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[2024] ZAECQBHC 63
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Klatte v Drs Visser, Erasmus, Vawda and Partners (1372/2016) [2024] ZAECQBHC 63 (29 October 2024)
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IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, GQEBERHA)
CASE
NO: 1372/2016
Date
Heard: 17 – 19 September 2024
Date
Delivered: 29 October 2024
In
the matter between:
TJELKE
TOKAT ANGELBAUER KLATTE
PLAINTIFF
and
DRS VISSER, ERASMUS,
VAWDA & PARTNERS
FIRST DEFENDANT
JUDGMENT
MULLINS
AJ
[1]
This matter came before me in respect of the merits only and at the
commencement of the trial
I made the following order by agreement:
“
The parties agree
that the Honourable Court will be requested to Order that the
following issues should be separated from the remaining
disputes on
the Pleadings (being issues of causation and quantum), and should be
argued first and that the remaining issues should
stand over for
later determination:
1.
Whether the Plaintiff’s fall was caused by the First
Defendant’s negligence which,
inter alia
, requires a
determination as to:
(a)
Whether the fall was reasonably foreseeable, and;
(b)
Whether the fall was reasonably preventable.
2.
Whether the First Defendant’s conduct was wrongful.”
[2]
Although the matter commenced as what is known as a medico-legal
dispute, by the time it came
before me it had become a
straightforward delictual action, the medical negligence aspect
having been abandoned by the Plaintiff.
As a result thereof the
Second Defendant, the hospital where the incident occurred, had also
fallen out of the picture.
[3]
At the conclusion of the Plaintiff’s case the Defendant
[1]
applied for absolution from the instance, which application was
opposed by the Plaintiff.
[4]
It is the Plaintiff’s case that as a result of an incident,
which is briefly described hereunder,
the Plaintiff suffered a
brachial plexus injury of the right arm which ultimately led to the
amputation thereof.
[5]
What I am called upon to decide is whether the Defendant is in law
responsible for the Plaintiff’s
loss of her right arm.
Essentially this boils down to whether, on the Plaintiff’s
evidence, the incident giving rise
to the injury was reasonably
foreseeable.
[6]
The Defendant, which is a partnership trading as Bayradiology,
carries on business as radiologists,
whose rooms are situated at
Netcare Greenacres Hospital in Gqeberha, but is completely
independent of the hospital, (which is the
erstwhile Second
Defendant).
[7]
Prior to the commencement of the evidence, and by agreement between
the parties, in order for
all concerned to be familiar therewith and
so as to have a visual picture of the layout of the premises in
question, an inspection-in-loco
was held at the Defendant’s
rooms. Nothing contentious arose from the inspection-in-loco,
which served its purpose.
[8]
The Plaintiff’s case consisted of her evidence, an expert
witness, one Grant Swartz, who
is a qualified radiographer, and that
of her husband, whose evidence was relevant in respect of one narrow,
but important aspect.
[9]
The incident giving rise to this litigation occurred in the
Defendant’s x-ray room, which
consists of a number of different
apparatuses, a roof mounted x-ray camera, which can be moved in
various directions and adjusted
as the need arises, and a
semi-partitioned area behind which the radiologist stands when the
x-rays are taken.
[10]
At the time of the incident the Plaintiff was 34 years old and,
according to her, in good health. Her
evidence in chief may be
summarized as follows:
(a)
Due to a painful right knee she had been referred to the Defendant
for what is described as a
leg length x-ray;
(b)
She reported at reception and shortly thereafter was taken through to
the changeroom area by a
lady (who was identified by the Defendant as
a radiographer) and asked to wait. The lady went into a room
(the x-ray room)
and emerged a short while later to invite the
Plaintiff in;
(c)
On entering the x-ray room the lady told her to stand against an
apparatus, which had a raised
platform, and the camera was
positioned. Initially she was on an additional step, but this
was subsequently removed;
(d)
Despite numerous attempts, and the assistance of two other persons
who were called in to help,
for some reason the x-ray machine
wouldn’t work;
(e)
The Plaintiff estimates that this took about 20 minutes, during which
time she remained standing
on the apparatus;
(f)
While still standing on the apparatus she blacked out and fell.
