SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case no. 7078/2023
In the matter between
SHANE CHEMINAIS Plaintiff
And
DOCTOR JASON CRANE Defendant
JUDGMENT DELIVERED BY ACTING JUDGE W J PRETORIUS ON 24 APRIL
2025
1. Plaintiff in this matter is Shane Cheminais, an adult male who resides at [...]
M[...] Avenue, Trovatos Wine Estate, Cape Town, and who was born on the
5th of September 1958.
2. Defendant is Dr Jason Crane, an orthopaedic surgeon practicing as such at
Room B175, First Floor, Cape Town Mediclinic, 21 Hof Street, Oranjezicht,
Cape Town.
3. The Plaintiff’s claim is that:
3.1. the parties entered into an agreement on 15th of September 2021 in
terms whereof Defendant undertook to treat Plaintiff, who presented
with a bony deformity on his right heel;
3.2. it was an implied term of the agreement that Defendant would at all
material times exercise such skill, care and diligence a s was
reasonably required of an orthopaedic surgeon;
3.3. in concluding the agreement, the Plaintiff claims that it was within
the contemplation and knowledge of the Plaintiff and Defendant that
in the event of Defendant breaching the terms of the agreement, t hat
the Plaintiff may suffer loss.
4. In the alternative to the aforesaid:
4.1. the Plaintiff claims that a reasonable person in the position of
Defendant would have foreseen that if the Defendant did not act with
due professional care, and without negligence, P laintiff may suffer
loss;
4.2. Plaintiff therefore claims that Defendant was under a legal duty of
care towards Plaintiff to act with the due professional care and
without negligence;
4.3. Plaintiff claims that Defendant failed in his legal duty of care towards
Plaintiff in that he acted without the necessary professional skill and
care and negligently caused the Plaintiff to suffer loss.
5. The Plaintiff claims that the Defendant breached his contractual obligations
owed to the Plaintiff and was in breach of his duty of care owed to the
Plaintiff, in that he wrongfully, unlawfully and negligently:
5.1. advocated surgery in the form of the excision of a Haglund deformity
in circumstances where such surgery was not indicated, neither
clinically or radiologically;
5.2. performed surgery in the form of the excision of a Haglund deformity
in circumstances where such surgery was not indicated, either
clinically or radiologically;
5.3. cause d a fracture of the calcaneus of the right foot;
5.4. caused damage to the Achilles tendon during surgery ; and
5.5. failed to act with due care.
6. The Plaintiff claims that due to the aforesaid, the Plaintiff suffered certain
losses and disabilities and therefore suffered the damages in the sum of
R2 239 029.89 .
7. The Defendant does not admit the exi stence of any contract between himself
and the Plaintiff and denies that if such a contract existed, that he breached
any of the terms of such alleged contract. The Defendant furthermore
specifically denies that he had breached any aspect of any duty of c are
towards the Plaintiff.
8. The parties have agreed to separate the merits and quantum and therefore I
am seized only with the merits of this matter.
THE WITNESSES
9. Plaintiff gave evidence and called in support of his case his wife , Mrs
Cheminais, as well as a Dr Versfeld, an orthopaedic surgeon in respect of
whom a Medical Legal Report was filed, dated 25 January 2024. The
Defendant gave evidence himself and called in support of his case an
orthopaedic surgeon, Dr DJ Vlok, in respect of whom an e xpert notice was
filed, dated 24 May 2024.
FACTS THAT ARE COMMON CAUSE
10. Mr Cheminais was a very active sportsmen and an extreme cyclist before th is
incident. The Plaintiff , however , experienced chafing on the outside of the
right heel and consulted the Defendant concerning this problem. The
Defendant referred the Plaintiff for X -rays which were done on 14 December
2021. These X -rays showed a heel within normal limits and showed no
osteophyte and also showed no features to suggest an y Haglund ’s deformit y.
11. It was agreed between Plaintiff and Defendant that the Plaintiff would undergo
surgery , performed by the Defendant on 24 January 2022, in ord er to remove
“a small osteophyte”.
12. The Plaintiff was required by the Defendant to sign a consent form, which was
blank with no details of the surgery filled in on it.
