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[2019] ZAWCHC 50
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M.C v MEC for Health, Western Cape (12082/2016) [2019] ZAWCHC 50 (29 March 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
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IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
Number: 12082/2016
In
the matter between:
M
C
Plaintiff
And
MEC
FOR HEALTH, WESTERN CAPE
Respondent
JUDGMENT DELIVERED ON 29 MARCH 2019
BAARTMAN,J
[1]
The plaintiff alleged that due to negligence and substandard medical
treatment in 1998–2005, he suffered neurological
damage that
rendered him a motor and sensory incomplete paraplegic. He issued
summons in July 2016, claiming damages. This judgment
concerns two
special pleas of prescription.
The
issue for determination
[2]
Mr Webster SC, the plaintiff’s counsel, put the question for
determination as follows: (
the first special plea
)
‘…
the matter relates to
the narrow issue of prescription and it is plaintiff’s case
that in the circumstances and the totality
of the circumstances, he
was not in a position to know that he had a claim until a late stage
of the proceedings as documented
by the correspondence and as
recorded in the statement of agreed facts.
…
over a period of time he
continued to be treated at Tygerberg, at Michael Mapongwane Hospital…
and he had a range of treatments
aimed at his rehabilitation and
aimed at improving his condition and it was his perception that his
condition was going to improve.
In fact it did improve to an extent,
and he was hopeful that he would be in a position to be functional
once again. …
Given his level of education, given
his circumstances, he wasn’t objectively placed in a position
to know at an earlier stage
that he had a claim, that there was a
likelihood and in addition to that, by virtue of his interaction or
engagement with the medical
authorities there was an ongoing process
of treatment and rehabilitation and follow-up in rehab and callipers
and all this sort
of thing. …
And that in terms of the amendment we
say, it wasn’t brought to his attention that he had a claim, or
that there was a problem
involving medical negligence.’
Agreed
facts
[3]
The parties submitted a set of agreed facts and the plaintiff
testified. The following are the agreed facts:
‘
1. Plaintiff …was born
on […] January 1963.
2. During early 1998 plaintiff
underwent a surgical procedure at Somerset Hospital, Cape Town, to
drain a rectal abscess during
which a spinal anaesthetic was
administered.
3. Subsequent to the surgical
procedure during early 1998, plaintiff attended Tygerberg Hospital,
Cape Town.
4. During May 1999 plaintiff returned
to Tygerberg Hospital, was admitted, underwent an MRI and was given a
date for further surgery.
5. On 15 July 1999 plaintiff underwent
further surgery at Tygerberg Hospital, a T7/T8 laminectomy. Following
this further surgery,
he was transferred to Karl Bremer Hospital
where he remained for a period of three months.
6. Plaintiff underwent further
surgery, involving the introduction of a cystperitoneal shunt, at
Tygerberg Hospital on 27 November
2005. Following this surgery his
condition deteriorated and he was put in final, irreversible,
progressive paraplegia and lost
the ability to walk.
7. Plaintiff was discharged from
Tygerberg Hospital in a wheelchair on 15 November 2005 as a motor and
sensory incomplete paraplegic.
8. During January 2016 plaintiff heard
a radio advertisement broadcast over Radio 98.2/ Radio Zibonele
advertising the services
of Jonathan Cohen & Associates in regard
to personal injury claims. The advertisement was broadcast in Xhosa
and the translated
English text of the advertisement reads as
follows:
‘
Have
you been seriously injured in a motor vehicle accident or have you or
your child suffered injuries as a result of the fault
of a doctor or
hospital? Let our specialist personal injury lawyers assist you to
claim monetary compensation. Phone Jonathan Cohen
& Associates on
(021) 422 5270 for further information. That is (021) 422 5270. We
are waiting for your call.’
9. After hearing the radio
advertisement plaintiff telephoned the offices of Jonathan Cohen &
Associates and made an appointment
to see Mr Cohen.
10. On 2 February 2016 plaintiff
attended the offices of Jonathan Cohen & Associates for the first
time and consulted with Mr
Jonathan Cohen.