When she came to she
was on the ground and there was, in her words, a
lot of blood. A Dr Wickens was called from emergency who
treated her and,
inter
alia
,
required a head and neck x-ray, which was duly performed;
[2]
(g)
She was admitted to casualty where she received 55 stitches for a cut
on her forehead and 3 stitches
for a cut lip. She spent the
night in the hospital and was discharged the next day.
[11]
Although no evidence was led in regard thereto, as stated above, it
is not in dispute that as a result
of this fall that the Plaintiff
suffered a brachial plexus injury, which in due course resulted in
the amputation of her right
arm becoming necessary.
[12]
The Plaintiff was subjected to a lengthy cross-examination, which
boiled down to this:
(a)
The entire episode did not take anything like 20 minutes and in
support thereof reliance was placed
on the Defendant’s computer
generated records which indicate that from the time the Plaintiff
registered at reception to
the time Dr Wickens was called was nowhere
near 20 minutes;
(b)
According to the medical records the Plaintiff suffered a syncopal
episode, which is a sudden,
unexpected loss of blood pressure.
Her blood pressure, albeit after the blackout, was 74/49, which is
extremely low;
(c)
There was no indication, no warning, that the Plaintiff was about to
faint;
(d)
Even if the Plaintiff had been left standing for twenty minutes there
was no indication that there
was anything amiss. There were no
warning signs;
(e)
In any event, the Plaintiff could have sat down if she felt she was
being left standing for too
long.
[13]
In response the Plaintiff was adamant that she had been left standing
for about 20 minutes and that, given
that she had an injured knee, it
was too long to be left standing in one position. She should
have been offered a chair,
but she wasn’t, nor was there one
available.
[3]
[14]
The Plaintiff could not dispute that her blackout was as sudden
event.
[15]
The Plaintiff’s expert, Mr Swartz, opined that the Plaintiff
had been left standing for too long and
that given that the Plaintiff
had suffered a tear of the meniscus
[4]
the knee was unstable and could give way at any time. Once the
problems with the x-ray machine manifested the Plaintiff should
have
been offered a chair because of the possibility that she could fall.
[16]
In cross-examination the expert’s expertise was placed in issue
and, in addition, the very basis upon
which he had prepared his
opinion was questioned, legitimately so. For present purposes
it is not necessary to deal with
his evidence and its shortcomings.
[17]
The Plaintiff’s husband, Karl Udo Klatte, testified that he was
on his way to an appointment when he
received a call to the effect
that his wife had had a fall. He immediately proceeded to the
hospital and on arrival at the
Defendant’s rooms the Plaintiff
was still on the floor and was being treated by Dr Wickens.
[18]
It had been put in cross-examination of the Plaintiff that when her
husband arrived at the scene he said
to one of the Defendant’s
employees that “
she often faints
”. The
Plaintiff denied that this was the case. In his evidence the
Plaintiff’s husband denied that she
often faints and also that
he had said this to one of the Defendant’s employees. As
Mr Klatte was not cross-examined,
I must accept the Plaintiff’s
evidence in this regard.
[19]
So where to from here? It would be apposite to start with the
allegations on the pleadings. The
following is alleged:
[5]
“
16.1. the first
defendant’s employees failed to attend to the plaintiff with
due and proper care and skill, causing her to
fall during the taking
of the initial x-ray images;
16.2. the
first defendant’s employees placed the plaintiff in a
comprising position for an extended period of
time during the taking
of the initial x-ray images, causing her to fall;
16.3. the
first defendant’s employees failed to provide sufficient
assistance to the plaintiff during the taking
of the initial x-ray
images;”
[20]
These very generalized allegations were fleshed out in the
Plaintiff’s evidence, to which the Defendant
did not object.
