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[2021] ZASCA 128
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MEC for Health and Social Development, Gauteng v MM on behalf of OM (697/2020) [2021] ZASCA 128 (30 September 2021)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
no: 697/2020
In
the matter between:
THE
MEMBER OF THE EXECUTIVE
COUNCIL FOR HEALTH AND
SOCIAL
DEVELOPMENT,
GAUTENG
PROVINCE
APPELLANT
and
MM
on behalf of
OM
RESPONDENT
Neutral
citation:
MEC for Health and
Social Development, Gauteng
v MM on behalf of OM
(Case
no 697/2020)
[2021] ZASCA 128
(30 September 2021)
Coram:
WALLIS,
MBHA, MBATHA, GORVEN and HUGHES JJA
Heard
: 16
August 2021
Delivered
: This
judgment was handed down electronically by circulation to the
parties' representatives by email, publication on
the Supreme Court
of Appeal website and release to SAFLII. The date and time for
hand-down is deemed to be 09h45 on 30 September
2021.
Summary:
Delict
– medical negligence – damages – liability in
respect of a minor born with brain damage who now suffers
from
cerebral palsy – whether hospital staff negligent – if
so, whether such negligence caused the damage – negligence
and
causation established – MEC liable.
ORDER
On
appeal from:
Gauteng Division of the High Court, Pretoria (Nair
AJ sitting as court of first instance):
The appeal is dismissed
with costs, including the costs of two counsel, wherever so employed.
JUDGMENT
Gorven
JA (Wallis, Mbha, Mbatha and Hughes JJA concurring)
[1] On
7 December 2010, a baby boy (OM) was born to the respondent (Ms M).
This had been her first pregnancy.
She had presented at the Laudium
clinic on 12 July that year when she was 18 weeks pregnant. There she
was diagnosed as being HIV
positive and was prescribed
anti-retroviral therapy. At 02h30 on 7 December, her membranes
ruptured and she began to experience
severe abdominal pain. At 06h00
she was admitted to the Laudium clinic. At 19h25 she was transferred
to Kalafong Hospital (the
hospital), a level two hospital at which
some 500 to 600 babies are delivered each month. At 20h15, the cervix
of Ms M was 7 cm
dilated. At 21h15, it was 9 cm dilated, at which
point it was directed that she be transferred to a delivery ward. OM
was born
at 21h50. He suffered a hypoxic ischemic injury during the
birth process which resulted in cerebral palsy.
[2] Ms
M launched an action in the Gauteng Division of the High Court,
Pretoria (the high court), against the appellant
in this matter, the
Member of the Executive Council for Health and Social Development:
Gauteng Province (the MEC). She sued both
in her personal capacity
and as the mother and guardian of OM. The hospital falls under the
MEC who is responsible in law for any
injury caused by the negligence
of staff employed there. In the action, Ms M alleged that the
hospital staff had been negligent
during the birth of OM and that
this negligence caused the hypoxic ischemic injury and its sequelae.
As a result, she claimed damages
on her own behalf and on behalf of
OM.
[3]
Nair
AJ, in the high court, dealt initially with issues relating to the
liability of the MEC. Although the order was not specific,
it is
clear that the question of negligence on the part of the staff and,
if proved, whether that negligence caused the injury
to OM, was to be
decided.
[1]
The high court held
that the MEC was liable for the agreed or proved damages caused by
the injury. The MEC was granted leave to
appeal on a narrow issue by
the high court. An application was then made to this Court, which
granted leave to appeal against the
whole judgment.
[4] What
emerged without challenge was that, on admission to the hospital, Ms
M was a high risk patient. The known
reasons for this were twofold.
By then, the ruptured membranes had endured for a prolonged period
and she was HIV positive. The
latter is a risk factor for hypoxia. It
is common ground that both of these signalled the need for careful
monitoring,
inter alia
, by way of a cardiotocograph (CTG).
