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[2015] ZAECMHC 62
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Sifuba v MEC for Health, Eastern Cape (2314/13) [2015] ZAECMHC 62 (7 August 2015)
IN
THE HIG COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, MTHATHA)
CASE
NO: 2314/13
DATE:
07 AUGUST 2015
In
the matter between:
NOXOLO
SIFUMBA
...........................................................................................................
PLAINTIFF
And
MEC
FOR HEALTH, EASTERN
CAPE
........................................................................
DEFENDANT
Date
heard: 03 August 2015
Date
delivered: 07 August 2015
JUDGMENT
BROOKS
AJ.:
[1]
The plaintiff is an adult woman who is resident at Mtyu Location in
Libode, Eastern Cape. On 17 September 2013 she issued summons
against
the defendant on the basis that he is nominally liable for all
wrongful acts committed by persons acting in the course
and scope of
their employment by the Department of Health, including those
employed at St Barnabas Hospital, Libode. A subsequent
amendment to the plaintiff’s particulars of claim makes it
clear that she pursues the claim both in her own capacity and
in her
capacity as the mother and the natural guardian of her minor child
Endinako.
[2]
In both her capacities, the plaintiff’s claim is for damages.
It is based upon allegations that employees of the
defendant
stationed at St Barnabas Hospital, Libode, breached the terms of an
oral agreement concluded by them with the plaintiff
to provide her
with diligent and adequate medical, surgical, nursing and midwifery
treatment, alternatively that the defendant’s
employees
stationed at St Barnabas Hospital, Libode, acted negligently whilst
under a legal duty of care to render such services
to the plaintiff.
[3]
Both causes of action relied upon by the plaintiff arise from the
circumstances which arose subsequent to her presentation on
20
December 2010, at approximately 06h00, at St Barnabas Hospital,
Libode. The allegations common to both causes of action
are
that at the material time the plaintiff was in labour prior to the
birth of Endinako, that she sought and was denied emergency
medical
treatment, that the defendant’s employees failed to monitor the
foetal heart rate at 30 minute intervals, failed
to take precautions
against foetal distress, failed to detect foetal distress, failed to
transfer the plaintiff to another hospital
and failed to perform a
caesarean section timeously.
[4]
The plaintiff alleges further that as a result of her prolonged
labour and the failure to perform a caesarean section timeously,
Endinako suffered an hypoxic incident which resulted in severe brain
damage causing permanent spastic cerebral palsy including
elements of
epilepsy.
[5]
In due course, the plaintiff’s action was defended and the
defendant filed a plea which denied liability on two bases.
The
first was a special plea which alleged that the plaintiff had failed
to issue a notice as contemplated in sections 3 and 4
of the
Institution of Legal Proceedings against Certain Organs of State Act
(Act 40 of 2002). The second basis for the denial
of liability
was, in essence, an assertion that at all times material to their
involvement with the plaintiff, the defendant’s
employees
stationed at St Barnabas Hospital provided diligent and adequate
medical care.
[6]
When the matter was first called before the court, the parties sought
an order by agreement in terms of the provisions of Rule
33 (4) of
the Uniform Rules of Court which had the effect of separating the
issues pertaining to the liability of the defendant
from the issues
pertaining to the
quantum
of the plaintiff’s damages and
postponing the latter
sine die
. Such an order was
granted.
[7]
At the initial hearing, the parties were also in agreement that all
issues arising from the special plea should stand over for
determination at the end of that part of the trial in which the
issues pertaining to the defendant’s liability were
determined.
This somewhat unusual request was predicated upon a
mutual belief that the issues relating to the special plea might be
resolved
by agreement in due course. The optimism of counsel
was rewarded and at the end of the evidence an interlocutory
application
was moved by Mr Kincaid, who appeared on behalf of the
plaintiff together with Mr Sambudla, seeking condonation for the
delay on
the part of the plaintiff in giving the prerequisite notice
to the defendant of her intention to institute an action. The
supporting affidavit gave a full explanation of the
circumstances surrounding the delay. The interlocutory
application
was not opposed by Mr Pienaar, who appeared on behalf of
the defendant together with Mr Kunju, and condonation was granted.
