, East London, on or about 21 September
2004. At Frere Hospital the plaintiff was treated by means of
an open reduction
and internal fixation.
[1]
He was discharged from Frere Hospital on or about 29 September 2004.
Seven years down the line, during or about June 2011,
a small steel
fragment that lodged in the plaintiff’s knee (otherwise
referred to as the k-wire) was removed by Dr Naidu
at Laverna
Hospital, KwaZulu-Natal.
[2]
Consequent upon the removal of the k-wire by Dr Naidu the instant
action was launched on
18 May 2012, the plaintiff’s cause of
action being,
inter alia
, that, whereas they could and should
have done so, the medical and hospital staff employed at Frere
Hospital failed to-
(a)
prevent the lodging of the k-wire in the plaintiff’s knee
alternatively, failed to
remove the same from the knee, during the
procedure undertaken on him alternatively, failed to prevent the
k-wire from being left
in the knee; or
(b)
have x-rays taken after the internal fixation had been performed.
[3]
It is alleged by the plaintiff that the treatment received at Frere
Hospital was below the
agreed standard of treatment, alternatively,
below the duty of care resting on the medical and hospital staff
concerned. In particular,
they failed to exercise the skill and
diligence required of hospital and medical staff employed at the said
hospital.
[4]
The defendant resisted the claim by specially pleading in
limine
that-
(a)
the claim had become prescribed in terms of section 11(a) of the
Prescription Act
[2]
in that the
action had not been instituted within 3 years from September 2004;
and
(b)
the plaintiff had not complied with section 3(4)(a) of the
Institution of Legal Proceedings
Against Certain Organs of State
Act.
[3]
[5]
The defendant otherwise denied liability on the merits, contending
that the treatment meted
out to the plaintiff was of the requisite
,
acceptable standard.
[6]
The defendant’s special plea attracted the delivery of the
plaintiff’s replication
wherein the plaintiff contended that
the injury he had suffered was ongoing until such time during June
2011 when the piece of
k-wire was discovered and surgically removed
and that, therefore, prior thereto he did not have the necessary
knowledge of the
identity of the debt and the facts from which the
debt arose; prescription could thus not have run until June 2011. No
rejoinder
was thereupon filed by the defendant.
[7]
At the commencement of the trial, and at the behest of the parties, I
granted an order separating
the issues raised in the special plea and
plea over from that of
quantum
, and stood over
quantum
for determination on a future date.
[8]
As the trial unfolded the parties made common cause of the fact that
the tip of k-wire removed
by Dr Naidu had in fact lodged in the
plaintiff’s knee during the operation performed on him by the
medical and hospital
staff at Frere Hospital during September 2004.
This left for determination the issues whether-
(a)
the plaintiff’s claim has become prescribed by effluxion of
time;
(b)
the plaintiff gave timeous notice of his intention to launch the
action against the defendant
for purposes of the Legal Proceedings
Act;
(c
) the lodging of the tip of the k-wire
in the plaintiff’s knee is attributable to negligent
conduct on
the part of the hospital and medical staff employed at Frere
Hospital; and
(d)
the negligence resulted in harm for which the defendant is liable to
compensate the plaintiff.
[9]
The plaintiff testified that after the surgical operation on him had
been performed, he
was eventually discharged. He returned to
the hospital and had plaster of paris and stitches removed. He
also underwent
physiotherapy. Despite the healing of the
operation wound he continued experiencing pain.
[10]
Under cross-examination it was suggested that had the plaintiff
returned to the hospital some two weeks
as directed, his knee would
have been x-rayed and the k-wire lodging in his knee discovered and
removed. The plaintiff responded
that he complied with every
instruction and prescription of the hospital for him to report back
even though he could not recall
the relevant dates. He was
questioned about the absence of records supportive of his attendance
at the hospital about two
weeks after 6 June 2005. He remained
adamant that he had complied with all instructions. He could
proffer no explanation
regarding the absence of supportive records.
[11]
Dr Olivier explained the mechanism of how, in practice, orthopaedic
surgeons go about inserting a k-wire
into the anatomy of a patient
and how the sharp tip thereof gets cut so as to avoid damage to
surrounding tissue. He
explained that the cutting is
accompanied by substantial force that could cause the tip of the
k-wire to be flung in almost any
direction. The standard
procedure, he added, is to cover the tip before it is cut off with
the idea that the piece of metal
when cut off lands in the swab
thereby avoiding the wire being deposited in the open wound or
injuring others in the theatre.
