IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, GQEBERHA)
Case No: 3130/2019
In the matter between:
ANELE LOBISHE Plaintiff
and
MEMBER OF THE EXECUTIVE COUNCIL,
DEPARTMENT OF HEALTH, EASTERN CAPE Defendant
JUDGMENT
KOTZ É AJ
Introduction
[1] The Plaintiff sues the Defendant alleging that because of the conduct of the
Defendant’s employees the Plaintiff has lost the use of his legs, rendering him
wheelchair bound for the remainder of his life. The Plaintiff ’s claim is premised on the
negligent or substandard medical care rendered to him by the Defendant’s employees,
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and therefore, it is alleged that the Defendant should be held liable for Plaintiff’s
damages . The matter comes before this court on tr ial.
[2] Concerning the conduct of the trial , the separation of issues was ordered by
Makaula ADJP on 19 May 2023, which separated the issue liability (as paragraphs 1 to
19 of the particulars of claim) from the issue quantum (as paragraphs 20 to 24 of the
particulars of claim) . Within a month of the trial commenc ing, the Plaintiff gave notice of
and filed amendments to the particulars of claim. At the commencement of the trial,
certain further amendments (largely by reference to paragraph numbers) were further
effected to both the particulars of claim and the plea. By reason of the se amendments,
the paragraphs reference d in the separation order required variation. The parties were
in agreement that the variation was necessary, and accordingly, an or der was made as
set out later in the order. 1
[3] At the commencement of the trial, counsel appearing for the Plaintiff, Ms Ayerst,
handed up a document titled “ common cause facts arising from the agreement reached
and the pleadings ”, explaining that the doc ument sets out exactly that. Counsel
appearing for the Defendant, Mr Dala, had no objection to the document being handed
in and marked as exhibit “ A”. I am grateful to Ms Ayerst in preparing same in assistance
to the court, and I commend both counsel for t he approach adopted .
[4] The duration of the trial was short and efficient with two witnesses being called
by the Plaintiff (and which later turned out to be the only two witnesses ): the first was
Professor Vlok, a Neurosu rgeon, and the second was the Plaintiff himself.
The evidence
[5] The material facts of the matter are , as is evident from exhibit “ A” above, almost
all common cause or stand uncontroverted .
1 NCS Resins (Pty) Ltd v Allan and Others (2708/2016) [2022] ZAECQBHC 25 (30 August 2022) at para
8.
5.1. During 2009, the Plaintiff was involved in a motor vehicle accid ent during
which he suffered no serious injuries. Following the accident, he
considered a claim against the Road Accident Fund but because his
injuries were not considered serious enough, he did not persist with his
claim. Following the motor vehicle accid ent, the Plaintiff proceeded with
life as normal, playing rugby and working as a baker at Spar. Fast forward
to 2015, the Plaintiff started experiencing weakness in both legs and back
pain. He commenced with physiotherapy at Zweni Clinic .
5.2. The Plaintiff was l ater referred to Provincial Hospital in Gqeb erha where
he was admitted on 27 March 2017 . By the time of his admission the
Plaintiff was walking with the assistance of a single crutch. At Provincial
Hospital the Plaintiff was diagnosed with a T11/T12 disc herniation. He
was then referred to Livingston e Hospital with weakness in both legs and
back pain . He was still walking with the assistance of his crutch . On 4
April 2017 the Plaintiff’s surgery was delayed due to the employee s of the
Defendant requiring further assessments and/or opinions for optimal
operational procedures or options. On 12 April 2017 the Plaintiff
underwent a T11/T12 posterior l aminectomy and fusion.
5.3. Although I will deal with the specifics of the medical in tervention with
reference to the joint minutes of the part ies’ experts and Professor Vlok’s
testimony , it would suffice for the time being to state that shortly after his
operation the Plaintiff had complete loss of motor function of both lower
limbs, wher eafter, a computed tomography scan (also called a “CT scan ”)
was performed which indicated misplacement of the right sided pedicle
screws during the Plaintiff’s operation. On 15 April 2017 it was noted that
the Plaintiff was unable to feel or move his legs . On 16 April 2017 it was
recorded that the Plaintiff had no perianal sensation.
[6] Other than the above common cause facts, in particular those dealing with his
admissions and medical procedures , the Plaintiff testified that he was walking with the
aid of one crutch at the time of his admission to both Provincial Hospital and Livingstone
Hospital, and that since his operation, he had never walked again and presently uses a
wheelchair. The evidence of the Plaintiff was not placed in dispute during cross -
exam ination, nor was any version put to him. My observation of the Plaintiff during his
testimony was that he was honest, and at certain times, seemed embarrassed for his
present state (which I might add, was wheelchair bound during the entire court
proceedings ). Absent any challenge under cross -examination to indicate otherwise, I
find the Plaintiff to have been a credible and reliable witness.