This measures foetal heart patterns. If the foetus is not supplied
with sufficient oxygen,
abnormal heart rates result. There are
various warning signs of impending foetal hypoxic distress. Where
these are present, the
medical staff need to take action.
[5] It
is also common ground that the critical period in this matter is the
time between approximately 20h30 and
21h34. It was agreed that the
injury probably occurred in the period between 21h34 and 21h50 when
OM was born. The trial revolved
largely around the correct
interpretation of the CTG tracings during the critical period. For
this, each party employed experts.
The experts differed on some of
the interpretations. As a result, they also differed on when any
action on the part of the hospital
staff was required and whether any
actions taken then would have prevented the injury to OM.
[6] As
was the case in the high court, the issues before us are twofold.
First, whether Ms M proved that hospital
staff were negligent. In
this context, the test has remained clear:
‘
. . .
[I]n deciding what is reasonable the Court will have regard to the
general level of skill and diligence possessed
and exercised at the
time by the members of the branch of the profession to which the
practitioner belongs.’
[2]
Secondly,
if so proved, whether that negligence caused or contributed to the
injury suffered by OM. Ms M bore the onus of proof
on these issues.
It bears remembering that the required standard is proof on a balance
of probabilities. It is also worth noting
that, in arriving at their
opinions, medical experts frequently apply a scientific level of
proof approaching certainty. Courts
must guard against adopting this
standard.
[3]
[7] All
of the experts accepted that the pattern of injury on the Magnetic
Resonance Imaging (MRI) scans of OM
indicated that the hypoxic
ischemic injury was of the acute profound type at full term.
Professor van Toorn gave uncontested evidence
of the mechanism of
damage in the case of an acute profound hypoxic ischemic injury. The
foetal brain obtains its oxygen from the
placenta. Where the supply
of oxygen ceases, an insult to the central grey matter of the brain
takes place. Babies can withstand
very short periods without oxygen,
called insults, by various mechanisms. But when the insults are of a
recurrent nature and are
continuous, there is a compounding effect.
It is this which gives an indication that injury might result. At
some stage collapse
occurs, causing damage to the central grey
matter. This is termed an injury. The key is to take the infant from
this unfavourable
environment of frequent, persistent insults before
the insults result in an injury. In this way, the infant can be
salvaged. This
requires monitoring which can indicate for how long,
and how frequently and seriously, insults are occurring.
[8] A
joint minute of the two neuro-radiologists agreed that the injury was
of the acute profound type:
‘
There are no MRI
changes to suggest a partial prolonged hypoxic ischemic injury
wherein the watershed areas got damaged and this
happens over a long
time. In this case we only have acute profound damage which usually
happens in the 10-40 minutes before birth.
The radiologists agree
that there was hypoxic ischemic injury that occurred to the brain of
the full term infant. According to
the radiologists, more than one
event took place in the gestational period. The first insult was the
infarct on the right temporal
lobe followed by the injury which
occurred during the birth process being the hypoxic ischemic injury.’
[9] It
is as well to deal at the outset with the first mentioned insult. The
infarct on the right temporal lobe,
commonly called a stroke,
probably took place toward the end of the second trimester. None of
the experts saw this stroke as having
caused the injury on which Ms M
sued. Had the stroke caused the damage, the MRI would have looked
different.
[10] There
were two main elements to the trial. The first related to the
interpretation of the CTG tracings. This
fuelled the debate as to
when any interventions were appropriate and whether such
interventions would probably have prevented the
injury. An
additional, second, matter arose during the trial concerning the
histology of Ms M’s placenta. This had been sent
for analysis
prior to the trial but further analysis was sought by the MEC during
the course of the trial by a different expert,
Professor Colleen
Wright.
[11] This
second histological report concluded as follows:
‘
Morphologic
assessment of the placenta suggests chronic villitis of unknown
etiology. . .
. . .
Adverse clinical
pregnancy outcome corresponds with histologically defined VUE
severity (high-grade lesions).’
