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[2011] ZAECBHC 5
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Kitching and Another v Premier of the Eastern Cape Province (343/07) [2011] ZAECBHC 5 (17 February 2011)
IN
THE EASTERN CAPE HIGH COURT, BHISHO
CASE
NO. 343/07
DATE
HEARD: 27/08/2010
DATE
DELIVERED: 17/02/2011
In
the matter between
NICO
KITCHING
FIRST
APPELLANT
WILLIAM
JOSEPH KITCHING
SECOND
APPELLANT
And
PREMIER
OF THE EASTERN CAPE PROVINCE
RESPONDENT
JUDGMENT
ROBERSON
J
BACKGROUND
AND ISSUES
[1]
The first and second appellants are father and son respectively.
I shall refer in this judgment to the first
appellant as Nico and to
the second appellant as William.
[2]
On the night of 4 September 2006, on the road between Alexandria and
Port Elizabeth, William was severely injured
when the vehicle he was
driving left the road and overturned. Amongst the injuries he
suffered were an unstable fracture
dislocation of the spine at the
T6/7 level, and four fractured ribs. Thereafter, on that same
night, he was transported by
ambulance and admitted to Livingstone
Hospital in Port Elizabeth, a public hospital falling under the
authority of the provincial
department of health. On admission,
his facial lacerations were stitched and his cervical spine and chest
were x-rayed.
A chest drain and a central venous pressure (cvp)
line were then inserted, in order to treat a suspected
haemo-pneumothorax, whereafter
he was sent for further x-rays to
ensure that the drain and the cvp line were in the correct position.
The spinal fracture
was visible in the first and second set of
x-rays, but was not detected by the treating staff. On the
morning of 5 September
2006, he was sent for,
inter alia
,
thoracic x-rays, following which the fracture of his spine and
paraplegia below the T7 level were diagnosed. The paraplegia
is
complete and permanent, and William is confined to a wheelchair.
[3]
The appellants instituted an action for damages in the court
a
quo
.
They alleged that on admission to hospital William’s spinal
cord was not damaged and that he had retained neurological
function,
but that negligence on the part of the respondent and medical staff
at the hospital caused damage to the cord, resulting
in the
paraplegia. Various grounds of negligence were alleged, but the
trial focused specifically on the allegations that
the medical staff
failed to entertain a high level of suspicion of a spinal injury on
admission, failed to diagnose the fracture
of the spine which was
visible in the first and second set of x-rays, and failed to take the
necessary precautions in order to
prevent damage to the spinal
cord.
[
1] Nico claimed
certain medical expenses incurred in William’s treatment, and
William claimed under various heads of
damages in accordance with his
condition. The trial proceeded on the merits only, the issues
of the merits and quantum having
been separated, and the appellants’
claims were ultimately dismissed with costs. The appellants
appeal against that
judgment, with the leave of the court
a
quo
.
[4]
Despite many days of expert medical evidence, which the parties had
hoped would resolve the issue of whether William’s
spinal cord
was damaged before or after admission to hospital, the decision on
this issue depended on a factual finding:
did William move his
legs after admission to hospital? There was no dispute among
the medical experts that such movement
indicated normal neurological
function of the spinal cord. If William did move his legs after
admission, then there must
have been a further insult to the spine,
between the time of admission and the noted paraplegia the next
morning, which resulted
in the paraplegia. It is helpful and
convenient at this stage to set out the minutes of a pre-trial
conference between medical
experts for the appellants and the
respondent. The minutes were as follows:
“
Reviewing the
hospital records, we all agree that Mr. William Kitching had a motor
vehicle accident and was first seen in the casualty
department of the
Livingstone Hospital on 4 September 2006 at 23h37.
Mr. Kitching was seen by
the casualty officer and no reference to a spinal injury was made.
Mr. Kitching was then
seen at 00h30 hours where it was noted that he was moving all
limbs
[
2] which is usually an
indication of normal neurological function of the spinal cord.
Some time during the
course of the day on 5 September 2006 it is noted that Mr. Kitching
is unable to move his toes, unable to pass
urine and subsequently
noted to be paraplegic indicating total loss of spinal cord function
at that stage.
Accepting that the above
is correct we accept that:
1.
Mr. Kitching had an unstable fracture at T6-T7;
2.
It is rare,
but possible to have preservation of neurological function with this
type of spinal fracture.
[
3]
From the documentation
and the x-rays it appears that the level of suspicion of a spinal
column injury did not meet acceptable standards,
and this resulted in
the failure to take spinal precautions and this in turn resulted in
paraplegia.
Once neurological
function had deteriorated we would have expected an attempt would
have been made to expedite specific treatment
(i.e. surgery).
(This would depend on local resources.)”
[5]
The appellants’ initially alleged that the further insult to
William’s spine took place when the third
set of x-rays were
taken, in that he had allegedly got up from the hospital trolley and
walked to the x-ray table, and after the
x-rays were taken he was
found to be paralysed. This version was not persisted with, and
the appellants relied on alleged
inappropriate movement of William
and lack of spinal precautions during the whole period between
admission and the diagnosis of
paraplegia. It was submitted on
their behalf that the fact that he was unable to move his toes on the
morning of 5 September,
indicated a gradual process of cord damage,
as a result of pressure on the cord, which led to paralysis.