[7] Turning then to the specifics of the medical procedures undertaken, the Plaintiff
called Professor Vlok, who is a Neurosurgeon and the current President of the South
African Spine Society, as well as the President of the College of Neuro -Surgeons of
South Africa which, so I understood him, is the universal examinations body in South
Africa. In his view, he co nsiders himself an expert in the field of neurosurgery. At the
start of Professor Vlok’s testimony, Mr Dala informed the court that the Defendant does
not dispute Professor Vlok’s credentials. Stated otherwise, and subject to the court
accepting Professor Vlok’s competence to testify on the subject at hand, the Defendant
had no objection thereto. This court accepts that Professor Vlok is a suitably qualified
expert, both competent and able to assist this court by giving opinion evidence.
[8] Before turning to Professor Vlok’s evidence, I deal with the joint minute singed by
the part ies’ respective experts , Professor Vlok on the one side, and Dr Edelstein
(Orthopaedic Surgeon) , on the other . This minute is dated 8 March 2024 and was
handed in d uring the evidence of Professor Vlok without objection and was marked as
exhibit “ C”.
[9] The joint minute record s the agreement between the above experts as follows -
-
9.1. The Plaintiff presented with symptoms and signs of myelopathy that was
confirmed on magnetic resonance imaging ( MRI) on 29 March 2017 as
being due to cord compression from a prolapsed thoracic disc. The
proposed surgery by the employees of the Defendant, to relieve pressure
on the spine, was correct and was appr opriate to address the disc
herniation.
9.2. They agree d that screw pedicle fixation was indicated a nd removal of the
disc required facetectomy that then required stabilisation, and that if that
was not done, back pain could result from the instability.
9.3. It was further agreed that doing surgery for herniated thoracic discs is
much more difficult and has a much higher risk of neurologic al
complications than lumbar or cervical disc surgery as the space that the
surgeon would have to work in around the spinal cord would be very
limited in that area. Because of that, they agreed that the technical
surgical expertise to do surgery in that ar ea of the spine is of a higher
standard than in the lumbar spine. Although they further agreed that
surgery for thoracic disc herniations rarely indicated and that gaining
experience in such surgery is rare and usually limited to specialist referral
centre s, a specialist surgeon with average experience of spinal surgery
would be able to glean appropriate advice from colleagues more
experienced in avoiding the pitfalls of causing and recognising
complications of which further neurological compromise and most
especially paralysis is the most important.
9.4. Although listing a total of four most likely neurological complications ,
relevant to the present case, they agreed that one such complication
would occur in the event of cord transection as a result of incorre ct screw
placement , which they further agreed, is avoidable with careful surgical
technique assisted by biplanar x -ray imaging as the screws are inserted.
9.5. They also agree d that a precipitous drop in blood pressure would be
indicative of cord damage and w hen this occurs immediate cessation of
screw implantation must occur and imaging done.
9.6. They agreed that immediately post -operatively a patient must be
assessed for leg movement and sensation, and th ey agreed that there
was no documentary evidence that th e Plaintiff was assessed for lower
limb neurological fall -out either immediately post -operatively or in the ICU
where his Glasgow Coma Scale (GCS) was rated 15/15 (which indicated
that the Plaintiff was aware and awake ).
[10] Most materially from the joint minute, the experts agreed , in their conclusion,
that:
10.1. the cause of the paralysis of the Plaintiff was as a result of incorrect
screw placement with direct damage to the spinal cord , and that this
could and even should have been avoided , with biplanar imaging;
10.2. there is no evidence that appropriate steps were taken intra -operatively or
immediately post -operatively to recognise the complication of neurological
damage;
10.3. even if immediate recognition of neurological damage was found, the
removal of the (misplaced) pedicle screws would have made no
difference;
10.4. the Plaintiff was already severely disabled due to neurological
compromise o n presentation and that successful surgery would probably
have halted deterioration but that no improvement could be guaranteed;
and
10.5. even if the surgery was done expertly there was a significant higher risk
than in the lumbar spine of worsened neurological compromise (including
possibly paralysis) for the reasons I have set out above .
[11] Although the joint minute records no disagreement, the conclusions require
explanation in order to serve as assistance to the court in conclud ing on the issue of
liability. F or that reason, t he testimony of Professor Vlok was necessary and could shed
important light on the experts’ joint conclusion s. His testimony and expert opinion was
not challenged by the Defendant. Professor Vlok testified as follows –
11.1. He compiled a report dated 20 September 2018. At the time of his report,
he did not have, in his view being a key part, images from a CT scan
performed on the Plaintiff after his complication arose. These images he
only received afterwards. He relied on th e medical records of the Plaintiff
kept by the Defendant.
11.2. In his opinion, the motor vehicle accident of the Plaintiff in 2009, although
relevant as medical history, would not have played a role because of the
manner in which the Plaintiff was functioning after the accident, and
accordingly, there is no link between the accident and his presenting
problems in 2017.