13. The consent agreement was signed in blan k by the Plaintiff . This consent
agreement was later completed in the offices of t he Defendant by inserting
onto it that the surgery would be a “right open resection of the Haglund’s
deformity”. Plaintiff at no stage had sight of the completed document.
14. There is a considerable difference between surgery to repair a Haglund’s
deformity and surgery for the removal of a small osteophyte. The former
requires the detaching of the Achilles tendon and the reattaching thereof
using an anchor, whereas the removal of the osteophyte seldom requires
interference with the Achilles tendon .
15. The calcaneus was fractured at som e point in time although it is i n issue as to
whether the calcaneus was fractured during the surgery or was a result of
undue stress placed upon the heel by the Plaintiff.
16. The Defendant interfered with the Achilles tendon at least insofar as the bursa
was rem oved from between the Achilles t endon and the calcaneus and the
area from where the bursa was removed, was debrided and/or cleaned. The
Defendant denied, however, that he cau sed any damage to the Achilles
tendon durin g the surgery.
17. The Plaintiff continued to experience considerable pain for a significant period
of time and eventually consulted other medical practitioners in regard thereto.
18. On 25 July 2022, Dr Ha stings advised that an Achilles tendon reinsertion
surgi cal procedure should be performed as well as the transfer of the flexor
hallucis longus tendon, and such surgery was eventually performed by Dr
Hastings on 17 August 2022. It is not admitted by the Defendant that such
surgery was necessary.
19. The Plaintiff ’s condition has improved but he remains unable to partake in any
competitive cycling events and has no prospect of doing so in the future.
THE EVIDENCE
20. THE PLAINTIFF’S EVIDENCE
20.1 Plaintiff gave evidence that he sought the advice of the Defendant regarding a
bony deformity on the outside o f his right heel, which caused chafing of his right
heel when cycling.
20.2 Plaintiff gave further evidence that he was advised that surgery was indicated
and would be set up for 24 January 2022. The Plaint iff was always under the
impression that this was a very small procedure in that it was only a small
osteophyte that had to be removed, and that he would be up and about within a
period of two weeks. Plaintiff held an entry for the Argus Cycle Tour on 9 M arch
2022, a cycle event in which he was in the top end of his age group in previous
years. The Plaintiff was convinced that he would be able to take par t in the
Argus Cycle Tour on 9 March 2022 . His evidence was that he would never
have had the surgery, had he known that he would not be able to take part in
the Argus Cycle Tour, as the difficulty with his ankle was not of such that it
prevented him from cycling. Plaintiff also stated that, prior to the surgery, t he
ankle gave him more discomfort as oppo sed to acting as an impediment to his
cycling.
20.3 The Defendant eventually performed the surgery on 24 January 2022. The
Plaintiff was discharged the next day after some argument regarding the use of
a new moon boot and crutches. He insisted that he has hi s own moon boot
and crutches at home and was not prepared to pay for a new moon boot and
crutches.
20.4 The Plaintiff saw the Defendant on 8 February 2022 and indicated to the
Defendant that he was experiencing extreme pain. The Plaintiff again saw the
Defendant on 15 March 2022 where an X -ray revealed that Plaintiff sustained a
fracture to the calcaneus. The Plaintiff claims that Defendant explained to
Plaintiff that he removed to o much bone during the surgery, and this caused the
fracture of the calcaneus and that Defendant apologised for this fact. Plaintiff
saw the Defendant again on 10 April 2022 where he was advised to undergo
physiotherapy.
20.5 Plaintiff gave evidence that he never paid for his surgery as he understood that
to be the consequence of the fact that Defendant c aused a fracture of the
calcane us.
20.6 Plaintiff gave evidence that he consulted Dr Craig Hastings, an orthopaedic
surgeon, on 25 July 2022. Dr Hastings adv ised that an Achilles tendon
reinsertion surgical procedure should be performed as well as a transfer of the
flexor hallucis longus tendon. Dr Hastings performed th is surgery on 17 August
2022.
20.7 The Plaintiff gave evidence that his foot and leg was in a moonboot and that he
was using crutches , until 15 December 2022 . On this date the moonboot was
removed, and the Plaintiff thereafter mobilised using one crutch with continued
physiotherapy. The Plaintiff thereafter gave evidence that he is not able to do
any form of serious cycling anymore and that his cycling is limited now to
recreat ional cycling mostly with his wife.