[8]
Subsequent to the close of pleadings, expert notices and reports in
support of the plaintiff’s claim were provided by
Dr Van
Toornza, a paediatric neurologist, Dr Ebrahim, an obstetrician,
Professor Nolte, who holds a doctorate in midwifery and
is a
qualified paediatrician who specialises in neonatology, Professor
Andronikou, a radiologist and Professor Coetzee, an anaesthetist.
[9]
In support of the defendant’s stance expert notices and reports
were provided by Dr Booyens, a radiologist, Dr Burgin,
an
obstetrician and gynaecologist and Dr Kara, a paediatrician.
[10]
It is apposite to record at this point that none of the defendant’s
expert witnesses were called to testify. After
the closure of
the plaintiff’s case, the defendant’s case was closed
without any evidence being led. In the main,
the defendant’s
attack upon the plaintiff’s case was confined to extremely
limited cross examination of the plaintiff’s
expert witnesses
during which the essential elements of the professional opinion
offered by Dr Kara were put to the plaintiff’s
expert.
[11]
It is apposite also to record that by agreement between the parties a
minute produced jointly by the two paediatricians, Dr
Van Toorn and
Dr Kara, was made available to the court.
[12]
Against this background, the following evidence available to the
court was either agreed upon between the parties and their
experts or
emerges as uncontradicted from the plaintiff’s medical records,
the medico legal reports prepared by the plaintiff’s
expert
witnesses or the evidence given on behalf of the plaintiff:
.
the plaintiff’s pregnancy with Endinako and his delivery, were
not the plaintiff’s first pregnancy and delivery;
.
the plaintiff presented herself at St Barnabas Hospital, Libode, at
06h00 on 20 December 2010;
.
the plaintiff was admitted to hospital at 09h00 on 20 December 2010;
.
upon her admission, it was recorded that the onset of labour
commenced at 08h00 on 19 December 2010, the plaintiff first
presenting
at Gateway Clinic and being referred therefrom to St
Barnabas Hospital, Libode;
.
upon her admission the plaintiff’s contractions were already
occurring at intervals less than twenty seconds apart;
.
the partograph completed by the defendant’s employees stationed
at St Barnabas Hospital discloses that the progress of the
plaintiff’s labour and the foetal heart rate were monitored at
10h00 , 11h00, 12h00, 14h00, 15h00, 16h00 and 17h00;
.
the clinical notes of St Barnabas Hospital disclose that a drop in
the foetal heart rate was identified at 17h00, with a further
drop
being noted at 18h30;
.
at 18h30 a decision was taken to perform a caesarean section;
.
Endinako was delivered by caesarean section at 19h50 on 20 December
2010;
.
with a birth weight of 4,4kg, Endinako was a large baby;
.
a drop in the foetal heart rate is an indication of foetal distress;
.
whilst the plaintiff was fully dilated at 16h00, she was first seen
by a doctor only at 18h30 and Endinako was delivered only
at 19h50,
meaning that the plaintiff was fully dilated for close on four hours;
.
the foetus had bradycardia since 17h00, but only one further foetal
heart rate was recorded, at 18h30, before the delivery was
accomplished;
.
save for the insertion of an intravenous infusion at 14h00, no foetal
resuscitation was commenced;
.
immediately upon delivery, Endinako required resuscitation by suction
and the administration of oxygen by mask;
.
Endinako presents with an asymmetrical spastic quadriplegic type
cerebral palsy with microcephaly, cerebral visual impairment
and
severe intellectual disability;
.
the MRI findings in respect of Endinako confirm cystic
encephalomalacia and ulegyria. This indicate a likely exposure
of
Endinako to a severe global hypoxic-ischemic insult. Unless
done within the first three weeks of life, an MRI scan does not
time
such an injury. In circumstances such as those pertaining to
Endinako, where the MRI scan is done at a later stage,
it is
necessary to read the finding on the MRI scan together with the
clinical presentation. Whilst hypoxic-ischemic injury
is the
most common cause of cystic encephalomalacia, the herpes virus or
other infections are also possible causes when the MRI
scan shows
cerebral white matter to be dominantly involved (as in the case of
Endinako).
[13]
The final element of the common cause facts as reflected in the
preceding paragraph encapsulates the essence of the difference
of
opinion between the plaintiff’s paediatrician, Dr Van Toorn,
and the defendant’s paediatrician, Dr Kara.