He further explained that if
for any reason the tip of the metal is not found in the swab an
immediate search for it is conducted
for which purpose a portable
x-ray or imaging device is used to ensure that at least the piece of
metal is not deposited in the
area of the operation wound.
[12]
Prof Vlok, an expert called on behalf of the defendant, supported Dr
Olivier’s testimony in all
material respects. Regarding
the taking of x-rays in theatre he said:
“
The norm is
you take x-ray beforehand, you examine your patient, you take your
x-rays and you say I want to remove that and you
make a note of what
you want to remove. Then you go to theatre and you plan and one
of the planning is you must have your
equipment. You must have
all your tools there to remove those things. You must have an
x-ray there if possible and
it is not always there. …
You have to organise the x-ray beforehand and then you do what you
want to do and afterwards
you take all the instrumentation that you
take out, you put it there and you say that is what I’ve seen,
this is what I’ve
got out, do I miss some parts.”
[13]
A joint expert report recording that Dr Olivier and Prof Vlok were in
agreement that the presence of
the broken tip of the k-wire located
in the patellar tendon/ soft tissue and extra-articular had not been
the cause of the plaintiff’s
chronic pain was filed of record.
This report was followed by one wherein it is recorded that Prof Vlok
was of the opinion that
the presence of the k-wire that had lodged in
the plaintiff’s knee had not been the main cause of the
plaintiff’s chronic
pain and that according to Dr Olivier the
presence of the foreign body was responsible for the significant pain
necessitating surgical
removal. Dr Olivier distanced himself from the
initial joint report insofar as it stated that the presence of the
foreign body
had not caused the plaintiff chronic pain. The
circumstances in which the initial joint report was signed were
explained by Dr
Olivier during his testimony and not gain-said by the
defendant, hence this court was urged to rely on the amended joint
minute.
[14]
During testimony the professor eventually conceded that, for as long
as the tip of the k-wire lodged
in the plaintiff’s knee, pain
would have been caused, but explained that his opinion was that the
main cause of the pain
was the patella fracture and the exostosis.
In this regard he said:
“
Ja, I
honestly think that the main cause of his pain is his patella
fracture and exostosis, but I can never say the other doesn’t
make a small contribution.”
[15]
During the cross-examination of Prof Vlok the following
responses were elicited:
“
Mr Louw
:
…a sharp item like the tip of the k-wire is something that is
very very likely to be causing pain?
Prof Vlok:
…yes
I will agree with you on that….I will admit that the thing can
give a sharp pain here and there, but I can’t
pull
the two apart and say the one is doing this and the other one is
doing that.”
[16]
Prof Vlok further mentioned that a note should have been made in the
hospital record to show that the k-wire tip
was missing. The
cross-examination and responses thereto make this plain in the
following terms:
“
Mr Louw
:
Now you seem to agree about the necessity when cutting the tip
of the
k-wire to immediately find it…?
Prof
Vlok
:
For sure
Mr Louw
:
And if you don’t find it, would you agree with Dr Olivier that
then you make note in the hospital record
to show that the tip is
missing?
Prof Vlok
:
Yes I would do that.”
[17]
The onus regarding the issues raised in the special plea rests on the
defendant,
[4]
whilst that of
proof regarding the merits of the claim rests on the plaintiff.
[18]
Section 12(3) of the Prescription Act provides:
“
(3)
A debt shall not be deemed to be due until the creditor has knowledge
of the identity of the debtor
and the facts from which the debt
arises:
provided
that a creditor shall be deemed to have such knowledge if he could
have acquired it by exercising reasonable care.
”
(Emphasis supplied)
[19]
In
Links
[5]
it was held:
“
[42]
… in cases including professional negligence, the party
relying on prescription must at least show
that the plaintiff was in
possession of sufficient facts to cause them on reasonable grounds to
think that the injuries were due
to the fault of the medical staff.
Until there are reasonable grounds for suspecting fault so as to
cause the plaintiff to seek
further advice, the claimant cannot be
said to have knowledge of the facts from which the debt arises…
[45]
Until the applicant had knowledge
of facts that would have led him to think that possibly there had
been negligence and that this
had caused his disability, he lacked
knowledge of the necessary facts contemplated in section 12(3).”