20.8 EVIDENCE BY THE PLAINTIFF’S WIFE, MRS CHEMINAIS
20.8.1 Mrs Cheminais gave evidence that she was against the surgery from the
outset as she regarded it as unnecessary. She furthermore gave evidence
that the Plaintiff insisted on having the surgery as it was going to be a limited
procedure and that he would be back on his bicycle within two weeks of the
surgery ;
20.8.2 Mrs Cheminais also testified that the Plaintiff at this stage cannot do any form
of competitive cycling and is now limited to recreational cycling from time to
time, mostly, with her.
20.9 DR VERSFELD
20.9.1 Dr Versfeld testified that in his opinion the X -ray revealed a normal looking
heel without a ny suggestion of a Haglund’s deformity . Dr Versfeld refers to
the notes of Defendant, which reads as follows:
“In this case I think he has clearly just a small osteophyte causing his
troubles, and I do not feel that the calcaneus tendon (Achilles tendon)
is causing traction against the calcaneus or the Haglund’s deformity is
the cause. Therefore, three options are either ???. Very limited
resection of the calcaneal osteophyte, without removing or detaching
the Achilles tendon and the last option w ould be a formal resection of
the bone, detaching the Achilles tendon and reattaching using an
anchor. The plan: We have decided to make a small incision removing
the osteophyte.”
20.9.2 Dr Versfeld also testified that if a small excision of the osteophyte was done
without disturbing the Achilles tendon insertion, this would have resulted in a
rapid post operative recovery consistent with the Plaintiff’s interpretation th at
in two weeks he would be able to cycle again ;
20.9.3 Dr Versfeld testified that there was a ra ther extensive resection of the upper
portion of the c alcaneus done, with the resultant significant interference with
the Achilles tendon insertion. In addition, there was evidence of a fracture of
the calcaneus after the operation. When questioned, Dr V ersfeld indicated
that bone excision from the calcaneus was in his opinion between 10 and up
to 50 times bigger than he would have expected from the removal of a small
osteophyte ;
20.9.4 Mr Walters, acting on behalf of Defendant, too k issue with Dr Versfeld ,
primarily on two issues. The first issue was the cause of the fracture of the
calcaneus and the second issue was the damage to the Achilles tendon. Mr
Walters indicated that the Defendant would testify that he saw no fracture of
the calcaneus during the operation and that in his view the fracture was a
result of the overuse by the Plaintiff causing a “stress fracture”. Mr Walters
also said that his expert, Dr Vlok, would give evidence to the fa ct that th e
MRI-scan does not indicate any damage to the Achilles tendon , and would
support the Defendant’s evidence that the fracture of the calcaneus was a
stress fracture caused by overuse of the ankle by the Plaintiff post-surgery .
20.9.5 In cross examinatio n, Dr Versfeld strongly disputed the suggestion that the
fracture of the calcaneus was a stress fracture as stress fractures developed
over a considerable period of time and required consistent force on the
affected area for a long period of time. In his view, the fracture of the
calcaneus was caused during the initial surgery by Defendant . Dr Versfeld
also persisted in cross examination that the Achilles tendon was damaged
during the surgery and that such conclusion required a study of all the images
of the MRI, not only the one image referred to hereinabove.
20.9.6 Dr Versfeld further testified that the extensive surgery was done without good
indication, was badly done with the resulted fracture of the calcaneus and
serious damage to the tendon and tendon insertion, and that the surgery was
therefore done without the due care and attention to detail expected of an
orthopaedic surgeon and constituted medical negligence .
