Truter and Another v Deysel (043/05) [2006] ZASCA 16; 2006 (4) SA 168 (SCA) (17 March 2006)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2006
>>
[2006] ZASCA 16
|

|

Truter and Another v Deysel (043/05) [2006] ZASCA 16; 2006 (4) SA 168 (SCA) (17 March 2006)

Links to summary

T
HE
SUPREME COURT OF APPEAL
OF SOUTH AFRICA
CASE NO: 043/2005
Reportable
In the
matter between
DR RENE TRUTER
First Appellant
DR JAN A VENTER
Second Appellant
and
marthinus
albertus deysel
Respondent
Coram
:
Harms,
Zulman, Navsa, Mthiyane et Van Heerden JJA
Heard: 24 February 2006
Delivered: 17 March 2006
Summary:
Prescription Act 68 of 1969
-
s 12(3)
- commencement of
running of prescription in respect of claim for damages for medical
negligence – meaning of ‘
knowledge of …the facts from
which the debt arises’
for purposes of
s 12(3)
in the context
of such a claim
Neutral citation: This judgment may be referred to as
Truter v
Deysel
[2006] SCA 17 (RSA)
JUDGMENT
VAN HEERDEN JA:
In April 2000, the respondent,
Mr Marthinus Albertus Deysel instituted action in the Cape High
Court against the appellants, Dr
Rene Truter and Dr Jan Venter for
damages arising from a personal injury allegedly sustained by him as
a result of a series of
medical and surgical procedures performed on
him by Drs Truter and Venter in the period July 1993 to September
1993. Drs Truter
and Venter raised a special plea of prescription
which was, in terms of Uniform
rule 33(4)
, set down for separate
adjudication. The High Court (Mlonzi AJ) dismissed the special plea
with costs on 2 November 2004. The present
appeal against this order
is with the leave the High Court.
The sole issue before the trial
court, and indeed also before this court, concerns the time at which
prescription started to run
in respect of Deysel’s claim for
damages against Drs Truter and Venter. In terms of s  11(d) of
the Prescription Act 68
of 1969 (‘the Act’), this claim is
subject to a three-year extinctive prescription period. According to
the special plea, Deysel’s
summons was served on Drs Truter and
Venter on 17 April 2000. Thus, if the date on which the three-year
prescription period commenced
running was before 17 April 1997, then
any claim which Deysel may have had would have become prescribed and
the special plea should
have been upheld.
For purposes of the adjudication
of the special plea, the facts averred in Deysel’s particulars of
claim, as amplified by his
trial particulars, were taken to be
admitted. The six operations which gave rise to Deysel’s claim
were the following:
Date
operation
performed
by
5 July
1993
Extra-capsular
cataract extraction and posterior lens implantation
Dr Truter
15 July
1993
Emergency
irridectomy to correct iris prolapse
Dr Truter
5 August
1993
Irrigation
of residual lens material
Dr Truter
25 August
1993
Posterior
laser capsulotomy
Dr Truter
7
September 1993
Anterior
vitrectomy and Removal of lens material
Dr Venter
±
21 September 1993
Insertion
of new intra-ocular lens
Dr Venter
It was also alleged and, for the
purposes of the special plea only, was common cause, that the
foreseeable and actual consequence
of these procedures performed by
Drs Truter and Venter were decompensation of the cornea of Deysel’s
right eye, necessitating
a corneal graft operation which was
performed by a Dr Burger on 12 December 1996. This, in turn,
developed complications involving
the onset of infection of a
corneal stitch and ultimately led to an evisceration of Deysel’s
right eye on 23 April 1997. As Deysel
had, at the time of the
operations in 1993, already lost his left eye, he was thus rendered
totally blind.
It should be noted that, in his
trial particulars, Deysel made the following allegations (which were
admitted for the purposes of
the special plea):
‘
Throughout
all the surgical procedures, the Defendants [Drs Truter and Venter]
could and should have known that repeated surgery
irreparably
damages the endolethial cells lining the cornea, and that it was
reasonably foreseeable that it could and probably
would lead to
bullous kerotopathy. It was further reasonably foreseeable that this
would in turn require a corneal graft and, if
not uncomplicated,
eventual loss of the eye if an infection were to set in.’