11.3. As to the Plaintiff’s presenting problems, t here was a compression on the
spinal cord of the Plaintiff by reason of a disk herniation which h ad to be
removed to alleviate the symptoms experienced by the Plaintiff, and to
alleviate that compression would be quite precarious because of its
location; anatomically the spinal cord ends typically at the level of L1/L2,
which is in the thoracic spine , just above the lower part of the thoracic
spine. Effectively, this means that the problem areas in case concerned
the spinal cord as opposed to the more common disc herniations which
occur in the lumbar spine. The relevance of this, so he explained, is th e
significant consequence for paralysis.
11.4. He further explained that in the thoracic spine , surgeries are different
because the spinal cord cannot be moved , and during medical
intervention, there is the risk of mechanical injury because of actual
movement o r the risk of vascular injury. Planning for an operation should
be carefully done so to remov e a mass or a compression without
disturbing the cord.
11.5. There are two typical ways to deal with thoracic disc herniation, the first
being to enter from the side of the body, proceeding through the chest
wall and moving the lung, which is more complicated , the second is to do
so directly from the posterior or the back.
11.6. He explained the procedure as follows: “You dissect the tissues out of the
way. You create space by drilling around the spinal cord, the bone away.
You get access directly visualising the disc herniation and then coax it out
without mobilising the cord. So, by doing this drilling, you typically take
away the joint which links the two vertebra a nd then you have to fuse
them. So, you create an instability to access the compression and
therefore you have to do what we call typically pedicular fixation. So,
screws down the pedicels of the vertebrae to hold them. These screws
you connect with a rod a nd it then stabilises that instability that you have
created by drilling out the joint to access the herniation” .
11.7. If such a surgery is successful, so he went further, it would stop
deterioration with some expectation of improvement. Concerning the risk
of paralysis, he explained that because one would be working with the
spinal cord, paralysis would always be a consideration , however, if the
procedure is undertaken correctly, one would estimate a one percent i f
not less than that chance of paralysis . In summary, it is his opinion that
the risk is very small.
11.8. In his observation of the medical records, he found n o surgical note s,
which typically is made by surgeons, and absent these, he was uncertain
in which sequence the surgeon performed the operat ion. Although that is
so, his observations of the post -operative CT scan is that two of the
screws, both on the right hand side, were placed directly through the
spinal cord, where they were intended to go through the pedicles. In his
testimony he referred to images forming part of the report of Dr Edelstein
for the Defendant , which evidence was not objected to . Thes e images, as
page 16 of Dr Edelstein’s report, was during closing arguments (mostly
for identification sake) marked as exhibit “ D”.
11.9. With refe rence to the images, he testified that , as they appear on that
page, the first row of images show that the left -hand screws were
misplaced in that both the screws on that side violated the pedicle in the
sense that they were not completely within the pedicle but pierced the
spinal canal housing the spinal cord. Simply stated, the screws appearing
on the left -hand si de were inserted skew. (Although in this judgment and
during testimony reference was made to left and right as they appear on
the images, in reality, Dr Vlok testified that that which appears to be on
the left -hand side on the images are in reality the rig ht-hand side. In other
words, it was in reality the misplacement of the right pedicle screws that
he testified about. The images are therefore inverted.)
11.10. He further explained that the images (as page 16 of Dr Edelstein’s report)
and numbered as image 53 and image 81 , respectively, constituted
sequential images of the different levels . The relevance of this was that
the screws appearing on the left -hand side in each of the images
concerned both levels. -
11.11. He further testified that his report was prepared w ithout sight of the
images and based solely on reports of misplaced screws from the clinical
notes. Importantly , he further explain ed that typically if a screw is
misplaced, it can deviate slightly f rom its course or it might breach the
medial wall of the spinal canal , which is usually referred to as a
‘misplacement ’ and it happens in the thoracic spine because the pedicle
itself is not a circular tube but more elongated. Therefore , he further
explained, the literature will report fairly high rates of mispl acement, about
10% in some cases. Because he did not have the images at the time of
his report , he initially worked on the assumption that the screw s were
misplaced in that particular context of the word ‘misplacement’ and may
have occasioned a medial brea ch. Based on this assumption, his initial
criticism was directed at the timeline between conclusion of the operation
and the moment it was noticed that Plaintiff had no movement in his legs.
11.12. In his evidence h e further clarified that although in his initial report he
described the misplacement as a ‘complication ’ rather than ‘negligent ’, he
did conclud e in his report that he would only comment on the
appropriateness of the surgery once he has observed images an d the
position of the misplaced screws. Having now considered the images
afterwards, his opinion is that the misplacement was rather a matter of
negligence than a complication. His reason ing for this is the fact that to
place the screws completely through the canal and completely miss the
pedicle, taking account of several aids available to establish whether the
screw is correctly placed, amounted to negligence.
11.13. In further explanation of the procedure , he testified that the re are clinical
landmarks consis tent with all spines which serve as guides to identify the
likely entry points where the screws would be inserted . These points are
then further identified by using a C-arm for imaging (which is standard
equipment ) and the entry point s are then more accura tely identified . He
explained that a screw misplaced using the procedure for placement ,
would be described in the literature as a ‘deviation ’ causing a small
breach through the pedicle.
