Oppelt v Head: Health, Department of Health Provincial Administration: Western Cape (CCT185/14) [2015] ZACC 33; 2016 (1) SA 325 (CC); 2015 (12) BCLR 1471 (CC) (14 October 2015)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Constitutional Court
SAFLII
>>
Databases
>>
South Africa: Constitutional Court
>>
2015
>>
[2015] ZACC 33
|

|

Oppelt v Head: Health, Department of Health Provincial Administration: Western Cape (CCT185/14) [2015] ZACC 33; 2016 (1) SA 325 (CC); 2015 (12) BCLR 1471 (CC) (14 October 2015)

Links to summary

Heads of arguments

CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT
185/14
In the matter
between:
CHARLES
OPPELT
Applicant
and
HEAD: HEALTH, DEPARTMENT
OF HEALTH,
PROVINCIAL
ADMINISTRATION:
WESTERN
CAPE
Respondent
Neutral
citation:
Oppelt
v Head: Health, Department of Health Provincial Administration:
Western Cape
[2015] ZACC 33
Coram:
Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J,
Jappie AJ, Khampepe J, Madlanga J, Molemela AJ, Nkabinde J and
Theron AJ
Judgments:
Molemela AJ (majority): [1] to [86]
Cameron J (minority): [87] to [150]
Heard on:
26 February 2015
Decided on:
14 October 2015
Summary:
Delict
—
wrongfulness
and negligence
—
delayed treatment of
spinal cord injuries resulting in permanent paralysis
—
both wrongful and negligent
ORDER
On appeal from the Supreme
Court of Appeal (hearing an appeal from the then Western Cape
High Court, Cape Town):
1.
Leave to appeal is granted.
2.
The appeal is upheld.
3.
The order granted by the Supreme Court of Appeal is set aside.
4.
The applicant’s claim against the respondent succeeds and the
respondent
is declared liable to pay damages as the applicant may
prove to have suffered as a result of the neck injury sustained in
the rugby
match on 23 March 2002.
5.
The respondent is to pay 50% of the applicant’s costs in the
High Court
and full costs in both the Supreme Court of Appeal and in
this Court.  In all instances costs arising from the use of two
counsel is included.
JUDGMENT
MOLEMELA AJ (Mogoeng
CJ, Moseneke DCJ, Froneman J, Khampepe J, Madlanga J, Nkabinde J
and Theron AJ concurring):
Introduction
[1]
This is an application for leave to appeal
against the decision of the Supreme Court of Appeal
[1]
which upheld an appeal and set aside the order by the then Western
Cape High Court, Cape Town (High Court) in favour of Mr Oppelt

(applicant).
[2]
The case concerns a delictual claim arising from delayed medical
treatment after the applicant sustained spinal cord injuries
that
left him paralysed.  The High Court held that Mr Oppelt’s
claim against the Head of the Western Cape Provincial Department

of Health (Department) must succeed, while the Supreme Court of
Appeal found that the causal link between the harm Mr Oppelt suffered