As
early as 27 July 1994, Deysel wrote to the Medical and Dental
Council (‘the Council’), lodging a complaint against Dr Truter.
In this letter, he recounted the operations performed upon him by
Drs Truter and Venter, complained of the conduct of Dr Truter
and
asked the Council to investigate the matter ‘as I feel there was
no need for five operations plus all the pain and suffering
and
unnecessary sums of money for one cataract’. He also mentioned
that, according to a Dr Mouton, who had given him an opinion
of the
condition of his eye at the request of a Dr Claassen, under whose
care he had been placed, there was ‘permanent damage
to the eye’.
After
asking for and receiving from Dr Truter her account of how she had
treated Deysel, the Council responded to Deysel in writing
on 20
July 1995, attaching a copy of Dr Truter’s explanation, and
stating that –
‘
After
careful consideration the Committee is of the opinion that there has
not been conduct which can be said to have been improper
or
disgraceful, and resolved that no further action be taken’.
In
1995, Deysel appointed attorneys Malcolm Lyons Munro and Sohn to
investigate and prosecute a malpractice claim against Drs Truter
and
Venter arising from their treatment of him in 1993. These attorneys
obtained professional reports from two experts in the field
of
ophthalmology, namely Professor Murray, the Head of the Department
of Ophthalmology of the University of Cape Town, and Dr Sacks,
an
ophthalmic surgeon. Both these experts were provided with all the
relevant medical records and other documents, including Deysel’s
letter of complaint to the Council; Dr Truter’s report to the
Council; the Council’s response to Deysel; Dr Truter’s and
Dr
Venter’s clinical notes and a medical report dated 9 November 1994
by a Dr Kruger, another ophthalmic surgeon whom Deysel
had consulted
for a second opinion. In addition, Dr Sacks was provided with a
letter dated 16 October 1995 by the abovementioned
Dr Claassen, also
an ophthalmologist, who had treated Deysel’s right eye on various
occasions from late 1993 to July 1995, setting
out the detail of his
findings in respect of Deysel’s right eye. None of these medical
experts concluded that an inference of
negligence on the part of Drs
Truter and Venter was justified. Apart from Drs Kruger and Claassen,
Deysel was referred to yet another
eye specialist, a Dr Mouton, in
June 1994. This doctor ascribed the reduction in Deysel’s visual
acuity to ‘previous chronic
macular oedema’. A fourth expert
consulted by Deysel in February 1996, a Dr Woods, concluded that ‘he
had reduced vision probably
due to changes in the cornea’ and that
‘it appeared from my initial assessments that nothing could be
done to improve his vision’.
After
Deysel’s right eye had been removed by Dr Burger in April 1997, he
made further complaints about Drs Truter and Venter to,
inter alia,
the Council and the MEC for Health in the Western Cape. New
attorneys appointed by him in 1998, D Butlion and Associates,
obtained a further medico-legal report, this time from a Professor
Stulting, the Head of the Department of Ophthalmology of the
University of the Orange Free State, who was provided with the same
documentation previously submitted to the other experts. Professor
Stulting’s very detailed report, dated 7 June 1999, concluded as
follows:
‘
it
is my humble and honest opinion that Mr Deysel will not be able to
prove that the conduct of any of the abovementioned doctors,
namely,
Dr Truter, Prof Venter or Dr Burger, fell short of the standard of
care expected from a medical expert, such as an ophthalmologist,
and
that such negligent conduct caused the loss of Mr Deysel’s right
eye.’
According to evidence given by a
Ms Pienaar, who was at the relevant time employed by firm of
attorneys who ultimately took over
Deysel’s matter, Deysel told
her in late 1999 about a certain Dr Lecuana, an ophthalmologist at
the University of Cape Town,
whom he had heard (and to whom he had
spoken about his problems) on a radio talk show. In early 2000, Ms
Pienaar consulted with
Dr Lecuana, who in turn referred her to a Dr
Steven. Ms Pienaar’s evidence makes it clear that the same set of
facts and documents
which had been presented to the experts
previously consulted were presented to Drs Lecuana and Steven.