[21]
The requirements for delictual liability, which is routinely applied,
was formulated by Holmes JA in
Kruger
v Coetzee:
[6]
“
For the purposes
of liability
culpa
arises if:
(a)
a
diligens paterfamilias
in the position of the defendant:
(i)
would foresee the reasonable possibility of his conduct injuring
another in his person or
property and causing him patrimonial loss;
and
(ii)
would take reasonable steps to guard against such occurrence; and
(b)
the defendant failed to take such steps.”
[22]
These requirements were refined by Olivier JA in
Mukheiber
v Raath and Another
[7]
as
follows:
“
The test for
culpa
can, in the light of the development of our law since Kruger v
Coetzee
1966 (2) SA 428
(A), be stated as follows (see Boberg The Law
of Delict at 390):
For the purposes of
liability
culpa
arises if:
(a)
a reasonable person in the position of the defendant:
(i)
would have foreseen harm of the general kind that actually occurred;
(ii)
would have foreseen the general kind of causal sequence by which that
harm occurred;
(iii)
would have taken steps to guard against it, and
(b)
the defendant failed to take those steps.”
[23]
The two formulae are referred to respectively as the abstract theory
and the relative theory. This
somewhat academic approach should
not obscure the fact that at the end of the day the test in any
particular set of circumstances
is whether the conduct complained of
falls short of the standard of the reasonable person.
[24]
With regard to reasonable foreseeability there is seldom what has
been referred to as a “
bright line
”.
[25]
Foreseeability is an objective test. It is also fact specific,
with no two cases being the same.
It is the Defendant’s
argument that if the Plaintiff having a fainting spell / blackout was
not objectively foreseeable,
then one of the elements of delictual
liability is missing and absolution from the instance must inevitably
follow.
[26]
The test for absolution from the instance was formulated in
Gascoyne
v Paul and Hunter
[8]
as
follows:
“
At the close of
the case for the plaintiff, therefore, the question which arises for
the consideration of the Court is, is there
evidence upon which a
reasonable man might find for the plaintiff.”
[27]
It is axiomatic that the granting of absolution from the instance at
the close of a plaintiff’s case
should only be resorted to in
the clearest of cases in that it relieves a defendant of having its
defence tested. Thus, in
Myburgh
v Kelly
[9]
the
following was stated:
“
When absolution is
asked for, as here, at the close of plaintiff’s case, the
magistrate must bring to bear upon the evidence
not his own but the
judgment of the reasonable man. Renouncing for the time being any
tendency to exercise a judgment of his own,
he is bound to speculate
on the conclusion at which the reasonable man of his conception not
should but might, or could, arrive.
This is the process of
reasoning which, however difficult its exercise, the law enjoins upon
the judicial officer.”
[28]
The court must also assume that the Plaintiff’s evidence is
true, unless it is palpably not so, and
credibility should not
normally play a role at this stage. There need not be a
preponderance of probability in favour of
a plaintiff, and it is
sufficient if one of the reasonable inferences which the court may
come to in due course is in the plaintiff’s
favour.
[29]
The reference to the reasonable person should, more correctly, be a
reference to the court hearing the matter.
Thus, the test
referred to in
Carmichele
v Minister of Safety and Security
[10]
is
formulated thus:
“
[26]
Both the trial Judge and SCA applied the appropriate test for the
grant of absolution from the instance at the
close of the plaintiff’s
case, viz whether a court, applying its mind reasonably to the
evidence, could or might (not should
or ought to) find that the
police or prosecutors at Knysna owed a legal duty to the applicant to
protect her.”
And
in
South
Coast Furnishers CC v Secprop 30 Investments (Pty) Ltd:
[11]
“
[15] I
conceive that the test to be applied as to whether a genuine factual
dispute has been raised on the papers is
similar in nature to that in
a trial at the point where the plaintiff’s case has been closed
and absolution is sought before
the defence is embarked upon.
Here, the test is whether there is evidence upon which a reasonable
presiding officer might
or could find for the plaintiff. If
there is, absolution should be refused. The court does not
enter into an evaluation
of the credibility of witnesses unless they
have “palpably broken down, and where it is clear that they
have stated what
is not true.”