[14]
On a reading of the MRI scan results in conjuction with the clinical
presentation and the records of St Barnabas Hospital pertaining
to
the monitoring of the plaintiff’s labour and the delivery of
Endinako, Dr Van Toorn was of the firm opinion that the cystic
encephalomalacia was the result of an hypoxic-ischemic insult to the
foetus intrapartum. In his opinion, the encephalopathy
was due
to reduced brain oxygen caused by inadequate blood flow to the brain
during the plaintiff’s labour.
[15]
Dr Vaan Toorn’s opinion was based upon the diagnostic
observation that all four of the criteria for intrapartum asphyxia
nominated by leading literature on the subject [Volpe (Neurology of
the Newborn, 4
th
edition, 2001 WB Saunders Company, page
332)] were met upon an analysis of the medical records pertaining to
the plaintiff and
Endinako. Firstly, there was clear evidence
of foetal distress. Secondly, there was evidence of depression
at birth
requiring resuscitation by suction and by the administration
of oxygen. Thirdly, there was clear evidence of an overt
neonatal
neurological syndrome during the first hours and days of
life in that hypertonicity and seizures were noted. Fourthly,
the
medical records pertaining to Endinako’s later neonatal
care at Nelson Mandela Academic Hospital, Mthatha, revealed severe
renal compromise, which demonstrated the onset of multi-system
involvement within seventy-two hours of birth (the fourth criterion).
[16]
Although he never gave evidence, Dr Kara’s opinion, which
informed the defendant’s approach to the matter,
was that the
cystic encephalomalacia was probably caused by an infection, either
maternal or neonatal. In his view, the record
of Endinako
presenting with a fever, jaundice and grunting within the first few
days of life was indicative of an infection.
This opinion was
also informed by the unremarkable Apgar score recorded on Endinako’s
assessment from.
[17]
It is convenient at this point to record that on the first day of
trial the medical records pertaining to Endinako’s
subsequent
treatment at Nelson Mandela Academic Hospital were made available for
the first time to the plaintiff’s legal
representatives and
experts. Two significant aspects emerged therefrom.
Firstly, it is readily apparent that any suggestion
that the symptoms
with which Endinako presented at that hospital were caused by a
maternal or neonatal infection can safely be
excluded. The
outcome of tests and treatment conducted at Nelson Mandela Hospital
resolve the query relating to a possible
infection and, accordingly,
remove the potential factual basis relied upon by Dr Kara in
the expression of his opinion.
Secondly, the Nelson Mandela
Academic Hospital record pertinently record that on admission,
Endinako’s medical records showed
no Apgar score.
[18]
There was much debate during the evidence about the anomaly presented
by an apparent recordal of an unremarkable Apgar score
one minute
after Endinako’s delivery in circumstances where it is recorded
that he required resuscitation by way of suction
and the
administration of oxygen. Against the background of a recordal
of a drop in the foetal heart rate, indicating foetal
distress, some
hours before the delivery by caesarean section, which culminates
unsurprisingly in the need for resuscitation upon
delivery, the
accuracy of the Apgar score was queried by the plaintiff’s
experts. In my view, the complete absence
of evidence on behalf
of the defendant to throw light on the anomaly leaves room for the
speculation that the Apgar score was inserted
on Endinako’s
assessment form at a much later stage and was indeed fictitious.
That the medical records from the Nelson
Mandela Academic Hospital
record specifically that no Apgar score was apparent from Endinako’s
St Barnabas Hospital records
cannot be overlooked. When this is
seen in the context of the need to attend to the resuscitation of
Endinako upon delivery,
the probabilities are overwhelming that no
Apgar score was measured and recorded one minute and then five
minutes after delivery.
In the absence of any explanation which
would enable reliance to be placed upon the Apgar scores recorded,
and in the absence of
evidence from Dr Kara to explain why the
fundamental bases for his opinion should be maintained, in my view,
his opinion may safely
be disregarded.
[19]
It follows that the issues in this matter fall to be determined upon
the evidence presented on behalf of the plaintiff by her
team of
medical experts.
[20]
In my view, the conclusion that the cystic encephalomalacia manifest
in Endinako was caused by an hypoxic-ischamic injury intrapartum
is
irresistible.
[21]
In determining the legal issue of liability in this matter it is
noteworthy that choosing between their two pleaded alternatives,
the
plaintiff’s counsel have concentrated on a demonstration that
the damage suffered by the plaintiff, in both her capacities,
has
been caused by the negligence of the defendant’s employees.
