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[2016] ZAGPPHC 195
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Mokoena obo Nkosi v Road Accident Fund (21415/2012) [2016] ZAGPPHC 195 (13 April 2016)
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/SG
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
DATE: 13/4/2016
CASE NO: 21415/2012
Not reportable
Not of interest to
other judges
Revised
In the matter
between:
PN MOKOENA obo SM
NKOSI PLAINTIFF
And
ROAD ACCIDENT
FUND DEFENDANT
JUDGMENT
MSIMEKI, J
INTRODUCTION AND
BRIEF BACKGROUND FACTS
[1] Nokuthula
Theodorah Dlamini was Siphamandla Menzi Nkosi’s mother.
She was involved in an accident on 23 February
2009 while she was a
passenger in a motor vehicle that was driven by one S Ntshingila.
The taxi she was in with registration
letters and numbers N[…]
collided with the insured motor vehicle bearing registration letters
and numbers X[…], at
the time driven by one Shai.
Siphandla’s mother passed on four months after the accident.
Siphandla’s grandmother
has, as a result, instituted an action
on behalf of the minor child and in her personal capacity for loss of
support which they
received from the deceased. Plaintiff
contends that the collision was caused by the sole negligent driving
of the insured
driver alternatively of Ntshingila, alternately of
both the insured driver and Ntshingila.
[2] Defendant denies
that the insured driver was the sole cause of the accident. It
further denies that there is a link between
the accident and the
cause of death of the deceased, Siphandla’s mother.
THE ISSUE TO BE
DETERMINED
[3] The issue to be
resolved is whether there is a nexus between the injury sustained in
the accident and the eventual demise of
the deceased four months
later.
[4] Advocate MD Köhn
(Mr Köhn) and Advocate A Vorster (Ms Vorster) respectively
presented plaintiff and defendant when
the matter was heard and
argued.
[5] In support of
her case, plaintiff called Dr Collin Morare, a general practitioner,
as her witness. Defendant called no
witness. Dr Morare
based his evidence on clinical notes and hospital records compiled
and completed by respective doctors
and nurses who treated the
patient, the deceased. The doctor from this source formed his
opinion and what he called “speculations”.
[6] Dr Morare
diagnosed the deceased with a left leg contusion and made no mention
of any chest trauma. This was also not
mentioned in the
hospital records.
[7] The doctor
confirmed that the cause of death was congestive heart failure which
was also mentioned as the cause of death on
the official death
certificate dated 21 June 2009. The cause of death could very
easily have been established by an autopsy
done by a forensic
pathologist or evidence by the clinicians who treated the patient.
The autopsy appears not to have been
done. None of the
clinicians testified to establish the exact cause of death of the
deceased. No explanation was given
as to why the autopsy was
not done and why none of the clinicians testified. What is
more, Dr Morare neither saw nor examined
the patient.
[8] On 2 July 2015
Dr Morare compiled his report based on the clinical notes and
hospital records which were compiled and completed
by the respective
doctors and nurses who treated the deceased. Testifying about
chest trauma, according to the doctor, would
amount to speculation
which would not be proper in this case. Deceased had been
admitted to hospital several times since
2008 due to her cardiac
disease. This happened before the accident. Dr Morare
conceded that HIV, oedema of the lower
legs as well as renal failure
were all systematic conditions.
[9] Dr Morare
conceded that the bilateral oedema which the deceased presented with
a month after the accident could probably have
been caused by her
heart failure, renal failure or active HIV. A single leg
swelling, according to him, would be an indication
of a leg or
isolated injury. The notes evidenced that deceased had been HIV
positive. Deceased was taken off ARVs (anti-retro
viral
medication) due to the after effect they had on her.
The ARVs aggravated
the illness, according to the doctor. She was not getting any
better. He testified that HIV has
the effect of accelerating
the deterioration in the patient’s chronic heart condition.
Besides, the HIV was no longer
treated. The notes by the
nursing staff demonstrated that the symptoms on the patient’s
chart were similar to those
that the patient had presented with prior
and after the accident. The patient had been very sick prior to
the accident.
The doctor could not conclude, based on the
evidence at his disposal, to what extent if any, the accident
contributed to the patient’s
deterioration of her heart
condition. That, according to him, again would amount to
speculation which would not be helpful
to the court. His guess
was that the accident could have contributed 1% to 40% to the
patient’s death. It was
indeed a guess as it was not
based on any clinical studies or proven facts.
[10] The doctor
conceded that there was dearth of evidence relating to the before the
accident and after the accident conditions.