and the conduct of the Department had not been established and that
no delictual liability could be found.  The latter decision
is
the subject matter of this application.
[2]
The applicant is an adult male who was 17
years old at the time of the injury that gave rise to the claim.
The respondent
is the Head: Health, Department of Health, Provincial
Administration: Western Cape (respondent).  He is cited in his
capacity
as the administrator of the Western Cape Province.
There were other defendants in the High Court
proceedings.  These were organisations responsible for the
administration of
the game of rugby.  Their identity and the
grounds of negligence levelled against them by the applicant warrant
no mention
as the action against them was dismissed by the High
Court.  That decision is not challenged on appeal.
Background facts
[3]
On 23 March 2002, at approximately 14h15
the applicant – who was representing his community rugby club,
Mamre Rugby Football
Club, in a rugby match – struck his head
against an opponent’s shoulder in a scrum collapse.  He
sustained spinal
cord injuries that left him paralysed below his
neck.  He has since been medically classified as quadriplegic.
[4]
The applicant received treatment at three
hospitals which were under the respondent’s control.  He
arrived at Wesfleur
Hospital (Wesfleur), at 15h15 and was attended to
by a nurse and Dr Venter, a junior doctor at Wesfleur at the time.
At 16h00,
Dr Venter phoned Dr Rothemeyer, a training
neurosurgical registrar at the second hospital, Groote Schuur
Hospital (Groote Schuur).
Dr Rothemeyer suggested that the
applicant be transported by helicopter to Groote Schuur, a transfer
that would have taken 12 minutes,
had it materialised.  The
applicant was instead transported to Groote Schuur by ambulance.
The ambulance departed from
Wesfleur at 16h55 and arrived at Groote
Schuur at 17h40.
[5]
The applicant was examined by Dr Rothemeyer
at 18h00 at Groote Schuur.  A note from the ambulance records
shows that Dr Civitanich,
an orthopaedic surgery registrar, made a
call for an ambulance at 20h22 for the applicant’s urgent
transfer to the specialised
spinal cord injury unit at Conradie
Hospital (Conradie).  The call was marked highest priority.
This was connoted by
the words “at once”.  The
ambulance was dispatched only on the morning of 24 March 2002 at
00h25.  It departed
from Groote Schuur at 01h08 and arrived at
Conradie at 01h23.  There, the applicant’s spinal cord
injury was treated
by a closed reduction procedure at about 03h50.
The object was to relieve the pressure on the spinal cord by
re-aligning
the vertebrae, thereby restoring the blood supply to the
nerve cells in the spinal cord.
Litigation history
In the High Court
[6]
The applicant instituted an action against
the respondent in the High Court for the failure of the three
hospitals to provide him
with prompt and appropriate medical
treatment.  The applicant claimed damages for negligence arising
from the injury.
[3]
He averred that the respondent owed him the legal duty to ensure that
low velocity spinal cord injuries were treated at Conradie
with “the
greatest possible urgency, and where possible within four hours of
the injury”.
[4]
For the assertion that he should have been treated within four hours,
the applicant relied on the evidence of Dr Newton,
an orthopaedic
surgeon who was in charge of the Conradie Spinal Cord Injuries Unit
from 1988 to 2002.
[7]
The High Court found that Dr Newton’s
method of treatment was “well reasoned and logical”
and that “no
acceptable evidence gainsaying his theory was
presented by the respondent”.
[5]
It further found that the unreasonable delays on the part of the
respondent’s employees justified the conclusion that
the
applicant was refused emergency medical treatment as provided for in
section 27(3) of the Constitution.
[6]
The High Court upheld the claim on the basis that the employees of
the respondent had wrongfully and negligently failed to
treat the
applicant’s spinal cord injury by way of a closed reduction
procedure, within four hours of its occurrence.
It concluded
that the respondent was liable for the applicant’s proven
damages.
In the Supreme Court of
Appeal
[8]
Dissatisfied with the High Court’s
findings, the respondent lodged an appeal to the Supreme Court of
Appeal.  The Supreme
Court of Appeal reversed the decision of
the High Court and found that the applicant failed to prove, on a
balance of probabilities,
the validity of Dr Newton’s
methods.  It held that Dr Newton’s theory was based on too
small a sample and
that his statistical approach was not reliable.
It further held that the applicant had not shown that he probably
would have
recovered but for the fact that the respondent’s
employees failed to treat him with Dr Newton’s method within
four
hours of his injury.  It concluded that “[c]ommon
sense dictates that a failure to prove the validity of Dr Newton’s