VUE
refers to villitus of unknown etiology. This is associated with the
placenta having abnormal blood vessels. The joint minute
of the
experts concluded:
‘
As a consequence
of the aforementioned, the placental pathology decreased the baby’s
ability to withstand the stress of labour.’
They
agreed that this did not cause the injury sued on. It did mean that
OM was more vulnerable to being injured than would have
been the case
of a foetus supplied with oxygen by a placenta without that
pathology. Dr Mogashoa, who first suspected placental
pathology,
supported this conclusion. She agreed that the ‘final insult’,
which gave rise to the cerebral palsy, was
hypoxic ischaemic in
nature.
[12]
Counsel
submitted that the presence of VUE and the resultant greater
vulnerability of OM to stress in labour was unforeseeable.
He was
correct but it was unclear where that took him. The issue was whether
there was proper monitoring of the CTG scans during
labour. Assuming
in his favour that VUE was a factor in causing OM's fetal distress,
that does not exonerate the nurses for their
failure to conduct the
monitoring properly. It was not the cause of the foetal distress that
mattered but any failure to observe
the signs of its presence and
take steps to alleviate the stress and accelerate his delivery. The
presence of VUE did not alter
any of this. In general, in cases of
personal injury, the rule is that one takes one's victim as one finds
them as illustrated
by the so-called 'eggshell' skull cases.
[4]
The question was not whether there was a predisposition to suffering
injury, but whether, even in the absence of knowledge of that
predisposition, proper care in the circumstances known to the nursing
staff at the time would have avoided the consequences that
actually
occurred.
[13] The
question, then, is whether insults which indicated the need to
intervene would have been discernible by
reasonable hospital staff
during Ms M’s labour. The answer to this question depends
largely on the interpretation of
the CTG tracings during the critical
period of 20h30 to 21h32. I say 21h32 because there was consensus
that at that time the CTG
tracing was pathological. Urgent action was
required.
[14] Various
expert witnesses led evidence on the CTG tracings. Professor
Pattinson, the Clinical Head of the Department
of Obstetrics and
Gynaecology at the hospital was called by the MEC. Ms M called three
experts in this area. Dr Langenegger, a
specialist in Obstetrics and
Gynaecology as well as a foetal medicine specialist; Professor
Anthony, associate professor of the
Department of Obstetrics and
Gynaecology at the University of Cape Town and head of the Groote
Schuur Maternal and Foetal Medicine
Unit; and Professor Smith, a
neonatologist and professor of neonatology attached to the University
of Stellenbosch. Apart from
the evidence led in court by these
witnesses, certain matters were agreed between various experts.
[15] The
nursing experts, neither of whom was called, agreed in their minute
that between 20h40 and 20h58 it was
expected of the midwife to place
Ms M in the left lateral position, check that the CTG probes were
making good contact and administer
oxygen. It is common cause that
none of these steps was taken. In addition, they agreed that:
‘Probable foetal distress was
evident from about 20:58.’
[16] Of
some importance in this matter is the status of such joint minutes.
They recorded areas of agreement and
disagreement of the expert
witnesses of the parties. A pre-trial meeting agreed that, where
there was agreement between two or
more expert witnesses, that
agreement was binding on the parties. In that regard, this Court has
held:
‘
Where, as here,
the court has directed experts to meet and file joint minutes, and
where the experts have done so, the joint minute
will correctly be
understood as limiting the issues on which evidence is needed. If a
litigant for any reason does not wish to
be bound by the limitation,
fair warning must be given. In the absence of repudiation (ie fair
warning), the other litigant is
entitled to run the case on the basis
that the matters agreed between the experts are not in issue.’
[5]
It
follows, as a necessary corollary, that where there is no agreement,
the minutes must be disregarded. If a party wishes to rely
on what a
witness records in a minute where there is no agreement, evidence on
that point is necessary before it may be taken into
account.
