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[2024] ZAECBHC 32
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N.M v Member of the Executive Council for the Department of Health - Eastern Cape (227/2017) [2024] ZAECBHC 32 (27 August 2024)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, BISHO)
Reportable/
Not
Reportable
Case
no.: 227/2017
Matter
heard on: 26 April 2024
Judgment
delivered on: 27 August 2024
In
the matter between: -
N[…] E[…]
M[…]
Plaintiff
and
MEMBER OF THE
EXECUTIVE COUNCIL FOR
THE DEPARTMENT OF
HEALTH – EASTERN CAPE
Defendant
JUDGMENT
SMITH J
Introduction
[1]
The plaintiff instituted civil proceedings against the defendant in
her personal and representative capacity
on behalf of her minor
child, W[…] (“the child”). The claim is based upon
the alleged negligence of the medical
or nursing staff of the Nessie
Knight Hospital (“the hospital”) which, according to the
plaintiff, resulted in the
child suffering from brain damage, leading
to cerebral palsy. At the commencement of the trial, I ordered the
separation of liability
and quantum, and the matter consequently
proceeded in respect of liability only, with the issue of quantum
having been postponed
sine die
.
[2]
The following material facts are common cause. The plaintiff was
admitted to the hospital on 26 April 2007, at 13h20,
complaining of
lower abdominal pain. There was no history of rupture of the
membranes. She and the foetus were examined at 13h20.
The foetus was
in a cephalic presentation and longitudinal lie, and the foetal
heartrate (FHR) was recorded as normal. The cervix
was 6 cm
dilated and the membranes were intact.
[3]
The drug Pitocin was administered at 10h00 the next day but the rate
of timing and administration was not
documented. The FHR was once
again recorded as being normal. The child was born at 16h10 on 27
April 2007. It was common cause
that the child suffered serious brain
damage, and the defendant, inter alia, admitted that ‘the MRI
features are diagnostic
of an acute profound pattern of hypoxic
ischemic brain injury in a term brain.’
[4]
The parties held several pre-trial conferences, which resulted in
comprehensive agreements in respect a number
of disputed issues. The
defendant made the admissions after he was forced to abandon the only
possible defence he could proffer
- namely that there were genetic
reasons for the injury - when that possibility was discounted by
metabolic array and Whole Exome
Sequencing (WES) testing. In both
cases his expert, Dr Keshave, had clearly stated that if these tests
were negative, then he concedes
that the child has Hypoxic Ischemic
Encephalopathy (HIE).
[5]
At the commencement of the trial, the plaintiff’s counsel
contended that the effect of the admissions
was that little, if any,
lis
remained between the parties. Because it appeared to me
that the plaintiff’s counsel was correct, I invited the
defendant’s
counsel to explain which issues he considered as
still being alive. The Court was then, for the first time, informed
that the defendant
recognised that the admissions were destructive of
his defence and that he intended to withdraw them. The defendant
thereafter
brought a formal application for leave to withdraw the
admissions, which was dismissed with costs on the attorney and client
scale.
[6]
When the trial resumed, two exhibits were handed in, namely Exhibit
A, containing admissions between the parties during the
pre-trial
conferences and Exhibit B, containing extracts from the joint minutes
prepared by the experts. Although these documents
were prepared by
the plaintiff’s legal representatives, it was common cause that
they correctly reflected the contents of
the relevant pre-trial
minutes and the various experts’ joint minutes.
[7]
The following are some of the more crucial admissions:
‘
That
pursuant to the medico-legal report of parties’ experts, Dr
Hayes and Dr Zikalala, and the joint minute between Prof
Lotz and Dr
Zikalala:
7.1.
The defendant admits that the MRI features are diagnostic of an acute
profound pattern of hypoxic
ischemic brain injury in a term brain.
7.2.
The defendant admits that from the available hospital records, the
clinical picture and the MRI
picture, there are no indications of
antenatal or postnatal causes that contributed to the brain injury of
W[…].
7.3.
That pursuant to the joint minute between Prof van Toorn and Dr
Keshave –
7.3.1.
The defendant admits that the maternity case records indicate no
maternal medical condition and no evidence of placental
infection.
7.3.2.
The defendant admits that W[…]’s birth weight was 3200g
(between 10
th
and
50
th
percentile)
which is within normal limits and argues against intrauterine growth
restriction.
7.3.4.
The defendant admits that given the following three important
features, it is agreed that an intrapartum insult is
the likely cause
of neonatal brain injury:
7.3.4.1.
Evidence of fetal distress and/or fetal risk for hypoxia/ischemia
(e.g. fetal heart rate abnormalities, sentinel event,
fetal
academia).
7.3.4.2.
The need for resuscitation and/or low Apgar scores:
7.3.4.3. An overt
neonatal neurological syndrome in the first hours and days of life.
7.3.5.
The defendant admits that there was no evidence of a sentinel event
(no cord prolapse, no placental abruption, no uterine
rupture, no
maternal collapse, no fetomaternal bleed and no traumatic delivery);
7.3.6.
The defendant admitted that the active and second stage of labour
represents the most dangerous time of labour when
uterine (womb)
contractions are at their most frequent and strongest.
7.3.7. The defendant
admitted that every contraction decreases the flow of blood into the
intervillous space, resulting in less
oxygen rich blood available for
transfer to the fetus.’
[8]
It was clear from the contents of those exhibits that there was no
real
lis
between the parties, since:
(a)
It was admitted that there was an intrapartum hypoxic
ischemic injury
to the foetus.
(b)
It was admitted that there was prolonged resuscitation
necessary at
the birth of the child.
(c)
It was conceded that there was improper monitoring of
the plaintiff
who had become a high-risk patient due to the prolonged labour and
the administering of Pitocin.
[9]
Despite these crucial concessions, the defendant’s counsel
refused to accept that where an intrapartum
hypoxic ischemic injury
occurred and there were clear risk factors involved which were not
properly addressed through monitoring,
the only logical inferences to
be drawn is that there was causal negligence and that the defendant
is liable for the injury to
the child. However, the defendant’s
counsel attempted to pull defences out of the hat, such as the
possibility of a perinatal
stroke, a denial that HIE was present, a
denial that the child had been in an injured state, and finally, that
the injury was unforeseen
because of the ‘acute profound’
nature thereof.
[10]
The defendant’s stubborn refusal to nail its defensive colours
to any particular mast, necessitated the plaintiff’s
legal
representatives to call most of its witnesses. I must emphasize that
those witnesses were not called to establish any of
the issues that
have been admitted but merely to explain to the Court the extent and
meaning of those admissions. The result was
that the
cross-examination of the plaintiff’s witnesses constituted a
litany of irrelevant questions, most of which were
ruled
inadmissible.
[11]
During the course of the trial, defendant’s counsel, after I
expressed my dissatisfaction about the defendant’s
approach in
respect of the admissions that had been made, informed the Court that
he had discussed the matter with his instructing
attorney and it was
decided that he should draw a memorandum regarding the further
conduct of the matter for the defendant’s
consideration.
[12]
After I allowed him an opportunity to consult with the defendant,
counsel informed the Court as follows:
(a) ‘The
defence of the Department is one, that notwithstanding sub-standard
monitoring, the injury was not caused,
rather such substandard
monitoring did not lead to the injury.’