theory means that a failure to apply it could not be a factual cause
of Mr Oppelt’s [the applicant’s] paralysis”.
[7]
Finally, the Court held that because the conduct of the respondent’s
employees was not the factual cause of his paralysis,
it was
unnecessary to determine the wrongfulness and negligence elements of
delictual liability.  It held that its finding
on causation was
dispositive of the claim.
In this Court
[9]
The applicant asks for leave to appeal on
both jurisdictional grounds, namely that the matter raises
constitutional issues and that
it raises an arguable point of law of
general public importance that ought to be considered by this Court.
[10]
On the merits, the applicant submits that
the Supreme Court of Appeal was wrong on at least two grounds.
First, it failed
to recognise that the respondent’s employees
acted wrongfully.  They violated his constitutional right not to
be refused
emergency medical treatment.
[8]
They acted unreasonably in not taking him to Conradie earlier than
they did and certainly not later than four hours.
Second, its
stance that the applicant failed to establish a causal link between
the conduct of the employees of the respondent
and his paralysis was
incorrect.  Its conclusion on causation is premised on an
incorrect approach to the evaluation of expert
medical evidence and
denied him a fair hearing guaranteed by section 34 of the
Constitution.
[9]
[11]
The applicant says that the Supreme Court
of Appeal not only made factually incorrect findings unsupported by
the evidence, but
also fell into the trap cautioned against in
Linksfield
[10]
in at least two respects.  First, by immersing itself in the
details of the statistical method instead of assessing where,
on a
review of all the evidence, the balance of probabilities lies.
Second, by not applying the
Linksfield
standard consistently when it evaluated
the opinion evidence of Dr Newton and Dr Welsh.  The applicant
adds that the Supreme
Court of Appeal failed to give due recognition
to the scope of Dr Newton’s study, without the assistance of
any evidence
to suggest that the statistical approach he followed was
not valid.  In fact, Dr Newton’s study had already been
partially
peer-reviewed and was set for imminent publication on
11 December 2011.  The applicant says that the Supreme
Court
of Appeal incorrectly assessed the reliability of the
scientific data on which Dr Newton’s conclusions were based and
overlooked
the statistical significance of Conradie’s own data
on spinal cord injuries.  The Court unjustifiably relied on the
testimony of Dr Welsh, which was unsupported.
[12]
The respondent opposes the application.
It submits that there is no evidence indicating that the applicant’s
right in
terms of section 27(3) of the Constitution has been
infringed.  It says the Supreme Court of Appeal came to the
correct conclusion
on the validity of Dr Newton’s theory
and that its approach to the medical evidence was sound.  The
respondent
supports the finding that the applicant had not proven the
causal link between the conduct of its employees and the applicant’s

paralysis.
[13]
The respondent elaborates that there was,
at the time, no consensus in the medical world that Dr Newton’s
specific procedure
was the best and required treatment.
[11]
The respondent adds that the applicant did not show that Dr Welsh,
Dr Rothemeyer and Dr Wallis
[12]
knew or ought to have known about Dr Newton’s
theory.  Even if they had known about Dr
Newton’s method, there was no protocol at the time that
provided for direct
referral to Conradie, nor was it the desired path
to be followed.
[14]
The respondent claims that the normal route
for referring a patient from Mamre is through Wesfleur then Groote
Schuur and, only
thereafter, to Conradie.  It says that if this
route were followed then treatment within four hours would not be
possible.
There was no helicopter to transport the applicant
from Wesfleur to Groote Schuur – he had to be taken by
ambulance.
This factor plus the time he had spent at Wesfleur
shows that Dr Newton’s cut-off time of four hours would not
have been
possible.  The respondent further argues that even if
it is shown that Dr Rothemeyer, Dr Civitanich and Dr Dunn, an
orthopaedic
surgeon, merely knew about “urgent intervention”
and not the four-hour cut-off time, that still does not assist the

applicant.  This is because Dr Newton was clear that “it’s
four hours or nothing”.  Their referral
of the applicant
to Conradie at 20h22 would thus still have fallen outside of this
standard.  The respondent asserts that
the applicant’s
treatment at Groote Schuur is irrelevant to his claim because he
arrived after the four-hour cut-off time.
[15]
The respondent points out that it has vast
public responsibilities and limited resources.  It should not be
expected to focus,
for a certain time each year (the rugby season),
on an extremely limited number of patients – rugby players who
suffer a
specific form of spinal injury – and provide for them
a highly specialised service protocol, based on the personal
preference
for treatment of one of its employees, Dr Newton.
The respondent claims that a patient on the side of the road had a

