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1994
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[1994] ZASCA 109
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Harte and Fisher v Aucamp (732/92) [1994] ZASCA 109 (12 September 1994)
Case No 732/92
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE
DIVISION)
In the matter between:
HARTE AND
FISHER Appellant
and
JAN CHRISTOFFEL
AUCAMP Respondent
CORAM
: BOTHA, E M GROSSKOPF et HOWIE
JJA
DATE HEARD
: 30 AUGUST 1994
DATE DELIVERED
:12 SEPTEMBER 1994
JUDGMENT
HOWIE JA/......
2
HOWIE JA :
Respondent is a stock farmer in the Molteno district of the Eastern Cape.
During the early months of 1988 he noticed that some of
his sheep were behaving
abnormally. There was a weakness and swaying motion of the hindquarters and on
occasions they would fall
down and kick their legs in the air. Several died. As
a result, in March or April, he consulted Dr A D Fisher who conducted a
veterinary
practice in Queenstown in partnership with Dr C P Harte. This is the
appellant firm. Fisher suspected a magnesium deficiency and
advised that one
teaspoon of magnesium sulphate crystals be given to each animal. This was tried
but brought about no improvement.
Further fatalities ensued.
On the evening of 18 July respondent telephoned Harte and explained the
problem. Harte said he thought that the afflicted sheep could
be suffering from
a copper deficiency. In the course of their conversation Harte
3
mentioned the use of copper sulphate as a cure. The
primary
point in dispute at all stages of this case has concerned the circumstances and
the terms in which Harte expressed himself
regarding the use of copper sulphate.
More of that presently.
On 19 July respondent bought three tins of copper sulphate crystals and
instructed his stockman to administer half a teaspoon of crystals
per sheep.
During that afternoon 446 animals were dosed. By the next morning over 200 of
them were found dead. The eventual death-toll
was 277. The cause of death was
acute copper sulphate poisoning.
Arising out of these events respondent sued appellant in the Eastern Cape
Division for damages, alleging that the loss of his sheep
was due to negligent
advice given to him by Harte. Respondent averred that in answer to his request
for advice, Harte had recommended
a dose of half a teaspoon of copper sulphate
per sheep and that he had failed to give
4
respondent the correct advice, namely, that the
copper
sulphate had to be dissolved in water and administered as a
10% solution.
In the plea appellant alleged that Harte told
respondent that he could not make a diagnosis over the telephone but that the
symptoms
described were consistent with a condition called "swayback" which was
due to a copper deficiency. He informed respondent further
that the usual
treatment was a half teaspoon of copper sulphate solution for each animal.
Respondent then enquired whether copper
sulphate was "die gewone blouvitrioel
oplossing", thus indicating his familiarity with the usual solution in farming
use, namely
a 10% solution. Appellant went on to deny that Harte had recommended
or prescribed the use of copper sulphate either in solution
or otherwise.
Consequently it was denied that Harte had in any way been negligent and
respondent was put to the proof of his alleged
damages.
5
The matter proceeded to trial before JENNETT J. During the hearing the
quantum of damages was agreed and the salient issues which
remained for decision
were:
(a)
whether Harte
had been negligent as alleged, and if
so,
(b) whether such negligence was causally linked to the death of the
sheep.
On both questions the learned Judge held in
respondent's favour and awarded him the agreed damages.
The trial Court's decision was upheld on appeal to the Full Bench by a
majority save only that, because of an erroneous calculation
of the damages by
the parties at the trial, the sum awarded was increased by agreement.
Before this Court the issues were, once again, negligence and
causation.
The negligence issue really comprises two questions -( i) Did Harte
advise the use of copper sulphate without
specifying that it had to be administered as a 10%
6
solution? (ii) If so, did that constitute negligence as alleged? Counsel
for appellant conceded, rightly in my view, that if this
Court were to answer
the first question in the affirmative then the second had also to be answered
affirmatively.
The evidence concerning the first question is limited
to that of respondent and Harte. Respondent's version was this. On the morning
of 18 July, a Monday, his stockman, Abie Xhawe, drew his attention to the fact
that all was particularly well on the farm concerned
but for the persisting
symptoms of what we now know was swayback among the affected flock. Respondent
therefore decided to raise
this problem with Harte when, as he was due to do, he
telephoned to enquire when Harte proposed to complete certain pregnancy tests
on
respondent's cattle.