[6]
In dismissing the appellants’ claims, the court
a quo
not only found that the appellants had failed to discharge the onus
on them to prove that Williams’s legs had moved on admission,
but found that the contrary had been proved.
EVIDENCE
[7]
The expert medical evidence I referred to earlier mainly concerned
the cause of the drastic drop in William’s
blood pressure
between the time it was taken at the scene of the accident and the
time of his admission to hospital at 23h37 that
night. The
paramedic who took William’s blood pressure at the scene of the
accident, Mr. Xoba, died before the trial,
but it seems to have been
accepted that it was a correct reading and expert opinions about the
cause of the subsequent drop proceeded
from that premise. It
was not in dispute that the reading of 135/90 at the scene, a normal
blood pressure, was inconsistent
with spinal cord damage, unless it
had been taken within minutes after the accident, which was
unlikely. On admission the
reading was 76/52, which is life
threatening, and the blood pressure remained dangerously low until
the next morning, despite the
infusion of fluids. The experts were
agreed that inadequate fluids were administered. However they
disagreed about the cause
of the drop in blood pressure, the
appellants’ experts maintaining that it was attributable to
haemorrhagic shock (caused
by blood loss) and the respondent’s
experts maintaining that it was attributable to neurogenic shock
(caused by damage to
the spinal cord). Ultimately these
opinions were inconclusive and no finding could be made about the
cause of the drop in
blood pressure.
[8]
When the ambulance which transported William from the scene of the
accident arrived at Livingstone Hospital, Nico,
his wife Mrs. Julie
Kitching (Julie), Mrs Marcelle Uys, a family friend of the Kitchings
for some twenty years, and her daughter
Madelie, were already at the
hospital, waiting for his arrival. Nico and Julie had been
spending the night at the home of
Uys, when they received the news of
the accident.
[9]
Nico testified that he and Julie traveled in their own car, and Mrs.
Uys in her car, to the hospital. When
the ambulance door was
opened, he saw William lying on a stretcher in the ambulance, not on
a hard board (known as a trauma board)
and not strapped in on the
stretcher. He could not remember if there was a drip set up or
if William was wearing a neck brace.
He and the ambulance
driver (a Mr. Zweni, who later testified) placed the stretcher on a
hospital trolley and William was taken
on the trolley to the casualty
section, where another person assisted Zweni to remove the stretcher
from underneath William, achieved
by rolling him to one side and then
to the other. Cuts on William’s face were then stitched
by a doctor. At this
time William was very confused and spoke
in a confused manner, and his upper body and legs began to move.
A porter then pushed
William’s trolley to the x-ray section,
accompanied by Nico, Julie, Uys and Madelie (the family group).
William was
lying on his back on a thin mattress on the trolley.
During this time William’s upper body moved, he lifted his
knees
up, and his legs and feet moved. At the x-ray section
there were two women, one of whom asked the porter to assist her to
move William from the trolley onto the x-ray table. The porter
held William under his armpits and the woman held his ankles,
and in
this fashion lifted him from the trolley onto the x-ray table.
The family group was then asked to wait outside, but
Nico heard
William say that his back was hurting. After the x-rays were
taken, William was lifted in the same fashion as
before from the
x-ray table back onto the trolley. They all returned to the
casualty section from where Nico pushed William’s
trolley to
the surgeon on call section (“SOC”).
[10]
At the SOC William was seen by a doctor (Dr. Leslie), who pushed
William into a cubicle and drew the curtain. The
family group
remained outside the cubicle. The doctor later emerged and told
them that William had broken four ribs, two
of which had pierced his
lung, and that he needed assistance to insert a tube to drain fluid.
The insertion of the tube was
carried out by the doctor and a
colleague, behind the closed curtain. William was then sent for
the second set of x-rays.
The family group again accompanied
William to the x-ray section, pushing the trolley themselves because
no porter was available.
The same two women were at the x-ray
section and requested Nico to assist them in lifting William from the
trolley onto the x-
ray table. Nico declined to assist, telling
them that he did not have the medical experience to lift someone who
had been
involved in an accident. The two women themselves then
lifted William from the trolley onto the x-ray table, in the same
fashion as before, that is one holding him under the armpits and the
other by his ankles, causing William’s body to bend in
a U
shape. William again said that his back was hurting. The
family group waited outside while the x-rays were taken
and
thereafter wheeled William back to the SOC. There the same two
doctors looked at the x-rays and were satisfied that the
drain was
effective. At this stage William’s whole body was
shivering, and it appeared that he was very cold.
No blankets
were available from the hospital and Nico told Julie to go home to
fetch blankets, which she did. William remained
in the SOC
section until morning because no beds were available. At no
stage did Leslie ask anyone in the family group if
William had moved
his legs.
[11]
At about 08h00 on 5 September Sulien Oosthuizen, William’s then
partner and mother of his two children, arrived
at the hospital.