21. THE DEFENDANT’S EVIDENCE
21.1 THE DEFENDANT
21.1.1 The Defendant had a difficult task in that he had to admit from the outset that
the consent form should never have been sig ned in blank and that the
description of the surgery that was filled in at a later stage, was incorrect;
21.1.2 The Defendant furthermore had to defend the fact that radiologically there
was no indication of any deformity and/or osteophyte. The Defendant’s
evidence was also problematic on the existence of an osteophyte as he stated
in his evidence that he clinically observed an d felt the osteophyte. This
evidence was not consistent with his notes which state d “no obvious palpable
Haglund’s deformity”;
21.1.3 The Defendant was ada mant that he never caused the fracture of the
calcaneus and denied that he ever admitted to doing so. The Defendant
furthermore gave evidence that the reasons for the problems of the Plaintiff is
the fact that he did not do proper post -operative care in that he refused to use
crutches , alternatively, use them inadequately and further, used a moonboot
that was not required for his condition. The Defendant could not find any note
in which he indicated prior to the surgery that the Plaintiff would require a
moonboot and crutches and that it would take at least six weeks for the
Plaintiff to recover before he cou ld commence exercise again;
21.1.4 The Defendant did however make multiple references , after the 24 January, to
the fact that the Plaintiff did not comply with his instructions on the use of
crutches and a moonboot and was of the opinion that all the difficulties
experienced by the Plaintiff, was a result of this non -compliance with his post -
operative instructio ns and care.
21.2 DR VLOK
21.2.1 Dr Vlok was of the opinion that the fracture of the calcaneus was due to a
stress fracture as a result of “tiptoeing on the foot” by the Plaintiff. Dr Vlok
further gave evidence that, in his view and from the one MRI image that he
saw, that there was no damage to the Achilles tendon as a result of the
surgery performed on the Plaintiff;
21.2.2 Dr Vlok, notwithstanding strenuous attempts by Mr Walters, denied that he
has ever seen any of the other MRI images ( other than the one on page 16
of the Index to Defendant’s Expert Reports part of the document filed on
behalf of the Defendant );
21.2.3 Dr Vlok furthermore testified to the fact that he would never have done the
operation if he was the Defendant with the available radiological evidence that
was before the Defendant . He advised that all Defendant should have done
was to require from the radiologist different angles of the foot an d if no
osteophyte was visible , and in Defendant’s opinion there may yet be an
osteophyte, then the Defendant should have ensured the benefit of a CAT
scan. Dr Vlok said in the absence of such radiological evidence he would not
have performed such surgery, and he would merely have advised that the
Defenda nt considers adjusting his footwear for cycling purposes;
21.2.4 Dr Vlok, when questioned as to how many of his patients have ever suffered a
stress fracture after ex cision of a small osteophyte, indicated that he does not
do operations on feet, therefore could not provide an answer to th is question.
FACTUAL DISPUTES
22. Insofar as there are factual disputes arising from irreconcilable versions, such
should be resolved in a manner described by Nienaber JA in Stellenbosch
Farmers’ Winery Group Ltd and Another vs Martell Cie SA and Others1 to:
22.1 come to the conclusion on the disputed issues a court must make findings on a)
the credibility of the various factual witnesses; b) their reliability; and c) the
probabilities ;
1 Stellenbosch Farmers’ Winery Group Ltd and Another vs Martell C ie SA and Others [2002] ZASCA
98
22.2 In the circumstances where a court has to consider conflicting expert evidence,
the foll owing has been held:
In Michael and Another v Linksfield Park Clinic (Pty) Ltd and Another2, this
Court referr ed with approval to the principle laid down in Bolitho v City and
Hackney Health Authority3 . Therein, the court held that the evaluati on of
expert evidence entails a determination of whether and to what extent the
opinions advanced are founded on logical reasoning. The court is not b ound
to absolve a defendant from liability for alleged negligent medical treatment or
diagnosis b ased on the evidence of an expert genuinely held and which
accords with sound medical practice. A defendant can therefore be held
liable despite a body of professional opinion sanctioning his condu ct. The
court must be satisfied that such opinion has a logical basis and tha t the
expert has considered comparative risks and benefits and has reached ‘a
defensible ’ conclusion.
22.3 In the same vein, in Mediclinic v Vermeulen4,this Court held that an opinion,
which is expressed without logical foundation, may be rejected.
22.4 In Dingley v The Chief Constable, Strathclyde Police5, the court warned that:
‘One cannot entirely discount the risk that, by immersing himself in every
detail and by looking deeply into the minds of the experts, a judge may be
seduced into a position where he applies to the expert evidence the standards
which the expert himself wil l apply to the quest whether a particular thesis has
been proved or disproved – instead of assessing, as a judge must do, where
the balance of probabilities lies on a review of the whole of the evidence .’(my
emphasis.)’