This rendered it
difficult for the doctor to confirm that deceased’s condition,
as a chronic heart patient, deteriorated
in an accelerated manner
after the accident. The fact that deceased had been taking
Warfrin and Clexane, which are blood
thinning medication before and
after the accident failed to support plaintiff’s case that
clots could have formed after the
accident contributing to the
accelerated deterioration of deceased’s chronic heart failure
and eventually contributing to
her death.
[11] Doctor Morare
was unaware if he had all the clinical notes and hospital records at
his disposal. He had no evidence to
show that clots, if they
were there, were worsened by the accident. He also could not
tell the court that if there had been
accident related clots those
clots could eventually have had an effect on the deceased’s
death which was said to have been
caused by congenital heart
failure. No evidence demonstrates the presence of clots or
their absence. Specifics, in
the absence of proven facts,
according to the witness, would amount to speculation which, as I
have said, is unhelpful to the court.
THE LAW
[12] Plaintiff bore
the onus to prove her case on a balance of probabilities.
It has to be remembered that the court
was called upon to
determine if there was a nexus between the accident and the cause of
the deceased’s death.
[13] It again must
be borne in mind that plaintiff, to support her case, relied on the
evidence of Dr Morare and the clinical notes
of nurses and doctors
who treated the deceased.
[14] In
Minister
of Safety and Security v Van Duivenbodan
2002 (6) SA 431
(SCA) at
[24] pages 448-449 NUGENT JA confirmed what CORBETT JA said in
International Shipping Co (Pty) Ltd v Bentley
1990 (1) SA 680
at 700 regarding causation. CORBETT CJ (as he then was) at page
700E-J said:
“
As has
previously been pointed out by this court, in the law of delict
causation involves two distinct enquiries. The first
is a
factual one and relates to the question as to whether the defendant’s
wrongful act was a cause of the plaintiff’s
loss. This
has been referred to ‘as factual causation’. The
enquiry as to factual causation is generally
conducted by applying
the so-called ‘but for’ test, which is designed to
determine whether a postulated cause can be
identified as a
causa
sine qua non
of the loss in question. In order to apply
this test one must make a hypothetical enquiry as to what probably
would have
happened but for the wrongful conduct of the defendant.
This enquiry may involve the mental elimination of the wrongful
conduct
and the substitution of a hypothetical course of lawful
conduct and the posing of the question to whether upon such an
hypothesis
plaintiff’s loss would have ensued or not. If
it would in any event have ensued, then the wrongful conduct was not
a cause of the plaintiff’s loss; aliter, if it would not so
have ensued. If the wrongful act is shown in this way not
to be
a
causa sine qua non
of the loss suffered, then no legal
liability can arise. On the other hand, demonstration that the
wrongful act was a
causa sine qua non
of the loss does not
necessarily result in legal liability. The second enquiry then
arises, viz whether the wrongful act
is linked sufficiently closely
or directly to the loss for legal liability to ensue or whether, as
it is said, the loss is too
remote. This is basically a
juridical problem in the solution of which considerations of policy
may play a part. This
is, sometimes called ‘legal
causation’.”
(See also
Minister
of Police v Skosana
1977 (1) SA 31
(A) at 34E 35A, 43E-44B;
Standard Bank of South Africa Ltd v Coetsee
1981 (1) SA 1131
(A) at 1138H-1139C;
S v Daniëls en ‘n Ander
1983
(3) SA 275
(A) at 331B-332A and
Simane & Co (Pty) Ltd v
Barclays National Bank Ltd
1984 (2) SA 888
(A) at 914F915H).
[15] There has to be
a reasonable connection between the harm threatened and the harm
done. Were it not so, an excessive burden
would be imposed on
human activity if a wrongdoer were held to answer for all the
consequences of his conduct. For instance,
an American judge
once said: “this would not have happened had one not been
born”.
[16] In
Minister
of Safety and Security v Van Duivenboden
(
supra
) NUGENT JA
at 449E-F said:
“
A plaintiff
not required to establish the casual link with certainty, but only to
establish that the wrongful conduct was probably
a cause of the loss,
which 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.”
[17] In
Rose
Lilian Judd v Nelson Mandela Bay Municipality
, a reportable case
number CA149/2010 of the High Court of South Africa, Eastern Cape,
Port Elizabeth at [8] the court said:
It is commonly
recognised that an actionable wrong or delict has 5 elements or
requirements, namely:
(a) the commission
or omission of an act (
actus reus
);
(b) which is
unlawful or wrongful (wrongfulness);
(c) committed
negligently or with a particular intent (culpa or fault);
(d) which results in
or causes the harm (causation); and
(e) the suffering of
injury, loss or damage (harm).
[18] CORBETT J in
Wells & Another v Shield Insruance Co Ltd and Others
1965
(2) SA 865
(CPD) at 868H – 869A-B dealt with causation.