higher priority than a patient who was already in a medical facility.
[16]
The respondent submits that even if the
Supreme Court of Appeal had come to the wrong conclusion on
causation, as a result of its
interpretation of Dr Newton’s
theory, the applicant had, in any event, not proved the remaining
elements of delictual liability
and his claim ought to fail.
Issues
[17]
This case raises the following issues:
(a)
Should leave to appeal be granted?
(b)
Has delictual liability been established?  This in turn entails
a consideration whether
the following elements of delict have been
established:
(i)
wrongfulness;
(ii)
causation; and
(iii)
negligence.
Leave to appeal
[18]
This matter implicates the rights enshrined
in section 27(3) of the Constitution pertaining to access to
healthcare services and
emergency medical treatment.  I am
satisfied that it raises constitutional issues of significant public
importance.
Furthermore, the marked departure of the Supreme
Court of Appeal from its earlier jurisprudence on the evaluation of
expert medical
evidence constitutes an arguable point of law of
general public importance which ought to be considered by this
Court.  Legal
certainty on this issue will benefit the public.
The applicant has prospects of success.  I am thus satisfied
that leave
to appeal must be granted.
[19]
Next to be determined is whether a
delictual claim can be founded on the facts.  It is necessary to
recount the salient points
of evidence.
Dr Newton’s
evidence
[20]
Dr Newton testified that spinal cord
injuries are divided into two categories: low velocity and high
velocity spinal cord injuries.
Low velocity spinal cord
injuries are those sustained during a low speed impact.  Rugby
spinal cord injuries are low velocity
injuries.  Frankel grades
are used to assess the level of spinal functioning.  Frankel
level A signifies complete lack
of motor and sensory function below
the level of the injury.  Frankel level B is slightly better
than the former in that there
would be sensation below the injury but
no motor function.  Frankel level C is “motor useless”
and Frankel level
D is “motor useful”.  Frankel
level E means that the patient is normal.  High velocity spinal
cord injuries
are those sustained from a high speed impact, for
example, as a result of a motor vehicle accident.  Cervical
spinal dislocation
sustained in a game of rugby causes spinal cord
compression and ischaemia.  Typically, in facet dislocations
sustained as
a result of low velocity injuries, the spinal cord is
not transected or severed.
[21]
A further element to be understood about
the nature of this injury is that there is general consensus amongst
medical experts that
in cases like the one presently before us, there
are two injuries that occur.  The first is the primary injury.
This
is whatever trauma caused to the neck resulting in the
dislocation, for example, a blow to the neck or a twisting and
bending of
the neck.  The secondary injury is what is called
“ischaemia” – deprivation of oxygen to the cells –

caused by interference of blood flow to and from the spinal cord.
Permanent damage to the spinal cord
is due to the secondary effects of the initial injury.
Relief of the primary injury is called a
“reduction of the dislocation” or “decompression”.
[22]
According to Dr Newton, spinal canal
decompression is absolutely necessary in order
to
relieve pressure on the spine.  Decompression of the spinal cord
by closed reduction benefitted patients whose spinal cords
were
compressed but not severed.
The
injury to the applicant was a low velocity trauma caused by a forced
flexion or rotation and his spinal cord was not severed.
He was
therefore an appropriate candidate for closed reduction.
[23]
Reductions may be open or closed.
During an open reduction, there is a surgical incision made and the
vertebrae are re-aligned
to restore the spinal canal to its normal
dimensions.  The closed reduction method of treatment entails
subjecting the patient’s
compressed spine to incremental
traction by applying heavy weights attached to a pulley system,
connected via callipers to the
patient’s skull.  The
patient’s body would be kept immobile by straps attached to the
bed.  The movement
of the bones in the spine under traction
would then be monitored by x-ray, and manipulated so that the
dislocated vertebrae could
be re-aligned in the spinal column.
In layman’s terms, the patient’s spine is stretched so
that the vertebrae
that have been forced out of position can be
pulled back into alignment.  Dr Newton’s theory propounds
that if the closed
reduction procedure is done within a period of
four hours, neurologic recovery is drastically improved.
[24]
Dr Newton also testified that a number of
authors had advocated for early operative intervention for patients
with acute spinal
cord injuries.  He alluded to an article by
Aebi et al
[13]
where it was stated that “early intervention within hours after
[a spinal cord injury] is critical to attain a neuro-protective