The telephone call was made between 6 p.m. and 8 p.m. that evening. Harte
received it at his consulting rooms
7
where he was working late. Respondent described the symptoms and,
recounting that Dr Fisher had suspected a magnesium deficiency and
had advised
the use of magnesium sulphate, reported that this treatment had not succeeded in
curing the ailment. It was then that
Harte said he thought the problem was due
to a copper deficiency. Respondent asked what was to be done about it. In
response, Harte
recommended dosing each animal with half a teaspoon of copper
sulphate. Respondent then enquired: "Is dit die goed wat 'n mens blouvitrioel
van maak?" Harte's answer was that that was indeed so. Harte went on to add that
copper sulphate could also be sprinkled in the sheep's
drinking water but he did
not indicate in what quantity. It emerged from respondent's evidence that he had
always been aware, even
before this telephone call, that a 10% copper sulphate
solution was in common farming use. He said it was known among farmers as
"blouvitrioel" and was used, for example, for footrot among cattle, for
8
washing out the eyes of sheep suffering from blindness and for
eradicating frogs that blocked water pipes. However, copper sulphate
as such he
knew in one form only and that was the crystalline form. When it was put to him
in cross-examination that Harte would
testify to having referred to copper
sulphate solution he denied this. Then it was put to him that, having been
referred by Harte
to a copper sulphate solution, he asked Harte -
"Is dit die gewone blouvitrioel oplossing?" which Harte then affirmed.
That allegation respondent also denied.
The next morning, as a result of the telephone call, respondent bought
the copper sulphate and the dosing proceeded that afternoon.
Apart from showing
Abie how much copper sulphate to put in a teaspoon, respondent also told him to
put two handfuls of the crystals
in the animals' water trough.
The news of the disastrous aftermath reached
9
respondent during the following morning, the Wednesday. He telephoned
Harte to report the loss. The latter said he did not think copper
sulphate could
have been the cause of the deaths and suggested that respondent bring him some
of the carcases to examine. Respondent
was on the point of leaving for Queens
town with two of his dead animals when his wife drew his attention to a passage
in a veterinary
handbook which they kept at home. The authors referred to a
normal dose of copper sulphate as being a half teaspoonful of a 10% solution
in
water and went on to state that two tablespoonfuls could be toxic. Respondent
immediately telephoned Harte again and after summarising
this passage asked
what, in the light of the author's warning, the impact would be of "'n halwe
lepel konsentraat". According to
respondent Harte's only answer was that he
could not see that copper sulphate had killed the sheep. It is common cause that
the two
men had no dealing with each other after that.
10
Harte testified that the telephone call on Monday 18 July came towards
the end of what had been a particularly long, busy day. After
respondent had
outlined the problem and the history, Harte said it was impossible to diagnose
over the telephone but proffered the
suggestion as to a copper deficiency.
Respondent enquired what the normal treatment was. Harte replied that what was
used on occasions
was half a teaspoon of copper sulphate solution. Respondent
then asked whether this was the usual "blouvitrioel oplossing" and Harte
said it
was. In these circumstances, and also because most experienced farmers would use
that solution, Harte accepted that respondent
clearly understood what had to be
done if he was going to dose the sheep with copper sulphate. He emphasised,
however, that what
he said to respondent on the subject of his sheep constituted
neither a diagnosis nor a prescribed course of treatment.
Concerning the third telephone conversation, Harte
11
said that respondent reported having read in the handbook that copper
sulphate should be given in a liquid form. Harte said he agreed.
Asked in
cross-examination whether respondent had not gone on to ask what the consequence
would be of administration of "die konsentraat",
Harte said that respondent
probably had. This prompted respondent's counsel to ask what Harte had
understood by the word "konsentraat".
He said "I should imagine a very
concentrated solution". Pressed as to whether respondent's questions had not
elicited questions
from his side as to what respondent meant by concentrate or
as to what solution had in fact been administered, Harte replied that
he did not
think he had asked anything to this effect. He offered the explanation that he
was under stress of other work at the time.
Harte testified further that during the following week he became aware of
a report in a local newspaper that respondent had lost a
considerable number of
sheep pursuant
12
to taking certain veterinary advice. That prompted Harte to apply his
mind to what had passed between himself and respondent and this
review of the
relevant events, he said, reinforced his recollection, particularly of their
first telephone conversation.
It remains to say, as far as the
evidence relative to the negligence aspect is concerned, that it was accepted on
all sides, and at
all stages of this litigation, that Harte, as an experienced
veterinarian, would never wittingly have advised or even suggested that
the
sheep be dosed with copper sulphate crystals.
Faced with the credibility dispute to which these conflicting versions
give rise, the trial Judge considered that the rival witnesses
had both made
favourable impressions as honest people and that the present issue could only be
resolved by reference to the inherent
probabilities. In that regard he found
that two features rendered respondent's version the more probable one.
The
13
first was the fact that respondent employed crystals, not a solution.
That conduct was consistent with his version and inconsistent
with Harte's. The
learned Judge found it inconceivable that respondent, who was not a stranger to
the use of copper sulphate and
"blouvitrioel" solution, would have had crystals
administered if he had been told that what one used was a solution. The other
feature
was Harte's reaction to respondent's reference to the relevant contents
of the handbook. Had he indeed mentioned a solution to respondent
in the Monday
evening conversation, it was to be expected that on the Wednesday he would have
asked why respondent was quoting a
source to him that said the same thing.
Harte's evidence was found to be an honest but erroneous reconstruction and,
because of the
improbabilities referred to, it was rejected.
On appeal to this Court the essence of the argument by appellant's
counsel on this issue was that the trial Judge had failed to consider
two
distinct possibilities.
14
One was that it was respondent who had reconstructed wrongly. The other
was that respondent had been mistaken -he had either misheard
Harte or
misunderstood him.
I do not think that there is really any room for
the conclusion that respondent reconstructed Harte's description of the remedy.
His
response to what Harte told him was as immediate as time permitted - he went
to buy copper sulphate the very next morning and then
arranged for its
administration in crystal form.
In so far as possible reconstruction of what respondent said in answer to
Harte is concerned, counsel contended that if respondent
had truly asked "is dit
die goed wat 'n mens blouvitrioel van maak?" it would have been plain to Harte
that he had been misunderstood
as having said that the relevant remedy was
copper sulphate in crystalline form. Because Harte would never have described
the remedy
as anything other than a 10% copper sulphate solution, he would not
have answered respondent's question
15
in the affirmative but would have corrected the latter's misapprehension
forthwith. That being so, said counsel, respondent's version
could not be
correct. In my opinion, however, Harte would not inevitably, or even probably,
have construed respondent's enquiry in
this way. It is certainly a possible
construction but it is no less possible that Harte understood respondent as
merely checking
that they had the same chemical in mind, namely, the one used to
make the fluid which respondent called blue vitriol. Naturally,
Harte could then
have gone on to say that it was precisely blue vitriol that he was talking
about, but it was equally relevant and
appropriate simply to affirm as he was
alleged to have done.
As far as a possible mistake on respondent's part is concerned the first
difficulty in appellant's way is that the case was fought
on the basis that one
of the witnesses was right and the other wrong. The possibility of a mistake on
respondent's part was never
investigated or even
16
mooted. However unlikely it might seem that a party who has staked his
success on a version, the strengths and weaknesses of which
have been proved and
tested in numerous consultations, and who has eventually reached the stage of
cross-examination, will concede
the chance of his having been mistaken, it
nevertheless behoved appellant's legal representatives at the trial to launch
the requisite
investigation and challenge if it was proposed to argue in the end
that mistake was a cognisable possibility. Had this been done
respondent might
very well have advanced convincing reasons why there was no realistic
possibility of his having misheard or misunderstood
what Harte said.
The second factor destructive of the present submission is that, as
pointed out by the trial Judge, respondent was familiar with the
use of a copper
sulphate solution in the farming context. Had it been unknown to him he could,
if Harte had indeed referred to a
solution, possibly have missed the import of
the word "solution" and
17
have focused solely on the words "copper sulphate". However, given the
knowledge and experience he had, it is improbable that respondent
did mishear
the word "solution" or overlook its significance.
In the third
place, although respondent had allowed months to pass since Fisher's opinion was
obtained before seeking further advice,
the fact remains that there was a
persistent and distressing affliction among his sheep and it did cause him
concern. He was the
person with the problem and it is probable, not only that he
sought advice from Harte, as opposed to a mere passing comment as Harte
suggested, but, more importantly, that he had an interest and a reason to listen
attentively. Harte, by contrast -and one is not
without sympathy for him in the
position in which he found himself - was working late and had not yet completed
all the tasks with
which a long, busy day had landed him. In these
circumstances, if anyone was liable to concentrate inadequately on what passed
between
them it
18
was more likely to have been Harte than respondent.
As to the
two probabilities which the trial Court found were supportive of respondent's
version, appellant's counsel argued in regard
to the first that respondent's
resort to the administration of crystals instead of a solution showed no more
than that it was his
genuine belief that Harte had mentioned the use of
crystals; it did not show that that is what Harte in fact said. It suffices to
say that I agree fully with the reasoning of the learned Judge on this point.
Apropos the second probability, counsel contended that
Harte's omission to be
more inquisitive when referred to the handbook, was simply attributable to his
having been under pressure
of work. However I agree with the trial Court's
reasons for holding adversely to appellant on this score. Indeed, there is a
double
significance in Harte's reticence. The apparent discovery by respondent
in the handbook that the appropriate remedy was a 10% solution
would surely
have
19
alerted Harte, had he recalled on the Wednesday what he said on the
Monday, to the implication that respondent had not dosed the sheep
with a
solution after all. This implication was strengthened by respondent's mention of
"konsentraat" (whether that meant crystals
or a concentrated solution does not
matter). Consequently, either Harte came to the stunning realisation during this
conversation
that he had failed on the Monday evening to be as specific as he
ought to have been, or he simply had no recollection then of what
he had said on
the Monday. The second inference makes it likely that his purported positive
recall when giving evidence was mere
wishful reconstruction.
Finally on this issue, it seems to me that there are two further factors
which detract from Harte's version. Firstly, it was common
cause that the
farming community in the relevant area used the term "blouvitrioel" to refer not
to copper sulphate as such but to
a 10% copper sulphate
20
solution. That being the case, Harte's assertion is clearly improbable
that respondent would, on the Monday evening, tautologously
have referred to
"blouvitrioel oplossing". And of course, as already mentioned, respondent was
most unlikely to have referred to
a solution when he so clearly understood Harte
to refer to crystals.
Secondly, Harte's protestation rings hollow
that he did not intend to advise or prescribe and could not have been understood
to do
so. As I have said, it is probable that respondent wanted advice; his was
not a mere casual enquiry. From Harte's point of view there
was no doubt as to
what chemical substance had to be used and provided it was applied in the right
form there would have been no
danger to respondent's stock even if their ailment
was not in fact a copper deficiency.
For all these reasons appellant cannot succeed on the negligence
issue.
On the matter of causation, appellant's counsel relied
21
on the evidence of a toxicologist, Dr A. Immelman, who was called to give
expert evidence on behalf of appellant. The thrust of the
argument was that Dr
Immelman's evidence compelled the conclusion that even if one assumed that Harte
had been negligent as found,
Abie had administered grossly excessive quantities
of copper sulphate to those sheep that had succumbed, and that their deaths were
due to this cause and not to Harte's negligence.
Abie testified that
he administered copper sulphate as instructed by respondent. It was agreed
during the hearing the the quantity
of copper sulphate alleged to have been
given to each sheep by Abie was 3,5 grams. When the dosing was complete, so he
said, he had
used up one complete tin of copper sulphate and a small quantity of
another. (Each tin contained one kilogram.) Abie's evidence was
not attacked in
cross-examination as being false or even as being of doubtful reliability. The
trial Judge found that he had given
satisfactory and credible
22
evidence.
Another witness for respondent was Dr CD. Christie.
As State Veterinarian at Queenstown at the relevant time, he conducted
post-mortem
examinations on four of the dead sheep. He took samples of content
and tissue from their stomachs, livers and kidneys and sent the
samples for
analysis. The result of the analysis, the correctness of which was agreed by the
parties, showed a substantial quantity
of copper in the rumen content of one of
the sheep. The rumen is the first of a sheep's four stomachs. Dr Immelman (whose
experience
and eminence as a veterinary toxicologist were beyond question) built
a deduction on this particular rumen analysis with the aid
of certain
assumptions. His conclusion was that the animal in question had been given the
equivalent of 12 level teaspoons of 6 heaped
teaspoons of copper
sulphate.
This is a bizarre result. It is abundantly clear from the evidence that
copper sulphate crystals would have
23
caused considerable irritation in the sheep's mouths and that
administering even one teaspoon would have required careful manipulation.
It
would not have been achieved without a material degree of difficulty. That any
sheep was given as much as Dr Immelman deduced
is inherently unlikely not only
because of the physical difficulty just referred to but also because it is
improbable that Abie would
have given so much. He had his instructions and there
is no reason why he would have ignored them. Moreover he said that he managed
to
give each animal the amount indicated to him by respondent despite some
spillage. The veracity of his evidence was, as I have
said, not assailed. It was
only after Immelman's evidence, and at the close of the trial, that Abie was
recalled at the suggestion
of respondent's counsel so that appellant's trial
counsel (he did not appear on appeal in this Court) could formally put it to him
that he had given the sheep a dose greater than he had alleged. This he
denied.
24
Considering the obvious implications adverse to Abie which arise from Dr
Immelman's theory, this was simply no way in which to impugn
Abie's credibility
and so lay a foundation for the possible acceptance of Dr Immelman's
deduction.
Apart from this consideration it was not disputed that
the dosing exercise consumed less than one and a half tins of copper sulphate.
However, even if Abie used as much as 1 500 grams this means that on average
each of the 446 sheep would have received no more than
3,4 grams.
Finally, of all the assumptions made by Dr Immelman one of the most
important concerned the weight of the rumen content. There was
no evidence at
all which could assist on this point. The assumption in question was based on
pure speculation. This consideration
is enough to eviscerate his
deduction.
It follows that appellant cannot succeed on the causation issue
either.
25
In the result, the appeal is dismissed, with
costs.
HOWIE C T
JUDGE OF
APPEAL
BOTHA JA ]
] CONCUR E M GROSSKOPF JA ]