11.14. In elaboration of the procedure referred to earlier, in summary, Professor
Vlok testified as follows :
A VLOK : … You have now got the x -ray. The procedure to place the
screws are standard. They are described in our text books. So, you break
the bone with a small little sharp instrument. You just crack the outside
bone.
…
So the bone is – the vertebra, the outside layer is hard. Inside is softer
bone. So you want to break the hard layer with a small sharp instrument.
…
Then we have got a second instrument called an awl, A -W-L, that you
gently then advance. This advancement with the awl can occur, depends
on the skill of the surgeon. If you have done many of them, and you are
comfortable with the trajectories, but otherwi se under imaging you can
very safely follow it down the pedicle. You get a similar picture to what is
the bottom picture here on x -rays and you can see whether you have
violated the bone or not. So this then usually you have some resistance.
You go through into the bone and you calculate the length beforehand,
how long you want the screws. You measure and then once you have
removed this awl [interjection]
…
COURT : The awl is used to make the guiding of the hole?
A VLOK : Yes, it drills a guide hole for t he screw.
COURT : Okay, it is not the insertion of the screws yet?
A VLOK : Not yet.
COURT : Alright. I do not want to forego your testimony but just assist me
here. In this process with the awl, can you observe under imagery? Is that
live imagery?
A VLOK : Yes, correct.
COURT : In other words, you can be inserting with the awl, the guide
hole, and you can adapt or change the direction at which you do so?
A VLOK : Absolutely.
COURT : So, it is a moving, a continuous process? It is not a single
commi tment if you have marked it wrong, if you have got a [interjection]
…
A VLOK : Ja, you have got a constant feedback. It depends how much. It
is a still image per time but obviously you advance further, you can
screen. You can see: “Am I angled correctly?” and you can do this
imaging in the, what we call the AP plane. So, as we see in the bottom
picture, or from the side. So to correct all the, to check for all the variables.
…
The third part is once you have done the awl, you will remove it and then
we ha ve a small ball -tipped probe that you advance down that drilled hole
and you can feel. It is called a ‘feeler’ or a probe. You can feel all the
borders of the pedicle, to ensure that you are in the bony canal. So these
three steps effectively, they are in our text books. This is how you place a
pedicle screw safely.
11.15. Turning then to the facts of the Plaintiff and the insertion of the pedicle
screws, he testified:
A VLOK : … Okay, now the screws in question here are – it is not that they
started correctly a nd deviated. They are off to the side. So they are about
a half a centimetre off the starting point, going in a trajectory that is not –
not – not within the pedicle and going straight through the canal. So, that
is why and again the word ‘gross’ is not qu antified in any sense but it is far
from what you would have if you had an error that occurred with you in
terms of angulation or in terms of depth for example. That is what we
speak about as a complication, as a misplaced screw. But in this case it is
so far off the pedicle that I believe that it is not done in a reasonable
fashion.
COURT : I am really sorry to interject the whole time, so that I
understand.
A VLOK : I apologise.
COURT : You were testifying about the feedback.
A VLOK : Yes.
COURT : Now from general handyman experience of my own, it is similar
to boring into a piece of wood, not knowing how thick it is but with the
feedback, you immediately feel the moment you have pierced through the
board. Is it [interjection]
A VLOK : It is ex actly the same.
COURT : Is that what you mean with feedback?
A VLOK : It is exactly the same.
…
A VLOK : So to conclude your question on complication versus
negligence, I just feel like you have the C -arm available, the imagining, the
x-rays, and you hav e the clinical technique, which is a sound technique
then to guide you and between the two of those, you reasonably should
not be placing the screw in that space where it ended up, two of the
screws.
MS AYERST : So Professor, if I understand your evidenc e correctly,
although you do not like the word ‘gross’, but you would classify this action
and this operation and the way it was performed with regard to the right
side pedicles, as negligence and not complication?
A VLOK : I do. The placement of the pedicle screw component of it, I have
no clinical notes to reflect on the strategy to remove the disc herniation,
how that was taken out.
11.16. Following the above, and m ost importantly, he testified that the
misplacement of the p edicle screws was the cause of the Plaintiff’s
paralysis. He also confirmed the correctness of his report as further
corrected and supplemented by his evidence , having seen the images.
11.17. With reference to the joint minute between the parties ’ experts and t he
mention of a precipitous drop in blood pressure , he testified that it would
have been indicative of cord damage and that this would have alerted,
considering the significant drop, the surgical team to immediately seize
screw implantation and to undertak e imaging.
11.18. Concerning the ultimate conclusion between the experts in their joint
minute, he testified as follows:
MS AYERST : And then with point five, do I understand you correctly that
this is where you were talking about the complication previously in your
report, where you said a misplacement of a minor breach is not
necessarily negligence. It is a complication but a gross misplacement or
mispositioning is negligence?