A female doctor, Dr. Hattingh, then attended to William. She
struck him with her fist on his chest
and also asked if he had passed
urine. She asked what x- rays had been taken and when told,
made a telephone call and asked
the person to whom she was speaking
why full x-rays had not been taken.
[12]
At that stage Nico went home to wash and to collect clothes for
William. On his return at about 10h00, he found
Sulien at the
SOC section, crying and almost hysterical. He asked her what
was the matter and although she spoke in a confused
manner, he was
able to make out that she said that she had been told that William
was paralysed. He did not ask her how this
had happened because
he was too shocked and she was hysterical. He also never at any
stage made enquiries at Livingstone
Hospital concerning the cause of
the paraplegia.
[13]
In a consultation prior to the trial on 2008, with Professor Fritz, a
neurologist and one of the appellants’ expert
witnesses, Nico
told Fritz that when he returned to the hospital on the morning of 5
September, Sulien had told him that in the
x-ray section William had
been made to get off the trolley and onto the x-ray table, and after
the x-rays were taken he was unable
to get off the x-ray table
because he was paralysed. In his testimony at the trial, Nico
said that Sulien had
not
told him that William had got off the
trolley and onto the x-ray table, but had told him at a later stage
that William had been
asked to move from the trolley to the x-ray
table and had twice unsuccessfully tried to do so. He did not
tell Fritz about
what he observed during the first and second set of
x-rays, although he knew that it was important to give accurate
information
to Fritz because she was to be an expert witness at the
trial, and that what he had observed during the first and second sets
of
x-rays was important for the case.
[14]
After the accident Sulien continued to live with the Kitchings but
her relationship with William ended about two months
after the
accident and she left the home. From that time until the
consultation with Professor Fritz, Nico and Sulien did
not discuss
the events at the hospital.
[15]
Nico was subjected to detailed cross-examination about what had been
said to him by Sulien at the hospital and what he
had subsequently
told Fritz. Cross-examination revealed that the only person who
could have given Nico the information about
William being asked to
climb off the trolley was Sulien, and that the only occasion on which
Sulien could have given Nico this
information was at the hospital
when he returned on the morning of 5 September. He said he
could not clearly hear what she
was saying and that she had mumbled
but he made out that she said William had been told to climb off and
walk, and that is what
he thought she said. When reminded that
he had said in evidence in chief that all Sulien told him was that
William was paralysed,
he agreed that this was so. When
specifically asked about what was contained in Fritz’s report
concerning what Sulien
had told him, he again said it sounded to him
as if Sulien had said that William had been told to climb off the
trolley, and that
was how he understood her at the time. During
the time Sulien lived with the family after the accident, he tried to
talk
to her about what happened at the hospital but to no avail
because she would become emotional and say she did not want to talk
about the incident. What had taken place during the
third set of x-rays had remained unclear to him but all attempts
to
get clarity from Sulien were unsuccessful. He only found out
what Sulien’s account of events in the x-ray room would
be when
it was disclosed during the trial.
[16]
Sulien testified and gave an account of what happened when x-rays
were taken on 5 September. She had been informed
of the
accident but could not go to the hospital immediately because she had
to wait for her child minder to arrive to take care
of her children.
During this time Julie arrived home to fetch blankets for William.
Sulien arrived at the hospital
on the morning of 5 September and met
Dr. Hattingh who asked why x-rays of William’s back had not
been taken. Hattingh
telephoned someone and complained about
this omission and told Sulien that she should go with the porter to
take William for further
x- rays. Two men were in the x-ray
room, and they lifted William on a sheet by his feet and arms onto
the x-ray table.
Sulien was given a protective jacket to wear
and was asked to lift William’s arm while certain x-rays were
taken when he
was lying on his side. William was moved in the
same manner back onto the trolley and from there she and the porter
took
William to another x-ray room, where a young woman put the
trolley next to the x-ray table and asked William if he was able to
move himself onto the table. He managed twice to lift his
shoulders about a centimetre by pressing his hands against the
trolley, but could do no more. The woman said that William was
too heavy for her to lift (he weighed 98 kilograms at the time)
and
went to get help. Sulien was then asked to wait outside but she
could hear William saying that they were hurting him.
Thereafter William was pushed back to the casualty section, the
x-rays were given to Hattingh, and Hattingh informed Sulien that
William was paralysed. Sulien met Nico in the ward to which
William had been transferred and she remembered telling him that
William was paralysed and was not going to walk. She was unable
to remember if Nico had asked her what had happened in the
x-ray
room. Sometime after the accident she and William separated in
an atmosphere of animosity.
[17]
Sulien too was subjected to detailed cross-examination concerning
what was said by her to Nico at the hospital and what
Nico had told
Professor Fritz. She said that during the time she was living
with the Kitchings after the accident they tried
to talk about what
happened when she was with William in the x-ray rooms, but she would
always get upset and they would abandon
the attempt. She
acknowledged that Nico, as William’s father, would have wanted
to know what had happened in the x-ray
rooms, and that very little
had in fact happened in the x-ray rooms, but she had no idea why she
did not tell him. When asked
from whom else Nico could have
heard that William had walked from the trolley to the x-ray table,
she suggested more than once
that Nico should be asked. She
eventually said that she did not know where Nico had got this
information, that he was wrong
if he said he got this information
from her, and that she had not given him such information.