11. On 14 February 2016 Jonathan Cohen
& Associates addressed a letter, in terms of
s 3
of the
Institution of Legal Proceedings Against Certain Organs of State Act,
40 of 2002
, to the Director-General of the Department of Health, a
copy of which is annexed hereto marked ‘AF1’. This letter
was
sent by registered post to the Director-General in the Department
of Health of the Provincial Administration of the Western Cape.
12. Summons in the matter was served
on 8 July 2016.’
[4]
The letter, dated 14 February 2016, in terms of section 3(2) of the
Institution of Legal Proceedings Against Certain Organs
of State Act,
40 of 2002 (
the section 3(2) letter
), was included as ‘part
and parcel’ of the agreed facts. It was common cause that the
plaintiff was the source of the
information contained in the letter,
the relevant sections provide:
‘
1. In and during May/June 1998,
and at the new Somerset hospital our client underwent surgery to
remove a septic boil from his buttocks.
In order to have the boil
removed, a spinal anaesthetic was performed on our client’s
lumbar vertebra.
2. When our client was discharged the
following day after having undergone the surgery, he returned home
but experienced extreme
pain in his spine. He attended his local
clinic, the Michael Mapongwane day hospital in Khayelitsha and was
given pain relief medication
and medication to clean the wound from
the operation site.
3. Our client progressively found that
it was more difficult for him to walk and he returned to the Michael
Mapongwane day hospital
where he was given further pain relief
medication and ointment to clean the surgical wound. His main
complaint was pain in the
region of the spinal anaesthetic.
4. Our client returned home and after
a week, he returned again to the day hospital where an x-ray was
performed. He was then referred
to Tygerberg hospital with a referral
letter. In approximately September 1998, our client attended
Tygerberg hospital. At that
stage, he was finding it even more
difficult to walk and was experiencing pain in the region of the
spinal anaesthetic. An x-ray
was performed at Tygerberg hospital and
he was told that a scan was necessary.
There were no scanning facilities at
Tygerberg hospital, and our client was transported by ambulance to
the City Park hospital.
A scan was performed. Following the scan, our
client was informed that the problem lay with the spinal anaesthetic
and that there
was water on our client’s spinal-cord which
needed to be drained. He was returned by ambulance to Tygerberg
hospital and
was given a date for the performance of the operation to
drain the water.
5. In September /October 1999, our
client underwent a further operation at Tygerberg hospital to “drain
the water on the spinal
cord” at the time of the operation, our
client was walking with difficulty, and with an elbow crutch.
6. He remained in ward A at Tygerberg
hospital for a week. He began experiencing problems urinating. He was
transferred to the Karl
Bremer hospital for further convalescence and
physiotherapy treatment. He remained at the latter hospital for a
further three months,
during which he underwent intensive
physiotherapy on a daily basis. The physiotherapy however did not
work and his condition continued
to deteriorate. Our client was
discharged after three months with elbow crutches. He was given pain
relief medication and medication
to assist with his urination
problem.
7. Our client continued to return
every month to his local day hospital to receive his medication and
this continued until September/October
2005. At this point our client
continued to ambulate with the use of two elbow crutches. At this
point he returned to Tygerberg
hospital complaining about his
urination problem. He was admitted overnight. An x-ray was performed
the next day and he was told
that his spinal cord was not functioning
properly and that they needed to insert a pipe in his back to
alleviate the urination.
He remained at Tygerberg hospital for a
week, where after an operation was performed to insert a pipe in his
back. After this operation
his condition worsened even further and he
became completely paralysed and was unable to walk. He was unable to
even move his legs.
He could no longer feel anything below his
stomach. He was discharged with a wheelchair after three days. …
9. Our client has since attended his
local day hospital on a monthly basis to receive his medication which
he has continued to use
for the last 10 years. …
Our client consulted with the writer
hereof for the first time on 2 February 2016, after he had heard an
advert on the radio, during
which this firm’s services were
being advertised.
It became apparent during the
aforesaid consultation on 2 February 2016, that our client at no
stage prior to such consultation
was ever aware of the fact that he
is entitled to claim for damages as against the MEC for Health of the
Western Cape province
for the injuries that he sustained at the hands
of the doctors and the staff at both Somerset hospital as well as at
Tygerberg
hospital.