However, Dr Steven had expressed
the view that the operations
performed by Dr Truter and Venter had been done too quickly one
after the other, without giving the
cornea time to clear and heal,
and that this constituted negligence on the part of the said
doctors. As Ms Pienaar put it, ‘that
was the first positive expert
report that I could obtain’, and it was on the basis of this
report that summons was issued on
behalf of Deysel in April 2000.
The
relevant section of the Act (s 12) reads as follows:
‘
When
prescription begins to run
Subject
to the provisions of subsections (2) and (3), prescription shall
commence to run as soon as the debt is due.
If
the debtor wilfully prevents the creditor from coming to know of the
existence of the debt, prescription shall not commence to
run until
the creditor becomes aware of the existence of the debt.
A
debt shall not be deemed to be due until the creditor has knowledge
of the identity of the debtor and of
the facts from which the
debt arises
: Provided that a creditor shall be deemed to have
such knowledge if he could have acquired it by exercising reasonable
care.’
(Emphasis
added.)
There
is no suggestion that Drs Truter and Venter prevented Deysel ‘from
coming to know of the existence of the debt’ (s 12(2))
and Deysel
certainly knew ‘the identity of the debtor(s)’ from the outset.
The crisp question before the court a quo was thus
whether Deysel
had actual or deemed knowledge of ‘the facts from which the debt
arises’, as required by s 12(3), prior to 17
April 1997.
In the High Court (and on appeal
before us), counsel for Deysel contended that, in the context of a
medical negligence claim, the
meaning of the phrase ‘knowledge…of
the facts from which the debt arises’ includes knowledge of facts
showing that the defendant,
in treating the plaintiff, failed to
adhere to the standards of skill and diligence expected of a
practitioner in the former’s
position. Thus, it was submitted,
until the plaintiff has sufficient detail – frequently, if not
invariably, in the form of an
expert medical opinion – showing
that the defendant failed to exhibit the necessary degree of
diligence, skill and care and in
what respects he or she failed to
do so, the plaintiff does not, in terms of s 12(3), have ‘knowledge
of the facts from which
the debt arises’.
Applied to the facts of this
case, Deysel’s counsel argued that the first time that Deysel or
his legal representatives were made
aware that the known facts (the
conduct of Drs Truter and Venter) constituted negligence was when Dr
Steven gave advice to that
effect to Ms Pienaar shortly before the
issue of summons. There was no evidence to suggest that Deysel had
been dilatory in not
consulting with Dr Steven at an earlier stage
or that he had acted unreasonably in endeavouring to obtain
assistance from the various
other sources set out above. Thus, the
argument continued, prescription did not start to run in respect of
Deysel’s alleged claim
until such time as Dr Steven’s opinion
was obtained and the special plea had no merit.
The High Court upheld this
contention, stating:
‘
It
is not legally conceivable how a malpractice case will see its day
in a South African court of law without the litigant obtaining
knowledge of [a] medical expert that indeed the symptoms complained
about or the resultant consequence is indicative of some degree
of
incompetence or negligence constituting the wrongful act.’
Mlonzi
AJ thus held that, because Deysel had only received a favourable
expert medical opinion in 2000, prescription only commenced
running
at that stage.
I
am of the view that the High Court erred in this finding. For the
purposes of the Act, the term ‘debt due’ means a debt, including
a delictual debt, which is owing and payable. A debt is due in this
sense when the creditor acquires a complete cause of action
for the
recovery of the debt, that is, when the entire set of facts which
the creditor must prove in order to succeed with his
or her claim
against the debtor is in place or, in other words, when everything
has happened which would entitle the creditor to
institute action
and to pursue his or her claim.