[18]
Mr. Zweni the ambulance driver testified that he found William at the
scene of the accident and after examining him placed
a cervical
collar on him. He and his assistant and the driver of another
vehicle then log-rolled William onto a trauma board
and placed him on
a stretcher in the ambulance. He was not strapped to the trauma
board. Zweni’s senior Xoba
then arrived and examined
William and put up a drip. The ambulance then proceeded to
Livingstone Hospital, where William,
still on the trauma board, was
placed on a trolley and taken to casualty.
[19]
Uys testified that when news was received of the accident she and her
daughter and the Kitchings traveled in her car
to the hospital.
When the ambulance arrived at the hospital she saw William inside the
ambulance on a wooden board.
She went to fetch a trolley and
William was put on the trolley, still on the wooden board.
Inside the hospital William was
seen by two doctors and then sent for
x-rays. After these x-rays William was taken into a cubicle and
she could see into
the cubicle because the curtain was open.
She saw the tube being inserted into William’s chest. One
of the doctors
placed William’s leg flat and also stroked the
sole of his foot with a thermometer or a pen, but there was no
reaction or
movement. She drew her daughter’s attention
to this lack of reaction and they both shook their heads. It
appeared
to her that William was paralysed. They could not
communicate with him because he appeared to be semi-conscious.
Except
for the time that he was in the x-ray rooms, she was with
William from the time he arrived at the hospital until she left at
about
04h00, and during that time did not observe him moving his
legs. She was certain that during this time Julie did not go
home
to fetch blankets. A few days later, Nico told her that
Sulien had told him that the nurses had dropped William, or words
to
that effect, and that William had walked to the x-ray section.
When Uys was approached by the respondent’s attorneys
to
testify at the trial she did not tell the Kitchings because she was
too busy at the time.
[20]
As already mentioned, Dr. Leslie was one of the doctors who examined
and treated William on the night of 4/5 September
2006. He
testified that he qualified as a doctor in 2005, and in 2006 worked
as a medical intern, in paediatrics, anaesthetics,
and obstetrics,
and on 1 September started his surgical internship at Livingstone
Hospital. On 4 September he began working
in the SOC unit at
20h00. He saw William for the first time at about 0h30 on 5
September, after the first set of x-rays had
been taken. A drip
had already been put up and the first set of x-rays was available.
The notes of his examination,
which he said he would have written up
after the examination, reflected,
inter alia
, that William’s
airways were not obstructed, he was pale and cold to the touch, his
Glasgow Coma Scale was 10 over 15, his
blood pressure reading was 60
over 32, and he was moving all limbs. Leslie remembered very
clearly why he had recorded that
William was moving all limbs, not
only because William was one of his first trauma patients, but also
because when he found out
the next day about the paraplegia, he
wondered how he could have missed it. While examining William,
he could see that William
was moving his arms, and in order to
examine his legs he squeezed William’s toes to elicit a pain
response. He did
not remember William moving his legs at this
test. His method of eliciting a pain response at that time was
to put a needle
under the nail bed but he did not want to do that
because family members were present, and he did not want to upset
them.
He recalled a male and three females being present.
He therefore asked the group if William was able to move his legs and
a woman answered that he was able to. William was still clothed
at this stage. He said it was possible that William
had moved
his legs but he did not remember seeing him do so. He
acknowledged that his conduct in asking the family this question
justified criticism but said he did not have a high index of
suspicion of a spinal injury, because William was able to move his
arms easily and the x-rays revealed that the cervical spine was not
damaged. He also acknowledged that he missed the spinal
fracture which was apparent from the x-rays. His primary
concern was William’s critically low blood pressure and he
thought that William was bleeding to death. He could see from
the chest x-ray that there was air and blood in William’s
chest, and that there were four rib fractures, and accordingly
diagnosed a haemo-pneumothorax, although he was not altogether
satisfied with this diagnosis because he did not think that the blood
loss from the chest was responsible for such a low blood pressure.
His senior, Dr. Mohamed, inserted a cvp line in order to give fluids
and blood more quickly, as well as an intercostal drain.
While
the cvp line and the drain were inserted, they rolled William in
order to strap the drain around his chest and he observed
an abrasion
and a contusion on William’s back. William was unclothed
at this stage. Dr. Leslie acknowledged that
these injuries
should have led to a high index of suspicion of a spinal injury but
at that stage he had made a diagnosis, which
fitted William’s
symptoms of a low blood pressure and tachycardia, and were common
features of motor vehicle accident victims.
William was also
moving his arms and he thought that William was able to move his
legs. Leslie conceded that if he had suspected
a spinal injury,
he would have treated William appropriately. He had not ruled
out a spinal injury, but did not think it
was likely.