As such, the prescription of our
client’s claim only commences to run as from 2 February 2016.
…’
[5]
In addition, each party relied on a bundle of medical records, ‘which
[were] received in evidence as being what they purport
to be.’
The
amendment
[6]
At the hearing, the plaintiff
amended
[1]
his replication as follows:
‘
1. By the insertion of a
subparagraph 1.4 which reads as follows:
‘
1.4
Alternatively
,
plaintiff alleges that the defendant, through its employees at the
various hospitals and clinics at which the plaintiff received
ongoing
treatment, wilfully prevented him from coming to know of the
existence of his claim against the defendant through rendering
him
ongoing medical treatment and other measures purportedly aimed at his
rehabilitation and by failing at the same time to inform
him that the
negligence of defendant’s employees was the cause of his spinal
condition and its sequelae, and furthermore
this condition was in
fact permanent and irreversible.’
[7]
The defendant agreed to the amendment but reserved the right to lead
evidence in respect of the amendment but did not exercise
the option.
The defendant closed its case, content to argue that it should
succeed with the special plea on the agreed facts despite
the
amendment.
Plaintiff’s
testimony
[8]
The plaintiff testified that he was born on […] January 1963
in Alice in the Eastern Cape. His deceased father was a
waiter in
hotels in East London and his mother a housewife. He was one of 4
siblings and attended school in Alice until standard
4, now grade 2.
His sister is a domestic worker and his two brothers are a driver and
hotel casual worker.
[9]
The plaintiff became a herdsman at age 16 for a period of 4 years.
Thereafter, he went to Gauteng where he worked as a general
labourer
on the mines. He left the mines in 1986 and came to Cape Town where
he secured employment at Conradie hospital as a general
labourer. His
duties included cleaning the wards. He held that position for 6
years. Thereafter, he did casual work for Discount
Job Buyers in
Mowbray followed by casual work at a bakery in Parow until the
surgery relevant to this judgment; he has been unable
to work since.
[10]
The plaintiff confirmed that the content of the section 3(2) letter
correctly reflected his instructions to his attorney. In
1998, the
plaintiff had training, 30 minutes in the morning, ‘with full
leg callipers – a metal that the doctors have
prepared to
attach to [the plaintiff’s] leg from ankle to come right up to
just below the hip…’ This was necessary
as the plaintiff
was unable to stand unassisted. He confirmed that he used elbow
crutches in October 1998. In 1999, he applied
for a disability grant.
At the time, the doctor concluded that he was disabled. The plaintiff
has been in receipt of a disability
grant since. He has been
wheelchair bound since 16 November 2005.
[11]
In 2015, the plaintiff met people who enquired about his condition.
They were of the opinion that he could still claim compensation.
In
2016, following the radio advertisement, he consulted his current
attorney. Prior thereto, nobody had informed him that his
condition
was due ‘to a mistake by the medical personnel and that he had
a claim.’
Discussion
Plaintiff
did not know the identity of the debtor
[12]
The defendant bore the onus to show which facts the plaintiff was
required to know before prescription could commence to run.
The
defendant bore the further onus of showing the plaintiff had
knowledge of the identity of the debtor and the material facts
necessary to institute his action, when he had or should be deemed to
have acquired the information. In the section 3(2) letter,
the
plaintiff’s attorney specifically claimed that:
‘
It became apparent during the
aforesaid consultation on 2 February 2016, that our client at no
stage prior to such consultation
was ever aware of the fact that he
is entitled to claim for damages as against the MEC for Health of the
Western Cape province
for the injuries that he sustained at the hands
of the doctors and the staff at both Somerset hospital as well as at
Tygerberg
hospital.’
[13]
Mr Joseph SC, defendant’s
counsel, submitted that ‘…
it
was not necessary for [the plaintiff] to know that “he has a
claim for damages against the MEC for Health of the Western
Cape
pursuant to negligent conduct on the part of medical staff at the
provincial hospitals at which he had been treated.