[17]
It
is as well to recap the approach to be taken to expert evidence. Such
testimony, in a medical matter, amounts to an opinion on
how accepted
medical principles apply to the facts. It is admissible where the
person rendering the opinion is qualified to do
so. The opinion must
be properly motivated so that the court can arrive at its own view on
the issue. Where the opinions of experts
differ, the underlying
reasoning of the various experts must be weighed by the court so as
to choose which, if any, of the opinions
to adopt and to what extent.
The opinion of an expert does not bind a court. It does no more than
assist a court to itself arrive
at an informed opinion in an area
where it has little or no knowledge due to the specialised field of
knowledge bearing on the
issues. In this regard, in
Coopers
(South Africa) (Pty) Ltd v Deutsche Gesellschaft für
Schädlingsbekämpfung MBH
,
[6]
this Court held:
‘
[A]n expert’s
opinion represents their reasoned conclusion based on certain facts
or data, which are either common cause,
or established by their own
evidence or that of some other competent witness. Except possibly
where it is not controverted, an
expert’s bald statement of
their opinion is not of any real assistance. Proper evaluation of the
opinion can only be undertaken
if the process of reasoning which led
to the conclusion, including the premises from which the reasoning
proceeds, are disclosed
by the expert.’
[7]
With
those factors in mind, the expert evidence must be evaluated.
[18] Dr
Langenegger explained the basic approach to the monitoring process.
This aspect of his evidence was not
challenged. The first thing to
focus on is the normal foetal heart rate. A normal foetal heart rate
is between 110 and 160. The
second aspect is baseline variability.
The heart rate varies and the average variation is known as a
baseline variation. Where
the heart rate deviates from the baseline
variation this tends to show that the foetus has initiated defence
mechanisms arising
from decreased levels of oxygen. The blood supply
is constricted to less important areas and centralised to the more
important
organs such as the brain. If variability persists it can be
a sign that there is a problem. The third aspect is where there are
decelerations, which are reductions in the foetal heart rate of more
than 15 beats per minute. Delayed decelerations are probably
indicative of hypoxia. With prolonged rupture of the membranes,
special care is required.
[19] Prof
Pattinson testified that there are four stages of labour. This aspect
of his evidence was likewise uncontested.
The first two have a
bearing on this matter. The first stage is divided into a latent
phase, from cervical dilatation zero to four
centimetres, and an
active phase, from four to ten centimetres, which is full dilatation.
The second stage is from full dilatation
at 10 centimetres to
complete delivery of the baby.
[20] In
the expert’s summary of evidence to be given by Prof Pattinson,
it was indicated that he would say:
‘
Between 20:40 to
21:00 the CTG was suspicious. She delivered at 21:50 after normal
second stage. A very short second stage trace
shows a heart rate of
around 140 with good foetal heart variability and then a fall of the
heart rate to about 70 beats per minute
for 90 seconds.’
The
summary concludes:
‘
Prof Pattinson
will state that he holds the view that the medical practitioners and
nursing personnel did what was expected of them
and there were no
breaches of protocol. Prof Pattinson will in finality conclude that
although the minor suffers from sequelae,
this could not have been
prevented at the Kalafong Hospital.’
[21] It
must be said that, as regards the interpretation of the CTG tracings,
and whether any action was indicated,
Prof Pattinson was an outlier.
Most of the other expert witnesses testified that the CTG tracings
between 20h40 and 21h00 demanded
intervention by the nursing staff
and, thereafter, the attending doctor. Far from intervening and
monitoring more closely, the
CTG was inexplicably disconnected at
21h05 and only reconnected at about 21h30. The effect of all of this
is that CTG tracings
are only available between 20h30 and 21h05 and
again briefly after 21h30. All the experts agreed that the tracing at
21h32, shortly
after reconnection, was pathological. Where they
differed, accordingly, was on the interpretation of the tracings
between 20h30
and 21h05.