(b) ‘The
injury was neither foreseeable nor preventable. More particularly
that it is common cause between the parties
that this was an acute
profound type of injury.’
(c) ‘Now the
third, the defence of the Department is that in all probability B[…]
(sic) suffers from and continues
to suffer from a perinatal stroke.
And the evidence we will have to elucidate whether at the time that
the injury occurred that
asphyxia occurred, he had already had the
stroke or it occurred thereafter. This will be a matter for
evidence.’
[13]
Regarding (a), this issue has been dealt with in the admissions and
was no longer part of the
lis
between the parties. I
accordingly did not allow any cross- examination in respect of the
perinatal stroke. And regarding (b),
this defence is absent from any
of the reports of defendant’s expert witnesses. This is clearly
an afterthought, not based
on any of the experts’ reports.
Consequently, the issue of negligence is no longer in dispute and all
that remains is the
question of the causal link between the
negligence and the injury.
[14]
The defendant has, at various stages of the proceedings, contrived to
proffer the following, sometimes conflicting
defences. First, there
was the issue of metabolic insults. The tests were, however,
negative. Then there was a theory about genetic
testing. This also
came up negative. When the previous two defences fell away, the
defendant’s paediatric expert, Dr Keshave,
suggested genetic
causes. He had, however, conceded in an email that if the WES testing
came up negative, then he would concede
that the insult was HIE. The
defendant then still identified a perinatal stroke as part of the
lis
. Therefore, as far as the defendant is concerned, the
remaining
lis
between the parties was the perinatal stroke and
the acute profound hypoxic ischemic event.
[15]
In the final analysis therefore:
(a) The
possibility of a perinatal stroke had been excluded in terms of the
pre-trial admissions and can consequently
be ignored;
(b)
The issue of negligence is no longer in dispute;
(c)
The issue of any metabolic or genetic cause has not been
identified
as remaining a
lis;
and
(d)
The only other remaining defence, namely that of “
acute
profound injury”
has not at any stage been raised in the
defendant’s expert reports.
[16]
It was against the backdrop of these often confusing and
contradictory array of contrived defences
that the plaintiff was
constrained to lead her evidence. Even though most aspects of the
plaintiff’s expert witnesses had
been covered in the
admissions, I have nevertheless allowed her to lead evidence - in
what was essentially a ‘belt and braces’
approach -
because of the opportunistic manner in which the defendant conducted
his defence. I accordingly only summarise the most
crucial aspects of
their testimonies.
The
evidence of Dr Gericke
[17]
As mentioned, Dr Gericke, a geneticist, was called to explain to the
Court what the result of the admissions
are and not to prove them.
Plaintiff’s counsel went to great lengths to qualify Dr Gericke
and to invite him to explain to
the Court what an extremely
specialised field genetics is. Although paediatric neurologists will
have some knowledge of genetics,
they will not be remotely as
qualified as a geneticist to testify about genetics. The result is
that Dr Gericke’s testimony,
to the extent that it has not been
contradicted by credible and admissible evidence, must be accepted
without reserve.
[18]
It is not necessary to analyse his evidence in any detail as it was
also common cause that there are no metabolic
reasons for the brain
injury. Moreover, there was also agreement between the two
geneticists that there are no genetic indications
for the child’s
brain injury and consequent cerebral palsy. During the
cross-examination of Dr Gericke there was some attempt
to deal with
the significance of the WES test. Plaintiff’s counsel, however,
objected to the question on the basis that there
was an agreement
between the geneticists that there was no metabolic or genetic cause
for the injury. This objection was upheld
and all further
cross-examination on this issue was stopped. There is therefore no
reason why Dr Gericke’s evidence cannot
be accepted without any
reservations.
Evidence
of Prof Van Toorn
[19]
Prof Van Toorn is a paediatric neurologist. His
evidence
was to the effect that, in considering what caused the brain injury,
the clinician must look at all the relevant factors,
including the
MRI, the antenatal history, the history of complications during
labour, and the post-natal treatment. Having regard
to all of the
above - including the fact that Oxytocin (Pitocin) was administered
and not properly monitored - Prof Van Toorn had
no doubt that the
cause of the brain injury was a hypoxic ischemic insult during the
labour process (intrapartum). He explained
this aspect as follows in
his report:
‘
The very prolonged
active phase of labour, the suboptimal monitoring labour, the
depression at birth (poor one minute Apgar score),
the need for
prolonged resuscitation and neurological abnormalities (abnormal eye
movements) shortly after the birth are all supported
of intrapartum
hypoxic ischemic encephalopathy.’
[20]
Notwithstanding the admissions, defendant’s counsel insisted on
asking the witness questions about the perinatal stroke.
Prof Van
Toorn explained that a perinatal stroke would be indicated quite
differently on the MRI.
[21]
When it was put to Prof Van Toorn that the injuries were not
foreseeable, sudden, and not preventable, he
replied that with the
administration of Oxytocin and the uterus contracting, the injury is
predictable and there should therefore
have been proper monitoring.
[22]
The cross-examination of Prof Van Toorn then dealt with two aspects,
i.e. cord compression and the fact that
“
an acute profound
insult”
was indicated on the MRI. The questions regarding
the perinatal stroke were disallowed for reasons explained above.
[23]
Prof Van Toorn pointed out that in the joint minute between himself
and Dr Keshave, he had invited Dr Keshave
to identify the issues. He
said further that Dr Keshave had not in any way dealt with the fact
that an acute profound insult may
be unforeseen and sudden nor had he
at that stage mentioned the possibility of a perinatal stroke.
Indeed, Dr Keshave had stated
that:
‘
In view of the
above I feel that the test mentioned in point 28 need to be done –
if they return negative then hypoxic injury
seem to be the most
likely cause of this condition.’
[24]
And in an email to Prof Van Toorn after the further requested WES
tests, Dr Keshave said that:
‘
In view of the
above – if WES test returns negative, I have nothing further to
add – an HIE is a cause of his symptoms.’
[25]
Prof Van Toorn was then cross-examined about the possibility of cord
compression. Although this had not been mentioned by any
of the
defendant’s experts, Prof Van Toorn explained that a cord
compression can compromise the rate of blood-flow to the
brain. It
was incorrectly put to him that the foetal heart rate was reassuring
throughout as only the recordings that were done
were reassuring. It
also bears emphasize that these were not CTG recording but a ‘moment
in time’ FHR.
[26]
He was then asked whether he could exclude cord compression. He
replied that it was a possible cause of the
brain injury. It would,
however, only have been tolerated for a certain amount of time. If
labour is prolonged there are two mechanisms
in respect of the
interference with the blood-flow, namely that the cord is compressed
too long, or the placenta is interfered
with. This is because of the
contractions during labour. However, he was of the view that this
would be speculative.
[27]
It was put to him that cord compression would not be visible and
cannot be detected. He stated that it can be detected
because during
the time when there is cord compression distress of the foetus will
be picked up by proper monitoring.
[28]
Insofar as cord compression being a sentinel event, Prof Van Toorn
said that this would be a wrong description
if regard is had to the
American Congress of Obstetricians and Gynaecologists 2019
publication (ACOG).