[30]
Having canvassed the principles relevant to the granting of
absolution from the instance, or not, as the
case may be, I return to
the issue which is at the forefront of the matter: the
reasonable foreseeability that the Plaintiff
could faint and fall off
the x-ray apparatus on which she was standing.
[31]
Not surprisingly the Defendant referred me to
Sea
Harvest Corporation (Pty) Ltd and Another v Duncan Dock Cold Storage
(Pty) Ltd and Another.
[12]
The
facts were as follows:
(a)
A cold storage warehouse in the Cape Town harbour was set alight by a
flare fired
to celebrate New Year, which flare lodged in one of the
warehouse’s gutters. The warehouse and its contents were
destroyed
by the ensuing fire;
(b)
The warehouse did not have a sprinkler system and the owners of goods
which had been
stored in the warehouse sued for damages;
(c)
As the building was regarded as “low risk” a sprinkler
system was not
a requirement. There were, however, fire
extinguishers and hoses installed at various places in the building;
(d)
Significantly, it was common cause that had there been a sprinkler
system it would have
either extinguished the fire, or limited the
damage.
[32]
In applying the reasonable person test the court held (and I
paraphrase) that it was not merely whether or
not a fire was
foreseeable, which it was, but whether a fire would be caused by a
flare lodging in a gutter and the building catching
alight as a
result. Given these peculiar facts the court held that the
chance of a fire starting in this manner was so remote
that it was
not reasonably foreseeable. Put another way: a fire was
always reasonably foreseeable, but a fire in those
specific
circumstances was not. The court dismissed the plaintiffs’
claims.
[33]
Relying on
Sea
Harvest
Mr
Brown
,
for the Defendant, argued that there had to be evidence that it was
reasonably foreseeable that a healthy 34 year old woman would
suffer
a syncopal episode in the circumstances. There was no evidence
of a medical nature to support this conclusion, which
was a “
gap
”
in the Plaintiff’s case. He submitted that there had to
be evidence to establish how the alleged negligent event
occurred and
why it was objectively foreseeable. In this regard he quoted
from
Kruger
v Carlton Paper of South Africa (Pty) Ltd:
[13]
“
When confronted
with a case where there is absolutely no explanation of how a
plaintiff came into contact with the terminal, and
his right to
relief depends upon proof of whether the risk of his doing so was
reasonably foreseeable, there can be no justification
for assuming
that it was foreseeable simply because the event occurred. The
temptation to do so should be resisted. ‘(I)t
is easy to be
wise after the event, and nothing is so perfect that it cannot be
improved’ (Heuston and Buckley Salmond and
Heuston on the Law
of Torts (1987) 9
th
ed at 264). That is the
situation in casu. It would be easy to say, because the
terminal was exposed and the defendant
could have covered it,
therefore liability should follow.”
[34]
Mr
Brown
also submitted that there were no facts in the
possession of the Defendant which would disturb the balance and which
would incline
me to refuse absolution from the instance.
[35]
Mr
Schoeman
,
who appeared with Ms
Ayerst,
for the Plaintiff argued that the test is “
might”
,
not “
should”
or
“
could”
and
that the Plaintiff’s evidence had met this threshold. He
also argued that there was information and knowledge in
the
Defendant’s possession which would add “
flesh”
to the Plaintiff’s case. In this regard he made reference
to the fact that there had originally been two defendants
before
court and evidence in the possession of the erstwhile Second
Defendant
[14]
would in due
course become relevant. Mr
Schoeman
was at pains to point out that only the Plaintiff’s evidence
was before me and that the time line put to the Plaintiff in
cross-examination was not evidence. It still had to be tested.
[36]
Mr
Schoeman
argued that the repeated failure of the x-ray
machine was a relevant factor, which only the Defendant could deal
with, as was the
fact that, despite the delay occasioned thereby,
whatever the duration, the Plaintiff was not invited to sit down.