A VLOK : Correct. We, the term ‘discectomy’, when you have a disc
herniation, it i s a rare finding in the thoracic spine, where the spinal cord is
involved. So it is easily misconstrued with the lumbar discectomy which is
not an easy operation but that does not carry the risk. So, if you talk about
paralysis as an entity, in the lumbar spine you will have 0.001 chance
because there is no cord. It is so extraordinarily unlikely to have a
paralysis event whereas the moment you are with the thoracic spine, that
comes to play even though that is low. That is still 1 percent or as I
mentioned before, particularly in the lower thoracic spine. So the
difference between the two is great but both of them are – the risk is still
quite low, very low, and highly improbable if done right.
[12] Once again, t he testimony of Professor Vlok was not challenged , nor did the
Defendant call Dr Edelstein or any other expert to rebut or otherwise explain an
alternative probable conclusion than th at expressed by Professor Vlok.
The legal principles
[13] Consider ing the common cause facts, the unchallenged testimonies of the
Plaintiff and Professor Vlok, and to the experts’ joint minute, there is no need to traverse
all the legal principles relevant to the Plaintiff’s claim.
[14] The Plaintiff contends that, but for the misplacement of the right -sided pedicle
screws which breached the spinal canal, the Plaintiff would not have been rendered a
paraplegic and confined to a wheelchair for the remainder of his life.
[15] The above to an extent resembles that said by the Constitu tional Court in Oppelt
v Department of Health, Western Cape : 2
A successful delictual claim entails the proof of a causal link between a
defendant's actions or omissions, on the one hand, and the harm suffered by the
plaintiff, on the other hand. This is in accordance with the 'but -for' test. Legal
causation must be established on a balance of probabilities. The vital question is
whether, as a matter of probability, the applicant's paralysis would not have
occurred or been rendered permanent had the reduc tion procedure been
performed promptly and within a time that was reasonably likely to prevent
permanent quadriplegia.
[16] The full court of this division has held, concerning causation, that: 3
2 Oppelt v Department of Health, Western Cape 2016 (1) SA 325 (CC) at para 35 (also reported as 2015
(12) BCLR 1471 (CC).
3 JA obo Da v MEC for Health, Eastern Cape 2022 (3) SA 475 (ECB) at paras 48 -49.
The most commonly employed technique for determining factual causation is the
'but for' test. This means that the appellant had to prove on a balance of
probabilities that, 'but for' the negligent actions or omissions of the respondent's
employees, the injury would not have occurred. The test for factual causation
was explained simply and precisely by Lord Denning in Cork v Kirby MacLean
Ltd:
'(I)f you can say that the damage would not have happened BUT FOR a
particular fault, then that is in fact the cause of the damage; but if you can
say that the damage would have happened just the same, fault or no fault,
then the fault is not the cause of the damage.'
…
The test need not b e applied rigidly. It also does not require factual causation to
be determined with scientific precision. The reason for this is that factual
causation is a requirement of the substantive law for delictual liability, and its
existence is determined by the rules of evidence, more particularly, the legal
standard set by the burden of proof .
[17] A practical example of the above exposition can be found i n Life Healthcare
Group (Pty) Ltd v Suliman , where the Supreme Court of Appeal phrased the question
on factual causation as ‘[w]as it more probable than not that the birth injuries suffered by
the baby could have been avoided if Dr Suliman had attended the hospital earlier, after
the 18h35 phone call?’ 4 In casu , guided by the conclusions of the joint minute, that can
be rephrased as ‘ was it more probable than not that the paralysis of the Plaintiff could
have been avoided if the placement of the right -sided pedicle screws were performed
with biplanar imaging? ’
[18] The above highlights that it is a matter of probability, not certainty:
…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
4 Life Healthcare Group (Pty) Ltd v Suliman 2019 (2) SA 185 (SCA) at para 16.
which the minds of ordin ary 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 . 5
[19] In Goliath v MEC for Health, Eastern Cape , it was held that: 6
The general rule is that she who asserts must prove. Thus in a case such as th is
a plaintiff must prove that the damage that she has sustained has been caused
by the defendant's negligence. The failure of a professional person to adhere to
the general level of skill and diligence possessed and exercised at the same time
by the membe rs of the branch of the profession to which he or she belongs
would normally constitute negligence (Van Wyk v Lewis 1924 AD 438 at 444). A
surgeon is in no different a position to any other professional person (Lillicrap,
Wassenaar and Partners v Pilkingto n Brothers (SA) (Pty) Ltd 1985 (1) SA 475
(A) at 488C). It has been pointed out that a 'medical practitioner is not expected
to bring to bear upon the case entrusted to him the highest possible degree of
professional skill, but he is bound to employ reason able skill and care' (Mitchell v
Dixon 1914 AD 519 at 525). As Scott J put it in Castell v De Greef 1993 (3) SA
501 (C) at 512A – B, '(t)he test remains always whether the practitioner exercised
reasonable skill and care or, in other words, whether or not his conduct fell below
the standard of a reasonably competent practitioner in his field' (cited with
approval in Buthelezi v Ndaba 2013 (5) SA 437 (SCA) para 15) .