Prof Van Toorn testified
that according to ACOG (2019) cord compression is not a sentinel
event and it is ‘partial over a
long duration.’
[29]
It was put to Prof Van Toorn that the type of injury incurs in the
last few minutes of delivery. He was,
however, adamant that there was
no sentinel event. In the event, there is an admission in the joint
minutes that there was no sentinel
event and defendant’s
counsel clearly stated during cross-examination of Prof Van Toorn
that there was an agreement that
there was no sentinel event.
[30]
It was further put to Prof Van Toorn that this type of injury (acute
profound) is not foreseeable, sudden
and not preventable. Prof Van
Toorn said when Oxytocin is administered and the uterus is
contracting, it cannot be said that the
type of injury is not
preventable. He pointed out if there is no sentinel event, there are
risk factors such as the prolonged labour
and the administering of
Oxytocin or Pitocin. He could not agree that the injury would
therefore be unforeseen. Prof Van Toorn
explained what occurs when
there is no sentinel event, saying that there is ‘a crescendo
and a slow build-up, then a complete
collapse when the insult becomes
an injury.’ He explained that there is no neurological damage
during the build-up to the
crescendo and when the foetus cannot cope
anymore, acute damage is caused.
[31]
Prof Van Toorn stated under cross-examination that there was foetal
distress (whether this should have been picked
up he deferred to the
obstetrician), indicated by the risk factors and low Apgars, as well
as the need for resuscitation. The neurological
abnormalities were
the seizures, which had been admitted in the joint minute as well as
in the pre-trial admissions.
[32]
During re-examination plaintiff’s legal representatives dealt
with the article of Smith et al (which
is in the bundle of
authorities) as well as ACOG 2019. Prof Van Toorn made it clear that
if ACOG 2019 had been published, it would
not have been necessary to
publish the article of Smith et al, of which he is a contributor.
Both ACOG 2019 and the article (which
has been peer reviewed) is
authority for the fact that what has been described by the
radiologists as ‘acute profound’
is not the type of
injury which has for years been described as acute profound and
caused by a sentinel event such as
abruptio placentae
, burst
uterus, etc. Where there is no such sentinel event, and if there is
evidence of inadequate monitoring or risk factors such
as
administering of Oxytocin or prolonged labour, the overall picture
will indicate what the probabilities are. This is also confirmed
in
terms of ACOG.
[33]
Prof Van Toorn testified that one does not simply look at the MRI but
at all factors, and in this regard, he referred
to the following
excerpt from ACOG which he read into the record:
‘
To determine the
likelihood of an acute hypoxic-ischemia event occurring within close
temporal proximity to delivery contributed
to neonatal
encephalopathy, it is recommended that a comprehensive
multi-dimensional assessment be performed of neonatal status
and all
potential contributing factors, including material medical history,
obstetric antecedents, intrapartum factors (including
foetal
heartrate monitoring result and issues relating to delivery itself,
and placental pathology).’
[34]
Prof Van Toorn unequivocally stated that ACOG 2019 confirms that the
type of injury contended for by the plaintiff
in this case has now
been recognised by that institution. With reference to the relevant
portion of ACOG, he testified that the
medical science now recognises
the type of injury and brain damage occurring over a long period of
time without causing any damage,
until the final and complete
breakdown causing the injury. He again emphasized the aetiology,
namely that it is a cascade leading
to a final crescendo, in other
words, slow insults leading to eventual complete collapse over hours.
He also reiterated that the
foetal heartrate monitoring showed on the
medical documents are of no value whatsoever as it is simply ‘a
moment in time’
and not a cardiotocographical recording.
Evidence
of Dr Ebrahim
[35]
The testimony of Dr Ebrahim’s (an expert obstetrician) was also
tendered against the backdrop of the
common cause facts in terms of
Exhibits A and B. He testified that because of the normal antenatal
record there is no evidence
of antenatal brain damage, and it is
extremely unlikely that the child’s disabilities due to brain
injury occurred in the
antenatal period. Regarding suggestions that
there was nothing wrong with the child after birth, he refuted them,
referring to
the Apgar score after 10 minutes, which was 6 out of 10,
with extremities still blue and floppy.
[36]
He said that the first stage of labour was an excessive 25 hours.
Pitocin, which was used to accelerate labour,
is a potent stimulator
of uterine contractions capable of independently causing foetal
hypoxia, foetal distress and even perinatal
death. It is therefore
essential to ensure continued (or at least frequent intermittent)
monitoring and placement when Pitocin
is used in labour.
[37]
He said that each contraction causes an intermittent increase in
intra-uterine pressure, which briefly
reduces utero-placental
vascular profusion. A physiological but negative consequence for the
foetus is a transient drop in tissue
oxygen transfer. A healthy
foetus with good reserves has built-in adaptive mechanisms to cope
with this novel stress and emerges
unaffected. But if its reserves
were just about sufficient to cope with the usual demands of the
antenatal period, it may become
hypoxic and develop signs of distress
during labour due to the additional stress caused by contractions.
[38]
He testified further that the Plaintiff was a low-risk antenatal
patient but the risk status changed during labour.
First, because her
labour was prolonged, resulting in an unborn baby being exposed to a
greater hypoxia risk for a longer period
of uterine contractions, and
second, from the increased frequency and strength of uterine
contractions due to the use of Pitocin
late in labour. Although the
partograph and clinical notes show that the FHR was checked at half
hourly intervals during the first
stage of labour, apparently by
intermittent auscultation by the nurse from about 08h30 until about
13h30 and then hourly until
full dilation 15h30, there were no checks
during the entire bearing down or pushing phase of the second stage.
Indeed, the bearing
down phase of the second stage of labour is the
most hazardous period for the foetus. During this stage the risk of
foetal hypoxia
increases due to: (a) a reduction in placental
perfusion from stronger and longer uterine contractions and maternal
bearing down
efforts; (b) a decrease in cerebral perfusion of the
foetal head compression against the pelvis or pelvic floor; and (c)
umbilical
cord compression or possible tightening of a nuchal cord
(if present) due to the foetal head descent
.
[39]
In his opinion, since the foetal FHR was apparently completely normal
in the entire first stage and there was no
FHR monitoring in the
second stage, it appears likely that undiagnosed foetal distress
occurred in the second stage. If appropriate
monitoring had been
carried out in the second stage, foetal distress would have been
diagnosed immediately and urgent delivery,
most probably by vacuum
extraction or forceps, would have resulted in an earlier birth of a
healthy baby, without hypoxic injury.
[40]
He then explained why there would have been FHR abnormalities and
testified that it is unlikely to occur without
the foetus
demonstrating certain pathogenic evidence, most commonly FHR
deceleration or foetal bradycardia. He was therefore of
the opinion
that the apparently normal FHR record on the plaintiff’s
partograph is not an accurate reflection of the true
status of the
FHR during labour. It is highly likely that FHR abnormalities
indicative of foetal hypoxia or foetal distress were
not detected in
labour because FHR monitoring was not conducted correctly. If
appropriate FHR monitoring by CTG had been implemented
during labour,
particularly if Syncocinin was administered, foetal distress would
most probably have been diagnosed early enough
to enable timeous
delivery of the baby and he would most probably have been born in a
healthy condition.