effect”.
[14]
The same authors referred to a retrospective review of 100 patients
and recorded as follows:
“
A
manual or surgical reduction was performed within the first six hours
after the accident in only 25% of the cases and within the
first 24
hours in 57%.  Overall 31% of the 100 patients recovered and 75%
of the recoveries were in patients reduced within
the first six
hours”.
[15]
[25]
In the same article, the authors also
stated that Class II data suggested “a role for urgent
decompression in the setting
of bilateral facet dislocation and
incomplete spinal cord injury with a neurologically deteriorating
patient”.
[16]
There are three classes of scientific data: Class I being the most
reliable and Class III being the least reliable.
[26]
In his testimony, Dr Newton said that
several journal articles, including the conclusions made by Hacke in
relation to a study on
stroke patients, emphasised the importance of
blood perfusion within the first four hours of central nervous system
injury in determining
the neurological outcome.
[17]
In another article, Dr Dunn, who was also a neurosurgeon at
Groote Schuur, stated that:
“
Once
the spinal cord is injured by an indirect mechanism such as described
above, a relentless physiological process occurs.
There is an
inflammatory process which further injures the [spinal] cord.
This is referred to as the secondary injury.
The inflammatory
process further damages the cells and thus the spinal cord function.
There is associated swelling and cell
death.  In addition, the
damaged [spinal] cord loses the ability to maintain basic bodily
functions such as pulse and blood
pressure control.  This
reduced blood pressure has a further negative effect on the [spinal]
cord.  Thus, a self-perpetuating
downward spiral occurs.”
[18]
[27]
Dr Newton preferred the rapid closed
reduction technique on spinal cord patients.  He said that
spinal cord injuries sustained
in a low velocity impact could be
reversed if a decompression procedure was performed within a period
of four hours after the injury.
The basis for Dr Newton’s
four-hour cut-off theory was that neurological cells that had been
deprived of glucose and oxygen
for more than four hours could not be
brought to life again.  The period within which the blood supply
must be restored to
the nerve cells in the spinal cord is the
critical factor in Dr Newton’s method of treatment.
Dr Newton’s
four-hour theory is underscored by the premise that
spinal cord injuries constitute an absolute emergency.  His
theory was
expressed as follows in the published article:
“
Cervical
spine dislocation in rugby causes spinal cord compression and
ischaemia.  The latter is
probably
the main cause of the spinal cord damage. . . .  If the
ischaemia is reversed within [four] hours then the spinal cord will

recover to a greater degree than with later decompression.
After [four] hours the ischaemic spinal cord injury is
probably
largely irreversible.”
[19]
(Emphasis in original.)
[28]
Dr Newton’s belief in the four-hour
theory was bolstered by a case study concerning 113 patients with
spinal injuries sustained
from playing rugby.  These patients
had been treated under his watch at Conradie during the period 1988
to 2002.  57
patients had sustained facet joint dislocations
which were amenable to closed reduction.  All those patients
were in various
degrees of tetraplegia (a paralysis of all four limbs
also known as quadriplegia).  His focus was on a group of 32
patients
who were completely paralysed on admission.  Nine out
of the 14 patients who received closed reduction treatment within
four
hours completely recovered from their paralysis.  Out of
the remaining 18 that were not reduced within four hours, only two

