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[2015] ZAECMHC 71
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Mkhitha v Road Accident Fund and Another (1783/2012) [2015] ZAECMHC 71 (1 October 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION: MTHATHA)
CASE
NO. 1783/2012
In
the matter between:
ONGEZWA
MKHITHA
PLAINTIFF
VS
ROAD
ACCIDENT
FUND
1
ST
DEFENDANT
MEC
FOR HEALTH, EASTERN CAPE
2
ND
DEFENDANT
JUDGMENT
DAWOOD,
J:
1.
The
Second Defendant raised a Special Plea effectively stating that in
terms of Section 17 of the Road Accident Fund Act 50 of 1996
(hereinafter referred to as the Act) the Plaintiff was obliged to sue
the First Defendant exclusively since her claim was caused
by or
arose from the negligent driving of the insured vehicle. In other
words the Second Defendant alleged that the Plaintiff was
precluded
from suing the Second Defendant because her right of recourse was
exclusively against the Fund by virtue of the provisions
of Section
17 of the Act.
2.
In
order for the Special Plea to succeed in this case the court has to
effectively find that the Plaintiff would be able to successfully
sue
the First Defendant in circumstances where:
a)
There
is, for the purposes of this application at least, uncontroverted
testimoney to the effect that the treatments received was
substandard
and resulted in the present
sequelae;
and
b)
On
the available evidence the
sequelae
of
the injuries as sustained in the collision would, if reasonable care
was exercised by the doctor, have been very different.
3.
Section
19 (a) of the Act places the Road Accident Fund in the shoes of the
driver and excludes liability in circumstances where
the driver or
owner would not have been liable.
4.
I
accept the argument advanced by the Plaintiff’s counsel that
Section 17 has to be read in conjunction with Section 19 and
cannot
be read in isolation.
5.
The
Plaintiff would accordingly have to establish all the elements of
delictual liability in order to be successful in her claim
for
damages against the Fund and she would have to establish that such
damages flow from the collision.
6.
This
court has to examine whether or not the Plaintiff would succeed
against the First Defendant in respect of the present
sequelae
in order to determine the Special Plea.
7.
In
the event that the Plaintiff was not able to successfully sue the
First Defendant for the damages from the present
sequelae
then
by allowing the Second Defendant’s Special Plea, this court
would effectively be non-suiting the Plaintiff and denying
her right
of recourse against a wrongdoer.
8.
This
clearly would amount an infringement of her rights both
constitutionally and under the common law.
9.
The
Fund in this case has conceded liability in respect of the collision.
10.
It
is common cause that:-
a)
There
was a collision;
b)
That
the insured driver was negligent in causing the collision;
c)
That
the Plaintiff sustained injuries in the collision that necessitated
medical intervention.
d)
That
the Fund would be liable for damages flowing from the collision.
11.
It
is accepted from the uncontroverted testimoney of the Plaintiff’s
expert that the present
sequelae
would not have resulted from the injuries sustained if the Plaintiff
was properly treated and that the
sequelae
of the injuries arose from what he termed sub-standard medical
intervention by the relevant orthopaedic surgeon who treated the
Plaintiff.
12.
a)
A
reasonable driver and the Fund would expect that a person injured in
a collision would receive reasonable medical care and proper
medical
attention and accordingly negligent or sub-standard care would not be
reasonably foreseeable and would be too remote to
hold the Fund
liable to compensate the Plaintiff for damages that flow from the
sequelae of negligent treatment which is vastly
different from that
which would have ordinarily occurred had the Plaintiff received
proper attention.
b)
In
Mitchell
vs. Dixon
[1]
, Innes CJ:
“
A
medical practitioner is not expected to bring to bear upon the case
entrusted to him the highest possible degree of professional
skill
and care, he is bound to employ reasonable skill and care; and he is
liable for the consequences if he does not”.
c)
The
Plaintiff accordingly has a common law right of recourse against the
Second Defendant in circumstances where a reasonable degree
of skill
and care has not been exercised by the doctor in its employ.
13.
In
looking at the aspect of causation the Plaintiff would not have
sustained the injuries but for the collision, which was accordingly
the factual cause of the Plaintiff’s injuries however if
properly treated the
sequelae
thereof would have been very different from the present
sequelea
.
Accordingly the Plaintiff would not have suffered the present
sequelae
as a result of the collision although the injuries sustained in the
collision most certainly resulted in the necessity for medical
intervention.
14.
The
Plaintiff would accordingly experience difficulty in establishing
legal causation on the part of the fund for the present
sequelae
of
the injuries, in light of the fact that these arose from the
subsequent intervening substandard medical intervention.
15.