[41]
Dr Ebrahim then gave a well-reasoned exposition as to why it is
likely that the damage occurred during the intrapartum
period and
could have been avoided if proper monitoring had been done. He then
dealt with the foreseeability of the monitoring
leading to the
injury. This establishes not only negligence, but also causal
negligence
.
He said the following in this regard, ‘[t]hus
the omission of appropriate FHR monitoring in Ms M[…]’s
labour
is an omission of one of the essential aspects of midwifery
care and the potential consequences for the foetus (and mother) are
common knowledge to all personnel involved in pregnancy care. If
standard recommendations for labour monitoring were carried out,
the
outcome of this pregnancy is likely to have been the birth of a
healthy baby and brain injury would not have occurred.’
[42]
The second part of Dr Ebrahim’s evidence dealt with the belated
defence, the so-called ‘acute profound
injury’, which
occurs in the last 10 minutes or so of birth and is totally
unpreventable. He dealt with the umbilical cord
compression and in a
scientifically compelling explanation he told the Court that this is
highly unlikely to have occurred in the
last 10 minutes of birth. He
said that frequently FHR decelerations are triggered but neuro injury
does not occur, and thus concluded
that,
‘…
the
currently normal FHR record that was obtained by this substandard
method of monitoring which was conducted in a substandard
manner
cannot be regarded as an accurate reflection of the state of health
of the foetus in the hours before birth.’
And,
‘
With the benefit
of hindsight in particular knowledge of W’s condition of birth
it is highly likely that an abnormal FHR prevailed
over the
significant amount of time, probably hours before W’s birth. It
is also probable that this abnormal FHR was due
to non-injurious
cerebral hypoxia.’
[43]
These persuasive scientific arguments, based on the available
undisputed facts, compel a finding that where
there is no sentinel
event and there is evidence of substandard monitoring during the
intrapartum period, the insult leading to
the eventual injury
occurred over a number of hours and could and should have been
identified during the course of labour had there
been proper
monitoring - which was not the case in this matter - and that early
intervention would have saved the child from the
devastating injury.
Applicable
legal framework
[44]
It is trite that the onus of proving negligence on a balance of
probabilities rests with the plaintiff. Should
the plaintiff
establish that a legal duty was breached negligently, this would
satisfy both the elements of unlawfulness and negligence.
[45]
The test was explained as follows in
Kruger
v Coetzee
[1]
:
‘
For
the purposes of liability culpa arises if –
(a)
a diligens paterfamilias in the position of the
defendant (or his employees) –
(i)
would foresee the reasonable possibility of his
(their) 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 (or his employees) failed to take
such steps.’
[46]
It need only be foreseeable that the plaintiff will suffer damages
but the precise nature of the damages need not
be precisely
foreseeable at that stage.
[2]
[47]
Although the onus of proving negligence is on the plaintiff, ‘the
plaintiff does not have to adduce
positive evidence to disprove every
theoretical explanation which is exclusively within the knowledge of
the defendant, however
unlikely, that might be devised to explain
(his paraplegia) in a way which would absolve the defendant and his
employees of negligence.’
[3]
[48]
It is trite that if a plaintiff is not in position to produce
evidence on a particular aspect, less evidence
will suffice to
establish a
prima facie
case where the matter is peculiarly
within the knowledge of the defendant. In such situations, the law
places an evidentiary burden
upon the defendant to show what steps
were taken to comply with the expected standards. The onus
nevertheless remains with the
plaintiff.
[49]
In
Minister
of Safety and Security and Another v Carmichele
[4]
the Court confirmed
that causation has two elements: -
(a)
The factual issue to be established
on a balance of probabilities by
the plaintiff by using the ‘but for’ test would involve
the mental elimination of
the wrongful conduct in the posing of the
question as to whether upon such hypothesis, the plaintiff’s
loss would have ensued
or not; and
(b)
The legal causation, namely whether the wrongful act is linked
sufficiently
closely or directly to the loss for legal liability to
ensue or whether, as it is said, the loss is too remote. This
is a
juridical problem and considerations of policy may play a part
in the solution thereof.
[50]
In
Caswell
& Powell Duffryn Associated Collieries
[5]
Lord
Wright remarked:
‘
Inference
must be carefully distinguished from conjecture or speculation. There
can be no inference unless there are objective facts
from which to
infer the other facts from which it is sought to establish. In some
cases, the other facts can be inferred with as
much practical
certainty as if they had been actually observed. In other cases, the
inference does not go beyond reasonable probability.
But if there are
no positive proved facts from which the inference can be made, the
method of inference fails and what is left
is mere speculation or
conjecture.’
[51]
Regarding the inference to be drawn it was held in
AA
Onderlinge Assosiasie Bpk v De Beer
[6]
:
‘
It
is not necessary for a plaintiff invoking circumstantial evidence in
a civil case to prove that the inference which he asks the
Court to
make is the only reasonable inference. He will discharge the onus
which rests on him if he can convince the Court that
the inference he
advocates is the most readily apparent and acceptable inference from
a number of possible inferences.’
[52]
In
Reece
and Others v Harris and Others
[7]
the
following was stated that a hypothesis: -
‘
To be logically
sound, it must be consistent with all the proved facts, and it must
not postulate facts which have not been proved.’
[53]
In
Oppelt
v Department of Health,
[8]
it was held that:
‘
A plaintiff is not
required to establish the causal link with certainty but only to
establish that the wrongful conduct was probably
a cause of the loss,
which calls for a sensible retrospective analysis of what would
probably have occurred, based upon the evidence
and what can be
expected to occur in the ordinary course of human affairs rather than
an exercise in metaphysics.’
[54]
The hospital staff is obliged to provide healthcare which has to be
exercised with reasonable skill, care and diligence
(see
Mathebula
(
supra
) at p 120, paragraph 92).
In
Mitchell v Dixon
1914 AD 519
at 525 it was held that: -
‘
A medical
practitioner is not expected to bring to bear upon the case the
highest possible degree of professional skill but is bound
to employ
reasonable skill and care; and is liable for the consequences if he
does not.’
[55]
The following was stated by Boberg
[9]
:
‘
Obviously the
ordinary reasonable man test of negligence cannot be applied to an
activity calling for expertise that the ordinary
man does not
possess. One cannot judge assertions conduct by asking how diligent
paterfamilias would have operated.’
[56]
It has been held by the Supreme Court of Appeal that it cannot be
argued that poor people who have to make
use of public hospitals must
expect worse treatment than other citizens.
[10]
Rulings
regarding the defendant’s witnesses
[57]
During the course of proceedings on Monday, 26 February 2024,
and before closing plaintiff’s case, her
counsel stated that he
would object to any attempt by the defendant to lead evidence that
was contrary to the admissions already
made. He also stated that he
would object to any attempt to lead evidence not properly set out in
the medico-legal reports of the
defendant’s experts. He
submitted that none of the defences identified by the defendant’s
counsel during the cross-examination
of Prof Van Toorn was mentioned
in the medico-legal reports and they had in any event been excluded
in terms of the pre-trial admissions.