[22] Prof
Pattinson said that the tracings were not entirely clear. With this,
other experts agreed, but testified
that they were sufficiently clear
for the hospital personnel to detect a clear trend, which should have
occasioned concern and
action. This was agreed to in the joint
nursing minute. Dr Langenegger and Prof Anthony were both called
by Ms M. They provided
a minute, confirmed during their evidence,
which stated:
‘
(a) At
20h28 the accelerative pattern changes to one in which decelerations
develop at 20h28 and 20h33, 20h37
and 20h39;
(b) At
20h43, the tracing shows a decline in the baseline from 145 beats per
minute which persists
until a slow return to the baseline at shortly
before 20h50. In that 7 minute period fetal heart rate tracing is
evident intermittently
with all values at least 10 beats per minute
below the baseline. This period of tracing has the appearance of a
prolonged deceleration
lasting for more than 5 minutes.
(c) At
20h50, the tracing again descends to a nadir of about 60 beats per
minute before showing a slow
recovery to the baseline at 20h52.
Subsequently another 4 similar episodes are identifiable up to 21h04
with the decelerations
at 20h58 and 21h01 being late decelerations.
(d) The
tracing at 21h32 shows a 3 to 4 minute tracing characterised mainly
by a single large u-shaped
deceleration with loss of variability in
the deceleration.’
[23] Prof
Pattinson agreed only with item (d) of this minute. His expert
summary, responding to this and confirmed
by him in court, said:
‘
I disagree with
these statements. In my view what we see from 20h28 is a woman
pushing and in the second stage of labour. This is
evidenced by:
1. Rapid
progression of the active phase of labour.
2. Evidence
of pushing in the middle line of the CTG.
3. Evidence
in the notes that the woman had the urge to push.
4. Return
to baseline 140 between the contractions and where there was contact.
The trace became
suspicious with the slow return to baseline around 20h50.’
[24] He
said that Ms M was pushing and that, as a result, ‘we could not
get a decent trace’. He also
claimed that she was fully dilated
or close to fully dilated during that period, even though she was
only 7 cm at 20h15 and only
9 cm at 21h15, the second of which falls
outside the period concerned. He contended that Ms M ‘was in
the equivalent of second
stage’. This is not supported by his
own evidence that the second stage is only reached when the cervix is
10 cm dilated.
[25] His
interpretation that the tracings showed that Ms M was pushing from
20h23 to 21h05 was strongly contested.
Ms M testified that she was
not doing so. None of the contemporaneous notes recorded this. The
only reference at all relevant to
pushing was a note at 21h15. This
recorded only that Ms M had the urge to bear down, not even that she
was doing so. None of the
personnel who attended on Ms M testified.
[26] The
other experts were adamant that the tracings did not show maternal
pushing. If Ms M had done so prior
to the second stage being reached
at 10 cm dilatation, she would have been told not to do so. Prof
Pattinson did say that
if the staff saw that Ms M was pushing, they
should at the very least have arranged for a vaginal examination.
This was not done.
He agreed that if it was not the correct time to
push the staff should have told her not to do so.
[27] He
interpreted the notes to the effect that at 21h15 Dr Kayzer examined
Ms M, who was 9 cm dilated. Dr Kayzer
did not testify. Prof Pattinson
said that Dr Kayzer noted of Ms M that: ‘She must go for
delivery because she was pushing,
and that was quite correct.’
It was pointed out to Prof Pattinson that the entry by Dr Kayzer
recorded only that Ms
M had reported ‘the urge to bear down’.
His response was that this meant that ‘she wants to push down
and she
probably has been pushing down.’ He was then
constrained to agree that doctors are taught to record exactly what
occurs.
It was put to him that, if Ms M had been pushing, this would
have been noted. His response was to say that there are a number of
beds in the area and Dr Kayzer was probably in another room. He was
brought back to the entry and again said that his ‘interpretation
of her saying “reports the urge to bear down” is that she
wants to push and probably has been pushing.’ He finally
and
reluctantly accepted that this was not what Dr Kayzer had written.