A
brief examination of the authorities illustrates what is necessary in
establishing legal causation.
i)
In
Groenewald
v Groenewald
[2]
,
Streicher JA referred to Corbett CJ’s dictum with regard to
causation as follows:
“
In
International Shipping Co (Pty) Ltd v Bentley1990 (1) SA 680 (A) at
700E--I Corbett CJ formulated them as follows:
'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
as 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''.'
There can be no
doubt that the factual cause of the alleged result were the
intentional threats to, assault of, and confinement
of the plaintiff
by the defendant. Had it not been for those acts of the defendant
there would have been no reason for the plaintiff
to escape by
climbing through the window and attempting to reach the ground from
the ledge outside the building.
The test to
determine legal causation
'is
a flexible one in which factors such as reasonable foreseeability,
directness, the absence or presence of a novus actus interveniens,
legal policy, reasonability, fairness and justice all play their
part'.
ii)
In
LEE
v MINISTER FOR CORRECTIONAL SERVICES
[3]
,
the Court held that :
“
The
point of departure is to have clarity on what causation is. This
element of liability gives rise to two distinct enquiries.
The first
is a factual enquiry into whether the negligent act or omission
caused the harm giving rise to the claim. If it did not,
then that is
the end of the matter. If it did, the second enquiry, a juridical
problem, arises. The question is then whether
the negligent act
or omission is linked
to
the harm sufficiently closely or directly for legal liability to
ensue or whether the harm is too remote.
This is termed legal causation. This element of liability is complex
and is surrounded by much controversy. There can
be no
liability if it is not proved, on a balance of probabilities, that
the conduct of the defendant caused the harm.
This
is so because the net of liability will be cast too wide.
A means of limiting liability, in cases where factual causation has
been established, must therefore be applied. Whether an act
can be
identified as a cause depends on a conclusion drawn from
available facts or evidence and relevant probabilities.
Factual
causation , unlike legal causation where the question of the
remoteness of the consequences is considered, is not in itself
a
policy matter but rather a question of fact which constitutes issues
connected with decisions on constitutional matters as contemplated
by
s 167(3)(b) of the Constitution.” (my emphasis)
iii)
In
Ntombenkosi
Hlomza v The Minister of Safety and Security
[4]
the
Court held at paragraph 11 that:
“
When
dealing with causation in the law of delict it is necessary to deal
with two distinct problems. The first aspect is the question
of
factual causation 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.
The
second aspect is whether or not the omission is linked to the harm
sufficiently closely or directly for legal liability to ensue
or
whether the harm is too remote
.
In the Skosana case, Corbett JA referred with approval to Professor
Fleming, "The Law of Torts", fourth edition, p.169,
in this
regard as follows:
"The
first involves what may broadly be called the 'factual' question
whether the relationship between the defendant's breach
of duty and
the plaintiff's injury is one of cause and effect in accordance with
'scientific' or 'objective' notions of physical
sequence. If such a
causal relation does not exist, that puts an end to the plaintiff's
case, because no policy can be strong enough
to warrant the
imposition of liability for loss to which the defendant's conduct has
not in fact contributed.
The second
problem involves the question whether, or to what extent, the
defendant should have to answer for the consequences which
his
conduct has actually helped to produce.
There must be a reasonable
connection between the harm threatened and the harm done
. As a
matter of practical politics, some limitation must be placed upon
legal responsibility, because the
consequences of an act
theoretically stretch into infinity
. The task is to
select
those factors which are of sufficient significance to justify the
imposition of liability
and
to draw a boundary along the line
of consequences beyond which the injured party must either shoulder
the loss himself or seek reparation
from another source
."”
16.
In
this case the substandard medical intervention that resulted in the
present
sequelae
appears to constitute a
novus
actus interveniens
if one has regard to the authorities:
i)
Neethling
[5]
provides
that a
novus
actus interveniens
(new
intervening cause) is an independent event which, after the
wrongdoer’s act has been concluded, either
caused
or contributed to the consequence concerned
….where
a
novus
actus interveniens
completely extinguishes the causal connection between the conduct of
the wrongdoer and the consequence, with the result that the
wrongdoer’s act can longer be considered to be a factual cause
of the consequence, the actor obviously goes free.
ii)
It
is trite law that a
novus
actus interveniens
severs the chain of causation between the initial wrongful act and
the consequences of the intervening cause
[6]
.
iii)
Subsequent
negligent medical treatment is a prime example of such an intervening
cause
[7]
.
iv)
As
correctly pointed by Milton
[8]
“…
in
modern times medical proficiency is normal and … negligent,
improper procedures are abnormal…”.