[58]
I then ordered the parties to furnish the Court with written
submissions prior to close of business on 27 February
2024,
setting out: (a) what the defendant intended to prove; (b) where this
was dealt with by defendant’s experts in their
medico-legal
reports; (c) submissions regarding whether they did not or did clash
with the admissions already made.
[59]
Plaintiff’s legal representatives established through
comprehensive submissions, with reference
to the medico-legal
reports, that the remaining contentions appeared neither in the
defendant’s expert reports or fell foul
of Exhibit A.
Defendant’s counsel, however, did not furnish a written list of
submissions but did so in the form of an opening
address, setting out
what the defendant intended to prove.
[60]
First, it must be emphasised that defendant’s legal
representatives made absolutely no
effort to identify where in the
medico-legal reports of defendant’s witnesses the issues so
identified appeared. This was
not surprising as they are not
mentioned in any of the reports. In fact, the first point raised by
defendant’s counsel (which
he indicated he would prove through
Dr Janowski), namely that ‘the plaintiff’s FHR during
labour and before delivery
was in normal range, with good variability
and without delayed or late decelerations and was monitored
regularly’, finds
the opposite in the report of Dr Janowski.
The latter said the following: [t]here is no record that EFM
was done as per guideline
recommended for the plaintiff being
augmented with Oxytocin infusion, however continuous EFM was ordered
by the doctor.’
This also falls foul of the defendant’s
own identification of the issues during trial.
[61]
The defendant indicated that he would introduce evidence that there
was no scientific basis to suggest that the
injury occurred
intrapartum, that there is no evidence of intrapartum hypoxia and
that neither hypoxia nor ischemia can be assumed
as having been the
initiating causal mechanism. Further, that evidence will be led to
the effect that neurological injury sustained
by the child cannot be
timed to the intrapartum period. This proposition was obviously
contrary to the clear admission that, ‘the
injury was a hypoxic
ischemic event occurring during the intrapartum period.’
[62]
I accordingly ruled that evidence to this effect, including any other
evidence that would relate to any of
the admitted issues, would be
irrelevant and accordingly inadmissible. Defendant’s counsel
refused to close his case, and
the Court was consequently constrained
to declare it closed.
The
plaintiff’s submissions
[63]
The plaintiff’s counsel submitted that the defendant attempted
to create a sentinel event and through that
to argue that it was a
so-called ‘acute profound’ event which was not
foreseeable, and which would have occurred in
the last few minutes
prior to birth. He argued that the defendant led no evidence to that
effect at all and there was no mention
of an ‘acute profound
defence’ in defendant’s expert summaries.
[64]
He submitted that the following common cause factual matrix apply to
the child’s injury:
(a) A healthy
mother and foetus entered the hospital;
(b) During the
course of labour the mother became a high risk patient due to the
seriously extended labour;
(c) At some stage a
decision was made to augment the labour process by administering
Pytocin;
(d) When Pytocin is
administered, special care should be taken thereafter in terms of the
maternity guidelines. There was
no proper monitoring of the foetus
from approximately 13:00 during the remainder of the birth process;
(e) The child was
born suffering from hypoxic ischemic encephalopathy (HIE);
(f) The child
suffered a hypoxic ischemic injury in the intrapartum period, i.e.
during labour;
(g) There is no
evidence of any extraneous factors impacting on the condition of the
child, such as genetics, metabolic disorders,
strokes, etc; and
(h) There is no
evidence of a sentinel event. In fact, there is an agreement that
there was no sentinel event, and it was
unequivocally stated by
defendant’s legal representative to be the case during the
cross-examination of Prof Van Toorn.
[65]
While the Supreme Court of Appeal on occasion found that even if
there was negligence during the course of
labour, this would not
necessarily have the result that the defendant is liable as the
negligence might not be causal to the final
injury, which in the case
of a sentinel event may be sudden, unforeseeable and unpreventable. A
sentinel event has been defined
as a sudden and unforeseen occurrence
resulting in an immediate insult such as a burst uterus,
abruptio
placentae
, etc. However, in the cases where the above finding was
made, there was either an agreed sentinel event or the court found
that
there was such a sentinel event.
[66]
Plaintiff’s counsel submitted that the science which has now
evolved confirms what the plaintiff contends
for in this case. The
fact that there is agreement that there was no sentinel event in this
case distinguishes from cases adjudicated
on the basis of a finding
that there was a sentinel event.
Defendant’s
submissions
[67]
It was not surprising that, in the light of the comprehensive and
crucial pre-trial admissions, the defendant was
hard put to proffer
an acceptable refutation to the compelling case presented by the
plaintiff. The defendant’s counsel has
nevertheless made a
valiant attempt to present some sort of argument in this regard.
[68]
Most of the points raised on defendant’s behalf, such as the
criticism that the plaintiff failed to
testify, the assertion that
the Court ascended into the arena, and the complaint that he was not
allowed to call witnesses, can
be dismissed out of hand. The only
argument that warrants some consideration is that relating to the
issue of the contended ‘acute
profound’ nature of the
injury and thus to the issue of causation. That argument went as
follows.
[69]
Counsel for the defendant submitted that the child’s injury,
being the acute profound type, occurred suddenly, unexpectedly
and
was neither foreseeable nor preventable. The plaintiff’s claim
should therefore be dismissed on the facts and the law,
especially as
the child suffered an acute profound injury as opposed to a partial
prolonged injury.
[70]
He argued that the court must have regard to the scientific features
and mechanisms of an acute profound injury
as opposed to a partial
prolonged injury, as pronounced by the Supreme Court of Appeal in
judgements which are binding on this
Court. He submitted that it was
disingenuous of the plaintiff’s expert witnesses to testify
that foetal irregularities will
always show regardless of a clear
distinction between partial prolonged and acute profound hypoxic
ischaemic brain injuries. In
this regard he referred to the Supreme
Court of judgment in
MEC
for Health, Eastern Cape v Z M obo L M
[11]
where that Court dealt with the distinction and the mechanism from
which these insults originate. The plaintiff’s witnesses
should
therefore not have assumed that the plaintiff’s labour was
preceded by appearances of variable, late and prolonged
decelerations
and a drop of FHR.
[71]
He submitted that the science does not support the opinions expressed
by the plaintiff’s experts that hypoxic
ischaemic brain injury
can exist without being preceded by foetal heart rate abnormalities.
In this regard he referred to a plethora
of cases where courts drew
distinction between acute profound and partial prolonged injuries.
The plaintiff’s expert evidence
therefore lacks a proper
scientific basis and is premised on wrong inferences. Consequently,
this Court should reject this evidence.
[72]
The defendant’s counsel also criticised Dr Ebrahim for changing
his evidence regarding the monitoring of
the plaintiff’s
condition prior to and during delivery. He had stated in the main
report that the FHR was normal, which is
a sign of wellbeing, and
that the foetal distress was not foreseeable and preventable. He
stated that the FHR monitoring was done
properly until 15:30. His
only issue with the 15:30 monitoring was that the existence or
otherwise of decelerations was not reflected.
In his testimony in
Court. however, he criticised the standard of monitoring.