[21]
Dr. Hattingh was also an intern at Livingstone Hospital during 2006,
having qualified as a doctor in 2005. On the
morning of 5
September she was on duty in the SOC and she was asked by one of the
sisters to look at William, because the family
was concerned that he
was not passing urine and he was confused. William was in one
of the cubicles, lying on a trolley.
She examined him and
because he had not passed urine, she was concerned that he might have
a fractured pelvis or a rupture of the
bladder. She also asked
him to move his toes but he was not able to do so, nor could he move
his legs when she asked him.
He also complained that his back
hurt. In the notes of her examination she had only noted
“unable to move toes”
and said she recorded her
observation in this way because he was not even able to move his
toes. She also noted that there
were bowel sounds, although she
could not remember what type of bowel sounds she heard. She
requested x-rays to be taken,
including x-rays of the thoracic spine,
and after they had been taken, she and the senior orthopaedic surgeon
read them and saw
the fracture dislocation of the thoracic spine.
[22]
The radiographer who took the first two sets of x-rays was Mrs.
Brink. She obtained her first qualification in
1984 and had
been the chief radiographer at Livingstone Hospital since 1996.
She was on duty on the night of 4 September,
together with a student
radiographer. She did not specifically recollect taking
William’s x-rays, and her evidence
concerned standard
procedures, and what was apparent to her from the two sets of
x-rays. The first set of x-rays were of
William’s head,
cervical spine, and chest. If a patient had been in a motor
vehicle accident, was semi-conscious, wearing
a cervical collar, and
weighed 98 kilograms, she would have left the patient on the trolley
rather than move him onto the x-ray
table, although the quality of
the x-ray is better if the patient is on the table, and normally
x-rays are taken with the patient
on the table. If a patient
was moved from the trolley to the x-ray table, the trolley would be
put up against the table and
the table would be adjusted to the
height of the trolley. If the patient was on a trauma board, he
would be moved onto the
table on that board, and if he was not on a
trauma board, slides would be placed under the patient and he would
be moved on a sheet
onto the table. If no slides were
available, the patient would be moved across on a sheet. This
process usually required
three people, one to hold the trolley in
case it moved and two to pull the patient across onto the table, but
two people could
move the patient on a sheet if the patient was not
heavy. She could not tell from the x-rays if William was on the
trolley
or the x-ray table, but assumed it was more likely that
William was on the trolley because of the quality of the x-rays.
William was lying on his back (supine) for the first set of x-rays
and would only have been moved in order to place the cassettes
containing the film underneath him. This would be done by
holding him under his shoulder blades and supporting his head and
neck and raising him about one to one and a half centimetres, while
his neck and head were supported. The cassette would
be placed
under him from the head down, as far as the small of his back.
If the patient was x-rayed while on the table, there
would be no need
to slide a cassette under him, because the table had a built in
section in which to insert the cassette.
It would not be
necessary to remove the cervical collar in order to x-ray a patient.
William was also supine for the second
set of x-rays, which were
taken of his chest in order to check that the drain was properly in
position. A post-drain x-ray
is normally taken with the patient
upright but this one was taken with William supine because he was
unco-operative. (She
had made a note on the request form that
William was unco-operative.) With regard to Nico’s
evidence of the manner
in which William was lifted onto the table for
both sets of x-rays, she said radiographers are not taught to move a
patient in
that fashion, nor would she have done so, especially if
the patient was wearing a neck brace. If the porter had
assisted
in moving William, he would have been told how to do so.
If there were no special instructions about precautions to be taken,
she would still assume there was concern about the cervical spine if
the patient was wearing a cervical collar.
[23]
Mr. Mapalala was the radiographer who took the third set of x-rays.
He too became a chief radiographer at Livingstone
Hospital in 1996,
and when he testified had been a radiographer there for twenty nine
years. He was on duty at Livingstone
Hospital on 5 September.
He had no memory of William and his evidence too concerned standard
procedure and what was apparent
from the x-ray request form and the
x-rays themselves. If the patient is a motor vehicle accident
victim and there is a request
for a spinal x-ray, that is an
indication to take precautions. Even without a request, a motor
vehicle accident victim is
treated as if he had a spinal injury.
The x-rays he took were of William’s pelvis, thoracic spine,
and lumbar spine,
and they were all taken in the same room.
These x-rays cannot be taken on a trolley and the patient must be on
the x-ray
table. If the patient is on a trauma board he can be
lifted onto the table on the trauma board. The standard
procedure
to move a patient referred for spinal x-rays is to put a
perspex slide under the patient and pull the patient over on the
slide.
A motor vehicle accident patient who is lying on a
trolley and not walking, especially when spinal x-rays are requested,
would
not be lifted onto the table on a sheet, nor would a family
member be asked to assist by holding the patient while the x-rays are
taken. In cases where a family member is anxious they will be
allowed into the x-ray room and that person will be given protective
clothing.
[24]
William was supine for some of the x-rays, one of which was the
so-called “swimmer’s view”, where one
of the
patient’s arms is up and the other arm is down. For other
x-rays William was log-rolled onto his side.
About four people
would be needed for this procedure, and it was not possible for only
two persons to log-roll a patient properly.