If established by the evidence, the failure of a professional
person
to adhere to the general level of skill and diligence possessed and
exercised at the same time by the members of the branch
of the
profession to which he or she belongs would normally constitute
negligence
[1]
.
[22]
The issue of negligence involves a twofold enquiry. The first
is, was the harm reasonably foreseeable. The second
is, would
the
diligens
paterfamilias
take
reasonable steps to guard against such occurrence and did the
defendant’s employees fail to take those steps
[2]
.
[23]
The trial procedure in medical negligence cases is essentially the
same as in other cases
[3]
.
[24]
Any explanation as may be advanced by a defendant forms part of the
evidential material to be considered in deciding whether
a plaintiff
has proved the allegation that the damage was caused by the
negligence of the defendant or its employees acting within
the course
and scope of their employment.
[4]
[25]
In failing to adduce evidence to show that reasonable care had been
exercised by his employees in monitoring the plaintiff
‘s
labour and in making decisions in respect thereof, the
defendant took the risk of a judgment being given against
him.
The task of the court is to decide whether on all of the evidence and
the probabilities and the inferences the plaintiff
has discharged the
onus
of
proof resting upon her on a preponderance of probability.
[5]
[26]
In addressing the standard of care received by the plaintiff upon
presentation at St Barnabas Hospital from her perspective
as a
professor of nursing, Professor Nolte opined that the midwives who
cared for the plaintiff during her labour were negligent
in that they
did not do and record maternal observations two hourly and foetal
observations half hourly during labour, they did
not diagnose foetal
compromise when the foetal heart rate dropped to one hundred beats
per minute, they did not record and call
a doctor when there was
foetal compromise and they did not record and call a doctor when
there was a prolonged second stage of
labour after the plaintiff was
fully dilated.
[27]
From his perspective as a specialist obstetrician and gynaecologist,
Dr Ebrahim was equally critical of the standard of care
applied by
the midwives who attended to the plaintiff during labour. In
his opinion the frequency of the foetal heart rate
monitoring was
well below the recommendations for a normal labour. Not only
did the nurses not use the correct technique,
but they were
apparently unconcerned by the critically slow foetal heart rate at
17h00. The plaintiff’s labour
was not recognised as
a slow and dysfunctional labour, when it ought to have been.
The exposure of the foetus to strong contractions
during what was an
abnormally prolonged labour would have caused higher than normal
intrauterine pressure and greater foetal head
compression, leading to
an exponential rise in foetal hypoxia. The appearance of a
foetal bradycardia, a drop in the foetal
heart rate, at 17h00 should
have been recognised as a grave sign of possible foetal compromise
warranting urgent investigation
and management. At that point,
immediate intrapartum resuscitation ought to have commenced by
placing the plaintiff on her
side, administering oxygen to the
plaintiff by mask, administering a rapid intravenous infusion and
medicating to suppress or reduce
uterine contractility. At the
same time a doctor should have been called urgently.
[28]
Observing the same dynamics from his perspective as a neonatologist,
Professor Smith regarded the failure to perform intrapartum
resuscitation and the failure to expedite delivery by way of a
timeous caesarean section as negligent.
[29]
It was the unanimous opinion of all the experts who gave evidence on
behalf of the plaintiff that the consequences of the poor
standard of
care rendered to the plaintiff by the defendant’s employees at
St Barnabas Hospital was an hypoxic-eschemic brain
injury sustained
by Endinako intrapartum, that such a consequence was foreseeable by
trained nursing staff who were accordingly
negligent in their failure
to monitor the plaintiff’s labour and to take available
decisions of a responsible and professional
nature in the face of the
distinct prospect of foetal distress in order to minimise that
distress and avoid the inevitable outcome.
[30]
In argument, Mr Pienaar submitted on behalf of the defendant that the
plaintiff had failed to establish factual causation on
a balance of
probabilities.
[31]
An assessment of causation involves a consideration of two questions,
namely:
(a)
whether any factual link exists between the defendant’s conduct
and the harm sustained by the plaintiff, and
(b)
whether the defendant should be held legally responsible for the
consequences of his conduct
[6]
.