[73]
Insofar as causation is concerned, he argued that the question for
consideration is whether the defendant’s
negligence as alleged
- which allegation is denied - caused the child’s injury. In
other words, is there a
nexus
between the failure to monitor
the plaintiff and foetus, the failure to detect a heartbeat, the
delay in causing her to deliver
vaginally, and the administration of
Oxytocin and the CP. In this regard he urged the Court to conclude
that the probabilities
are that the child’s impairments are
secondary to intrapartum hypoxia due to an acute profound hypoxia
from a non-foreseeable
and non-preventable event, in the last hours
before birth, and that the acute insult was not proceeded by a
partial prolonged insult.
[74]
He submitted that the inference that plaintiff asks the Court to draw
is not the most apparent and acceptable one.
The plaintiff has not
proffered any factual evidence of the existence of a partial
prolonged event or insult. He argued that considering
the totality of
the evidence, the defendant’s expert opinions based on the
clinical records and the radiologists MRI findings
- which are
decisive - as well as the child’s Agpar scores, his condition
at birth, namely, that he cried, he sucked and
he did not require
extensive resuscitation, it is clear that the child’s
impairments are secondary to intrapartum hypoxia
due to acute
profound hypoxia from an unforeseeable and non-preventable event
which occurred after 15:30 on 27 April 2010.Therefore,
it must be
concluded that nobody can be held liable for the brain damage
suffered by the child.
[75]
None of the plaintiff’s experts could testify that the nursing
staff would have known that a particular treatment
protocol was
indicated. That being the case, no finding of causal negligence can
be supported, or so defendant’s counsel
argued.
Discussion
[76]
In this matter there is no evidence of a sentinel event. The enquiry,
however, does not end there. There
is a now the peer review article
by Smith et al explaining that studies have shown that although in
certain cases the MRI may be
indicative of an “
acute
profound insult”
and not a partial prolonged one, it was
clear that these insults had probably been caused over a number of
hours, and that in all
probability there would have been signs of
distress of the foetus which could and should have been picked up
through proper monitoring.
This article has been unreservedly
accepted by the Supreme Court of Appeal.
[77]
The science, however, goes further: The unchallenged evidence of Prof
Van Toorn is that this syndrome is now recognised
in ACOG 2019. In
fact, Prof Van Toorn’s evidence is that had ACOG 2019 come out
earlier, it would have been unnecessary to
have written the article
of Smith
et al
referred to above. As mentioned, Prof Van Toorn
is one of the authors of the article.
[78]
The defendant’s experts made no reference in their reports of
an ‘acute profound injury’
as a defence. The only
conclusion that can be drawn from this is that the defence was
contrived by the defendant and its legal
representatives without
reference to the defendant’s expert summaries. The defendant’s
counsel was unsurprisingly unable
to indicate where this appeared in
any of the experts’ reports.
[79]
Dr Van Toorn, who testified about the so-called ‘acute
profound’ MRI findings and explained what
it means, had not
been confronted with cross-examination stating that witnesses would
be called to testify the opposite. He was
cross-examined on
generalities only apparently obtained from some reported cases. It
was never put to him that another expert differed
from him to give
him an opportunity to deal with it.
[80]
The ‘golden thread’ running through the cases where
negligent causality has been rejected was that
there was either an
admitted sentinel event or alternatively the Court had accepted that
there was a sentinel event.
[81]
Each case must of course be dealt with on its own facts and merits
and it is an exercise in futility
to refer to the facts of previous
cases as authority.
[12]
The
reasoning of the Court
a
quo
in
The
Member of the Executive Council for Health, Limpopo Provincial
Government v LWM obo DM
(LWM)
and
The
Member of the Executive Council for Health, Eastern Cape Amicus
Curiae
[13]
and the that of the Supreme Court of Appeal are on all fours with the
present case, save that as a result of the admissions made
here, the
facts are even more persuasive of causal negligence. The ‘acute
profound’ findings had in any event been
based on the existence
of a sentinel event which caused a sudden and unforeseen catastrophic
event that could not be foreseen or
prevented by the medical staff.
The undisputed scientific evidence adduced in this case has
established that the position is now
that if there is no sentinel
event proven, then the insult must be approached on a totally
different basis, namely:
(a) If there
is no partial prolonged injury to be seen on the brain on the MRI
then it does not mean that there were
not hours of foetal distress
that should have been picked up with proper monitoring. What occurs
is that there is a cascade of
oxygen deprivation of the foetus which
does not lead to interim brain damage but to catastrophic brain
damage when the foetus can
no longer manage;
(b) The proposition
that all acute profound injuries are the same was rejected by the
Supreme Court of Appeal. This is particularly
relevant to the
argument made by the defendant that as soon as the MRI did not show a
partial longed injury, i.e. damage over a
period of time, (but only
damage once as an acute profound injury) then it means that there was
a sudden and unforeseen insult
which led to the acute profound
injury. This is no longer the case. It will depend on the evidence in
each case and the inferences
to be drawn from such evidence which
will be persuasive of the finding of causal negligence or not; and
(c) There is
therefore no longer justification for the proposition that even
though there might be the most serious negligence,
it would be
negligence in the air unless the injury is shown as a partial
prolonged injury on the MRI.
[82]
The defendant’s reliance on what was said about medical issues
in other cases has very little, if any
relevance. The Court does not
consider evidence in other cases as each case must be judged on its
own merits. What this Court will
have account of is the evidence
given in this case as well as the recognition of medical articles and
ACOG in other cases. However,
I must still assess the references to
these authorities in the light of the evidence given in this case.
[83]
The criticisms of Dr Ebrahim are unfounded. He clearly explained that
he had made a mistake. The important
time was 13:00 and it is common
cause that there was no proper monitoring after that. The 15:30
heartrate is a single heartrate
and not one dealing with
accelerations and decelerations and was therefore meaningless. This
was fully explained by Dr Ebrahim.
[84]
In
LWM
[14]
the
Supreme Court of Appeal dealt with the legal principles of causation
as follows:
‘
It is
well-established that causation has two elements, namely: (i) factual
causation, determined by applying the ‘but for’
test; and
(ii) legal causation, which answers the question of whether the
wrongful act is linked sufficiently closely to the harm
suffered; if
the harm is too remote, then there is no liability.14 In Za v Smith
and Another,15 Brand JA described the applicable
test as follows:
“
The criterion
applied by the court a quo for determining factual causation was the
well-known but-for test as formulated, eg by
Corbett CJ in
International Shipping Co (Pty) Ltd v Bentley
1990 (1) SA 680
(A) at
700E-H. What it essentially lays down is the enquiry – in the
case of an omission – as to whether, but for the
defendant’s
wrongful and negligent failure to take reasonable steps, the
plaintiff’s loss would not have ensued. In
this regard this
court has said on more than one occasion that the application of the
“but-for test” is not based on
mathematics, pure science
or philosophy. It is a matter of common sense, based on the practical
way in which the minds of ordinary
people work, against the
background of everyday-life experiences. In applying this common
sense, practical test, a plaintiff therefore
has to establish that it
is more likely than not that, but for the defendant’s wrongful
and negligent conduct, his or her
harm would not have ensued. The
plaintiff is not required to establish this causal link with
certainty (see eg Minister of Safety
& Security v Van Duivenboden
2002 (6) SA 431
(SCA) para 25; Minister of Finance v Gore NO
[2006]
ZASCA 98
;
2007 (1) SA 111
(SCA) para 33. See also Lee v Minister of
Correctional Services
[2012] ZASCA 30
;
2013 (2) SA 144
(CC) para
41.).’ (Own emphasis.)’
