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1987
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[1987] ZASCA 73
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Pizani v Minister of Defence (75/87) [1987] ZASCA 73 (25 August 1987)
In the appeal of:
DEREK REGINALD PIZANI
appellant
versus
THE HONOURABLE THE MINISTER
OF DEFENCE
respondent.
CORAM
: CORBETT, HEFER, GROSSKOPF, VIVIER, JJA, et STEYN, AJA.
DATE
OF HEARING
: 5 May 1987
DATE OF JUDGMENT
: 25 August 1987
JUDGMENT
CORBETT
JA
This, in my view, is an unfortunate case. At this stage the undisputed facts
are as follows.
/ During
2
During the relevant period the appellant, a young man aged 21, was a member
of the Permanent Force of the South African Defence Force
("SADF"). He held the
rank of corporal and was attached to the security section at Defence
Headquarters. On 14 September 1983 he
attended a "braaivleis" arranged by the
officer commanding his unit. The function was held at the Fountains resort near
Pretoria.
All members of the unit, apart from those on duty, were expected to
attend. At some stage appellant and others decided to go to have
a swim in the
Fountains swimming pool. To do so they had to climb over a fence. While climbing
over the fence on his way back appellant
tripped and fell. He landed on his left
elbow. The following morning appellant's elbow was very painful and he reported
sick. At
the sick bay he was seen by the Army medical officer on duty, a Dr M
Schlosberg, who held the rank of lieutenant. Dr Schlosberg took
appellant's arm
and moved it into a few positions.
/ Appellant
3
Appellant told him that it was very painful. Dr Schlosberg then informed
appellant that his elbow was just badly bruised. He prescribed
some
anti-inflammatory tablets and instructed appellant to move his arm as much as
possible. X-ray facilities were available, but
appellant was not refer-red to
the X-ray unit.
Appellant proceeded to carry out Dr Schlosberg's instructions. He took part
in drill and physical training and played games. He even
tried to concentrate on
using his left arm so as to give it as much exercise as possible. He
never-theless continued to suffer severe
pain in his left elbow. As a result of
this appellant consulted a private medical practitioner, a Dr S Dyson, who
happened to be
the partner of the district surgeon of Benoni. Precisely when
this happened is not clear from the papers. It was probably during
October 1983.
Dr Dyson arranged for appellant's
/ elbow
4
elbow to be X-rayed and this revealed a fracture of the radial head. Dr Dyson
referred appellant back to Dr Schlosberg, who in turn
referred appellant to an
army medical officer, Dr Adno, at 1 Military Hospital. Dr Adno, after obtaining
further X-ray plates of
appellant's elbow, confirmed the diagnosis of a
fractured radial head and prescribed, as treatment, a two-week course of
physiotherapy.
This treatment was evidently unsuccessful and appellant again consulted Dr
Dyson. The latter referred him to an orthopaedic surgeon,
a Mr van Rooyen. Mr
van Rooyen advised surgery and early in 1984 an operation was performed
involving the removal of the radial head
of appel-lant's left elbow and its
replacement by a Swanson-type poly-ethylene prosthesis.
On 10 April 1984 appellant instituted an action in the Transvaal Provincial
Division claiming damages
/ from
5
from respondent, the Minister of Defence, in the sum of R25 632,26. It is
appellant's case, as stated in the pleadings -
(i) that in treating him Drs Schlosberg and Adno
acted in the course and scope of their employment by the respondent;
(ii) that under the circumstances Dr Schlosberg and
Dr Adno were each under a duty of care to appel-lant to examine him in a
thorough, professional and competent manner and to exercise
due care and skill
in their respective diagnoses of his injury and in prescribing a proper course
of treatment therefor;
(iii) that Dr Schlosberg failed to examine appellant in a thorough,
professional and competent manner in that he should have examined
him
/ in
ó
in such a way (including referring appellant for X-rays
of his elbow) as to elicit the true nature of his injury, and did not do so;
and
he failed to treat the injury in a proper manner;
(iv) that Dr Adno, with full knowledge of the facts, failed to examine the
appellant in such a way as to elicit the true nature of
the harm caused in
consequence of Dr Schlosberg's faulty diagno-sis and failed to prescribe proper
treatment to repair the harm,
but instead prescribed a course of treatment which
was of no benefit to appellant and, if anything, aggravated his con-dition;
(v) that in consequence of the breaches of duties of care and the negligence
of Drs Schlosberg and Adno appellant was required to
undergo the surgery already
described and suffered damages
/ in
7
in the amount claimed, this amount being comprised as follows:
(a) medical and hospital
expenses R632,26
(b) general damages for pain
and suffering and loss
of amenities of life...