”’
He relied on the Blaauwberg
[2]
matter for that proposition. Blaauwberg is not authority for that
proposition – at para [16] the court held:
‘
[16]…Prescription
penalises negligence and inactivity. Judged according to the
legislative intention the respondent remained
absent and inert for
more than three years. Both shortcomings are ascribable to the
failure to take reasonable precautions from
the time of preparing the
summons to the belated awakening…’
[14]
The plaintiff relied on
Mtokonya
[3]
for his submission that the identity of the defendant as debtor was a
fact that he should have known before prescription could
commence
running against him. Zondo J, writing for the majority, found that
the identity of the debtor [the Minister of Police
in that matter]
was an admitted fact therefor it was not an issue for determination
in that matter
[4]
.
However, Jafta J
[5]
for the minority, disagreed and held that the issue was in dispute
and said:
‘
[141] In circumstances like the
present where prescription is not triggered by the debt becoming due,
its commencement may be activated
only by the creditor’s actual
knowledge of the identity of the debtor and facts from which the debt
arises, if the deeming
proviso in s 12(3) does not apply. Here that
proviso is not applicable. What needs to be determined, therefore, is
whether the
applicant had actual knowledge of the identity of the
Minister as the debtor and the facts from which the debt arose. This
is a
factual enquiry which may be determined with reference to the
agreed facts only. …
[156] On the correct interpretation of
s 12(3), the trial court should have concluded that, with reference
to the facts set out
in the agreed statement of facts, the Minister
on whom the onus rested had failed to show that before July 2013 the
applicant had
actual knowledge of the identity of the Minister as the
debtor. Accordingly, the running of prescription could not begin
before
the applicant had acquired actual knowledge not only of the
identity of the debtor but also of the facts giving rise to the
debt.’
[15]
As indicated above, the parties placed agreed facts before the court
and the plaintiff testified; in addition, the defendant
reserved its
right to lead evidence but abandoned that cause. It follows that I am
not restricted to a stated case. In any event,
the section 3(2)
letter was included in the agreed facts. The plaintiff testified that
he went to see an attorney ‘
because I was injured at the
hospital
.’ He further testified, under cross-examination
that he went to his attorney to request that the attorney ‘
please
put a claim against the hospital on my behalf.
’ I am
persuaded that the plaintiff learnt of the defendant’s position
as debtor in February 2016. This was a necessary
fact for
prescription to commence running.
[16]
Even if I am wrong, the
admitted facts indicate that the plaintiff learnt in September 1998
that ‘…
the
problem lay with the spinal anaesthetic and that there was water on
[his] spinal-cord which needed to be drained.
’
This is not the equivalent of knowing that the negligent application
of the anaesthetic had caused the water on his spine
[6]
.
The plaintiff’s uncontroverted evidence was that:
‘
Q by counsel: And when did you
for the first time believe that the hospital was to blame or that
they had done something wrong in
respect of your condition?
Answer: It began during 2015, M’Lady,
when I met some people who enquired as to what had happened to me.
Then they were of
the view that there is still something you can do
about that and that it was concluded by me during 2016 after the
advert from
the radio.
Q: Where did you encounter these
people that mention this to you?
Answer: I met these people at the
Khayelitsha Mall’
[17]
There is nothing to suggest that this chance meeting was a
fabrication. I accept the plaintiff’s version. There is no
basis to suggest that the plaintiff knew or had reasonable grounds to
suspect that the negligent application of the spinal anaesthetic
had
caused the water on his spine. In this action, the defendant was
prepared to put it no higher than:
(a) ‘May 1999, after the
plaintiff had undergone the MRI scan and was informed that his
difficulty in walking ‘could
possibly
be associated with
the epidural anaesthesia administered in February 1998;
alternatively…’ (my emphasis)
[18]
Without that knowledge, the plaintiff did not have the full facts
necessary for him to institute his claim. The defendant,
who bore the
onus of proof, failed to show that the plaintiff had the knowledge of
all the material facts needed to institute legal
action in 1998 or in
2005.
[19]
It is in issue whether the plaintiff could with reasonable care have
acquired that information. Mr Webster and Mr Joseph put
to the
plaintiff extracts from the medical record – these indicate the
following:
(a) On 4 October 2011, a medical note
prepared by Doctor Scriba indicates improved strength in the
plaintiff’s legs.