[20] The enquiry into negligence concerns a consideration of the reasonable
foreseeability and the reasonable preventability of damage and failure to act
5 ZA v Smith and Another 2015 (4) SA 574 (SCA) at para 30.
6 Goliath v MEC for Health, Eastern Cape 2015 (2) SA 97 (SCA) at para 8.
accordingly, and what is or is not reasonably foreseeable in a particular case, is
determined by the facts of the case. 7
[21] Concerning the foreseeability consideration in determining negligence, the
Supreme Court of Appeal said: 8
The words emphasized in the passage in Country Cloud just quoted thus stress
the need to ensure that wrongfulness and negligence are recognised as separate
and discrete elements as, if they are not and negligence is elevated to the
determining factor, they would be conflated. Should that occur, the safeguard of
regarding wrongfulness as a separate requirement would be los t.
…
In order to avoid such confusion and the conflation of the two elements, this court
has now determined that foreseeability of harm, a critical requirement of
negligence, should find no place in the inquiry into wrongfulness — see Country
Cloud Trading CC v MEC, Department of G Infrastructure Development 2014
(2) SA 214 (SCA) para 27, as read with MTO Forestry para 18 where this court
said:
'It is potentially confusing to take foreseeability into account as a factor
common to the inquiry in regard to the presence of both wrongfulness and
negligence. Such confusion will have the effect of the two being conflated
and lead to wrongfulness losing its important attribute as a measure of
control over liability. '
[22] A plaintiff and his experts are entitled to r ely upon the medical records kept by his
defendant (as the medical practitioner or custodian thereof) to prove his case and for his
7 SN obo ON v MEC for Health: Eastern Cape (277/2023) [2025] ZASCA 36 (2 April 2025) at para 20;
Kruger v Coetzee 1966 (2) SA 428 (A) at 430E -F.
8 Stedall and Another v Aspeling and Another 2018 (2) SA 75 (SCA) at paras 13 -14.
experts to form t he factual basis for their opinions, notwithstanding the hearsay nature
of the records and that the authors thereof had not been called to testify. 9
Application of the legal principles to the facts
[23] The unchallenged testimony of the Plaintiff was that he was ambulating on a
crutch immediately prior to the surgery on 12 April 2017. It was therefore not disputed
that the Plaintiff had the use of his lower limbs .
[24] The evidence of Professor Vlok (as well as joint minute) indicates that the
likelihood of paralysis resulting from the surgery is commonly known. In fact, the
Plaintiff’s surgery was delayed on 4 April 2017 in order to allow the Defendant to
conduct further assessments and obtain opinions for the optimal of operational
procedures or options to be considered. It is therefore reasonable to accept that the
Defendant knew of the general risk of p aralysis before the surgery was performed.
[25] That said, Professor Vlok testified that a lthough the risk of paralysis was a likely
consequence, the probability of it arising w ould be relatively low , if the correct procedure
is followed assist ed by biplanar imaging .
[26] Having seen the images of the misplacement of the right -sided pedicle screws,
Professor Vlok unequivocally testified that in his view the misplacement was not a mere
complication but amounted to a gross or negligent procedure. In suppor t of this, he had
testified that the procedure to undertake is commonly known and found in literature and
textbooks , and despite that and the availability of standard imaging machinery (such as
a C-Arm) which could and should have avoided a misplacement (a s was the agreed
conclusion by the joint experts), the screws were grossly misplaced.
9 HN v MEC for Health , Kwa Zulu Natal [2018] ZAKZPHC 8 (4 April 2018) (unreported judgment by
Koen J) at para 6 -9 ; AM obo LM v Member of the Executive Council for Health , Eastern Cape Province
2024 (1) SA 413 (ECB) at paras 7 & 17.
[27] Professor Vlok’s evidence furthermore clarified that the right -sided pedicle
screws f or both levels (that is, T11 and T12) , were misplaced. Simply put, it is not a
case of only one of the four screws in total being misplaced, but of two on the same
side.
[28] To make matters worse, i t was also undisputed that there were no surgical notes
from which it could have been possible to determine the procedure undertaken in the
Plaintiff’s operation and the step -by-step methodology adopted , less so, was there an
attempt by the Defendant, in the absence of such medical records, to explain what
procedure was undertaken or exactly what transpired during the operation .
[29] The experts agreed in the joint minute that “ the cause of the paralysis was as a
result of incorrect screw placement with direct damage to the spinal cord and that this
could and even should have been avoided with biplanar imaging ” and furthermore, that
“there is no evidence that appropriate steps were taken intraoperatively or immediately
post-operatively to recognise the complication of neurological damage ”.