[85]
The Court found that the thrust of the appellant’s attack in
the High Court was that there
was an erroneous acceptance of the
validity of the theory of Prof Smith published in a 2020 medical
journal. Notwithstanding the
criticism of the appellant and the
contention that the article referred to should be rejected, both the
Court
a
quo
and
the Supreme Court of Appeal were satisfied that the peer reviewed
article was based on logic and real life experiences and
research.
[15]
Even more
important than the article itself is the Appeal Court’s finding
that the theory is backed up by a case study of
10 cases where the
precise injury occurred with the precise same radiological
findings.
[16]
The
court said the following in this regard:
‘
Having considered
the conspectus of the evidence, I am satisfied that the high court’s
acceptance of Prof Smith’s evidence,
that a series of partial
intermittent, subacute/subthreshold hypoxic insults can result in
this type of injury to the BGT deep
nuclear structures including the
perirolandic area was justified.’
[17]
[86]
In para [39] the Court stated that what distinguishes the two cases
is that there was no evidence
of a sentinel event in
LWM
whilst in
AN
v MEC
(
supra
)
there was agreement that there was a sentinel event. The absence or
presence of a sentinel event appears to be the dividing line.
This
was the evidence of Prof Smith in
LWM
and Prof Van Toorn in the
present case. The Court then repeated the differences between
judicial and scientific sufficiency of proof,
i.e. that the matter is
decided on probabilities and inferences and not on scientific
certainty.
[18]
[87]
In the present case the evidence went further. Prof Van Toorn in
re-examination also referred
the Court to ACOG 2019 and stated that
if this publication had been available earlier, it would have made
the article by Smith
et al (including Van Toorn of course)
superfluous, as that article states the same.
[88]
In order to cohesively illustrate the differences between a situation
where there is a sentinel event and
where there is not, and the
development of science from the time when
AN
was decided to
when
LWM
was decided, the following findings in the latter
judgment are significant:
a.
“…
The test
for establishing negligence is trite; it rests on two bases, namely,
reasonable foreseeability and the reasonable preventability
of damage
and failure to act accordingly. What is or is not reasonably
foreseeable in a particular case is a fact-bound enquiry.”
[19]
b.
“
[29] The appellant
levelled considerable criticism at Prof Smith’s testimony and
contended that his evidence and the article
that he relied on ought
to be rejected. I disagree. There is nothing illogical about Prof
Smith’s opinion. It was not and
could not be disputed that Prof
Smith and his colleagues had identified 10 cases of patients with BGT
pattern injuries (with no
sentinel events and no fixed terminal
bradycardia), where proper monitoring demonstrated that the babies
had commenced displaying
foetal distress at a median of about three
hours before delivery. Thus, it was uncontroverted that such cases
are possible and
the only real remaining question on the merits is
whether this probably was such a case.”
[20]
(In
this case the evidence in respect of the study was given by Prof Van
Toorn in re-examination.)
c.
‘
[36] Furthermore,
a lack of general acceptance of his theory cannot, without more,
warrant a rejection of his theory, as it is backed
up by a
case-study. Clearly, there is no basis in law for rejecting Prof
Smith’s theory. The 10 cases on their own demonstrate
that a
series of partial intermittent, subacute/subthreshold hypoxic insults
can cause an injury to the BGT deep nuclear structures
including the
perirolandic area with a pattern like that revealed by D M’s
MRI scan.”
[21]
d.
‘
In my
opinion, it is fallacious to posit that where a woman in labour has
not been monitored by hospital personnel at all during
the most
critical stage of her labour, the MEC responsible for the relevant
hospital should escape liability arising from the negligence
of its
employees purely on the basis that the exact timing of the hypoxic
injury of an acute profound nature cannot be ascertained.
To do so
would be to ignore uncontested evidence that, on probabilities, shows
a link between the negligence and the harm that
ensued.”
[22]
e.
“
[51] The amicus’s
contentions about the erroneous precedential value arising from
reliance on Prof Smith’s evidence
have no merit. It is trite
that each case is decided on its own merits. Each case’s
factual findings are based on the evidence
adduced in that specific
case. The amicus’s contentions also fail to take into account
that scientific conclusions are subject
to revision. The periodic
revision of ACOG recommendations attests to this. Trial courts should
not fall into the trap of demanding
an unduly high measure of proof
from a litigant. As mentioned in Linksfield, the scientific measure
of proof is the ascertainment
of scientific certainty, whereas the
judicial measure of proof is the assessment of probability.’
[23]
[89]
In
MEC v
MM obo OM
[24]
the injury was of an acute profound type at full term. There was also
an agreement in respect of the radiology and the radiologists
were
not called. Prof Van Toorn gave the same evidence that he did in the
present case and the Court had no problem in accepting
that in
respect of an acute profound injury i.e. that it would show signs of
foetal distress until the acute profound situation
arises. This case
also serves to illustrate that each case depends on its own facts and
merits. In some case the Supreme Court
of Appeal had found that the
acute profound injury was sudden and unexpected (because there was a
sentinel event). In this case
it found the opposite in view of the
evidence of Prof Van Toorn.
[90]
If regard is had to AGOG 2019 and the article by Smith, the evidence
of Prof Van Toorn and Dr
Ebrahim established the following:
(a) There was
egregious negligence in respect of the monitoring of the foetus and
mother for a number of hours;
(b) There was a
hypoxic ischemic insult that led to the injury during the intrapartum
period;
(c) There was no
sentinel event;
(d) There was no
genetic or metabolic cause for the injury; and
(e) The perinatal
stroke theory plays no role; `and
[91]
The facts of
MEC
of Health and Social Development of the Gauteng Provincial Government
v M
[25]
,
which
the defendant contended supports its submissions, can be
distinguished. That matter was heard on 7 March 2023 and the
judgment was delivered one year later, on the 5 March 2024. When the
matter was argued
a
quo,
the
article of Smith
et
al
was
not yet available. The matter therefore proceeded through the Courts
without the advantage of that article. In
AN
(
supra
)
[26]
the peer reviewed literature has now been radically changed by the
article by Smith
et
al
referred
to in
LWM
(
supra
)
and accepted by the Supreme Court of Appeal. The basis of the appeal
was that there was no negligence proved by the plaintiff
(the
respondent). It therefore did deal with the causality of established
negligence. That matter is thus distinguishable from
the present case
purely on this basis. It is also significant that this matter served
in the Appeal Court without any of the abovementioned
developments in
science having been raised i.e. neither ACOG 2019 nor Smith
et
al
.
[92]
In my view birth asphyxia is, on the probabilities, the most obvious
explanation for the child’s injury.
This has been
conclusively proved through the pre-trial admissions as well as the
explanatory evidence of the experts called by
the plaintiff. The
negligence has been admitted and thereafter it logically, by
inference, follows that causal negligence has been
established in
respect of the hypoxic ischemic injury. Consequently, the elements of
the delict have all been proved on a balance
of probabilities.