(b) Although the plaintiff was
discharged in 2005 with a wheelchair, he also took his crutches with
him. Prior to the operation
in 2005, the plaintiff used elbow
crutches to walk.
(c) On 14 August 2015, the plaintiff
had been evaluated and recommended for ‘Client now for gait
training’.
(d) On 21 September 2015, a Lengtegeur
rehabilitation centre note indicates ‘Weekly 10% increase in
the length of time he
walks. Swing through and crutches’.
The
plaintiff understood that the medical personnel were ‘trying to
help [him] with [his] walking.’
[20]
The plaintiff confirmed that he was in receipt of a disability grant
but did not qualify for a grant in aid. He said that the
staff at
Lentegeur and Karl Bremer hospital had explained to him that the
treatment was to assist ‘me to be able to do things
for myself
and not be dependant on anybody like maybe to make up the bed and so
forth.’
[21]
The plaintiff said that he did not recall any improved strength in
his legs in 2011. However, the note is consistent with the
plaintiff’s claim that medical personnel gave him the
impression that he would improve. The plaintiff impressed as an
honest
and credible witness. Although the 2011 medical note recorded
improved strength, he did not opportunistically claim increased
strength.
His claim that medical personnel gave him the impression
that he would improve is borne out by the medical notes referred to
above.
[22]
This is so considering the plaintiff’s level of education and
his personal circumstances referred to above. He testified
through an
interpreter; there is no indication that such services were available
to him at the hospitals. It is quite possible
that he understood
improved strength differently from what was intended to be conveyed
to him. There is no evidence to gainsay
his apparent understanding of
what was conveyed to him. I am persuaded that the plaintiff believed
that his condition would improve
and therefore attended the various
hospitals and underwent the treatment referred to above. I am
persuaded that the circumstances
in this matter are as described in
Mtokonya at para [148]:
‘
Therefore, in my view s 12(3)
should not be read as authorising prescription to commence running
where the claimant, through no
fault of his or hers, has successfully
established that he or she was not aware of the existence of the
debt. The effect of holding
otherwise would be denying the uneducated
and poor people in society the protection arising from constitutional
rights. …’
[23]
In the circumstances of this matter, it cannot be said that the
plaintiff could by the exercise of reasonable care have ascertained
the information necessary to institute his claim earlier. The
defendant did not meet its burden of proof. It follows that the first
special plea stands to be dismissed.
The
second special plea
[24]
As indicated in paragraph 4 above, the section 3(2) letter was sent
on 14 February 2016. The section provides:
‘
3(2) A notice must –
(a)
within six months from the date on which the debt became due, be
served on the organ of state in accordance with section 4(1);
and
(b)
briefly set out –
(i) the facts giving rise to the debt;
and
(ii) such particulars of such debt as
are within the knowledge of the creditor.’
[25]
The defendant alleged that the notice did not comply with the
provisions. The second special plea must suffer the same fate
as the
first special plea. The debt became due on 2 February 2016 –
when the plaintiff acquired knowledge of the existence
of the debt.
It follows that the letter was sent timeously.
Conclusion
[26]
I, for the reasons stated above, make the following order.
(a) The defendant’s special
pleas are dismissed with costs.
_____________________________
BAARTMAN
J
[1]
Rule 28 of the Uniform Rules of Court.
[2]
Blaauwberg Meat Wholesalers
CC v Anglo Dutch Meats (Exports)
Limited 2004 (3) SA 160 (SCA).
[3]
Mtokonya v Minister of
Police
2018 (5) SA
22(CC).
[4]
Ibid at para [25] ‘…In the first lines of the passage
it is made clear that the applicant’s case was that
he did
have knowledge of the identity of the debtor and the material facts
giving rise to the debt…’
[5]
Ibid at para 160 ‘…There are no facts in that statement
which establish that the applicant acquired knowledge to
the effect
that the Minister was liable for the wrongful acts of the police. At
best, it can be said that he knew about the arrest
and detention by
members of the Service. Therefore, he had knowledge of the identity
of the Minister’s co-debtors and not
the identity of the
Minister. For the Minister’s special plea to succeed, it was
incumbent upon him to prove that the applicant
knew that the
Minister was the debtor…’
[6]
Ibid para 50.