It was possible
that when Sulien arrived at the x-ray section only he and another
person were in the room but, although he could
not remember how many
people were on this particular shift in the x-ray department, he
would have had to get assistance from others.
EVALUATION
[25]
Nico was the only person who testified to seeing William move his
legs after admission to hospital. The court
a quo
found
that it was probable that Nico’s evidence about William’s
leg movement was false. It reached this conclusion
by accepting
the evidence of Uys that William had been on a trauma board and
therefore it would have been unnecessary to move him
from the trolley
to the table. Uys’ evidence was more reliable because she
would have been less emotionally affected
by events than Nico and her
recollection was more likely to be accurate. It followed,
according to this reasoning, that if
William was on the trauma board,
Nico’s evidence about how William was lifted onto the table was
false and that therefore
his evidence about seeing William’s
legs move was false. With regard to Uys’ evidence about
not seeing William’s
legs move he found that Uys would have no
motive to give false evidence against the plaintiff. It was not
put to her that
there was ill feeling between her and the Kitchings,
and the only criticism of her was that she had not informed the
Kitchings
that she intended to testify for the respondent. Such
conduct on her behalf was insufficient to infer that she had a motive
to give false evidence.
[26]
With regard to Leslie, the court
a quo
found that Leslie
appeared to be an honest witness who had an impressive demeanour and
whose evidence was frank and to the point,
and he had readily
admitted that he had missed the spinal fracture in the x- rays.
If Leslie had asked the family if William
was moving his legs, this
meant that he did not observe William moving his legs. With
regard to the submission that Leslie
had reconstructed his evidence
in an attempt to exculpate the respondent, the court
a quo
found that it was clear that this was not so. Leslie had
interrogated his memory the next day and had recalled that he had
not
seen William’s legs move and had asked the family if he had
moved his legs. Leslie’s concession that it was
possible
that William had moved his legs had therefore to be seen in this
context.
[27]
The Court
a quo
also found that although Nico did not make a
bad impression as a witness, it was an unavoidable conclusion that
the version that
William had walked from the trolley to the x-ray
table, was a fabrication. It was difficult to understand how he
had arrived
at the interpretation of what Sulien had said to him, as
related to Fritz, and to Uys in a slightly different version, when in
his evidence at the trial he said Sulien had only told him that
William was paralysed, and Sulien denied giving him such information.
[28]
The court
a quo
found that, although Sulien had started off as
a good witness, she later became unco-operative and even obstructive,
but there
was no reason to find that the information she said she
gave to Nico on the morning of 5 September was incorrect.
[29]
I cannot fault the court
a quo’s
evaluation of the
evidence and the findings on the probabilities. A court of
appeal will also not readily interfere with
the court
a quo’s
findings on the credibility of witnesses, unless the content of the
evidence dictates otherwise. In my view, the record does
not
disclose any reason for rejecting the evidence of Uys and Leslie.
Apart from the court
a quo’s
impressions of them as
witnesses, their evidence was in accordance with the probabilities.
Uys had no reason to give unfavourable
evidence against the
appellants, and none was suggested. She had been a family
friend for twenty years and had obviously
accompanied Nico and Julie
to the hospital to provide support. In particular, and this was
not mentioned by the court
a quo
, Leslie’s evidence that
he had made a working diagnosis and that he thought that William was
bleeding to death, coupled with
his lack of a high index of suspicion
of a spinal injury, which he acknowledged he should have had, lends
probability to his evidence
that he asked the family if William was
moving his legs. Leslie indeed treated William for what he
believed to be the diagnosis
and this fact lends support to his
evidence as a whole. With specific regard to whether or not
Leslie asked the family group
about movement of William’s legs,
the court
a quo
found that in the absence of evidence from
Julie on this aspect, Leslie’s evidence was unchallenged, and
that the only reason
he asked the question was because he had not
seen William’s legs move. Leslie’s evidence was
that a female person
had answered that William was moving his legs.
It was submitted on behalf of the appellants that because Uys did not
testify
that Leslie asked the question, it meant that he did not ask
the question. In my view, this is an inference without
foundation,
because Uys might not have heard the question. In
any event, if she had wanted to give false evidence against the
appellants,
she could easily have corroborated Leslie’s
evidence that he had asked the question.
[30]
On the other hand, the court
a quo’s
rejection of Nico’s
evidence was, in my view, justified by the abandonment of the first
version, the totality of the evidence,
and the probabilities.
Although it was submitted on behalf of the appellants that it had
always been the appellants’
case that William’s legs had
moved after admission to hospital, there was a significant difference
between Nico’s evidence
at the trial and the account he gave to
Fritz. The movement of William’s legs described in Nico’s
evidence was
never mentioned to Fritz, nor was the alleged improper
lifting of William for the first and second sets of x-rays, on which
the
appellants relied to try to prove that a secondary insult
occurred after admission to hospital. Nico had also only told
Uys
about what had happened during the third set of x-rays, but what
he told Fritz and Uys was no longer part of the appellants’
case. Nico’s explanation for what he had understood
Sulien to be saying to him was patently unacceptable, especially
when
both he and Sulien testified that all she had told him was that
William was paralysed. Both their evidence that subsequent
attempts by Nico to find out from Sulien what had happened during the
third set of x-rays was also patently improbable. Up
until at
least January 2008, when he consulted with Fritz, and after summons
had been issued, Nico apparently believed that William
had walked
from the trolley to the x-ray table, and was thereafter paralysed.