22.5 In Life Healthcare Group (Pty) Ltd v Suliman6,this court held that:
2 Michael and Another v Linksfield Park Clinic (Pty) Ltd and Another [2002] 1 ALL SA 384 (A) par 34
3 Bolitho v City and Hackney Health Authority [1998] AC 232 (H.L. (E).)
4 Mediclinic v Vermeulen 2015 (1) SA 241 (SCA) par 5
5 Dingley v The Chief Constable, Strathclyde Police52000 SC(HL) 77at 890 -E
6 Life Healthcare Group (Pty) Ltd v Suliman 2019 (2) SA 185 (SCA) par 15
‘Judges must be careful not to accept too readily isolated statements by
experts, especially when dealing with a field where medical certainty is
virtually impossible. Their evidence must be weighed as a whole and it is the
exclusive duty of the court to make the final decision on the evaluation of
expert opinion. ’
22.6 In essence, a court must consider probabilities along with the views of
experts.
EVALUATION OF ALL THE EVIDENCE
23 THE EVIDENCE OF THE PLAINTIFF AND HIS WIFE, MRS CHEMINAIS
23.1 The evidence of the Plaintiff and his wife is important, primarily insofar as it
reflects on the credibility of the Defendant.
23.2 The first issue relates to the recovery period that was communicated by the
Defendant to the Plaintiff. In this regard, the Defendant says it was four to six
weeks, whereas the Plaintiff was adamant that the recovery period was going
to be two weeks and that he would have no di fficulty in competing in the Argus
Cycle Tour.
23.3 In this fact the Plaintiff is corroborated by his wife, as well as Dr Versfeld, as Dr
Versfeld states that the removal of a small osteophyte will be in accordance
with a recovery period as suggested by the Plaintiff. In this regard, it must be
borne in mind that the Defendant envisaged the removal of a small osteophyte
which is not the surgery he performed. He excised a two centimetre by one
centimetre calcaneus bone from the Plaintiff’s right foot.
23.4 The Defendant was not able to find any reference to the recovery perio d and
the use of a moonboot prior to 24 January , in his notes . There are, however,
multiple references to the use of the moonboot and crutches after the surgery
on 24 January.
23.5 Dr Versfeld was adamant that the size of the excision of the calcaneus bone by
the Defendant was considerably more than was indica ted by the excision of a
small osteophyte. Dr Vers feld was of the view that the ex cision was 10 to 50
times larger and more extensiv e than he would have envisaged for th e removal
of a small osteophyte . According to Dr Versfeld the original surgery would
require the two-week recovery time whereas the recovery time for the actual
extensive surgery performed would be much longer.
23.6 I find , on a balance of probabilities , that the surgery envisaged and conveyed to
the Plaintiff was a minor surgery whereas the Defendant in actual fact
performed surger y which required a very large ex cision of the calcaneus and
significant surgery between the calcaneus and the Achilles tendon . I also find
the version of the Plaintiff , that the recovery period would be two week s and not
four to six weeks , more p robable than the version of the Defendant that the
recovery period would be four t o six weeks. I make this finding for the following
reasons:
23.6.1 In the first place I have no reason to doubt that the Plaintiff envisaged taking
part in the A rgus Cy cling Tour after the surgery. Thi s evidence was
uncontested .
23.6.2 In the second place , the aforesaid evidence of the Plaintiff was supported by
his wife which evidence was also uncontested .
23.6.3 In the third place this version fits in with the fact that prior to the surgery a
small osteophyte was to be removed whereas the actual surgery was far more
invasive.
23.6.4 The probabilities are therefore that the Defendant indicated a two-week
recovery period which he had to revise to a longer recovery period after the
surgery.
23.7 The next issue of importance in relation to the evidence of the Plaintiff and his
wife relates to the admission by the Defendant to the Plaintiff, that he had
fractured the calcaneus d uring the surgery. This fact is vehemently denied by
the Defendant . The Plaintiff claimed that the Defendant indicated to him that he
removed too much bone during the surgery, and this resulted in the fracture of
the calcaneus. Plaintiff claimed that it was this admission that caused him to
insist that the Defendant carrie s the financial responsibility of the MRI scan,
suggested by the Defendant. Defendant does not dispute the fact that the
Plaintiff made this demand .