The distinction between the two questions can be explained as
follows:
[7]
“
The
first is a factual one and relates to the question as to whether the
negligent act or omission in question caused or materially
contributed to… the harm giving rise to the claim. If it
did not, then no legal liability can arise and
cadit
quaestio.
If it did, then the second
problem becomes relevant, viz. whether the negligent act or omission
is linked to the harm sufficiently
closely or directly for legal
liability to ensue or whether, as it said, the harm is too remote.”
[32]
In the present matter, the conduct on the part of the defendant’s
employees under scrutiny consists of a number of closely
linked
omissions (i.e. a failure to identify the plaintiff’s labour as
unduly prolonged and dysfunctional, a failure to detect
foetal
distress timeously, a failure to implement intrapartum resuscitation,
a failure to summon a doctor timeously and a failure
to perform a
caesarean section timeously). In such circumstances, the
determination of factual causation involves a retrospective
analysis
of what would probably have happened if the defendant’s
employees had acted positively and not negligently.
This
requires one to substitute the omission of the defendant’s
employees with a lawful positive act. If the hypothetical
positive conduct of the defendant’s employees would probably
have prevented the particular consequences from occurring then
the
omission was a necessary condition and therefore a cause of the
consequences. Conversely, if the consequence would probably
still
have occurred, the omission was not a necessary condition and cause
of the consequence.
[8]
[33]
Mr Pienaar’s submission is founded on two bases. The
first is an answer by Dr Ebrahim under cross-examination.
Having stated in his evidence that he would have expected that the
decision to do a caesarean section should have been made at
17h00 and
the baby born at about 18h30, he was asked whether such action would
have meant that cerebral palsy would have been avoided.
Dr
Ebrahim’s answer was “it’s very difficult to say”.
He explained under re-examination that as an
obstetrician he was
unable to answer the question and that he was unsure whether a
paediatrician would be able to answer that question
“because
this is something that is impossible to test for…”.
In my view, nothing turns on this as he is
not a paediatrician.
[34]
The second basis for Mr Pienaar’s submission is found in the
evidence of Dr Van Toorn, the plaintiff’s paediatrician.
He had been asked to express an opinion on the extent of the causal
effect of the suboptimal
neonatal management
on
the spastic cerebral palsy and the final manifestation thereof in
Endinako. In his reply, he stressed that this would
be
difficult as there were no studies which looked at
both insults
.
He stated that there was a significant insult during the labour
itself and opined that this gave rise to a moderate encephalopathy.
There was evidence obtained from the medical records of Nelson
Mandela Academic Hospital to suggest that neonatal mismanagement
of
Endinako’s care at St Barnabas Hospital had created the climate
for a second hypoxic-ischemic insult, leading to the development
of a
severe encephalopathy. He confirmed that it was difficult to
attribute degrees of causal effect to the two hypoxic-ischemic
insults. (Emphasis added).
[35]
In my view, it is clear that Dr Van Toorn was not stating that he was
unable to attribute any causal effect to the hypoxic-ischemic
insult
sustained by the foetus intrapartum. The difficulty lay in
answering the question posed in the face of the clear evidence
of
suboptimal neonatal care and the clear indications that this had
resulted in a second hypoxic-ischemic insult. He was
unable to
indicate the degree to which that second insult had a causal effect
upon the condition of Endinako. Accordingly, I do
not agree with the
submission by Mr Pienaar that Dr Van Toor’s evidence concludes
that it is impossible to attribute any
causal effect on Endinako’s
condition to the hypoxic- ischemic insult suffered by him
intrapartum.
[36]
Moreover, the criticism ignores the other expert evidence tendered on
behalf of the plaintiff which links the hypoxic-ischemic
insult
suffered intrapartum as the cause of the cystic encephalomalacia
diagnosed on the MRI scan to the exclusion of all other
possible
causes. The correctness of this diagnosis was agreed with by
the defendant’s own expert paediatrician, Dr
Kara, in the joint
minute prepared by him and Dr Van Toorn. Therein he also agreed
that the most common cause of this condition
is an hypoxic-ischemic
insult. The only point of departure between him and Dr Van
Toorn was contained in the proposal that
the condition may have been
caused by an infection. The impossibility of this theory being
accurate in the present matter
is demonstrated by the hospital
records emanating from Nelson Mandela Academic Hospital.