From Sulien’s point of view, there was
not much to tell, and
the inability between them to talk about what happened during the
third set of x-rays was inexplicable.
This mysterious behaviour
surrounding such a vital event, in my view renders it probable that
the original version was a fabrication.
As submitted on behalf
of the respondent, if William had walked to the x-ray table and after
the x-rays were taken was paralysed,
such an event was, as
respondent’s counsel put it, “the single biggest event
probably in their whole life, it is the
difference between movement
and paraplegia, it is the difference between culpability and no
culpability, and it just gets left,
it doesn’t get discussed,
it doesn’t get followed up.” The court
a quo’s
finding that the first version was a fabrication was justified, and
therefore, in my view, because of the materiality of such a
fabrication, going as it did to the cause of William’s
paraplegia, Nico’s credibility as a whole was seriously
damaged.
The most probable inference to draw from this scenario
was that the belated version of movement of William’s legs
after admission,
and inadequate precautions and improper lifting of
William during the first and second sets of x-rays, was also a
fabrication,
in substitution of a version which could not succeed.
Nico’s denial that Leslie had asked the family group if William
was moving his legs should also be viewed accordingly. This
inference is supported by the fact that Nico did not mention
to Fritz
or Uys what he had allegedly observed during the first and second
sets of x-rays, and only related to them what Sulien
had allegedly
told him. It turned out that what he said Sulien had told him
not only was not said by Sulien but also did
not happen. Sulien
did not see William get up and walk to the x-ray table and she did
not see the nursing staff drop him.
Even if there was a fourth
set of x-rays, as testified to by Sulien (there was no record of a
fourth set at the hospital), her
evidence of what took place during
the taking of these x-rays did not indicate movement of William’s
legs. In spite
of Mapalala’s evidence that a family
member would not be asked to assist during x-rays, it is more
probable that Sulien did
assist during the third set of x-rays, by
holding William’s arm in position for the swimmer’s view
x-ray. It
is improbable that she would have known about this
procedure and then fabricated her evidence. However, even if
her evidence
in this regard is preferable to that of Mapalala, and
even if William had been lifted onto the x-ray table on a sheet, such
evidence
does not assist the appellants in proving movement of
William’s legs after admission to hospital.
[31]
The court
a quo
, as already mentioned, was of the view that if
William was on a trauma board it would not have been necessary to
move him onto
the table. I do not believe that the evidence
justified a finding that he was on a trauma board when the first and
second
x- rays were taken, or that he was not moved onto the x-ray
table. Mrs. Brink did not remember the events and therefore
could
not say with certainty that William was on a trauma board or
that he was not moved onto the table. However this does not
mean that there was a probability that William was moved in the
manner described by Nico. Nico’s credibility as a whole
was tainted, and Mrs. Brink was an experienced radiographer who
testified that a patient such as William would not have been lifted
in that manner. It is in any event improbable that she and
another woman would have been able to lift William in the manner
described, given his weight of 98 kilograms. It is also
difficult to envisage William bending in a U shape if the trolley
was
alongside the x ray table, even if he was moved over on a sheet.
[32]
There was expert evidence on behalf of the appellants that if
William’s spinal cord had been damaged prior to admission,
his
legs would have been flaccid and that this flaccidity would have been
obvious to anyone examining him, particularly when he
was rolled.
It was submitted that the fact that no such observation was recorded
by any of the medical personnel was an indication
that there was no
such flaccidity and therefore that William had retained neurological
function on admission. Leslie said
that flaccidity is readily
observable in a conscious patient but difficult to detect in an
unconscious and uncooperative patient.
I do not think that much
weight can be placed on this lack of observation of flaccidity.
It is certainly too tenuous a factor
to prove that William was not
paralysed when he was admitted to hospital.
[33]
The same applies to the evidence of Uys that Leslie had placed
William’s leg flat. It was submitted that
this meant that
William had moved his leg into a bent position after admission.
Such a submission is in my view speculative,
when there is no
evidence of how William’s leg got into that position before
Leslie placed it flat.
[34]
The appellants also relied on the note of Hattingh that she had heard
bowel sounds when examining William. Fritz
testified that with
a T7 lesion, about 80% of patients will have no bowel sounds.
She also distinguished between sounds which
indicate neurological
function and “tinkling” sounds which merely indicate
loose fluid. In the light of Hattingh’s
evidence that she
could not say what type of sound she heard, the evidence of bowel
sounds was of insufficient weight to prove
that at the time Hattingh
examined William he still had neurological function.
[35]
The Court
a quo
found that given William’s normal blood
pressure at the scene, which was inconsistent with neurogenic shock,
and the very
low blood pressure on admission to hospital, that an
insult to the spine most probably occurred in the ambulance.