25 000,00
R25 632,26
To appellant's claim, in so far as it is founded on
the breach of duty of care and negligence of Dr Schlosberg, the respondent
raised
the special plea that it was barred by the provisions of sec. 113(1) of
the Defence Act 44 of 1957 ("the Act") in that more than
six months had elapsed
between the date on which appellant's cause of action arose, viz. 15 September
1983, and the date upon which
action was instituted, viz. 10 April 1984; and
asked that this aspect
/ of
8
of appellant's claim be dismissed with costs. Respondent also pleaded
generally to the merits of appellant's claim as a whole. To
this special plea
appellant filed a replication in which he, firstly, denied that his cause of
action arose on 15 September 1983
and, secondly, pleaded, in the alterna-tive,
if it be found that appellant's cause of action arose before 11 October 1983 (ie
more
than 6 months prior to the institution of action), as follows:
(a) The appellant, being a member at all material times of the SADF, was under
regulation 11 of Chapter XV of the General Regulations
for the SADF and the
Reserve ("the Regulations") by law obliged to accept the arrangements made by
the Surgeon General for the provision
and administration of any treatment for
the injury to his left elbow.
(b) The Surgeon General, acting through duly authorized subordinates, arranged
the treatment for the plain-
/ tiff's
9
tiff's injury.
(c) Prior to 11 October 1983 the appellant
—
(i) was not aware of the breaches of care and negligence of Dr Schlosberg
and/or Dr Adno; and
(ii) because of the provisions of the Regula-tions, read with the Act and the
facts stated in (b) above, was not in law en-titled
to seek any treatment for
his injury other than that arranged for him by the Surgeon General.
(d) It was therefore impossible for the appellant to comply with the provisions
of sec. 113(1) of the Act before 11 October 1983.
(e) Alternatively to para. (d), it would be unconscion-able conduct for
respondent to raise the special plea based on sec. 113(1)
of the Act, and he is
accordingly debarred from doing so.
/ At
10
At a pre-trial conference the parties agreed to ask the Court hearing the
matter to determine as a separate issue in terms of Rule
33(4) of the Uniform
Rules of Court the questions of law arising from respondent's special plea. To
this end certain facts were agreed
to by the parties. In addition to those facts
already recounted, it was also agreed for the purpose of adjudicating the
special plea
—
(1) that appellant was a "medical layman";
(2) that the diagnosis of the nature of the injury to appellant's elbow and the
proper treatment for that injury were matters upon
which during the period 15
September to 11 October 1983 only medical practitioners - and not laymen - were
qualified to pronounce;
(3) that the treatment
received by appellant
from Dr Schlosberg was carried out in pursuance of the Act, read with the
Regulations; and
/ (4) that
11
(4) that appellant was not aware, prior to 11 October 1983, of the alleged
breaches of care and negli-gence attributed to Dr
Schlosberg.
The matter came before ELOFF J, who
agreed to adjudicate on the validity of the special plea in terms of Rule 33(4).
Appellant gave
evidence briefly and the issue was argued. ELOFF J came to the
conclusion that the special plea was well-founded and dismissed with
costs
appellant's claim to the extent that it was founded on the breach of a duty of
care owed to him by, and the negligence of,
Dr Schlosberg. Appellant appeals to
this Court against this decision by vir-tue of leave given him on application to
the Chief Justice.