recovered.  Based on this result, Dr Newton concluded that
patients with bilateral cervical facet dislocation sustained in
low
velocity impact have a 64% chance of a complete recovery if the
dislocation is decompressed within four hours of the injury.
He
therefore concluded that the applicant would probably not have become
a quadriplegic had the rapid closed reduction procedure
been
performed within four hours of his injury.
[29]
According to Dr Newton, it would be
ethically impermissible for doctors to withhold what they believe to
be good treatment from
a patient purely for purposes of comparing
data and, for that reason, it would not be possible to have Class I
data pertaining
to human beings.  He denied that his data fell
under the category of Class III which is mere opinion because
his hypothesis
was supported by Class I data pertaining to
experiments performed on dogs.
[30]
Dr Newton referred to two articles that he
had written on spinal cord injuries.  The first article in which
Dr Newton had advocated
for early decompression was written in 1994
and published in the same year in the
Journal
of Bone and Joint Surgery
.  He had
since “evangelised” his four-hour theory at various
congresses for orthopaedic surgeons.  No dissenting
views were
raised during his presentations.  Although the second article
was only published after finalisation of the trial,
the unpublished
article formed part of the trial record in the High Court and was
widely canvassed in Dr Newton’s evidence.
At that
stage, it had already been partially peer reviewed.  The
published article subsequently formed part of the bundle
of documents
that were served before the Supreme Court of Appeal.
[31]
According to Dr Newton, medical personnel
were always available on Saturday afternoons at Conradie to do closed
reduction procedures.
He stated that the respondent simply had
to refer the applicant to where the resources were (which was to the
specialised spinal
cord unit at Conradie) in order for him to receive
the appropriate treatment.  He further pointed out that Conradie
was only
a few kilometres away from Groote Schuur and thus a protocol
that precluded a direct transfer of spinal cord injured patients to

Conradie was “shocking”.
Dr Welsh’s
evidence
[32]
The respondent’s case centred on the
evidence of Dr Welsh, a neurosurgeon, who was a consultant in the
Division of Neurosurgery
at Groote Schuur.  In 2002, he was
in charge of making decisions and overseeing the management of
patients in the neurosurgery
department of Groote Schuur.  He
testified that Dr Newton’s theory of a 64% recovery rate in
instances where closed
reductions are done within four hours was
incorrect and flawed.  Dr Welsh testified that there was no
consensus in medical
literature with regard to the relationship
between the time of decompression and the neurological outcome
following acute spinal
injury.  He stated that one could not
generalise about four hours being the cut-off period for the survival
of neurological
tissue starved of a blood supply.  However, he
conceded that the theoretical need to restore the blood supply to the
central
nervous system tissue did import a sense of urgency in the
treatment of patients with spinal cord injuries.  Dr Welsh
testified
that “as a doctor, one would want to intervene
quickly” to urgently transfer patients with spinal cord
injuries and
to decompress their dislocations “as soon as
possible”.
[20]
He agreed that the advantage of closed reduction over open reduction
at a theatre was speed, as it took only a few minutes
to complete.
He conceded that the fact that a spinal cord injury is complete, that
is, where there is a complete loss of
function below the injury, does
not preclude recovery even though the prognosis is poorer than where
the injury is incomplete,
that is, where some function is retained
below the injury.  Dr Welsh also conceded that a clinical
assessment of a complete
neurological loss of function does not
indicate that the spinal cord has been transected or physically
damaged in an irreversible
way.
[33]
Dr Welsh stated that Dr Newton’s
study fell into the category of Class III data, which he regarded as
the least reliable form
of scientific data as it constituted an
opinion.
Applicable legal
principles
[34]
It is trite law that in order to succeed in
a delictual claim, a claimant would have to prove the following
elements: causation,
wrongfulness, fault and harm.  The
applicant’s main attack against the decision of the Supreme
Court of Appeal is directed
at its finding on causation.  I will
deal with that element first.
Causation
[35]
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.
[21]
Legal causation must be established on a balance of
probabilities.
[22]
The vital question is whether, as a matter of probability, the
applicant’s paralysis would not have occurred or been
rendered
permanent had the reduction procedure been performed promptly and
within a time that was reasonably likely to prevent
permanent
quadriplegia.  The answer lies in the Supreme Court of Appeal’s
evaluation of the expert medical testimony.
[36]
The correct approach to the evaluation of
medical evidence is the one laid down by the Supreme Court of Appeal
in
Linksfield
where
it held that—
“
it
is perhaps as well to re-emphasise that the question of
reasonableness and negligence is one for the court itself to
determine
on the basis of the various, and often conflicting, expert
opinions presented.  As a rule that determination will not
involve
considerations of credibility but rather the examination of
the opinions and the analysis of their essential reasoning,
preparatory
to the court’s reaching its own conclusion on the
issues raised.
. . .
Although
it has often been said in South African cases that the governing test
for professional negligence is the standard of conduct
of the
reasonable practitioner in the particular professional field, that
criterion is not always itself a helpful guide to finding
the answer.
. . .
That
being so, what is required in the evaluation of such evidence is to
determine whether and to what extent their opinions advanced
are
founded on logical reasoning.  That is the thrust of the
decision of the House of Lords in the medical negligence case
of
Bolitho v City and Hackney Health
Authority
[1997]
UKHL 46
;
[1998]
AC 232
(H.L.(E.)).  With
the relevant
dicta
in the speech of Lord Browne-Wilkinson we respectfully agree.
Summarised, they are to the following effect.
The
court is not bound to absolve a defendant from liability for
allegedly negligent medical treatment or diagnosis just because