He considered the words “caused by” and “arising
out of” when he discussed problems pertaining to driving.
He found that the two phrases are not synonymous. The
former
phrase, according to him, has no wider connotation which the latter
has. At 869A-B of the same case he said:
“
(2) The words
‘caused by’ refer to the direct cause of the injury,
whereas the word ‘arising out of’ refer
to the case where
the injury, though not directly caused by the driving, is
nevertheless causally connected with the driving and
the driving is a
sine qua non
thereof. This proposition involves an entry
into the difficult and controversial field of causation. The
term ‘direct
cause’ is one commonly employed in
determining liability for damages in delict.”
[19] At 870A dealing
with the search for some limit lying between direct causation and the
vast and unrestricted field of the
causa sine qua non
he said:
“…
the
Court must, I think, be guided by a consideration of the object and
scope of the Act and by notions of common sense.”
The death or bodily
injury for which compensation is claimed, according to him, must be
causally related to the negligent or otherwise
unlawful act and also
to the driving of the vehicle. At 870D-E he said:
“
Where the
direct cause is some antecedent or ancillary act, then it could not
normally be said that the death or injury was ‘caused
by’
the driving; but it might be found to arise out of the driving.
Whether this would be found would depend upon the
particular facts of
the case and whether, applying ordinary, common-sense standards, it
could be said that the causal connection
between the death or injury
and the driving was sufficiently real and close to enable the Court
to say that the death or injury
did arise out of the driving.”
(See also
Minister
of Safety and Security v Road Accident Fund and Another
2001 (4)
SA 979
(NPD) at 984H-J to 985A-D wherein reference is made to the
case of
Wells and Another v Shield Insurance Co Ltd and Others
(
supra
) and
Road Accident Fund v Russell
2001 (2) SA 34
(SCA).
[20] Mr Köhn,
for the plaintiff, submitted that defendant had no expert witness to
refute plaintiffs evidence and that all
defendant offered were bare
denials to plaintiff’s particulars of claim. According to
him, defendant attributed negligence
to Ntshingila in a signed
pre-trial minute which was faxed from defendant’s office.
[21] Mr Köhn
submitted that plaintiff, on 23 March 2009, exhibited signs of
coughing up blood sputum and vomiting which were
not there before the
accident. No nurse or doctor who treated deceased testified.
It becomes difficult, as a result,
to conclude that those signs did
not exist prior to the accident.
[22] It was Mr
Köhn’s submission that the accident, in addition to
deceased’s pre-existing heart condition, could
have caused an
accelerated and/or aggravated degeneration of deceased’s
health. This evidence, apart from the doctors’
and
nurses’ evidence, could also have come from plaintiff,
deceased’s mother. She was not called.
[23] While it may
well be so that defendant called no expert witness to testify on
deceased’s status of health or possible
cause of death, sight
should not be lost of the fact that plaintiff bore the onus to prove
her case on a balance of probabilities.
The question remains
whether the onus has been discharged.
[24] Dr Morare
testified that a blunt trauma on deceased’s chest would cause
her to cough blood. This conclusion is
not borne out by proven
facts. Hospital record did not demonstrate this. The
doctor himself does not refer to this
in his evidence.
[25] The doctor
testified that deceased complained of pain on the lower limbs after
the accident, however, deceased even before
the accident in 2008
presented with similar problems. No one other than Dr Morare
testified about this and what the hospital
notes showed. Dr
Morare testified that deceased’s complaints a month after the
accident could show that there is a
link between the accident and the
death. However, this, according to him would be the case in the
absence of other causes.
He added that cardiac patients have
problems of swollen lower limbs.
[26] The witness
confirmed that deceased had been put on Warfrin and Claxen before and
after the accident. She suffered from
heart failure. She
further had HIV and renal failure. Warfrin and Claxen helped
keep deceased’s blood thin.
Warfrin and Claxen are
associated with the deterioration of the heart. On 12 November
2008, long before the accident, deceased
had complained of pain,
difficulty in breathing and swelling of the lower limbs.
[27] Asked, in
evidence in chief, if deceased but for the accident would still be
alive the doctor answered that deceased had not
been so ill as
doctors stopped her from using HIV medication. He added that
the accident accelerated her demise. He
contradicted this under
cross-examination. Still in his evidence in chief, he testified
that either trauma caused by accident
(of which he said nothing in
his report) or HIV or cardiac problems would have resulted in the
death of deceased. The evidence
is in direct contradiction with
his earlier statement. He testified that deceased did not cough
blood before the accident
but he at the same time testified that he
could not tell the court that he had been provided with a complete
hospital record.