This was
also the view of two of the experts, Professor van der Spuy
who testified on behalf of the appellants, and Dr. Loubser who
testified
on behalf of the respondent. However it was not the
appellants’ case that negligence on the part of the ambulance
personnel
caused the further injury to William’s spine.
[36]
There were certain contradictions between the evidence of Uys and
Leslie, for example Uys said that the cubicle curtain
was open when
William’s chest drain was inserted, whereas Leslie said he had
closed it; Uys said that Leslie had stroked
William’s foot with
a pen or a thermometer whereas Leslie only referred to squeezing
William’s toes. There were
also disputes of fact
regarding whether or not Julie returned home to fetch blankets and
whether or not the family group traveled
in one or two cars to the
hospital, after they received the news of the accident. The
court
a quo
did not place much significance on these
discrepancies, ascribing them to the passage of time and the absence
of any motive on
the part of Uys to give false evidence. In my
view, in the light of the totality of the evidence and the
probabilities, they
were immaterial.
[37]
Overall I can find no grounds for interfering with the decision of
the court
a quo
. Given the poor credibility of Nico, the
appellants’ strongest evidence was Leslie’s note that
William was moving
all his limbs. The court
a quo
accepted Leslie’s explanation for this note, and, given its
finding on Leslie’s credibility, which accorded with the
probabilities, this court will not find otherwise.
[38]
In my view, the appellants’ case was a mixture of fabrication
and speculation. Following the abandonment
of the first
version, namely cord damage during the third set of x-rays, the cause
of the alleged secondary insult to the spine
was a matter of
conjecture. The alleged time frame within which the alleged
secondary insult to William’s spine occurred,
shifted from the
original case of an insult during the third set of x-rays to some
time between admission and the third set of
x-rays. It is
significant that appellants’ counsel, when asked whether or not
the third set of x-rays was part of the
time frame, submitted that it
was impossible to determine when the second insult happened, that
there was “stepwise”
deterioration and that the third set
of x-rays could have been “the final straw that broke the
camel’s back”.
However he submitted that it was
more likely that the insult would have occurred as a result of the
first and second sets of x-rays.
These submissions illustrate
in my view the speculative character of the appellants’ claims.
CONCLUSION
[39]
In the result, in my view the court
a quo
was correct in its
conclusion that the respondent proved that William’s legs had
not moved following admission to Livingstone
Hospital. The
appellants therefore failed to prove that William had retained
neurological function on admission to hospital,
and that any
negligent act or omission on the part of the respondent’s
servants caused the damage to his spinal cord which
resulted in
paraplegia.
COSTS
[40]
The court
a quo
ordered that the costs of the action were to
be paid by both appellants, jointly and severally, the one paying the
other to be
absolved. It was submitted on behalf of the first
appellant that the court
a quo
misdirected itself in not
ordering that only a small portion of the costs should be paid by
Nico, given the small amount of his
claim in comparison to that of
William. Counsel for the respondent submitted that the same
issues on the merits had to be
decided in respect of both appellants,
and that there was therefore no basis to distinguish between them
with regard to costs.
I agree with this submission.
[41]
Mr. Bruinders SC appeared with Mr. Euijen for the respondent in the
court
a quo
. The respondent’s heads of argument
were drawn by Mr. Bruinders and Mr. Euijen, but only Mr. Euijen
appeared for the
respondent at the hearing of the appeal. The
costs of two counsel should therefore be allowed in respect of the
respondent’s
heads of argument.
ORDER
[42]
The appeal is dismissed. The appellants are ordered to pay the
respondent’s costs, jointly and severally,
the one paying the
other to be absolved, such costs to include the costs of two counsel
in respect of the respondent’s heads
of argument.
pp
J.M. ROBERSON
JUDGE
OF THE HIGH COURT
EBRAHIM
J:-
I
agree, and it is so ordered
Y.
EBRAHIM
JUDGE
OF THE HIGH COURT
DAMBUZA
J:-
I
agree
pp
N. DAMBUZA
JUDGE
OF THE HIGH COURT
Appearances:
Appellants:
Adv.
J.N. de Vos SC,
Instructed
by
Joseph’s
Incorporated,
c/o
IC Clark Incorporated, East London.
Respondent:
Adv.
TMG Euijen,
Instructed
by
State
Attorney,
East
London.
[1]
According to the Advanced Trauma Life Support for Doctors, a manual
of the American College of Surgeons Committee on Trauma,
handed in
as an exhibit at the trial, a patient with a suspected spinal injury
should be immobilised and placed supine on a backboard
without
rotating or bending the spinal column, and log rolled if he has to
be turned to be examined or taken off the backboard.
Log-rolling usually involves four persons turning the patient so
that neutral alignment of the entire spinal column is maintained.
According to expert evidence at the trial movement of only a few
millimetres can compromise the spinal cord if the spine is unstable.
[2]
Noted by Dr. Leslie, the intern at Livingstone Hospital, who
examined William at this time
[3]
It was common cause that there is preservation of neurological
function in 4% of such fractures