[28] He
was then pressed on his having testified that, by 21h15, Ms M had
been pushing for 53 minutes. His evidence
in court was that the CTG
showed that she first pushed at 20h23. However, in his response to
the joint minute, he said that the
first push discernible from the
CTG tracings was at 20h28. He said in his response to the joint
minute that this was shown on the
middle line of the tracing but his
evidence in court was that it was shown in the contraction line. What
was put on his behalf
to Dr Langenegger was that he would say that
once contractions begin, the tracing shows maternal movement but he
later testified
that it was a mixture of maternal and foetal
movement.
[29] There
are other difficulties with his evidence. He was asked why the CTG
was disconnected at 21h05 and only
reconnected at 21h32. Despite his
not having been present at the time, and only interpreting the
hospital records, he proffered
that it takes time to be transferred
to a labour ward. He said of that time that, although there were
‘some suspicious aspects
. . . there were reassuring features
of heart returning to baseline. So I do not think there was urgency,
an excessive urgency,
except she was pushing in the second stage. And
it, the CTG has to be disconnected.’ As indicated above, Ms M
was not in
the second stage, according to his own evidence. And the
transfer instruction was only given at 21h15, so this, too, was
surmise
on his part. There was no factual underpinning for either of
these aspects of his testimony.
[30] In
evidence, he said that the tracing first became suspicious at 20h58.
After being taken through the tracing,
he conceded that, also at that
time, there was ‘a single late deceleration’. He was
confronted with his report, where
he had said that between ‘20:40
to 21:00 the CTG was suspicious’. He then conceded in evidence
that the report was
correct and his earlier evidence that the first
suspicious trace was at 20h58 was incorrect. When confronted with the
fact that
he differed from the MEC’s own nursing expert and all
of Ms M’s experts that there was probable foetal distress at
20h58, he said he differed because he considered that all of the
traces they referred to were second stage traces, where Ms M was
pushing. This aspect of his evidence has already been dealt with.
[31] He,
alone, testified that he did not accept that an acute profound
hypoxic ischemic injury led to the cerebral
palsy. That is a position
in conflict with the other witnesses called by the MEC and the MEC’s
concession in this regard.
The experts called by Ms M on this issue
gave detailed, coherent, and carefully reasoned evidence that led to
their opinions, which
accorded with all of the known facts.
[32] For
all of the reasons mentioned above, the evidence of Prof Pattinson as
to when the tracings became suspicious
and when action should have
been taken must be rejected where it conflicts with that of the
agreed nursing minute and Ms M’s
experts. All of these agreed
that, at the very latest by 20h58, action would have been taken by
nursing staff with the level of
skills and training functioning in a
level two hospital. That action would have been to call a doctor. The
reasonable doctor in
that context would have closely monitored Ms M
and, within ten minutes or so, have begun expedited delivery, which
could have been
achieved in the fifteen or twenty minutes after
20h15. None of these steps was taken. This leads to the conclusion
that Ms M proved,
on a balance of probabilities, that the hospital
personnel were negligent.
[33] All
of the expert witnesses agreed that the injury to OM did not occur
before 21h34. It took place between
then and his delivery at 21h50.
Dr Mogashoa testified that once there is a sustained
bradycardia, which is a slowing of the
foetal heart rate, one should
deliver a baby within 10 to 17 minutes. That is the length of time
that a baby can compensate for
asphyxia.
[34] If
the actions referred to above had been taken, accordingly, the damage
would in all probability have been
avoided. This means that the
damage to OM probably occurred as a consequence of the negligence of
the hospital staff. As a result,
Ms M proved on a balance of
probabilities that the negligence of the hospital employees caused or
contributed to the injury and
sequelae
to OM.
[35] All
of this means that the finding of the high court that the MEC was
liable for the injury sustained by OM
during his birth process cannot
be faulted. As a result, the appeal must be dismissed. It was
conceded that, in those circumstances,
the costs of two counsel,
where utilised, would be an appropriate costs award. I agree.