[93]
In summary then, the inferences to be drawn from the common cause
facts in this matter are compelling
and unavoidable, namely: (a)
there were probably distress signals for hours prior to the birth
which were either ignored or not
picked up when it should have been
done; (b) if it had been picked up, the interventions, such as a
vacuum delivery and caesarean
section, could have started far earlier
and would have had a positive result; (c) as there was no
sentinel event, a
sudden and unforeseen catastrophic event which was
not preventable can be excluded; and (d) there are no other outside
causes for
the injury in view of the admissions and the
uncontroverted evidence; (e) in the circumstances there can only be
one conclusion,
and that is that the plaintiff has proven on a
balance of probabilities that the inadequate monitoring of the
hospital staff causally
led to the hypoxic ischemic injury suffered
by the child; and (f) that the defendant is therefore liable to
compensate the plaintiff
for any consequential damages.
Costs
[94]
In my view the unacceptable manner in which the defendant conducted
his defence warrants a punitive
costs order. It should have been
clear to the defendant, after the admissions were made in the various
pre-trial minutes, that
he had no defence whatsoever. The admission
that the child suffered a hypoxic ischemic injury in the intrapartum
period negated
all the defendant’s defences at the time. The
fact that there were no defences available to the defendant if he
were not
allowed to withdraw the admissions, was acknowledged by his
counsel on the first day of the hearing. There was then a
disingenuous
attempt to withdraw the admissions, which was disallowed
with a punitive costs order. This meant that the first four days of
trial
were wasted.
[95]
The cross-examination of the plaintiff’s witnesses proceeded
without any version being put to them
regarding what the defendant’s
witnesses may testify. The result of all of this is that the
defendant dragged the trial out
over several days in the full
knowledge that he had no defence. It would consequently, in my view,
be unfair for the plaintiff
to be out of pocket, and she must
therefore be fully indemnified in respect of her legal expenses.
[96]
To avoid any uncertainty in this regard, I rule that the costs shall
include the following trial
days:
(a) 8, 9, 10 and 11
February 2021: first appearance when withdrawals of admissions were
dealt with and argued;
(b) 17, 18 and 19
August 2021: when the evidence of Dr Gericke, Prof Van Toorn and Dr
Ebrahim was lead;
(c) 22 September
2021: matter postponed. Agreement between parties that costs be costs
in the cause;
(d) 19, 21, 22, 26,
27, 28 and 29 February 2024: cross-examination of Dr Ebrahim and
various interlocutory proceedings in
respect of reconstruction of
record, and admissibility of further evidence; and
(e) 8 September
2020, the date from which punitive cost order should follow being
when the final pre-trial conference between
the parties was held.
[97]
In the result the following order issues:
(a) The defendant
shall be liable to pay 100% of the plaintiff’s agreed or proven
damages in her personal and representative
capacities, arising from
the brain damage suffered by W[…] (“
the minor”
)
at the Nessie Knight Hospital on 26 and 27 April 2007.
(b) The
aspect of quantum is postponed
sine die
in terms of the
provisions of Rule 33(4) of the Uniform Rules of Court.
(c) The defendant
shall pay the plaintiff’s taxed or agreed party and party costs
of suit on the High Court scale (scale
C) up to and including
8 September 2020, such costs including, but not limited to:
a. The
costs of expert reports and summaries as defined by the Rules of
Court (including consultations, qualifying
fees, addendum reports and
expert joint minutes, if any) of:
Prof J Lotz; Prof R van
Toorn; Dr Ebrahim; Dr Hayes; and Prof Gericke.
b.
Plaintiff’s traveling fees and expenses to and from
medico-legal appointments in respect of all the experts
at full rate
and subsistence and accommodation expenses.
c. The
costs of senior and junior counsel at full rate.
(d) The defendant
shall pay the plaintiff’s taxed or agreed costs on the scale as
between attorney and own client from
9 September 2020 to date
hereof, such costs including, but not limited to:
a. The
reservation costs of Prof van Toorn, Dr Ebrahim and Dr Gericke on
8 February 2021;
b. The
reservation fees and attendance fees of Prof van Toorn, Dr Ebrahim
and Prof Gericke on 17, 18 and 19 August
2021;
c. The
reservation costs and attendance costs of Dr Ebrahim incurred during
the period 19, 21, 22, 26, 27, 28
and 29 February 2024;
d. The
trial fees of senior and junior counsel on 8, 9, 10 and 11 February
2021; 17, 18 and 19 August 2021; 22
September 2021; 19, 21, 22, 26,
27, 28 and 29 February 2024; 26 April 2024.
e. The
costs and expenses of the plaintiff’s attorneys relating to the
transcript of the trial record.
J.E.
SMITH
JUDGE
OF THE HIGH COURT
APPEARANCES:
Appearing
on behalf of the Plaintiff:
Adv. N Van Der Walt SC
Adv. L Sambudla
Instructed
by:
Sakhela Inc.
54 Steward Drive
Baysville
East London
(Ref.: Mr Sakhela)
Appearing
on behalf of the Defendant:
Mr TM Jikwana
Instructed
by:
State Attorneys
C/o Shared legal Services
Office of the Premier
32 Alexandra Road
King William’s Town
(Ref.: 309/17-P9 (Mr
Maqambayi)
[1]
1966(2)
SA 428 (A) at 430E.
[2]
Botes
v Van Deventer
1966
(3) SA 182
(AD) at 191A – G.
[3]
Naude
N.O. v Transvaal Boot and Shoe Manufacturing Co
1938
AD 379
at 392-3.
[4]
2004
(3) SA 305 (SCA).
[5]
[1940]
AC 152
at 169 – 170.
[6]
1982
(2) 603 (A) at 614G.
[7]
2012
1 583 (GSJ) at para 32.
[8]
2016 (1) SA 325 (CC).
[9]
Boberg PQR, Law of Delict, 1984 at p 346. See also
Premier
KwaZulu-Natal v Sonny
2011(3)
SA 424 (SCA) at 433D F.
[10]
Premier
KwaZulu-Natal v Sonny
2011
(3) SA 424
(SCA) at 433D – F.
[11]
(576/2019)
[2020] ZASCA 169
(14 December 2020).
[12]
The
Member of the Executive Council for Health, Limpopo Provincial
Government v LWM obo DM and The Member of the Executive Council
for
Health, Eastern Cape Amicus Curiae
Case
No 502/2021
[13]
(31261/2015)
[2021] ZAGPPHC 139 (8 March 2021).
[14]
LWM (supra) at para 24.
[15]
LWM
paras
[27] to [35].
[16]
LWM
para
[36].
[17]
LWM
para
[38]
[18]
LWM
para
[51].
[19]
LWM
at
para [19] and
Pitzer
v Eskom
[2012]
ZASCA 44
(SCA) para [24].
[20]
LWM
at para [29].
[21]
LWM
at
para [36].
[22]
LWM
at
para [47].
[23]
LWM
at
para [51].
[24]
Case
number 697/2020 (SCA)
[25]
[2024]
ZASCA 21
(5 March 2024).
[26]
Supra
at para [25].