[28] Cross-examined,
he testified that deceased, after the accident on 23 February 2009,
had been given Bruffen tablets
and Panado which she had to take three
times a day. He conceded that he could not describe the
seriousness of deceased’s
condition after the accident.
He later said that the condition could have been 1% impairment which,
in my view, was not serious
at all.
[29] The witness
conceded that deceased had been to hospital several times before the
accident due to her heart problems.
Having conceded that he had
not noted chest trauma he further conceded that chest trauma was not
applicable in this case.
According to him, it was common for
HIV patients to have oedema and that cardiac patients had it too.
He conceded that a
patient with HIV would get worse if not treated.
This indeed contradicted his earlier evidence. Treatment of
deceased’s
HIV was stopped because she reacted negatively to
the treatment. He conceded that she had been taken off the HIV
treatment
not because she had been doing well. This again
contradicted his earlier evidence.
[30] He further
conceded that HIV would have a very negative result on someone with a
heart disease. It was his further concession
that HIV, if not
treated, may accelerate and worsen the heart disease. He agreed
that deceased, before the accident, suffered
from oedema and cardiac
failure. On 27 January 2008 deceased was already on Claxen and
Warfrin. He conceded that if
not controlled and monitored
Warfrin affects the liver. Deceased was not on Warfrin because
of the accident.
[31] Clinical notes
enabled him to say that the accident helped the worsening of the
heart problem yet no one from the hospital
or deceased’s family
shed light on this. He, however, admitted that he speculated in
a number of instances. I
do not think that this evidence could
be regarded as helpful at all.
[32] He conceded
that the death certificate gave the cause of death as congestive
heart failure. He could not conclusively
say that clots, if
there, had something to do with deceased’s death. He also
could not say that the accident caused
clots. He merely
speculated based on the clinical notes. He conceded that it could not
conclusively be said that the accident
accelerated the deterioration
of the heart condition. This again contradicted his earlier
evidence.
[33] It is common
cause that the accident took place on 23 February 2009; deceased
incurred a contusion of a lower left leg and
was treated
conservatively with analgesics and discharged; there was no follow up
treatment of the soft tissue injury and she was
a chronic cardiac
patient prior to the accident. She had a mild renal failure and
was HIV positive where its treatment had
been stopped and she was
again admitted to hospital a month after the accident and passed on
four months later.
[34] It is important
to keep in mind that plaintiff’s case is that deceased was a
chronic heart patient who was in an accident
and that deceased’s
condition deteriorated in an accelerated manner after the accident.
Clots possibly formed after
the accident and that the clots could
have accelerated the deterioration of deceased’s chronic heart
failure resulting in
her death. The doctor’s evidence
does not support plaintiff’s case.
[35] To determine if
the accident had anything to do with the death of the deceased one
has to apply the law discussed above to
the facts of the case.
The question which immediately springs to mind is whether the facts
of the case satisfy the two enquiries,
viz the factual and the legal
enquiries. There is no evidence to show that “but for”
the accident deceased would
still be alive today. The doctor
merely speculated. Further evidence also does not exist to
prove the direct cause
of death from the minor injuries (according to
the clinical notes), sustained by the deceased in the accident.
The reasonable
foreseeable test has no application here. It is
hardly unthinkable that one can foresee a patient with a leg
contusion dying
of congenital heart disease four months after the
accident. No legal policy finds application in this case.
[36] Ms Vorster
submitted that there is no evidence to demonstrate a causal link
between the injuries sustained by the deceased
in the accident and
the eventual death. I agree. Common sense standards,
according to her, do not evince that the driving
of the vehicle and
the injuries or death are “sufficiently real and close”.
I agree. The death certificate,
in any event, specify, the
cause of death as “congenital heart disease” which had
been deceased’s pre-existing
medical condition which existed
prior to the accident.
[37] Plaintiff had
to discharge the onus of proving her case on a balance of
probabilities which rested on her. Evidence has
conclusively
proved that plaintiff has failed to discharge the onus. I have
found evidence showing that there is a causal
link or nexus between
the accident and the death of the deceased wanting. The test
applicable in the determination of the
issue has not been satisfied.
Plaintiff’s claim should therefore be dismissed with costs.
ORDER
[38] The following
order is made:
1. Plaintiff’s
claim is dismissed with costs.
M W MSIMEKI
JUDGE OF THE
GAUTENG DIVISION, PRETORIA
Heard on
: 3
August 2015
For the
Plaintiff
: Adv MD Köhn
Instructed by
:
Mangena & Associates Attorneys
For the
Defendant
: Adv A Vorster
Instructed by
:
Fourie Fismer Inc
Date of Judgment
: