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
(EASTERN CAPE DIVISION, BHISHO)
CASE NO.: 210/2021
Reportable Yes / No
In the matter between:
N[...] T[...] First plaintiff
O[...] T[...] Second Plaintiff
herein represented by SIBUSISO BONGANI
MSITSHANA N.O as Curator ad Literm
and
THE MEMBER OF THE EXECUTIVE Defendant
COUNCIL FOR HEALTH: THE EASTERN
CAPE PROVINCIAL GOVERNMENT
JUDGMENT
MAKAULA J
A. Introduction.
[1] The first plaintiff is N[...] T[...], the mother and the guardian of the
second plaintiff, O[...] T[...] (O[...]), who has attained the age of majority. The
first plaintiff sued in her personal and representative capacity as the mother of
O[...]. Due to O[...]’s brain injury, which resulted in cerebral palsy, a curator at
litem was appointed for him as per court order dated 20th July 2024. The first
plaintiff was substituted for the curator ad litem in the amended particulars of
claim.
[2] The claim is based on an alleged negligence of the medical and / nursing
staff of the defendant interchangeable referred to as defendant’s employees,
being alleged to have caused such negligence, resulting in the medical condition
O[...] found himself in.
[3] At the start of the trial, the parties agreed to a separation of the issues in
terms of Rule 33 (4) of the Uniform Rules of Court. The trial proceeded on the
issue of liability only.
B. The Facts.
[4] Apart from the sketchy documentary medical records th at were available,
the plaintiff called the following witnesses, namely
4.1 The first plaintiff, whose testimony was about her pregnancy
journey up until the birth of O[...],
4.2 Dr Alheit, a radiologist who testified regarding the brain injury
suffered by O[...] as visualised on the MRI,
4.3 Dr Kara, a pediatrician who gave evidence regarding O[...]’s
cerebral palsy and the cause and timing of the brain injury suffered
by him,
4.4 Dr Murray, a specialist obstetrician and gynecologist who testified
with reference to the Maternity Guidelines and standard obstetric
practice, giving content to the neglect of the obstetric care and
management of the first plaintiff.
N[...] T[...].
[5] I should mention upfront that the first plaintiff’s evidence was not
challenged by the defendant. She was 45 years old when she testified. She was
neither married nor employed when O[...] was born. She left school in grade 11.
She gave birth to O[...] on 8 April 2006.
[6] The first plaintiff testified that she became aware that she was pregnant
after she missed her monthly periods. She attended the Central clinic in her
hometown, where it was confirmed that she was indeed one month pregnant.
She started the antenatal clinic monthly until she gave birth. A ll the required
tests were continually done, and she was assured that the baby was growing
well. She was taken for a scan. She neither smoked nor drank alcohol at the
time of her pregnancy.
[7] On 7 April 2006, early in the morning, she felt pain in her lower abdomen
and decided to go to the hospital as she was earlier informed that her due date
was 5 April 2006. On arrival at the hospital, she met with a nurse in the
maternity section and explained to her that she had lower abdominal pains and
she thought she was in labour. The nurse told her to go home, saying she must
come back only if she sees something coming out of her vagina. She refused,
but the nurse rebuked her, saying she was one of those people who knew
everything. She obliged.
[8] On arrival at home, the pain persisted and gradually became severe, and
she called an ambulance, but in vain. She took a taxi to Frere Hospital. She got
to the hospital at about 16h00. She went to the maternity section and informed
the nurses that she was in severe labour pains. The same question was asked of
her and she responded that nothing was coming out of her vagina. One of the
nurses informed her to remain in the waiting room until something comes out of
her vagina. She complied and waited until evening. While she was still waiting,
a nurse passed by and informed her that she was in pain. The nurse told her to
walk around in the corridor. She did so, but that did not help. After some time,
she went back to the nurses to enquire whether they had not forgotten about her.
They told her to wait as they were still busy with an emergency. At 19h00, the
night shift of nurses took over. She approached them, and they told her to wait.
After a while, she felt an urge to urinate. She went to the toilet. As she was
sitting on the toilet seat, her water broke. It was green with blood spots. On
seeing that, she screamed. A certain lady appeared. That lady called the nurses
who arrived and took her to bed and told her to ‘push’. She pushed, and the
baby was born shortly thereaf ter. The baby did not cry. They took the baby
away, and she saw the baby the following morning at the nursery. He was in an
incubator, and a tube was inserted in his nose and mouth. There were patches on
his body, which were later explained as electrocardiogram patches. She was told
that the child could not feed, and milk had to be expressed in a tube. Even when
the child was discharged after seven days, she was given a breast pump to use in
feeding him.
[9] She was informed by the nurses that her baby had seizures. When she
enquired why, she was advised that ‘oxygen did not arrive well in the brain’
(sic). As aforesaid, she and the baby were discharged after seven days. After
three months, the baby started to have seizures, and she took him to the hospital
for treatment. Later, she was told the child would not be normal. She was not
cross-examined by the defendant as aforesaid.
Dr Berthold Alheit
[10] Dr Alheit is a retired Diagnostic Radiologist. He testified virtually as he
was in France. His expertise i s not in dispute. Whilst in practice, he spent 50%
of his specialised working life practicing MR, specifically in Neuro MR from
1989 until he retired in 2018. He was a member of the Pediatric Neuro -
Radiology Society of South Africa.
[11] Dr Alheit compiled two reports based on the MRI scan of O[...]. The first
is dated 19 September 2020, and the second is 11 October 2022. He testified
that the difference between the two reports is that in the second report, he added
more literature. Otherwise, his findings are the same. He further compiled a
slide presentation. He stated in his evidence that the MRI brain of O[...]
revealed a hypoxic ischemic brain injury involving the central parts of the brain,
namely the Paracentral lobule, Perirolandic, Basal Ganglia an d Thalamus
(PPBGT) structure of the brain. He found that O[...] suffered an insult, which
ended up as an injury. He explained what leads to the injury as follows:
“would call the high metabolic rate regions of the brain. So, that is the part of the
brain that before the child is born needs the most energy. And it contains the
perirolandic region which is an area where the motor and sensory functions of the
brain are established. And then the basal ganglia or the central part of the brain, that is
where all the vital functions of the human body are controlled. We refer to them as the
deep grey nuclei … These areas because they need energy just before birth, much
more than the rest of the brain, these areas are more vulnerable to a lack of oxygen
and the lack of blood pressure. And if this occurs if for some reason there is a lack of
oxygen then these regions start suffering and eventually when there is lack of blood
pressure that is when the actual injury happens, the cells become acidotic, the
metabolism, toxic substances build up in the cells and it damages the cells and then
we end up with this injury. Which is due to lack of oxygen and a lack of blood
pressure, when the heart fails, and this leads to this injury of the high metabolic
regions. We do not know how long it takes to develop but it is likely that to take quite
a long time”. (sic). He described the high metabolic regions as “the collective name
we use is central regions, and that includes the parirolandic region and the central
basal nuclei gangli a and the thalamus or the deep grey nuclei. So that the whole
consortium of high metabolic regions are also called the central regions.” (sic) He
described this as his core finding of the brain injury he discovered on
O[...].
[12] Dr Alheit opined that if there was a history of an intrapartum sentinel
event, then the injury pattern could have been due to an acute, profound hypoxic
ischemic event. He described a sentinel event as an acute or abrupt cut -off of
oxygen supply, which then leads to an acute injury, for instance, a rupture of the
placenta or if the mother suffered heart arrest, profuse bleeding of the baby, etc.
He testified that if the fetus is distressed, these areas are vulnerable and become
increasingly metabolic acidotic and eventually, when t he blood pressure also
disappears, then one gets the injury of the same central areas of the brain. He
testified that in the absence of a sentinel event, the same brain injury occurs
after ongoing hypoxia over a prolonged period in which the fetus is
compromised but not injured, and then finally cardiac compromise (ischemia)
occurs, resulting in brain injury. He deferred to a clinical correlation in this
instance. He testified that the other experts would place the injured pattern in
the appropriate clinica l and obstetrical context. He stated that how the injury
occurred would come from the obstetrician as well as the pediatrician.
Dr Yatish Kara
[13] Doctor Kara is a pediatrician specialising in neonatal and intensive care
pediatrics. Similarly, his creden tials as an expert are not in dispute. His brief
was to conduct a medico -legal assessment to establish the degree of disability
and the causal connection between the delivery and subsequent neurological
outcome in respect of O[...]. He examined him, consul ted with his mother and
compiled a report.
[14] His examination of O[...] revealed that he had spastic quadriplegia
cerebral palsy, meaning that he is stiff and weak in all four limbs. He is unable
to use his hands, unable to speak and has limited expressive and receptive
ability. However, he can hear a nd see. He has epilepsy and microcephaly,
meaning he has a small head or shrunken brain. Due to this condition, he is
caregiver dependent.
[15] Dr Kara received and reviewed limited medical records that were made
available to him. At birth, O[...] weighed 2.7 kg, had an Apgar score of 3 and 5,
and the pediatric records showed that he had a hypoxic ischemic brain injury.
Based on the information he received from the first plaintiff, O[...] could not
have sustained the injury during pregnancy antenatal stag e because she had no
complications. He opined that there was no evidence to suggest that the brain
injury occurred after delivery because O[...] was born in a compromised
condition. That is because the available records indicated that O[...] was
diagnosed with moderate hypoxic ischemic encephalopathy after birth,
indicating that the injury occurred at birth. What was made clear to him is that
O[...] was critical at birth, he had seizures after 3 months, was on a ventilator
and had to be fed through a tube.
[16] Doctor Kara testified that he excluded other causes of encephalopathy
because he looked for ‘features of infection, features of chromosomal
abnormalities, features of metabolic diseases at cetera. And in essence, based
on my examination, the availabi lity records and the MRI scan, I could not find
any evidence of these conditions … I would not find an alternative cause for the
encephalopathy other than hypoxic ischemic injury, which is what was shown
on the MRI scan’. ( sic). He described ischemia as a lack of blood flow to an
affected organ, in this case, the brain. He stated that hypoxic ischemic brain
injury is low oxygen in the bloodstream, which makes it difficult for the body to
transport oxygen to the brain. He stated that based on the interview with the first
plaintiff and the limited available records, he could not find a reason to suspect
that there was a sentinel event and had it occurred, it would have been
mentioned or recorded. All the available information and criteria, so he stated,
on a balance of probabilities, favour an intrapartum hypoxic ischemic injury.
[17] Doctor Kara reviewed extensive literature by renowned experts 1
regarding the timing of the injury. According to him, the studies reveal that 56%
of neonatal encephalopathies in t erm infants are caused by events that occur
during labour, and HIE is a cause of 52% newborn encephalopathy. Relying on
Volpe, he states that there are three features which are important in considering
hypoxic-ischemic injury, namely, (a) evidence of foeta l distress and/or foetal
risk for hypoxia -ischemia, (b) need for resuscitation at birth and or low Apgar
scores, and (c) an overt neurological syndrome in the first hours or day of life.
Based on those, he opined that the period of highest risk of hypoxic ischemic
injury in pregnancy is during labour.
[18] Doctor Kara stated that in this matter, it is indeterminable what the period
is between the commencement of the insult and the onset of the ischemia. That
is compounded by the lack of obstetric records. He testified that on the available
information, there is no indication or evidence of a sentinel event having
occurred during labour. He explained a sentinel event to be ‘a ruptured uterus,
cord prolapse abuptio placenta, maternal cardiovascular collapse, m assive
fetomaternal haemorrhage, shoulder dystocia - unknown, but there is no history
of placental abruption, cord prolapse or urine rupture or shoulder dystocia’.
1 Cowan and Rutherford; Gun and Bannett.
Based on the above, he concluded that “(i)t appears probable despite missing
information tha t there was acute intrapartum hypoxic injury of sufficient
severity to cause cerebral palsy”.
Dr Linda Ruth Murray.
[19] Doctor Murray is a specialist obstetrician and a gynaecologist. Her
expertise in both fields is not an issue between the parties. She c ompiled a
report on the obstetric management and care provided to O[...]. In producing her
report, she had a virtual consultation with the first plaintiff and obtained the
background of her pregnancy and the medical history of O[...] since birth. I
need no t regurgitate what the first plaintiff informed her about her journey
through pregnancy until she gave birth, as it is in line with the evidence of the
plaintiff. Based on the information she received from the plaintiff, Dr Murray
opined that at the time the first plaintiff visited the hospital for the first time, she
must have been in latent labour i.e. early stages of labour because the pain
continued until ‘she gave birth 12 to 24 hours later’ , therefore it was not false
labour and she should not have be en sent home by the nursing staff. She
testified that sending the first plaintiff home without having assessed her and the
fetal condition indicates substandard care on the part of the defendant’s staff.
[20] Dr Murray referred to Guidelines for Maternity Care in South Africa
2002 and 2007. (The guideline) She stated that the guidelines are set out by the
Department of Health as a manual for midwives and doctors, specifically in
Public Health hospitals, as they give recommended practice and management of
pregnant women to avoid adverse outcomes and to give a safe level of
recommended care, which is usually evidence -based. Had the defendant’s staff
confirmed her as probably being in latent labour, she would prob ably have been
admitted and managed according to the guidelines which stipulate that the
following should be performed at intervals namely; ‘the maternal blood
pressure and pulse rate should be assessed 2 hourly, the fetal heart rate and
contractions should be assessed 2 hourly, cervical dilation should be assessed 4
hourly.’
[21] Dr Murray stated that labour is divided into three stages. The first stage is
that part of labour from the onset until the mother is fully dilated, which is 10cm
dilated. The second stage is when the mother is fully dilated, that is, during the
time when she will also start pushing or bearing down. This is the most intense
part of labour because it culminates in the child being born. The third stage is
the delivery of the placenta , and the immediate care of the woman post birth.
She stated that what is critical is the examination and monitoring of the foetal
well-being throughout labour. She testified that labour becomes progressively
stronger, and the risks of foetal compromise i ncrease as the labour becomes
stronger. Monitoring of the foetal conditions commences from every two hours
in latent labour, to every 30 minutes in active labour and every 5 minutes in the
second stage of labour. Even contractions must be assessed every 30 minutes in
active labour. It is important to observe contractions because they result in
transient hypoxia, which is tolerated well by a normal foetus. If it is not within
normal limits, then it poses a risk of the foetus becoming hypoxic. She stated
that every time the uterus contracts, for 30 to 60 seconds, blood through the
placenta stops (which means there is no supply of oxygen to the baby), and that
is a normal process and a healthy baby and a healthy labour can withstand such
short intervals of impa ired blood flow because it is part of the normal labour
process. She said monitoring is important in cases where labour might be
complicated, like where perhaps the labour takes too long, or contractions are
too hard or frequent, or the baby does not toler ate that hypoxic stress as labour
progresses, with heart rate changes which signify their distress. In that event,
the medical staff should assist in the delivery of the baby. She said prolonged
contractions lead to brain injury. She stated that since they do not have that
‘magic ball’ which can tell which baby would withstand labour, monitoring
becomes key. She said monitoring of the foetal heart rate is crucial. It should be
done every 30 minutes. She was of the view that the plaintiff’s labour was
unmonitored, unattended, and neglected to an extent that it was fair for her to
say she received no medical care at all.
[22] As aforesaid, Dr Murray ruled out that the injury could have occurred
antenatally, even though the medical records are scanty. That is s o, because the
foetus was probably appropriately grown, there were no noted abnormalities, no
congenital abnormalities on MRI, there was no sepsis, no trauma and no
pregnancy complications and all that made the likelihood of antenatal injury
very low. As a foresaid, she was of the opinion that this matter supports the
premise that the brain injury could have been caused by hypoxia and which
probably occurred during labour. Amongst other reasons why she said so, is
because; (a) the main risk factor for the i njury was labour which was
unmonitored, unattended and probably neglected, (b) although a healthy foetus
will undergo various cardiovascular adaptations aimed at directing blood and
oxygen delivery to vital organs such as the brain, if the oxygen debt is o ngoing,
eventually even a previously healthy feotus will run out of reserves and will
progressively deteriorate and decompensate, becoming hypoxic and finally (c)
there is no documentation of a sentinel event. As previously stated, she
described a sentinel event as a sudden obstetric emergency and catastrophe,
which is normally ‘a call for help’ , that would require a team approach at
management and would be readily evident to the mother and would be captured
in the Road to Health Card. She confirmed that th e available medical records
make no mention of a sentinel event occurring during the birth of O[...]. The
first plaintiff's history also does not indicate such an event. She reiterated events
which are recognised as placental abruption, cord prolapse, etc.
[23] Dr Murray had access to limited pediatric records, which were provided
to her. In terms of the records, O[...] was diagnosed with hypoxic ischemic
encephalopathy. That indicated that the baby had been deprived of oxygen, and
that manifests as a neurologica l sign due to damage to the brain and possibly
other vital organs from lack of oxygen. As noted by other experts, she also
observed that the notes revealed that she had an Apgar score of 3 and 5, which
was very low, thus indicating that O[...] had very lit tle sign of life. Even after
birth, it remained at 5, meaning that he was in a poor condition. O[...], sometime
after birth, was diagnosed with microcephalic spastic cerebral palsy (MSCP),
which means that his head did not grow after birth as there was dam age to the
brain. She described MSCP as a neurological syndrome disease an aftermath of
damage to the brain. She described it as mainly caused by spastic hypoxic
damage and the spastic type, which is most associated with hypoxic damage.
That, to her, was the cause of seizures because the brain injury manifests with
neurological signs (the seizures). As aforesaid, Dr Murray concluded, like the
other two experts, that the injury to O[...] was solely caused by the medical staff
of the second defendant in thei r neglect to provide the first plaintiff with any
form of care and treatment during her labour. She concluded that the first
plaintiff received substandard care.
C. The issues.
[24] The issues before me require the determination of negligence and
causation. I have to determine: (a) whether the defendant’s medical staff was
negligent in the medical care and treatment of the first plaintiff during the
labour and delivery of O[...], and (b) whether such negligence caused him
hypoxic ischemic brain injury resulting in cerebral palsy.
D. The applicable law and its application on the facts.
[25] Neethling-Potgieter-Visser Law of Delict;2 defines negligence; thus, “The
defendant is negligent if the reasonable person in his position would have acted
differently; and according to the courts the reasonable person would have acted
differently if the unlawful causing of damage was reasonably foreseeable and
preventable.” The test for negligence was stated by Holmes JA in Kruger v
Coetzee3, and see also Transnet LTD t/a Metrorail and another v Witter, 4 as
follows:
“For the purposes of liability culpa arises if -
(a) a diligens paterfamilias in the position of the defendant-
(i) would foresee the reasonable possibility of his conduct injuring
another in his person or property and causing him patrimonial loss;
and
(ii) would take reasonable steps to guard against such occurrence.
(b) the defendant failed to take such steps.
2 6th edition at page 13.
3 1966(2) SA 428 (A) p4 30 E-G.
4 2008 (6) SA 549 (SCA) at p553 D-F.
This has been constantly stated by this Court for some 50 years. Requirement (a) (ii)
is sometimes overlooked. Whether a diligens paterfamilias in the position of the
person concerned would take any guarding steps at all and, if so, what steps would be
reasonable, must always depend upon the particular circumstances of each case. No
hard and fast basis can be laid down. Hence the futility, in general, of seeking
guidance from the facts and results of other cases.” (footnotes omitted).
[26] As a rule, a person does not act wrongfully for the purposes of the law of
delict if he omits to prevent harm to another person. Thus, the point of departure
is that a person is generally not liable where his omission or omissio - his failure
to act posit ively to prevent loss factually infringes the interests of another.
Liability follows only if the omission was in fact wrongful - and this will be the
case only if (in the particular circumstance) a legal duty rests on the defendant
to act positively to pr event harm from occurring and he failed to comply with
that duty. The question of whether such a duty exists is answered with reference
to the flexibility criterion of the legal convictions of the community and legal
policy. The test to determine whether the omission conflicted with the
convictions of the community is purely objective, in the sense that all the
relevant factors of a particular case must be taken into consideration. Such
factors have been developed over a considerable period and are indicative of the
existence of a legal duty to act positively to prevent harm. A person acts in a
prima facie wrongful manner when he creates a new source of danger by means
of positive conduct ( commissio) and subsequently fails to eliminate that danger
(omission), with the result that harm is caused to another person. Prior conduct
is, however, not a prerequisite for the existence of such a legal duty: other
factors may also point to the existence of a legal duty to act positively.5
[27] It should be appreciated that it is the established principle of our law that
negligent conduct is not actionable unless it is also wrongful. However, an
omission will be wrongful only when it occurs in circumstances where the law
regards it as such to attract liability. Otherw ise stated, it is not wrongful when
the law, for reasons of legal policy, affords an immunity against liability for
such an omission, whether negligent or not; in these circumstances, the question
of fault does not even arise; the defendant enjoys immunity . A negligent
omission will be regarded as wrongful and therefore actionable only when the
legal convictions of the community impose a legal duty, as opposed to a mere
moral duty, to avoid harm to others through positive action. 6 In certain
instances of omission, a special relationship between parties may be an
indication that one party has a legal duty towards the other to prevent harm. The
existence of a contractual relationship may indicate such a legal duty as, for
instance, a relationship between a doctor and patient.
[28] To succeed in their claim, the plaintiffs bore the onus to prove on the
balance of probabilities that the defendant was negligent. As reflected in
paragraph 25 above, the test is that of a reasonable person in the position of the
5 Neethling-Potgieter-Visser, supra at pages 57-59.
6 Local Transitional Council of Delmas v Boshoff 2005 (5) SA 514 (SCA).
defendant. What a reasonable person is generally in terms of the law is now
trite7. However, when it comes to experts, the test for negligence is that of the
so-called reasonable expert in the field so affected. Dealing with the degree of
care expected of a surgeon in Van Wyk v Lewis. 8 Innes JA said the following
about the standard of a reasonable surgeon;
“It was pointed out by this Court, in Mitchell v Dixon (1914, A.D., at p. 525), 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 reasonable
skill and care. And in deciding what is reasona ble the Court will have regard to the
general level of skill and diligence possessed and exercised at the time by the
members of the branch of the profession to which the practitioner belongs. The
evidence of qualified surgeons or physicians is of the grea test assistance in estimating
that general level.”
Similarly, in casu, the onus is on the applicant to discharge and to establish that
the defendant’s employees acted negligently in the treatment meted out to the
first plaintiff and O[...] before and after his birth.
[29] In AN v MEC for Health: Eastern Cape ,9 the Court said the following
about medical negligence:
“[3] It is worth briefly sketching the legal landscape governing such a claim. ‘[I]n
order to be liable for the loss of someone else, the act or omission of the defendant
7 Neethling- Potgieter- Visser, supra at page 135 and the authorities referred thereto.
8 1924 AD 438 at 444.
9 585/2018) [2019] ZASCA 102; [2019] 4 All SA 1 (SCA) (15 August 2019).
must have been wrongful and negligent and have caused the loss.’ Wrongfulness
involves the breach of a legal duty. The legal duty in the present matter arose when
the mother was admitted to the hospital in labour. The staff assumed a duty to care for
mother and foetus during the birth process without negligence, in other words, as
would reasonable staff in their position. More particularly, they had a duty to monitor
the condition of mother and foetus and act appropriately o n the results. They
negligently failed to do so, in breach of that legal duty. Their conduct was thus
wrongful. But this, in and of itself, has never been sufficient to found delictual
liability. The wrongful conduct must cause the wronged person to suffer loss. The
first step in proving this is to prove that the wrongful conduct of the staff caused the
baby to suffer brain damage. The appellant accordingly bore an onus to prove this.
Wrongfulness should not be
conflated with factual causation.” (footnotes omitted)
[30] The defendant, relying on VN on behalf of PN v The Member of the
Executive Council for Health & Social Development, 10 submitted that the
plaintiff, in the absence of medical evidence or the records, must still establish
negligence, because medical records constitute a neutral factor. This may be so,
but I have evidence from the first plaintiff which has not been gainsaid by the
defendant. Her evidence remains unchallenged and constitutes the truth of what
occurred to her at the hospital in th e morning, afternoon and at night when she
eventually gave birth. Decerning from her evidence of how she was treated by
the defendant employees (nurses) when she reported in the morning and
10 (132/2015) [2022] ZAECQBHC 13 (17 June 2022).
afternoon, I am in no doubt that from those instances, the defenda nt’s
employees acted negligently in treating her, even at that stage. It is
inconceivable that the first plaintiff would have gone the hospital in the morning
if she was not feeling labour pains. That is logic and needs no elucidation,
especially in the ba ckdrop that she gave birth a few hours thereafter. It was
expected of the nurses to have examined the first plaintiff to check whether she
was in early labour or not. It was careless and negligent of the nurse to have
sent her back home without examining h er. This was exacerbated by the
defendant’s employees' conduct when they failed to attend to her on the second
occasion in the afternoon. Even on that occasion, she was left in her own
devises until her ‘water broke’ in the toilet. She was unexpectedly ass isted by a
fellow patient who happened to be in the bathroom. As testified to by Dr
Murray, the nursing staff and doctors are called upon to heed to the Guidelines
referred to above. They are, as stipulated step by step by Dr Murray as reflected
in paragra ph 21 above, the things they should have done when she presented
herself in hospital. They neglected to do so.
[31] The facts of this matter are distinguishable from those in VN relied upon
by the defendant. Van Zyl DJP in VN summarised the issue; thus,
“The issue raised herein is factual. It concerns mainly the reliability of the plaintiff’s
evidence against that of Sister Minnaar, that fundal pressure was applied during
labour. As counsel for the defendant correctly points out, the issue of fundal pres sure
became the touchstone of the plaintiff’s case after her expert witnesses effectively had
to concede that the monitoring of the first stage of her labour was in order, and that
nothing outward had been noticed which could have been indicative of foetal
distress.” (underlining is mine).
In the instant matter, there was no monitoring at all during her first stage of
labour, hence the experts agree that that was grossly negligent and Dr Murray’s
conclusion that the care she received was substandard. Paragraphs 36, 38, and
39 of VN, relied upon by the defendant, merely regurgitate or set out the legal
position as it pertains to the medical negligence cases.