[20]
Links
(
supra
)
was cited with approval in
Loni
v Member of the Executive Council of the Department of Health of the
Eastern Cape Government,
[6]
where it was held:
“
In
these circumstances the pleader faced with a denial or knowledge of
the identity of the debtor or the facts from which the debt
arises
would be well advised in future to raise the proviso to section 12(3)
in his pleadings.”
[7]
[21]
The defendant did not call to aid the proviso to section 12(3). The
factual allegation of the plaintiff
that he did not know the presence
of the tip of the k-wire in his knee until June 2011 was also not
gain-said. The plaintiff was
not shown to have had sufficient facts
causing him, on reasonable grounds, to think that the injury that he
continued to experience
was due to the fault of the Frere Hospital
staff.
[22]
For all these reasons, the special plea of prescription must fail.
This is not the case where the plaintiff’s
right of access to
court entrenched in section 34 of the Constitution should give way to
the limitation that the defendant intends
imposing on those rights. I
am also of the view that a rigid application of section 12(3) of the
Prescription Act in the circumstances
of this case would result in an
injustice.
[23]
The special plea based on the Legal Proceedings Act must suffer the
same fate. The notice contemplated
in that Act was issued timeously,
approximately within a month of the plaintiff having become aware of
the cause of action against
the defendant. The wording of the letter
also passes muster and, for all intents and purposes, constituted the
notice contemplated
in the Legal Proceedings Act. There was
therefore no need for the plaintiff to seek condonation in terms of
section 3(4)(a)
of the Legal Proceedings Act.
[24]
I now to turn to consider the merits. The court must have regard to
the probabilities and the credibility
of the various witnesses and
any document relevant in determining the outcome.
[8]
[25]
As pointed out above, it ended up being common cause between the
parties that the standard procedure
to be adopted when performing an
internal fixation making use of a k-wire was not followed in that
there was no indication of any
x-ray of the plaintiff’s knee
having been taken immediately after the tip of the k-wire had gone
missing. That procedure
accords well with logical reasoning.
[9]
In the circumstances of this case, there had to be a search for the
missing tip of the k-wire, including viewing the operation
site with
x-rays from various angles in order to find the missing piece of
metal. In the event of the metal not being found, a
note to that
effect had to be made in the hospital records. None of all this was
done.
[26]
The evidence of the plaintiff corroborated by Dr Olivier established
that the tip of a k-wire, which
is a particularly sharp piece of
metal, will cause pain when left in a joint such as the plaintiff’s
knee, especially when
the joint is put under pressure. That
conclusion, too, accords well with logical reasoning.
[27]
The defendant’s counsel, Mr
Sishuba
,
suggested, during argument, that the change in Prof Vlok’s
stance in relation to the cause of pain was fraught with
disingenuousness.
I do not share this view. I do not have
reservations about the shift in Prof Vlok’s approach to the
case. Medical experts
may obviously change their opinion after
consideration of another point of view.
[10]
A change of opinion based on a good reason on receipt of fresh
information is respected rather than criticised by the court,
provided
that the reasons for the amendment are sound.
[11]
In this instance the reason for the change of approach is well
understood, as indeed it was sufficiently explained.
[28]
The staff and medical practitioners who operated on the plaintiff
ought to have been aware of the risks
associated with leaving a sharp
piece of k-wire in the plaintiff’s knee and did not exercise
the requisite duty of care to
reduce the risk of harm to the
plaintiff; they acted negligently and the negligence caused harm to
the plaintiff. The harm consisted
in the sharp pain the plaintiff
experienced over several years and the medical treatment the
plaintiff underwent to remove the
tip of the k-wire in 2011, and the
pain and discomfort associated therewith.
[29]
It has been argued that I should show my displeasure principally at
the manner in which the trial was
conducted by the defendant’s
team who made no concession even at a time when the experts had
reached agreement. At that point
it remained for the parties to argue
the matter. It had all along been available to the parties to canvass
these issues much earlier
at a meaningful pre-trial conference even
as part of judicial case flow management, which was not done. I
am therefore not
inclined to award a punitive cost order for the
reason advanced. Nor am I inclined to award a punitive cost order
purely by
reason thereof that at the start of the trial the
defendant caused its expert to leave East London at the end of the
first day
and was thus unable to cross examine Dr Olivier. I am of
the view that an ordinary cost order should make up for this show
down.