[30] In light of the general risk of paralysis and its result should the operation be
performed grossly or negli gently, it is beyond doubt that harm to the Plaintiff was
foreseeable. In fact, the initial delay of the operation serves as proof that the Defendant
recognised these risks.
[31] I therefore agree with the opinion by Professor Vlok (and the joint minute) and
find that the insertion or misplacement of the right -sided pedicle screws by the
Defendant was negligent.
[32] Having come to such a finding, the quoted portion s of the joint minutes of the
experts, supplemented by the testimony of Professor Vlok, undoubtedly proves that the
factual cause of the Plaintiff’s paralysis was the misplacement of the right -sided pedicle
screws. I am furthermore satisfied that this cause is sufficiently close to the paralysis of
the Plaintiff .
[33] Accordingly, the Court finds that the pl acement of the right -sided pedicle screws
was the cause of the Plaintiff’s paralysis and loss of his lower limbs, rendering him
wheelchair bound for the remainder of his life.
Costs and the draft order
[34] As part of her closing arguments, Ms Ayerst present ed a draft order and
submitted that such would be the appropriate order , should the court find for the
Plaintiff . This allowed the Defendant , in fairness, the opportunity to considered and
present argument on an appropriate costs order . 10 That is what the Defendant did.
[35] During back -and-forth argument concerning the issue of costs set out in the draft
order , Mr Dala for the Defendant ’s main submi ssions, should I find favour with the draft
order, were that –
35.1. the draft order propose s interest on legal costs “at the legal rate from a
date 14 days after allocator and/or agreement to date of payment ”. He
submitted that a more reasonable time would be a date “ 30 days ” after
allocatur or agreement . Ms Ayerst took no serious issue with such
subm ission (at least not in the larger scheme of things, so I understood).
35.2. the draft order proposes “the costs of the hearing on 22 and 23 January
2025 including Counsel’s day fees ”. The draft order is therefore a
quantification of the Plaintiff’s costs (as opposed to only a qualification ), in
other words, reference to ‘Counsel’s day fee’ would effectively usurp the
powers of the taxing master by imposing a ‘day fee ’ leaving only to the
taxing master the discretion to determine the reasonable allowable rate of
the ‘day fee ’.
10 Donaldson v Seaward 1958 (2) SA 198 (O) at 2 00A ; Letsoale v Road Accident Fund and Other
Similar Matters 2023 (6) SA 533 (GP) at para 60.
35.3. the draft order provides for “ the costs of prepar ing for consultations
together with the costs of consultations between Plaintiff’s legal
representatives, Plaintiff and Plaintiff’s witnesses ” and for “ the costs of
preparing for trial and argument ”. I understood the objection thereto to be
that those costs must be proven first , which is what taxation is for .
[36] In rebuttal to th ose submissions, Ms Ayerst submitted that the draft order takes
the form of the usual orders granted in matters such as the present. Furthermore, she
submitted that a clearer defined order , such as the present, assists taxation and does
not necessarily usurp the discretion or powers of the taxing master .
[37] It shou ld be noted that Mr Dala took no issue with paragraph 2.4 of the draft
order, which provides for “ the reservation fees, if any, together with the qualifying fees, if
any, of the Plaintiff’s expert witness, Professor Vlok together with the travelling costs
and accommodation costs, if any, in respect of the abovementioned witness ”. It can only
be understood that such was the case considering that Professor Vlok is not from
Gqeberha (he testified that he is the Head of Department of Neuro -Surgery at
Tygerberg Hospital, as well as Head of Division of Neuro -Surgery at the University of
Stellenbosch), and that he was of great assistance to the court in explaining the general
surgical procedure undertaken and providing context to the agreed conclusions in the
joint minute , in the context of the procedure explained .
[38] It has been held that it is for the taxing master to determine what attendances
and expenses should be allow ed as being reasonably necessary for the conduct of the
litigation , and that w hile it is permissible and often useful for the court in its judgment to
express its views on costs -related issues for the assistance or guidance of the taxing
master, judges should not usurp the latter's role and functions . 11
11 Hing and Others v Road Accident Fund 2014 (3) SA 350 (WCC) at para 82 (a judgment by the full
court of the Western Cape Division).
[39] The full court of this division has held as follows: 12
Cilliers in Law of Costs said the following of the discretion vested in a taxing
master:
'The discretion vested in the taxing master is to allow (all) costs, charges
and expenses as appear to him to have been necessary or proper, not
those which may objectively attain such qualities. His opinion must relate
to all costs reasonably incurred by the litigant, which imports a value
judgment as to what is reasonable. Moreover, the words reasonable and
in the opinion of the taxing master that occurred in the tariff appended to
rule 70 imported a judgment not referable to objectively ascertainable
qualities in the items of a bill in question. The discretion to decide what
costs have been necessarily or properly incurred is given to the taxing
master and not to the court. It is now a well -established rule that in regard
to quantum, both as to the qualif ying fees for medical expert witnesses,
other expert witnesses, and counsel's fees, the decision of the taxing
master is a discretionary one.