The relevant portion of sec. 113(1) of the Act
reads
as follows:
"No civil action shall be capable of being instituted against the State or
any person in respect of anything done or omitted to be
done in pursuance of
this Act, if a
/ period
12
period of six months has elapsed
since the date on which the cause of
action
arose "
It is conceded by appellant's
counsel - correctly in my view - that sec. 113(1) makes provision for an expiry
period ("vervaltermyn")
and that the provisions of the
Prescription Act 68 of
1969
, more particularly secs. 12 and 13 thereof, have no application. This was
decided to be the case in relation to sec. 32(1) of the
Police Act 7 of 1958 in
the matter of
Hartman v Minister van Polisie
1983 (2) SA 489
(A) - there
it was the applicability of
sec. 13(1)
of the
Prescription Act that
was in issue
-and in this regard I can see no difference between sec. 32(1) of the Police Act
and sec. 113(1) of the Act (see also
Brosens v Minister van Verdediging
1983 (3) SA 803
(T)). The consequence of this is that a plaintiff who has failed
to comply with the time limitation of sec. 113(1) is generally debarred
from
suing and cannot rely upon any of the grounds
/ which
13
which delay the commencement of the running of prescription
(see
sec. 12
of the
Prescription Act) or
delay the comple-
tion of
prescription (see
sec. 13
of the
Prescription Act).
One
of the grounds which
delays the commencement of the run-
ning of prescription is the creditor's
lack of knowledge of
the identity of the debtor and the facts from which the
debt
arises. This is provided for in
sec. 12(3)
which reads:
"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."
From
a general equitable point of view it seems unfortunate
that this provision of the
Prescription Act, at
least, does
not apply to expiry periods.
Some amelioration of the guillotine-like effect of an expiry period was,
however, provided by the case of
/
Montsisi
14
Montsisi v Minister van Polisie
1984 (D SA 619 (A), in which this
Court decided that the principle expressed by the maxim
lex non cogit
ad
impossibilia
applied to the expiry period contained in sec. 32(1) of the
Police Act 7 of 1958.
Montsisi'
s case concerned a plaintiff who sued the
Minister of Police for damages for unlawful assaults alleged to have been
committed upon
him by members of the South African Police while he was being
detained in terms of sec. 6 of the Terrorism Act 83 of 1967. The Court
held that
it was impossible for the plaintiff to comply with the provisions of sec. 32(1)
while he was in detention and that, therefore,
the expiry period provided for in
sec 32(1) did not run against him so long as he was in detention (see p 638
G-H).
On appeal appellant's counsel also conceded that in the present case the
cause of action, in so far as it related to the conduct of
Dr Schlosberg, arose
on 15 September 1983, the date upon which Dr Schlosberg first examined the
appellant.
/ In
15
In order to avoid the consequences of sec. 113(1) of the Act appellant
relies, however, on the principle of impos-sibility. The basic
submission, as
formulated in counsel's heads of argument, is as follows:
(a) The provisions of chap. XV of the Regulations and
the Military Discipline
Code ("MDC") obliged appel-
lant to seek, submit to and give effect to
the
medical treatment provided by the SADF and made
it unlawful for the appellant (without the permis-sion of the SADF first
obtained) to seek, submit to or give effect to any medical
treatment other than
that provided by the SADF.
(b) Prior to 11 October 1983 it was therefore impos-
sible for appellant to
have instituted his action
because it was impossible for him lawfully to
ob-
tain the information without which he, as a layman,
could never have
known that he had a claim.
/ I.....
16
I shall assume in appellant's favour that where and so long as a plaintiff is
precluded by law from acquainting himself with the facts
which constitute his
cause of action and he remains in ignorance thereof, the expiry period
con-tained in sec. 113(1) of the Act
does not run against him. This is not the
same situation as that which existed in
Montsisi
's case. In that case
circumstances rendered it impossible for the plaintiff to actually institute
action. Nevertheless, it is arguable
that what I have assumed is a logical and
legitimate extension of the principle adopted in
Montsisi
's case. In
order to be able to institute action one must know that one has a cause of
action. Consequently if one is prevented by
law from ascertaining that one has a
cause of action, it may be said that it is impossible for one to institute
action.
Having made this assumption in appellant's favour, I must next consider the
question as to whether appellant
/ was
17
was in truth precluded by law from ascertaining the correct facts in regard
to his injured elbow. In developing his argument on this
aspect of the matter,
appellant's counsel referred to chapter XV of the Regulations and in particular
to regulations 7, 11, 12, and
13 and contended that it was implicit in these
regulations that a "patient" (which includes a member of the Permanent Porce)
was
not entitled to consult a private medical practitioner in order to get a
second opinion or to check on the correctness of a diagnosis
made by an Army
doctor. And since in appellant's case - so the argument ran -the proper
diagnosis of his injury was a matter which
only a medical practitioner was
qualified to undertake, it was impossible for appellant to ascertain the true
facts in regard to
his injury.