23.8 I found it extraordinary that a patient would insist that a doctor pays for an MRI
scan unless he has r eason to believe that the doctor was in some way
responsible for the predic ament that required an MRI scan .
23.9 This caused me to scrutinise Bundle ‘A’ for any reference that may throw light
on this issue. I found two entries, not canvassed by the legal rep resentatives of
the parties. These entries, however, have a significant impact on the
probabilities in relation to this admission by the Defendant. It should be noted
that these entries were made by two totally disinterested pa rties and obviously
without contemplation of any legal consequences thereof.
23.9.1 The first entry was made by the admission person on the admission form
dated the 17 July 2022. Under the heading “Primary reason for admission”
the following was entered:
“A doctor broke the foot by mistake. Painful right foot – patient
undergone surgery but the doctor hit the wrong bone” (Page 95 of
Bundle ‘A’ )
23.9.2 The second entry seems to be made by the ward nurse on the same day .
Under the heading “Continuous progress report”, t he Nurse entered the
following:
“A male patient of Dr Ha stings came in the ward from home, complaining
about painful right foot. Patient verbalised that he was undergoing foot
surgery seven months ago so the Doctor broke his foot accidentally ”
23.10 I find that the evidence of the Plaintiff, and the probabilities, supports a finding
that the Defendant admitted responsibility for the fracture of the calcaneus
during the surgery. This finding is in addition to the finding herein below in
which I concluded tha t the medical evidence supports the fact that the
Defendant caused the fr acture of the calcaneus during surgery.
24 THE EVIDENCE OF DR VERSFELD
24.1 It is important to note , at this juncture , that Dr Versfeld considered all the
radiological evidence. In particular , he had regard to all the images of the MRI -
scan. Dr Versfeld testified that the calcaneus wa s fractured during the surgery
and was unpersuaded by any opposite view. He was adamant that a stress
fracture could not have developed with a patient in so much pain as a result of
his “tiptoeing”. His evidence was that a stress fracture required a long period
of consistent force on an affected bone, to cause a stress fracture. This did not
occur in th is instance. His evidence is supported by the fact that the Defendant
concedes that the only time that a stress fracture could have occurred, was
between 8 February (as the Plaintiff was bedridden before then) and
approximately the two to three weeks befor e the X -ray taken on 14 March. This
left a very limited period of time for a stress fracture to develop and , having
regard to the extreme pain in which the Plaintiff found him self, which is
undisputed, it is unli kely that he could have placed the necessary stress on his
heel that would have resulted in a stress fracture.
24.2 Dr Versfeld furthermore insisted that the MRI of 22 July was indicative of
damage to the Achilles tendon and the Defendant caused same during the
surgery that occurred on 24 January . I reiterate the fact that Dr Versfeld
testified that one would have had to study all the images of the MRI scan in
order to come to this conclusion . Dr Versfeld was also adamant that a
consideration of onl y one image by Dr Vlok, was inadequate.
24.3 It also must be borne in mind that the Defendant admitted that he removed the
bursa from between the calcaneus and the Achilles tendon and that he cleaned
and/or debrided this area. There was therefor e active surge ry in the area of the
excision of the Achilles Tendon.
24.4 Dr Versfeld was thoroughly cross -examined by Mr Walters regarding these
issues. Dr Versfeld was in my view a very good witness who gave concessions
when concessions were due and was unmoved on his op inion that the surgery
was the cause of a fracture of the calcaneus, and t hat this was not a stress
fracture and furthermore , that the Achilles tendon was damaged during the
aforesaid surgery.