[37]
Finally, Mr
Schoeman
argued that the issue was not whether a
syncopal episode was reasonably foreseeable, but whether, in the
circumstances a fall was
reasonably foreseeable. If I find that
it might have been, absolution from the instance had to be refused.
[38]
In
Ordecor
(Pty) Ltd v Quality Caterers (Pty) Ltd and Others
[15]
it was
held that the power which a court has to grant absolution at the end
of a plaintiff’s case is a discretionary power.
Conversely, the power to refuse to grant absolution from the instance
must also be a discretionary one, such discretion to be judicially
exercised.
[39]
Ultimately, my decision is guided by the following quote from
Carmichele:
[16]
“
There may be cases
where there is clearly no merit in the submission that the common law
should be developed to provide relief to
the plaintiff. In such
circumstances absolution should be granted. But where the
factual situation is complex and the
legal position uncertain, the
interests of justice will often better be served by the exercise of
the discretion that the trial
Judge has to refuse absolution.
If this is done, the facts on which the decision has to be made can
be determined after hearing
all the evidence, and the decision can be
given in the light of all the circumstances of the case, with due
regard to all relevant
factors. This has the merit of avoiding
the determination of issues on the basis of what might prove to be
hypothetical facts.
It also ensures that there is a full and
complete record on which the dispute can be determined with finality
not only by the trial
Court, but by an appeal Court required to deal
with the matter. This may curtail rather than prolong
litigation.”
[40]
As stated above, when it comes to absolution from the instance there
is no “
bright line
”. Although some cases may
be clear-cut, in my view this is not such a case. In the
circumstances, and guided
by the above-quoted passage in
Carmichele
,
I intend to refuse the application.
[41]
In the circumstances I make the following order:
1.
Absolution from the instance is refused.
2.
The costs of the trial to date, including the application for
absolution from the instance,
are reserved.
3.
The parties are to approach me in order to arrange a date for the
resumption of the trial.
NJ
MULLINS
ACTING
JUDGE IN THE HIGH COURT
DATE:
APPEARANCES:
Plaintiff:
Adv.
A.D. Schoeman SC and H. Ayerst
Attorneys
DSSG ATTORNEYS & CONVEYANCERS
Bidwell
House, 3 Bidwell Street
Cannon
Hill
UITENHAGE
c/o
SJP ATTORNEYS INC.
11
Carstens Street
Kamma
Ridge
GQEBERHA
First
Defendant:
Adv.
G. Brown
Attorneys
EVERINGHAMS ATTORNEYS
Unit
69 Roeland Square
Roeland
Street
CAPE
TOWN
c/o
TROSKIE ATTORNEYS
11
Lennox Street
Glendinningvale
GQEBERHA
[1]
As there is only one defendant before court the First
Defendant will be referred to as the Defendant.
[2]
Ironically, the machine appears to have had no problems
at this stage.
[3]
During the inspection-in-loco there was a stool
alongside the apparatus, but that is not proof that there was one
on
the day.
[4]
Which is in fact not what was the problem.
[5]
There are numerous other allegations which
are either no longer relevant, or relate to the erstwhile
second
defendant (Netcare Greenacres Hospital)
[6]
1966
(2) SA 428
(A) at 430 E – F.
[7]
1999
(3) SA 1065
(SCA) at 1077 E – F.
[8]
1917 TPD 170
an 173, which has been
followed in scores of judgment: see Erasmus: Superior
Court Practice; Vol.
II;
D1, p. 39 – 15.
[9]
1942
EDL 202
at 206
[10]
[2001] ZACC 22
;
2001
(4) SA 938
(CC) at 951; para [26].
[11]
2012
(3) SA 431
(KZP) at 439D – E; para [15].
[12]
2000
(1) SA 827
SCA,
[13]
2002 (2) SA 335
(SCA) at para
[14]
Netcare Greenacres Hospital.
[15]
1978 (3) SA 1073
(N) at 1076G – 1077F.
[16]
At para [80].