[37]
In the circumstances, I am of the view that were one notionally to
substitute positive action on the part of the defendant’s
employees at the critical times identified by the plaintiff’s
experts for the omissions demonstrated clearly in the evidence,
the
intrapartum hypoxic-ischemic insult would probably have been
prevented and the cystic encephalomalacia would probably
not have
occurred. In the circumstances the question of factual
causation is to be answered in favour of the plaintiff.
[38]
The next question is that of a legal causation. The enquiry is
whether the omissions of the defendant’s employees
are linked
sufficiently closely or directly to the intrapartum hypoxic-ischemic
insult and the onset of cystic encephalomalacia,
or whether that
outcome is too remote. The test for legal causation is said to
be flexible one. Factors such as foreseeability,
directness,
the absence or presence of a
novus
actus interveniens,
legal
policy, reasonability, fairness and justice will play a part
[9]
.
It follows that this exercise must be conducted against the
background of the evidence under scrutiny. In my view,
the
evidence given by the plaintiff’s medical experts establishes
overwhelming that the omissions of the defendant’s
employees
are linked directly to the intrapartum hypoxic-ischemic insult and
the resultant cystic encephalomalacia. To the
extent that the
other factors in the test are to be considered, they too indicate
that legal causation in this matter has been
established.
[39]
As indicated earlier in this judgment, clear evidence
emerged of suboptimal neonatal care extended to Endinako
at St
Barnabas Hospital during the first few days of his life, leading to
his admission to Nelson Mandela Academic Hospital and
the diagnosis
that he had suffered a second hypoxic-ischemic insult neonatally.
After the closure of the defendant’s
case, Mr Kincaid moved for
an amendment to the plaintiff’s particulars of claim clarifying
that she sued in a dual capacity.
The same notice of intention
to amend contained a paragraph which had as its aim the amplification
of the scope of this action
to include complaint about the neonatal
care of Endinako and to seek redress in respect thereof. The
defendant had objected
to the proposed amendment which targeted the
suboptimal neonatal care and in those circumstances Mr Kincaid
indicated that he would
not seek the second element of the
amendment. In my view, in the circumstances no regard can be
had to the evidence relating
to the neonatal care and the diagnosis
of a second hypoxic-ischemic insult having been suffered neonatally.
As Endinako remains
of tender years, it is still open to the
plaintiff to consider the pursuit of any remedies which she may be
advised would address
her complaints about the suboptimal neonatal
care.
[40]
It follows that I am of the view that the plaintiff has succeeded in
discharging the
onus
of establishing causal negligence on the
part of the defendant’s employees who monitored her labour and
saw to the delivery
of Endinako at St Barnabas Hospital. She is
entitled to such damages as may be proven or agreed between the
parties in due
course.
[41]
In dealing with the issue of costs, Mr Kincaid seeks the payment of
the plaintiff’s costs on the scale as between attorney
and own
client. This request is premised upon the observation that the
unacceptably late production of the records from the
Nelson Mandela
Academic Hospital exposed the lack of merit in the opinion expressed
by the defendant’s expert, Dr Kara, and
demonstrating
unequivocally that the defendant had no defence to the claim.
[42]
In meeting the argument on behalf of the defendant, Mr Pienaar relied
upon the content of the plea, his opening address, his
cross-examination of the plaintiff’s experts and his closing
argument as demonstrative of the fact that the defendant has
consistently defended the claim by challenging causation, as was the
defendant’s entitlement.
[43]
In my view, whilst Mr Pienaar may be correct in his identification of
a consistency in the defendant’s approach, and
whilst it is
undoubtedly within a defendant’s rights to defend a matter on
the basis of a challenge to establish causation
where this is
appropriate, a closer scrutiny of the defendant’s approach in
this matter suggests strongly that the litigation
was unnecessary.
[44]
The defendant’s plea, opening address and cross-examination
were all based upon an assertion of Dr Kara’s opinion
that the
cystic encephalomalacia may well have been caused by an infection
rather than an hypoxic-intrapartum ischemic insult.