v)
The
court in
Fourie
N.O. v Hansen and Another
[9]
referred with approval to the description of a novus actus
interveniens currently set out in
The
Law of South Africa
[10]
where the court held:
“
The
law relating to subsequent independent causes excusing a defendant
from liability from his initial negligent act has been succinctly
summed up by the authors of Joubert (ed) “The Law of South
Africa”… where it is stated:
‘
An
intervening cause is an independent, unconnected and extraneous
factor or event which is not foreseeable, and which actively
contributes to the occurrence of harm after the defendant’s
original conduct has occurred. Such an independent force can
take the
form of an intervening natural phenomenon, conduct by a third party,
or even the plaintiff’s own conduct …
A
novus actus has the effect of completely neutralising the causative
potency of the defendant’s original conduct, for it
indicates
that, even though the causative link remains factually intact, the
link between the conduct and the harm is too tenuous.’”
(my emphasis)
vi)
The
approach is stated as follows in Road Accident Fund v Russell
[11]
:
“
The
trial court found that the suicide was not a novus actus
interveniens but was causally connected to the negligence of
the
insured driver. It appears from a proper appraisal of the evidence
that no factors extraneous to the injuries caused by the
accident led
to the suicide. Such inducing factors as there might have been …
were all direct consequences of his injuries.”
vii)
The
nature and effect of a
novus
actus interveniens
is illustrated by the facts of
Mafesa
v Parity Versekeringsmaatskappy Bpk (in Likwidasie
)
[12]
where the Plaintiff sustained a leg fracture in a collision caused by
the negligence of the driver of a vehicle insured by the
Defendant.
No contributory negligence on the part of the Plaintiff was proved.
After the leg had set clinically, the plaintiff
was discharged from
hospital. Because his leg was still in splints he had been given
crutches. The Plaintiff negligently walked
on a smooth floor, fell
and had to undergo a second operation. The court
decided
that the Plaintiff’s negligent conduct was an intervening cause
which broke the causal effect of the driver’s
original
negligent conduct. The Defendant was therefore not liable for the
damage flowing from the Plaintiff’s second operation.
viii)
In
Alston
& Another v Marine & Trade Ins Co. Ltd
[13]
the Plaintiffs, a husband and wife, were injured in a motor vehicle
collision. The husband suffered from manic depression, due
to a brain
injury sustained in the collision, and was treated with a drug called
parstellin which has harmful side-effects when
taken together with
certain foodstuffs, particularly cheese. The husband had consumed
cheese and suffered a stroke due to the negative
effects of the
combination of parstellin and cheese. The court held that
the
stroke was due to a
novus
actus interveniens
or superceding cause and that the statutory insurer was not liable to
compensate the husband for the consequences of the stroke
.
ix)
In
Ramosunya
v S
[14]
,
an
Appeal against conviction and sentence on charge of murder. It was
common cause that Appellant had stabbed the deceased four
times.
However, he denied that it was the stab wounds, which led to the
death of the deceased. The deceased died in hospital after
six days
of treatment. The cause of death was certified as being sepsis in the
lungs. Held; that the question was not whether the
sepsis could have
been caused by the stab-wounds, but whether the stab wounds could
have led to the sepsis which in turn led to
the death of the
deceased. Appellant
relied
on the defence of
novus
actus interveniens
in the form of medical negligence
.
He argued therefore, that no nexus existed between the injuries
inflicted by him, and the death of the deceased. In other words,
the
causal chain was said to have been broken. The Court found that there
was a reasonable possibility that this may be true. No
evidence
existed to prove beyond reasonable doubt that the appellant had
definitely caused the death. The appeal against conviction
on this
count was upheld.
17.
Having
regard to the authorities cited above and applying them to the facts
of this case the conduct of the doctor, for present
purposes of
determining the Special Plea and on the evidence presented for such
purposes, appears to be a
novus
actus interveniens
that would negate legal causation as against the Road Accident Fund
and exclude the Fund from being liable for the consequences
of the
sequelae
that were caused by the substandard treatment of the Plaintiff.
18.
The
Plaintiff accordingly would not be able to successfully prove its
case against the Fund for the
sequelae
that arose, on the present available uncontroverted negligent or
substandard treatment received at the hospital. This treatment
in the
present context constitutes a
novus
actus
interveniens
and the original wrongdoer cannot be liable even though the initial
injury was caused by or arose out of the collision. The present
sequelae
thereof
is too remote to be causally connected to the original injury. The
present
sequelae
caused by a negligent medical intervention, was not reasonably
foreseeable by the driver or the Fund and the Fund accordingly cannot
be held liable for the unforeseen consequences arising out of
substandard medical intervention and treatment.
19.