[30]
I therefore make the following order:
(a)
The defendant’s special plea is dismissed with costs.
(b)
The defendant is held liable to compensate the plaintiff for the harm
caused to the plaintiff
through the negligence of the medical and
hospital staff of the Frere Hospital in September 2004, being-
(i)
the experiencing of sharp pain in his knee joint for the period
spanning September
2004 and June 2011; and
(ii)
the costs of removing the tip of the k-wire from the plaintiff’s
knee as well as
the pain and discomfort associated therewith and the
recovery after such removal.
(c
) The defendant shall pay the
plaintiff’s taxed or agreed party and party costs incurred
to
date, such costs to include-
(i)
the
costs reserved on 29 October 2018;
(ii)
the
costs of Dr Naidu and more particularly his attendance at court on 08
June 2018; and
(iii)
the
qualifying expenses of Dr Olivier.
S
M MBENENGE
JUDGE
PRESIDENT OF THE HIGH COURT
Counsel
for the applicant
:
Mr
S S W
Louw
Instructed
by :
Niehaus Mc Mahon Attorneys
East
London
Counsel
for the respondent
:
Mr
M H
Sishuba
Instructed
by
: The State Attorney
East
London.
Date
heard
: 29 and 30 October 2018; 01 and
02 November 2018, and 09 November 2018
Date
judgment delivered
:
22 January 2019
[1]
Treatment whereby a k-wire is
inserted into the anatomy of a patient
[2]
68 of 1969.
[3]
40 of 2002
(Legal Proceedings Act). Section 3(4)(a) of the Act reads as
follows:
“
If
an organ of state relies on a creditor’s failure to serve a
notice in terms of subsection (2)(a), the creditor
may apply
to a court having jurisdiction for condonation of such failure.”
[4]
Links v MEC for Health,
Northern Cape
[2016]
ZACC 10
BCLR 656 (CC);
2016 (4) SA 414
(CC); see also
Gericke
v Sack
1978 (1) SA 21
(A), where Diemont JA said:
“
The
Act specifically provides that prescription begins to run only when
the debt becomes due and that it is not deemed to become
due until
the creditor has knowledge both of the identity of the debtor and of
the facts from which the debt arises. It
follows that if the
debtor is to succeed in proving the date on which prescription
begins to run he must allege and prove that
the creditor had the
requisite knowledge on that date. The fact that the appellant
has alleged in her replication that
she learned the respondent’s
identity only on 17 February 1971 does not relieve the respondent of
the task of proving that
she acquired that knowledge on 13 February
1971 – the date on which he relies. The criticism
advanced in argument
of the trial Judge’s ruling on the
question of onus therefore
fails
and the respondent must show on the evidence when Mrs Gericke
learned or was deemed to have learned the respondent’s
identity.”
Also
see
Mtokonya
v Minister of Police
2018 (5) SA 22
(CC), para [181].
[5]
Supra
,
at paras [42] and [45]
[6]
Judgment of the full court of
the Eastern Cape Division, Grahamstown by Eksteen J (concurred in by
Roberson
et
Makaula JJ) delivered under case number CA338/2015 on 13 October
2016; Cf
Loni v
Member of the Executive Council, Department of Health, Eastern Cape
Bhisho
(CCT54/17)
[2018] ZACC 2
;
2018 (3) SA 335
(CC);
2018 (6) BCLR 659
(CC) (22
February 2018)
[7]
Ibid
at
para [34].
[8]
National Employers’
General Insurance v Jagers
1984 (4) SA 437 (E) 440 D-G.
[9]
Bolitho v City of Hackney
Health Authority
[1997] UKHL 46
;
[1998] AC 232
(HL (E)), cited with approval in
Michael and Another v
Linksfield Park Clinic (Pty) Ltd
(1) [2002] All SA 348 (A).
[10]
National Justice Comparia
Naviera v Prudential Assurance Co Ltd (‘The Ikarian Reefer’)
[1932] 2 Lloyd’s Rep 68, 81 (COL2).
[11]
Telles v Southwest Strategic
Health Authority
[2008]
EWHC 292
(QB).