evidence of expert opinion, albeit genuinely held, is that the
treatment or diagnosis in issue accorded with sound medical
practice.
The court must be satisfied that such opinion has a
logical basis, in other words that the expert has considered
comparative risks
and benefits and has reached ‘a defensible
conclusion’ (at 241G-242B).  If a body of professional
opinion overlooks
an obvious risk which could have been guarded
against it will not be reasonable, even if almost universally held
(at 242H).
A
defendant can properly be held liable, despite the support of a body
of professional opinion sanctioning the conduct in issue,
if that
body of opinion is not capable of withstanding logical analysis and
is therefore not reasonable.  However, it will
very seldom be
right to conclude that views genuinely held by a competent expert are
unreasonable.  The assessment of medical
risks and benefits is a
matter of clinical judgment which the court would not normally be
able to make without expert evidence
and it would be wrong to decide
a case by simple preference where there are conflicting views on
either side, both capable of logical
support.  Only where expert
opinion cannot be logically supported at all will it fail to provide
‘the benchmark by reference
to which the defendant’s
conduct falls to be assessed’ (at 243A-E).
. . .
This
essential difference between the scientific and the judicial measure
of proof was aptly highlighted by the House of Lords in
the Scottish
case of
Dingley v The Chief Constable,
Strathclyde Police
2000
SC (HL) 77
and the warning given
at 89D-E that:
‘
[O]ne
cannot entirely discount the risk that by immersing himself in every
detail and by looking deeply into the minds of the experts,
a judge
may be seduced into a position where he applies to the expert
evidence the standards which the expert himself will apply
to the
question whether a particular thesis has been proved or disproved –
instead of assessing, as a judge must do, where
the balance of
probabilities lies on a review of the whole of the evidence.’”
[23]
[37]
The Supreme Court of Appeal
deviated
from the approach adopted in
Linksfield
.
It failed to give due recognition to the scope of Dr Newton’s
study, even though there was no expert evidence that
suggested that
the statistical approach he followed was not valid.  That Court
erred in rejecting Dr Newton’s evidence
on five grounds.
[38]
First, Dr Newton testified that the
dislocation of the spinal cord causes pressure and obstruction in the
spinal canal which, when
left unattended, results in the secondary
ischaemic injury of nerve cells to the extent that the cells cease to
function.
This evidence passes the reasonable and logical
requirement for the acceptance of expert evidence set in
Linksfield
.
[24]
The Supreme Court of Appeal erred when it concluded that the
scientific evidence that supports his theory is “questionable”.