Section
17 does not provide a blanket entitlement to claimants involved in
collisions to claim damages for all the consequences
and
sequelae
of injuries sustained in a collision irrespective of how remote. The
authorities referred to make it abundantly clear that the
Plaintiff
has to establish a causal connection for the Fund to be liable and
that a
novus
actus interveniens
precludes the claimant from claiming against the Fund. Section 17
does not change the common law position in this regard nor does
it
vitiate the First Defendant’s defences of
novus
actus interveniens
.
20.
Section
17 of the Act also does not expressly or implicitly restrict the
Plaintiff’s right of recourse to parties unconnected
with the
collision. The Act merely precludes the Plaintiff from suing the
driver or owner because the Fund is put in the shoes
of the
driver/owner and the Plaintiff would need to satisfy all the elements
of a delictual claim.
21.
The
Act was not intended to hold the Fund liable for all consequences of
the collision irrespective of how remote nor can Section
17 be
interpreted to that effect.
22.
The
court would effectively be restricting the plaintiff’s claim
for damages to what would have been the normal
sequelae
arising from the collision in the event of a finding being made that
the Plaintiff only has a claim against the fund in terms of
Section
17 and cannot sue the Second Defendant.
23.
The
Second Defendant has not convinced this court that Section 17 of the
Act precludes the Plaintiff from suing the Second Defendant
or
restricts the Plaintiff to only suing the Plaintiff.
24.
The
Act was not intended to be a No fault Act but merely to put the fund
in the shoes of the driver/owner.
25.
Section
17 was not intended, nor was the Act intended to, nor does the Act
preclude the Plaintiff from suing a joint wrongdoer unconnected
with
the driving of the motor vehicle.
26.
The
Act was not intended to restrict the Plaintiff’s constitutional
and common law right of recourse against other wrongdoers
unconnected
with the driving of a vehicle nor to deny the Fund of legitimate
defences nor to eliminate the necessity for the Plaintiff
to prove
its entitlement to the damages that it claims.
27.
Section
17 of the Act also cannot be read to do away with the elements of
legal causation and
novus
actus interveniens
or to preclude the Plaintiff from exercising her common law and
constitutional right and has to be read in conjunction with the
rest
of the Act and particularly Section 19 and simply hold the Fund
liable for all consequences.
28.
I
have had due regard to all the arguments presented by the parties and
find that that there is no merit in the Special Plea raised
by the
Second Defendant which falls to be dismissed with costs.
29.
I
accordingly make the following order:
i)
The
Second Defendant’s Special is dismissed.
ii)
The
Second Defendant is directed to pay the costs inclusive of costs of
the two counsels in respect of the Plaintiff in respect
of the
Special Plea.
iii)
The
Second Defendant is directed to pay the First Defendant’s costs
in respect of the Special Plea.
_______________
FBA
DAWOOD
JUDGE
OF THE HIGH COURT
DATE
HEARD:
23 MARCH 2015
JUDGMENT
DELIVERED:
01 OCTOBER 2015
FOR
THE PLAINTIFF:
ADV D. POTGIETER S.C
WITH
ADV G. POTGIERER
INSTRUCTED
BY:
DAYIMANI SAKHELA INC.
7
CRAISTER STREET
MTHATHA
FOR
THE DEFENDANTS:
MR SAMBUDLA – FIRST DEFENDANT
ADV
NOTSHE S.C WITH
ADV
KUNJU - SECOND DEFENDANT
INSTRUCTED
BY:
POTELWA AND CO
1
ST
DEFENDANTS ATTORNEYS
43
WESLEY STREET
MTHATHA
INSTRUCTED
BY:
STATE ATTORNEY
2
ND
DEFENDANTS ATTORNEYS
BROADCAST
HOUSE
94
SISSION STREET
MTHATHA
[1]
1914 AD 519
at 525
[2]
1998 (2) SA 1106
SCA at 1113
[3]
2013 (2) SA 144
(CC) at paragraphs 38 and 39
[4]
2011 JDR 0030 (ECM)
[5]
Law of delict 6th edition page 206
[6]
(cf. Premier, Western Cape and Ano v Loots NO
[2011] ZASCA 32)
[7]
(Neethling Potgieter and Visser Law of Delict
(ibid) p. 207 footnote 233)
[8]
South African Criminal Law and Procedure Vol II
(ed) p.345
[9]
2001 (2) SA 823
(W) at 742 E-G
[10]
Vol. 8 Part 1 (2ed para 135)
[11]
2001 (2) SA 34
(SCA) para [16]
[12]
1968 (2) SA 603 (O)
[13]
1964 (4) SA 112 (W)
[14]
[2000] JOL 6559
(T)