Regulation 7 places upon the Surgeon General a general duty to arrange for
the provision to a patient of,
inter alia
, the medical and hospital
treatment which is
/ required
18
required in respect of an injury from which the patient is suffering in order
to effect his recovery. It provides that the Surgeon
General, or a medical
officer designated by him for the purpose, shall from time to time determine the
nature and extent of the treatment
required by the patient and may authorize the
provision or administration of such treatment. Regulation 11 deals generally
with the
manner in which the Surgeon General shall provide treatment for a
patient. Sub-para (1) places on the Surgeon General a general duty
to provide
treatment and to exercise control thereover. To this end he is required, as far
as it is professionally and administratively
possible, to make use of the
facilities of the military medical service and such other state medical
facilities as may be at his
disposal (sub-para (2) ). His powers may be
delegated to a medical officer designated by him (sub-para 2(a) ); treatment may
be administered
at the patient's residence, a hospital, a clinic, an
out-patients'
/ department
19
department of a hospital, the medical officer's consulting rooms or any
other designated place (sub-para 2(b) ); and in certain instances
where military
facilities are not available or suitable the Surgeon General may authorize the
treatment of the patient at any other
designated hospi-tal or institution
(sub-para 2(c) ). In addition, whenever the Surgeon General considers that the
treatment of a
pa-tient cannot be undertaken by a medical officer of the South
African Medical Corps or a district surgeon or where a second opinion
is
required, he may designate a medical officer not employed on a full-time basis
by the State for the treatment of the patient (sub-para
2(g) ); and he may also
accept liability on behalf of the State for the cost of any treatment provided
to a patient by any practitioner
or hospital in a case of emergency (sub-para
2(h) ).
Regulation 12 deals with the provision of medical appliances, such as
artificial limbs, dentures etc. In terms
/ of
20
of sub-para (2) of the regulation the Surgeon General determines the
specification, type or pattern of medical appliance to be provided
for a
patient, subject to the pro-viso that a patient may at his own request be
provided with an article of a different specification,
etc. on condition (i)
that this is approved by the Surgeon General or officer acting on his authority
and (ii) that any additional
expenses arising from this special provision are
recovered from the patient concerned.
Regulation 13 deals with the defrayment of the cost of any authorized
treatment or medical appliance and provides generally that such
cost is to be
met by the State. Provision is made for the payment of fees to practitioners not
in the full-time service of the State
who treat patients (sub-paras (2) and (3)
). It is also provided (in sub-para (4) ) that where a patient is treated at a
non-military
hospital or institution he shall be
/ accommodated
21
accommodated in a general ward, provided that in certain
circumstances a
medical officer may authorize at State
expense accommodation in a ward other
than a general ward;
and that —
"this regulation shall not be construed as prohibiting a member from arranging,
in terms of a private agreement between him and the
hospital concerned, for the
use of such other ward by him or his depen-dant on condition that such member
shall pay any additional
expenses arising from such agreement directly to the
hosital concerned and that the State shall not be liable
therefor."
Appellant's argument is, as
I have said, that it is implicit in these regulations that it would be unlawful
and a breach of the MDC
for a member of the Permanent Force who suffered an
injury to consult a private medical prac-titioner in order to get a second
opinion
or to check on the correctness of a diagnosis made by an Army doctor. I
am
/ unable to
22
unable to discern such a necessary implication in the regu-lations in
question. Clearly the regulations make it obligatory for the
Surgeon General to
provide at State expense medical treatment for an injured member of the
Permanent Force; and prescribe that the
treatment shall be given by military
doctors at military hospitals, etc. It is probably correct to say that it is
implicit in the
regulations that the patient concerned is in general obliged to
accept treatment by military doctors and at military in-stitutions.
But this
does not preclude him from seeking at his own expense a second opinion from a
private medical practitioner. I would emphasize
"at his own expense" for it is
clear from the regulations that, save in exceptio-nal circumstances, the SADF
does not accept financial
lia-bility for medical treatment provided privately.
The denial of the right of a member of the Permanent Force to consult a private
doctor would constitute a serious derogation from his ordinary rights as an
individual, especially where
/ he
23
he suspected that the treatment given to him by the Army doctor might have
been incorrect or even negligent, and it would require
either an express
provision in the Regulations or a clear implication to establish the denial of
this right. There is no express
provision; and I fail to discern the
implication.