[32] As previously said, Dr Alheit found that the injury to the brain was
caused by a lack of oxygen in the brain, which occurred over a prolonged
period. In the absence of a sentinel event, the same brain injury occurs after
ongoing hypoxia over a prolonged period in which the foetus is compromised
but not injured, and then finally cardiac compromise (ischemia) occurs,
resulting in the pain injury. However, he referred to an obstetrician or
pediatrician. Dr Kara, a pediatrician, based on the pediatric records, which
revealed that at birth, O[...] weighed 2,7 kg and had an Apgar score of 3 and 5,
and the information he received from the f irst plaintiff, O[...], could not have
sustained the injury during pregnancy nor after delivery. He indubitably
concluded that the injury occurred during birth because O[...] was diagnosed
with moderate hypoxic ischemic encephalopathy after birth, indicati ng that the
injury occurred at birth. To confirm his opinion that O[...] was critical at birth,
he was placed on a ventilator and was fed through a tube and suffered seizures
after three months. As aforesaid, Dr Murray categorically stated that the first
plaintiff should not have been sent home without medical examination on the
first occasion she visited the hospital. As previously stated in paragraph 30
above, I also found that to defy even logic because the first plaintiff would not
have gone to the hos pital if she did not feel the medical urge to do so and to
only come back again shortly after she had returned home. Dr Murray further
relied on the failure by the medical staff to adhere to the guidelines. That is not
an assumption by her; it is the w ord of the plaintiff that she was not attended to
until her “ water broke”, which was hours after she presented with labour
symptoms. She ruled out that the injury could have occurred during pregnancy,
like the other experts, because of the lack of complications, and no congenital
abnormalities on the MRI. She concluded that the injury could have been
caused by hypoxia that probably occurred during labour. She said that there was
no sentinel event because the first plaintiff would know because ‘that is a
sudden emergency and catastrophe which normally is ‘a call for help’ that
would require a team approach at management and would be readily evident to
the mother and would be captured in the Road to Health Card.’
[33] The findings of the experts and the evidence of the plaintiff put paid to
the argument by the defendant that there is ‘no evidence to draw an inference
that the defendant’s staff was negligent’. Their opinion is based, among others,
on the credible and unchallenged evidence of the first plaintiff. Their opinions
were unchallenged. The evidence given by the experts is chronologically sound
and backed up by facts from the first plaintiff, their expertise and literature by
scholars in their respective fields of expertise. I therefore found that the
defendant’s employees were negligent in treating the first plaintiff and O[...].
[34] The question of damage through conduct, or, in other words, a causal
nexus between conduct and damage, is required for a delict. A person cannot be
liable if he has not caused any damage. The question of whether there is a
causal nexus in a particular case is a question of fact that must always be
answered considering the available evidence and relevant probabilities, and that
may, in suitable instances, be dealt with first during a trial11. The plaintiffs must
establish that the negligence of the defendant’s employees was the cause of the
damage suffered by them. That must be determined from the conclusions drawn
from the relevant facts and the probabilities of this matter. The test or method
for determining factual causal connection has always been the conditio sine qua
non, i.e. an inquiry whether one fact follows the other or also known as the ‘but
for’ test. The test is not without problems or criticism. In International Shipping
Co (PTY) Ltd. v Bentley12, the court formulated the approach as follows:
11 see Neethling-Potgieter-Visser; supra at page 175.
12 1990 1 SA 680 (A) page 700.
“The inquiry is a factual one and relates to the question whether the defendants
wrongful act was a cause of the plaintiff's loss. This has been referred to as “factual
causation”. The inquiry is generally conducted by applying the so -called “but -for-
test”, which is designed to determine whether a postulated cause can be identified as a
causa sine qua non of the loss in question. In order to apply this test, one must make
a hypothetical enquiry as to what probably would have happened but for the wrongful
conduct of the defendant. This inquiry may involve the mental elimination of the
wrongful conduct and the substitution of a hypothetical cause of lawful conduct and
the posing of the question as to whether upon such a hypothetical hypothesis
plaintiff’s loss would have ensued or not. If it would in any event have ensued, then
the wrongful conduct was not a cause of the plaintiff’s loss, aliter, if it would not so
have ensued. If the wrongful conduct is shown in this way not to be it causa sine qua
non of the loss suffered, then no legal liability can arise”
[35] The learned authors13 state that:
“In the c ase of an omission (omission) the conditio sine qua non requires that a
hypothetical act be “inserted” into the particular set of facts - this can probably also be
regarded as the mental “removal” of the defendant’s omission. If hypothetical positive
conduct of the defendant could have prevented the damage, it can be said that the
defendant’s omission was the cause of the damage. This inquiry requires a
retrospective analysis of what would probably have happened, based upon the
evidence and what could have been expected in the ordinary course of a human
endeavour.”
13 Neethling- Potgieter-Visser at page 179; see also Lee v Minister for Correctional Services 2013 (2) SA 144
(CC); 2013 (1) SACR 213; 2013 (2) BCLR 129 at para. 40 and 41).