25 THE EVIDENCE OF THE DEFENDANT
25.1 The Defendant’s evidence was in general problematic . In the first place , it must
be noted that under Defendant’s supervision the Plaintiff signed a blank
consent form and never had sight of the completed form . In the second place,
an erroneous procedure (the removal of a Haglund’s deformity) wa s filled in on
the consent form. In the third place, the Defendant proceeded with surgery in
the absence of any radiological support. In the fourth place there was very little
evidence of clinical support for his decision to remove the so -called small
osteophyte. The latter two issues are particularly concerning as Dr Vlok, his
own witness, gave evidence that under no circumstances would he have
operated with no radiological evidence present as in this case . The Defendant’
notes also fail to make any reference to the removal of a small osteophyte after
the surgery was performed. The medical notes, however, are replete with
reference s to the removal of a Haglund’s deformity, which was not the surgery
agreed upon or envisaged by the Plaintiff. (These ref erences can be seen on
Bundle ‘A ’, pages 10, 11, 19, 25, 30, 32, 45, 50 and 64). The Defendant’s
explanation that the reference s to a Haglund’s deformity was because of his
use of the bluespier system , can be understood in some instances when
reliance is placed on the bluespier system. T his does not address the multiple
references to an operation, which the Defendant claims, was not performed.
This is particularly pr oblematic if regard is had to the fact that all the evidence is
indicative of surgery much closer to the removal of a Haglund’s deformity than
the mere removal of a small osteophyte.
25.2 The Defendant ’s evidence was also not accepted in relation to the recove ry
period and the admission in regard to the facture of the calcaneus. I have given
my reason s in regard thereto hereinabove.
25.3 The Defendant’s evidence is furthermore problematic in that there could be little
doubt that the surgery envisaged and agreed wi th the Plaintiff , the removal of a
small osteophyte, and the excision and debridement of the Achilles tendon
eventually, was vastly different from each other.
25.4 The Defendant also had to eventually concede that the Plaintiff’s evidence in
regard to the fact that he never paid for the surgery was correct. This
concession, was notwithstanding the vociferous denial by the Defendant of this
fact until the final argument in this matter.
25.5 I therefor e find the Defendant’s evidence to be less pers uasive than th at of Dr
Versfel d and in so far as their versions differ, I accept the ev idence presented
by Dr Versfeld.
26. EVIDENCE OF DR VLOK
THE FRACTURE OF THE CALANEUS
26.1 The evidence of Dr Vlok that Defendant should not have operated with the
lack of radiological support for the surgery makes logical sense particularly in
the absence of strong clinical support. This evidence clearly means that
Defendant’s decision to embark on surgery without adequate and better
radiological and/or clinical support falls below the standard expected of an
orthopaedic surgeon in these circumstances . The evidence of Dr Vlok in
relation to the fracture of the calcaneus, it being according to him a stress
fracture, is not persuasive. In this regard, Dr Versfeld explained that a stress
fracture occurs over a long period of extensive pr essure exercised on that
particular area of the body that the stress fracture occurs.
26.2 I find that , in view of the small window in which a stress fra cture could have
occurred, it is unlikely that the fracture of the calcaneus was a stress fracture
as suggested by Dr Vlok. I am fortified in this finding by the fact that Dr Vlok
conceded that he has never seen such a stress fracture after the removal of a
small osteophyte, as he does not operate on feet.
26.3 I find that on a balance of probabilities, the medical evidence is indicat ive of
the fact that the fracture of the calcaneus occurred during surgery. The
aforesaid conclusion is in addition to my finding hereinabove that the
probabilities supports an admission by the Defend ant that he caused the
fracture of the calcaneus by the removal of too much bone during the surgery.
THE DAMAGE TO THE ACHILLES TENDON
27. Dr Vlok’s evidence concerning the damage to the Achilles tendon can also not
be preferred when compared with the evidence of Dr Ve rsfeld in relation
thereto . Dr Versfeld’s evidence was in general preferable to that of Dr Vlok for
the many reasons set out herein above. Dr Vlok ’s evidence was also inferior to
that of Dr Versfeld as Dr Vlok , on his own admission , had regard to only one of
the images of the MRI. Dr Versfeld indicated that in order to properly assess the
damage to the Achilles tendon, one has had to have regard to all ten to twelve
images of the MRI -scan. This seems to me logical and was clearly exp lained by
Dr Versfeld during his evidence. The fact that Dr Vlok only had regard to one of
the images of the MRI, leave me with no viable choice other than to accept the
evidence of Dr Versfeld in this regard. I therefore find that the Defendant
caused dam age to the Achilles tendon during the surgery , which damage had to
be corrected in further surgery.