Once this
theory was displaced by the content of the Nelson Mandela Academic
Hospital records, the foundation of the defendant’s
defence
disappeared. I have little doubt that it is for this reason
that the defendant’s case was closed without evidence
being
led. It is reasonable to assume that had Dr Kara seen the
records from the Nelson Mandela Academic Hospital before
compiling
his expert report, his opinion would have been different. Given
the content of the joint minute produced by him
with Dr Van Toorn,
where the only point of departure between them on the cause of the
cystic encephalomalacia is the possibility
of an infection, it is
reasonable to assume that he and Dr Van Toorn would have been
ad
idem ab initio
had all
the medical records been made available timeously. In this
event, there
would not have been the basis from which to challenge
causation espoused by the defendant. In the circumstances, one can
only conclude
that the expensive litigation would have been avoided.
[45]
It follows that the defendant falls to be criticised for the manner
in which the defendant’s case was prepared.
The criticism
must extend to the conduct of the defendant’s case. Once
the unacceptably late production of the key
medical records on the
first day of trial demonstrated that there was no sustainable basis
to the defendant’s defence, a
swift re-evaluation of the
defendant’s position ought to have occurred. That it did not
led to a situation where valuable
time was expended unnecessarily by
expert witnesses at a cost to the plaintiff which there is little
doubt is unaffordable for
her, leading evidence which is challenged
only on the basis of a defunct expert opinion, culminating in the
closure of the defendant’s
case without any evidence being led
to contradict the plaintiff’s evidence. In my view, such a
situation calls for the censure
of the court, which is appropriately
expressed in a punitive costs order which ensures that the plaintiff
will not be out of pocket
unnecessarily.
[46]
In the result, the following order is made:
“
1.
The defendant is directed to make payment to the plaintiff of such
damages as may be proven by the plaintiff on trial or as may
be
agreed upon between the parties as having been suffered by the
plaintiff in both her personal capacity and her representative
capacity as mother and natural guardian of the minor child Endinako
Sifumba arising out of the intrapartum hypoxic-ischemic insult
suffered by Endinako Sifumba;
2.
The defendant is further directed to pay the plaintiff’s costs
of suit on the scale as between attorney and own client,
such costs
to include:
(a)
any reserved costs;
(b)
the costs attendant upon the employment of two counsel where such
counsel were employed;
(c)
the travelling and accommodation expenses of the plaintiff’s
legal representatives incurred in the consultation with witnesses
and
in attending court;
(d)
the travelling expenses, reservation and appearance fees, if any,
together with the costs of the preparation of their reports
and
qualifying fees, if any, of the following expert witnesses:
(i)
Dr Van Toorn;
(ii)
Dr Ebrahim;
(iii)
Professor Smith;
(iv)
Professor Nolte;
(v)
Professor Andronikou; and
(vi)
Professor Coetzee.
3.
The defendant is directed to pay interest on the aforesaid costs,
such interest to be calculated at the prescribed rate of interest
from a date fourteen (14) days after date of allocatur, or after date
of agreement, to date of payment.
RWN
BROOKS
JUDGE
OF THE HIGH COURT (ACTING)
APPEARANCES:
For
the plaintiff: ADV JC KINCAID and ADV L SAMBUDLA
Instructed
by: DAYIMANI SAKHELA INC, MTHATHA
For
the Defendant: ADV BJ PEINAAR SC and ADV V KUNJU
Instructed
by: STATE ATTORNEY, MTHATHA
[1]
VAN
WYK V LEWIS
1924 AD 438
AT 444; CECILIA GOLIATH V MEMBER OF THE
EXECUTIVE FOR HEALTH, EASTERN CAPE
2015 (2) SA 97
(SCA) PARA [8].
[2]
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V COETZEE 1966 (2) SA 428 (A).
[3]
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GOLIATH V MEMBER OF THE EXECUTIVE COUNCIL FOR HEALTH, EASTERN CAPE
2015 (2) SA 97
(SCA) PARA [13].
[4]
OSBORNE
PANAMA SA V SHELL & BP SOUTH AFRICAN PETROLEUM REFINERIES (PTY)
LTD
1982 (4) SA 890
(A) AT 897 G-H; NOTE 3 (SUPRA) PARA [17].
[5]
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3 (SUPRA) para [19]
[6]
HLOMZA
V MINISTER OF SAFETY AND SECURITY
2013 (1) SACR 591
(ECM) PARA [35].
[7]
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OF POLICE V SKOSANA 1977 (1) SA31 (A) at 34F-G.
[8]
NOTE
6 (supra) [37]
[9]
9
NOTE 6 (SUPRA) para [43]