Similarly, the test for causation was dealt with as follows in Mashongwa v
Prasa:14
“Lee never sought to replace the pre-existing approach to factual causation. It adopted
an approach to causation premised on the flexibility that has always been recognised
in the traditional approach. It is particularly apt where the harm that has ensued is
closely connected to an omission of a defendant that carries the duty to prevent the
harm. Regard being had to all the facts, the question is whether the harm would
nevertheless have ensued, even if the omission had not occurred. However, where the
traditional but-for test is adequate to establish a causal link it may not be necessary, as
in the present case, to resort to the Lee test.”
[36] The submission by the defendant is that there is no evidence that the
cause of the injury was foreseeable and preventable, contending that it is not
known how the condition the baby was inside the uterus, a nd prior to his
delivery and what the cause was for his condition after or upon delivery. The
testimony of the three experts, especially Dr Murray, as dealt with above, talks
to the issue now raised and relied upon by the defendant. Dr Murray spoke to
the Guidelines which must be applied to every case where there is a woman
who is about to give birth. As alluded to, the Guidelines speak to the monitoring
of the mother and the foetus from the beginning of labour until the birth of a
child, as aforesaid. The Guidelines were produced to make sure that
abnormalities during labour are detected early to prevent harm to both mother
14 [2015] ZACC 36 at para 65.
and baby. Failure to adhere to these Guidelines frequently results in
catastrophic health hazards either to the mother or baby, as is the case in this
matter. There is ample evidence to sustain the contention that there was no
compliance at all with the Guidelines. The birth of O[...] was clinically
mismanaged from the time the first plaintiff presented with labour pains and
attended the hospital until she gave birth. Had the defendant’s employees not
omitted to monitor the labour and birth of O[...], the latter would not have
suffered the injury, as testified to by the first plaintiff and the doctors, running
the risk of repeating mysel f. Dr Murray testified that if there was monitoring,
the medical staff would have picked up in the early stages of labour that there
was foetal distress or compromise through the heart rate and would have
performed the necessary intervention. Had the medi cal staff monitored the
labour, the probability is that O[...] would not have suffered the brain injury.
But, for their conduct, O[...] would not have suffered the injury complained of.
[37] In a matter similar to this, Molemela JA 15 , as she then was , said the
following:
“Both obstetric experts agreed that the exact time at which foetal distress occurred
was impossible to determine due to the absence of clinical notes detailing the last 95
minutes of the respondent’s labour. Despite it having been th e hospital staff’s
15 MEC for Health, Limpopo v L W M obo D M (502/2021) [2022] ZASCA 146 (26 October 2022).
obligation to monitor the foetal heart rate and to make the necessary clinical notes,
which it failed to do, the appellant tried to capitalise on the fact that the exact times at
which the foetal heart rate was indicative of foetal distress could not be established. 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 escap e 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 lin k between the negligence and
the harm that ensued.” (Emphasis added).
These are equally relevant and find application in this matter. I find that the
plaintiff has, on a balance of probabilities, established negligence of the
defendant’s staff is the dir ect cause of the brain injury and the subsequent
cerebral palsy O[...] suffered.
E. Costs.
[38] There is no reason that the costs should not follow the results. However,
the scale should be B opposed to scale C as proposed by the defendant.
F. Order
[39] Consequently, I make the following order.
1. The defendant is declared to be 100% liable for the proven or agreed
damages suffered by the plaintiff as a result of the negligent conduct
of the medical staff at the Frere Hospital, resulting in O[...] suffering
brain injury and resultant cerebral palsy.
2. The defendant shall pay the plaintiff’s costs o f suit (on the High Court
scale B) to date hereof, such costs to include:
2.1 The costs of counsel.
2.2 The costs incurred in obtaining the medico -legal reports,
addendums and joint minutes, as well as, where
necessary, the qualifying attendance reservation and
preparation fees of:
• Dr Alheit (Radiologist)
• Dr Kara (Paediatrician)
• Dr Murray (Obstetrician)
3. All reserved costs to date of this order.
4. The defendant shall pay interest on the aforesaid costs at the current
prescribed legal rate of interest from the date of allocator or agreement
to the date of payment thereof.
M MAKAULA
JUDGE OF THE HIGH COURT
APPEARANCES
Counsel For the Plaintiff : Adv McKelvey
Instructed by : N. Tyatyeka Attorneys
Short Mill House
The Quarry Office Park
Baysville
EAST LONDON
Counsel For the Defendant : Adv Mqobi
Instructed by THE STATE ATTORNEY
17 Fleet Street
EAST LONDON
Date heard : 16 May 2024 and 05 March 2025
Judgment delivered : 09 September 2025