1
In
a delictual claim, the requirements of fault and unlawfulness do not
constitute
factual
ingredients of the cause of action, but
are
legal
conclusions to be drawn from the facts:
‘
A
cause of action means the combination of
facts
that are
material for the plaintiff to prove in order to succeed with his
action. Such facts must enable a court to arrive at certain
legal
conclusions regarding unlawfulness and fault
,
the constituent
elements of a delictual cause of action being a combination of
factual and legal conclusions
, namely a causative act, harm,
unlawfulness and culpability or fault.’
2
(Emphasis
added.)
In
the words of this court in
Van Staden v Fourie
:
3
‘
Artikel
12(3) van die Verjaring
s
wet
stel egter nie die aanvang van verjaring uit totdat die skuldeiser
die volle omvang van sy regte uitgevind het nie. Die toegewing
wat
die Verjaringswet in hierdie verband maak, is beperk tot kennis van
“die feite waaruit die skuld ontstaan”.’
‘
Cause
of action’ for the purposes of prescription thus means –
‘…
every
fact which it would be necessary for the plaintiff to prove, if
traversed, in order to support his right to the judgment of
the
Court. It does not comprise every piece of evidence which is
necessary to prove each fact, but every fact which is necessary
to
be proved.’
4
As
contended by counsel for Drs Truter and Venter, an expert opinion
that a conclusion of negligence can be drawn from a particular
set
of facts is not itself a
fact
, but rather
evidence
. As
indicated above, the presence or absence of negligence is not a
fact; it is a conclusion of law to be drawn by the court in
all the
circumstances of the specific case.
5
Section 12(3) of the Act requires knowledge only of the material
facts from which the debt arises for the prescriptive period to
begin running – it does not require knowledge of the relevant
legal conclusions (ie that the known facts constitute negligence)
or
of the existence of an expert opinion which supports such
conclusions.
Mlonzi
AJ appears to have relied on the judgment of this court in the
recent case of
Van Zijl v Hoogenhout
6
for her conclusion that knowledge of fault is a requirement for
the commencement of the running of prescription. In my view, she
erred in so doing. The
Van Zijl
case is entirely
distinguishable from the present case. In the
Van Zijl
case,
Heher JA held that, where the prescription statute speaks of
prescription beginning to run when a creditor has knowledge,
‘it
presupposes a creditor who is capable of appreciating that a wrong
has been done to him or her by another’.
7
The plaintiff in the
Van Zijl
case was found on the facts to
have lacked capacity for many years to appreciate that a wrong had
been done to her and that this
had therefore delayed the
commencement of the running of prescription.
8
By contrast, in the present case, it is abundantly clear that Deysel
believed and appreciated from as early as 1994 that a wrong
had been
done to him by Drs Truter and Venter.
9
In
accordance with the so-called ‘once and for all’ rule, a
plaintiff must claim in one action all damages, both already
sustained
and prospective, flowing from one cause of action.
Therefore, a plaintiff’s cause of action is complete as soon as
some damage
is suffered, not only in respect of the loss already
sustained by him or her, but also in respect of all loss sustained
later.
10
Applied
to the facts of this case, Deysel’s cause of action was complete
and the debt of Drs Truter and Venter became due as soon
as the
first known harm was sustained by Deysel, notwithstanding the fact
that the loss of his right eye occurred later.
According
to Deysel’s own evidence, from at least the time of his initial
complaint to the Council in July 1994, he knew the details
of the
operations performed on him by Drs Truter and Venter and that he had
suffered harm. He also knew that the two doctors were
required to
exercise reasonable care and skill in treating him; indeed his
unremitting and oft-repeated complaint was that they
had failed to
do so, as a result of which he had undergone a multiplicity of
medical and surgical procedures and had suffered permanent
damage to
his remaining eye. He knew that he had a potential claim against Drs
Truter and Venter, hence his instructions to the
first set of
attorneys in 1995 to investigate such a claim.