This finding strikes at the very heart of appellant's argument based on
impossibility. But in addition there does not appear to be
any warrant for
concluding that appellant's ignorance of his cause of action (prior to 11
October 1983) was in any way attributable
to the alleged unlawfulness of
obtaining a second opinion from a private practitioner. The fact of the matter
is that at a certain
stage - we do not know exactly when - appellant did consult
a private practitioner, Dr Dyson. From appellant's evidence it seems
clear that
the reason why he did not consult Dr Dyson earlier was not because of any
possible illegality in such
/ a course
24
a course of action, but because he thought, not unnaturally, that the
treatment prescribed by Dr Schlosberg would cure his injured
elbow. In this
connection I refer to the following evidence given in examination-in-chief:
"Now the issue in this case Mr Pizani, if I may call you that because you are no
longer a member of the permanent force, is whether
or not it was possible before
11 October 1983 for you to have brought a claim against the army, arising out of
the treatment you
received from Dr Schlosberg?-
Well, I did not know there was such a claim. I was under the impression that the
treatment would cure my elbow.
Yes, and if you had known...?-- I would
have
definitely
.... would it
have been possible for you?-
Yes it would have been.
Yes. And were you, as far as you were aware, entitled to take any steps other
than those you have mentioned to establish whether or
not you had a claim before
11 October 1983?-
No.
/ No what?
25
No what? No you were, or no you were
not?— I do not know, I do not
quite
Yes. As far as you were aware were there any steps you were entitled to take
before 11 October 1983 to establish whether or not you
had a claim arising out
of Dr Schlosberg's treatment?-- I was not, 1 do not quite understand that
question, what you are saying there.
Well, could you have done anything more than you did?-- No I could not
have."
In fact, therefore, the
regulations seem to have been an irrelevancy.
In argument before us appellant's counsel also ad-vanced an alternative
submission, not foreshadowed in his heads of argument. It
was to this effect:
that, quite apart from the Regulations, appellant's lack of knowledge prior to
11 October 1983, of his cause
of action and the facts founding it, if
reasonable,was in itself good ground for holding that compliance with sec.
113(1) had been
rendered
/ impossible;
26
impossible; and that in the circumstances of this case appel-lant's lack of
knowledge had been reasonable. Assuming for present purposes
the correctness of
the proposition of law inherent in this submission (which seems, in effect, to
im-port the principle contained
in
sec. 12(3)
of the
Prescription Act), I
am of
the view that an insurmountable obstacle in appellant's path are the facts that
not only was this ground of alleged impossibility
not previously argued, but
also that it was not pleaded. In his replication appellant founded the alleged
impossibility of complying
with
sec. 113(1)
solely upon the contention that in
terms of the Regulations he was precluded in law from seeking any treatment for
his injury other
than that arranged for him by the Surgeon General. The question
whether, apart from the Regulations, appellant could reasonably have
ascertained
the true facts concerning his injury and the diagnosis made by Dr Schlosberg
before 11 October 1983 was not raised on
the pleadings and was con-
/ sequently
27
sequently not investigated at the hearing before ELOFF J.
Had it been an
issue on the pleadings the trial of this matter
would probably have taken a
very different course. It is
likely, in particular, that additional evidence
would have
been placed before the Court a
quo
. Accordingly, I
do
not think that it is now open to appellant to raise this
argument.
The point concerning unconscionable conduct, raised in the replication, was
not separately argued before us. It appears to be based
on the same premise as
the contention of impossibility, viz, the unlawfulness of appellant seeking
treatment and advice from a private
medical practitioner, and consequently it
must fail for the same reasons.
I am therefore of the view that the Court a
quo
came to the correct
conclusion. I do so with some regret because, as I have already mentioned, there
seem to be strong equitable
reasons why an expiry period such as provided for by
sec. 113(l)
/ should
28
should be subject to a proviso similar to that afforded by
sec. 12(3)
for
prescriptive periods. But that is a matter for the Legislature.
The appeal is dismissed with costs.
M M CORBETT.
HEFER JA) GROSSKOPP, JA) VIVIER, JA) STEYN, AJA)