The taxing master has a discretion to allow, reduce or reject items in a bill
of costs. This discretion must be e xercised judicially in the sense that he
or she must act reasonably, justly and on the basis of sound principles
with due regard to all the circumstances of the case. Where the discretion
is not so exercised, the decision will be subject to review. (City o f Cape
Town v Arun Property Development (Pty) Ltd 2009 (5) SA 226 (C) [at]
232.) In addition, even where the discretion has been exercised properly,
a court on review will be entitled to interfere where the decision is based
on a misinterpretation of the l aw or on a misconception as to the facts and
circumstances, or as to the practice of the court.
12 Trollip v Taxing Mistress, High Court and Others 2018 (6) SA 292 (ECG) at para 17.
The taxing master's discretion is wide, but not unfettered. In exercising it
the taxing master must properly consider and assess all the relevant facts
and cir cumstances relating to the particular item concerned. The
discretion is not properly exercised if such facts or circumstances are
ignored or misconstrued .
[40] Returning to the opposing submissions on the costs proposed in the draft order, I
am persuaded by Mr Dala’s submission that although the court has a broad discretion to
grant costs, quantification of these costs is the discretion and function of the taxing
master. Therefore, any specific reference to “day fee” should best be left for the taxing
master. T hat said, th is court is however in a position to grant the costs of counsel, not
only hav ing observed her on brief, but also having benefitted from her involvement in
the trial, and can therefore make an order allowing such related costs .
[41] Concerning the issue of preparation s for and attendances to consultations , and
although this item might also be an item to be considered and proven by Plaintiff at
taxation , I see no harm in granting such order if it is qualified by the words “if any” at the
end thereof. The same can be said of the costs of preparing for trial and argument. In
the latter regard, Ms Ayerst presented heads of argument which were evidently carefully
drafted and served as great help to the co urt.
[42] Finally, concerning the issue of the costs and fees of Professor Vlok, and
although not objected to by the Defendant, it seems as if such an order would be
necessary in order for the Plaintiff to advance same at taxation. 13 Therefore, with
further c onsideration of what is said of the testimony of Professor Vlok in this judgment,
13 Rule 70, Tariff of Fees, Tariff D, Item 5: “ Testimony: Fair and reasonable charges and expenses which
in the opinion of the taxing officer were duly incurred in the procurement of the evidence and the
attendance of witnesses whose witness fees have been allowed on taxation: Provided that the
preparation fees of a witness shall not be allowed without an order of the court or the consent of all
interested parties” ; cf Erasmus: Superior Court Practice , Volume 2, Rule 70 : “D – Miscellaneous”, “Item
5”.
an order as sought above would issue. In doing so, I am mindful of the necessary
distinctions and limitations on this topic . 14
The Order
[43] Accordingly, the following order is granted :
43.1. The order by Makaula ADJP of 19 May 2023, separating the issue liability (as
pleaded paragraphs 1 to 19 of the particulars of claim) from the issue quantum
(as paragraphs 20 to 24 of the particulars of claim) , is varied so that reference
therein to “paragraphs 1 -19” shall read “paragraphs 1 -23” and reference therein
to “paragraphs 20 -24” shall read “paragraphs 24 -27”.
43.2. The Defendant is liable for all such damages as the Plaintiff may prove in
respect of his claim resulting from negligent medical treatment he received on 12
April 2017.
43.3. The Defendant shall pay the Plaintiff’s costs of the hearing of the matter in
respect of liability together with all reserved costs, if any, on scale B in terms of
Rule 67 A, together with interes t thereon at the legal rate from a date 30 days
after allocatur and/or agreement to date of payment, which costs will furthermore
include:
43.3.1. the costs of the hearing on 22 and 23 January 2025 including the costs
of counsel employed;
43.3.2. the costs of prepari ng for consultations together with the costs of
consultations between Plaintiff’s legal representatives, Plaintiff and
Plaintiff’s witnesses, if any;
14 See, for example, Transnet Ltd t/a Metrorail and Another v Witter 2008 (6) SA 549 (SCA) at paras 14 -
19.
43.3.3. the costs of preparing for trial and of argument, if any; and
43.3.4. the reservation fees, if any, together wi th the qualifying /preparation
fees, if any, of the Plaintiff’s expert witness, Professor Vlok , together
with the travelling and accommodation costs, if any, in respect of
Professor Vlok.
_______ _________________ __
C D KOTZ É
ACTING JUDGE OF THE HIGH COURT
DATE OF HEARING : 22 and 23 January 2025
DATE OF JUDGMENT : 6 May 2025
Appearances:
For the Plaintiff : Adv H B Ayerst instructed by DSSG Attorney s and Conveyancers, 3
Bidwell Street, Canon Hill, Uitenhage ( ref: FAS/BK/SS 9791).
For the Defendant : Adv I Dala SC instructed by The Office of the State Attorney, 29
Western Road, Central, Port Elizabeth (ref. L Potgieter -1968/2019/C ).