[36] In
the result, the following order issues:
The appeal is dismissed
with costs, including the costs of two counsel, wherever so employed.
T
R GORVEN
JUDGE
OF APPEAL
Appearances
For
appellant: S
Joubert SC
Instructed
by: State
Attorney, Pretoria
State
Attorney, Bloemfontein.
For
respondent: J J
Wessels SC (with him C Vallaro)
Instructed
by: Munro,
Flowers and Vermaak, Johannesburg
Claude
Reid Attorneys, Bloemfontein.
[1]
This Court has repeatedly lamented the failure of trial courts to
make orders specifying precisely which issues are to be dealt
with
separately and initially. Regrettably, this is yet another instance
of such failure. See eg
Denel
(Edms) Bpk v Vorster
2004
(4) SA 481
(SCA) para 3 and
ABSA
Bank Ltd v Bernert
2011 (3) SA 74
(SCA) para 21.
[2]
Van Wyk
v Lewis
1924 AD 438
at 444.
[3]
See
Maqubela
v S
[2017] ZASCA 137
;
2017 (2) SACR 690
(SCA) para 5,
where
it was said:
‘
In
Michael
& another v Linksfield Park Clinic (Pty) Ltd & another
2001
(3) SA 1188
(SCA) para 40, the important distinction to be
drawn between the scientific and judicial measures of proof when
assessing
expert scientific evidence, was emphasised:
“
Finally, it must
be borne in mind that expert scientific witnesses do tend to assess
likelihood in terms of scientific certainty.
Some of the witnesses
in this case had to be diverted from doing so and were invited to
express the prospects of an event’s
occurrence, as far as they
possibly could, in terms of more practical assistance to the
forensic assessment of probability, for
example, as a greater or
lesser than fifty per cent chance and so on. This essential
difference between the scientific and the
judicial measure of proof
was aptly highlighted by the House of Lords in the Scottish case
of
Dingley v The Chief Constable, Strathclyde Police
200
SC (HL) 77 and the warning given at 89D - E that:
‘
[O]ne cannot
entirely discount the risk that by immersing himself in every detail
and by looking deeply into the minds of the
experts, a Judge may be
seduced into a position where he applies to the expert evidence the
standards which the expert himself
will apply to the question
whether a particular thesis has been proved or disproved –
instead of assessing, as a Judge
must do, where the balance of
probabilities lies on a review of the whole of the evidence.’”
The scientific measure
of proof is the ascertainment of scientific certainty, whereas the
judicial measure of proof is the assessment
of probability.’
[4]
Majiet
v Santam Limited
[1997] 4 All SA 555
(C) at 567 A-D.
[5]
Bee v
Road Accident Fund
[2018] ZASCA 52
;
2018 (4) SA 366
(SCA) para 66.
[6]
Coopers
(South Africa) (Pty) Ltd v Deutsche Gesellschaft für
Schädlingsbekämpfung MBH
1976
(3) SA 352
(A) at 371F-G. See also
Oppelt
v Head: Health, Department of Health ProvincialAdministration:
Western Cape
[2015]
ZACC 33
;
2015 (12) BCLR 1471
(CC);
2016 (1) SA 325
(CC) para 36,
quoting with approval
Michael
and Another v Linksfield Park Clinic (Pty) Ltd and Another
(1)
[2001] ZASCA 12
;
[2002] 1 All SA 384
(A) paras 34-40;
PriceWaterhouseCoopers
Inc and Others v National Potato Co-operative Ltd and Another
[2015]
ZASCA 2
;
[2015] 2 All SA 403
(SCA) paras 97-99.
[7]
Modified to utilise inclusive language. See also
AM
and Another v MEC Health, Western Cape
[2020]
ZASCA 89
;
2021 (3) SA 337
(SCA) para 17.