As
is clear from the sequence of events described above, all the facts
and information in respect of the operations performed on
Deysel by
Drs Truter and Venter in 1993 were known, or readily accessible, to
him and his legal representatives as early as 1994
or 1995. Neither
Deysel nor Ms Pienaar was able to point to any new
fact
which
was given to either Dr  Lecuana or Dr Steven which had not been
presented to the previous medical experts for their opinions
and
which had not been known or readily accessible to Deysel and his
representatives
before
17 April 1997 (ie more than 3 years
before the date on which he instituted action). Indeed, the
‘negative indicators’ which
apparently eventually led Dr Steven
to conclude that there had been negligence on the part of Drs Truter
and Venter were dealt
with in the reports of medical experts
previously consulted.
Thus,
neither Dr Lecuana nor Dr Steven revealed or furnished any new
facts
to Deysel: they merely advanced an opinion, in the form of a
conclusion that there had been negligence, which opinion was based
on the same facts which had been available prior to 17 April 1997
and which had been furnished to the other experts.
Lastly,
insofar as the court a quo relied on English medical-negligence case
law as an aid to the interpretation of the knowledge
requirement in
s 12(3) of the Act, I am of the view that it was incorrect in doing
so. Not only do the English cases concern the
interpretation and
application of the English Limitation Act of 1980, which differs
materially from the South African Act in both
content and origin,
but such cases are also, as illustrated convincingly by counsel for
Drs Truter and Venter, eminently distinguishable
on their facts from
the present case and are, in addition, not necessarily consistent.
Counsel for Deysel tried to persuade us
otherwise, but to no avail.
It
follows that the appeal must succeed.
The
following order is made:
(a)
The appeal is upheld with costs.
(b)
The order of the Cape High Court is set aside and replaced with the
following order:
‘
The special plea of
prescription is upheld and the plaintiff’s action is dismissed
with costs
’
.
B J VAN HEERDEN
JUDGE OF APPEAL
CONCUR:
Harms JA
Zulman JA
Navsa JA
Mthiyane JA
1
See, for example,
Evins v Shields Insurance Co Ltd
1980 (2)
SA 814
(A) at 838D-H and
Deloitte Haskins &
Sells Consultants (Pty) Ltd v Bowthorpe Hellerman Deutsch (Pty) Ltd
[1990] ZASCA 136
;
1991 (1) SA 525
(A) at 532H-I. See further MM Loubser
Extinctive
Prescription
(1996) para 4.6.2 at pp 80-81 and the other
authorities there cited.
2
Loubser op cit para 4.6.1 at p 80 and the
authorities there cited, in particular
Evins v Shield Insurance
Co Ltd
at 838H-839A.
3
1989 (3) SA 200
(A) at 216D-E (per EM Grosskopf
JA), cited with approval by Harms JA (with whom Scott  JA
concurred), in the context of a
special plea of prescription raised
against a claim for damages for professional negligence, in
Drennan
Maud & Partners v Pennington Town Board
[1998] ZASCA 29
;
1998 (3) SA 200
(SCA) at 213C.
4
Per Maasdorp JA in
McKenzie v Farmers’
Co-operative Meat Industries Ltd
1922 AD 16
at 23, cited with
approval by Corbett JA in the
Evins
case at 838D-F.
5
See, for example,
Mkhatswa v Minister of
Defence
2000 (1) SA 1104
(SCA) para 23 at 1112H.
6
[2004]
4
All SA 427
(SCA).
7
Para 19.
8
Para 44.
9
It is perhaps also necessary to point out that
the High Court apparently misconstrued the relevant passage from the
majority judgment
in the
Drennan Maud
case as providing
authority for the proposition that ‘
knowledge of fault was
considered as the required knowledge in a professional negligence
case
’. As submitted by counsel for Drs Truter and Venter, the
phrase ‘
design fault
’ used by Olivier JA (at 205E-F) was
plainly a reference to a
defect
in the design, not to fault
in the sense of culpability.
10
See
Evins v Shield Insurance
at 836A-B and
Drennan Maud &
Partners v Pennington Town Board
at 211F-G. See also Loubser op
cit para 4.6.2 at 81ff.