THE DEFENCE OF THE DEFENDANT
28. The Defendant’s defence is based on t he fact he claims that all the problems of
the Plaintiff emanate from his inade quate post operative care. The D efendant
made many notes on the Plaintiffs inadequate use of the moonboot and
crutches, consistently re ferring in his notes to the fact that this failure by the
Plaintiff places his A chilles tendon at risk. I have already found, and it is
obvious from D efend ants notes that the plaintiff was totally unaware that the
actual surgery was far more extens ive than was envisaged. The Plaintiff was
definitely not aware that D efendant performed surgery on and around the
Achilles tendon. One would have expected that, instead of being critical of the
plaintiffs post operative care, a reasonable and prudent surgeon would have
carefully explained to the Plaintiff (and possibly his wife) that the actual surgery
performed by him was far more invasive than originally envisaged . Defendant
should then have explained that the nature of the actual surgery performed
required significant changes to the previously envisaged post operative care.
There is not a note or an iota of e vidence that he had this conversation. The
most plausible reason for this failure that comes to mind is that he did not want
to divulge this fact to the plaintiff as the plaintiff was already extremely upset at
the unexpected level of pain he was experienc ing. It is to me obvious that had
the defendant played open cards with the plaintiff, the plaintiff may have been
upset but would in all probability have understood that he may have to adjust
the manner in which he conducts his post operative care.
29. His fa ilure to do so, is in my view, falls below the norm of a prudent reasonable
orthopaedic surgeon in the circumstances. If, therefore I found that the post
operative care of the Plaintiff was the cause of his injuries, I would in all
probability have fo und that Defendant’s failure in this regard was the cause of
the Plaintiff’s injuries.
NEGLIGENCE
30.1 The test for negligence is whether a reasonable person in the appellant’s
position would have reasonably foreseen harm befalling the respondent as a
result o f his conduct and would have taken reasonable steps to prevent the
harm. If so, the question is whether he took reasonable steps to avert the harm
that ultimately occurred. The reasonableness of such conduct is assessed
objectively.
30.2 Liability for medical negligence, as set out in Goliath v Member of the Executive
Council for Health, Eastern Cape7, is determined by asking whether the failure
of the professional person to adhere to the general level of skill and diligence
possessed and exercised by the members of the branch of his profession to
which he or she belongs would normally constitute negligence. What
constitutes the general level of skill exercised by members of a particular
profession is demonstrated through evidence of expe rts in that profession.
30.3 I applied these principles in reaching my conclusions.
CONCLUSION
31. I find that , on the basis of the e vidence before me the Plaintiff proved on a
balance of probabilities that:
a. the parties entered into an oral agreement on 14 December in terms
wher eof Defendant undertook to remove a “small osteophyte” on
the right heel of the Plaintiff.
b. it was an implied term of the agreement that Defendant would at all
reasonable and material t imes exercise such skill, care and
diligence as was reasonably required of an orthopaedic surgeon;
c. The Defendant breached the terms of the agreement between the
parties in that he performed significantly more extensive surgery
than was agreed upon, fractu red the calcaneus and caused
significant harm to the Achilles tendon and therefore conducted the
surgery wit hout the necessary skill, care and diligence and thereby
causing the Plaintiff to suffer the consequence s set out herein below ;
7 Goliath v Member of t he Executive Council for Health, Eastern Cape 2015 (2) SA 97 (SCA)
d. I also find that Defendant , in performing the surgery, did not act with
the necessary skill and care , and thereby was negligent, in
fracturing the calcaneus and causing significant harm to the Achilles
tendon during such surgery and therefore causing the Plaintiff to
suffe r the c onsequences set out herein below ;
e. the consequences the Plaintiff suffered was that the surgery
performed by the D efendant resulted in a serious and permanent
disability of the right foot and ankle .
COSTS
32.1 The Defendant is liable for the Plaintiff’s costs of si ute on a party and party
scale, including, but not limited to:
32.1.1 Senior counsel’s fees at scale C; and
32.1.2 The reasonable and necessar y qualifying expenses of the following expert
witness:
32.1.2.1 Dr G Versveld, orthopedic surgeon.
_______________________
WJ PRETORIUS
ACTING JUDGE
WESTERN CAPE HIGH COURT