The conclusion deviates from the
Linksfield
principle that where the logic of a
medical approach is not in dispute, the court must not assess the
cogency of scientific evidence
by scientific standards, but by the
legal standard of the balance of probabilities.
[25]
[39]
Second, there was no scientific data or
evidence that challenged, refuted or doubted the acceptability of the
data Dr Newton collected
and relied upon in coming to his expert
conclusion.  Numerous articles referred to during Dr Newton’s
and Dr Welsh’s
evidence confirmed the benefits of early
reduction.  By the time of the trial, Dr Newton’s research
had been partially
peer-reviewed, accepted and was about to be
published in a medical journal that Dr Welsh described as highly
reputable.  Furthermore,
Dr Newton steadfastly maintained that
his method did not constitute the least reliable class of data
because it was supported by
Class I data of the dog experiments.
The Court thus erred when it found that Dr Newton conceded that his
study constituted
the least reliable class of data.
[40]
Third, Dr Welsh’s testimony was
largely limited to the observation that Dr Newton’s
approach was not the medical
norm, because there had not yet been
enough opportunity to replicate or refute his findings.  This
feature does not serve
to refute Dr Newton’s evidence at the
level of factual probability.  A lack of general acceptance of
Dr Newton’s
theory cannot, without more, warrant a
rejection of his theory.
[26]
This is especially so because Dr Newton’s evidence was largely
unchallenged and his conclusions were arrived at on
the basis of a
case series, the publication of which was imminent at the time of the
trial.  He gave a plausible explanation
on why he could not
present Class I data that had a control group because the experiments
were based on animal models.  Great
strides that have been made
in the medical field have emanated from experiments on animals and
review studies.
[41]
Fourth, the Supreme Court of Appeal fell
into the trap of focussing on scientific proof instead of assessing
where the balance of
probabilities lies based on an evaluation of the
whole evidence.
[42]
Fifth, the Court’s criticism of Dr
Newton’s sample as small is unfounded and fails to take into
account that it was
isolated to specific spinal cord injuries over a
period of about 12 years.  The sample was based on the actual
number of patients
that were treated for rugby injuries at Conradie.
Professor Noakes, head of the University of Cape Town’s

research unit for Exercise, Science and Sports Medicine, who was
called by the applicant concerning a passage in his book, confirmed

under oath that Conradie was a reliable and good source of data.
[43]
Significantly, Dr Newton’s study was
conducted while he was in the respondent’s employ, and his
study refers to patients
who were treated at Conradie under his
watch.  This information could therefore be easily verified.
At no stage did
Dr Welsh dispute that there were, on average, about
eight patients treated for rugby related spinal cord injuries at
Conradie
per year during that period.  Dr Newton’s
sample could thus not have been any bigger than the number of
patients
that were actually treated for spinal cord injuries similar
to those sustained by the applicant.  It was not disputed that

Dr Newton’s study was the largest reported case series of low
velocity spinal cord injuries resulting from rugby.
[44]
The respondent’s criticism that Dr
Newton’s theory was anecdotal is without proper foundation.
It was based merely
on Dr Welsh’s own opinion, which is not
supported by any study or research with specific reference to Dr
Newton’s theory.
Dr Welsh stated that the way Dr
Newton’s data was collected allowed for a lot of scientific
bias, misinterpretation
and inaccuracy.  This criticism was
rather unfair as the bias, misinterpretation and inaccuracy of Dr
Newton’s data
was never put to him under cross-examination.
Logical theories put forward by experts, and not gainsaid by other
experts,
should not be scoffed at without a basis.  The Supreme
Court of Appeal’s preference of Dr Welsh’s speculative
views over Dr Newton’s scientific evidence on bifacet cervical
dislocation injuries
was unwarranted and
cannot be supported.
[45]
The Supreme Court of Appeal, in
Van
Duivenboden
, observed:
“
A
plaintiff is not required to establish the causal link with certainty
but only to establish that the wrongful conduct was probably
a cause
of the loss, which calls for a sensible retrospective analysis of
what would probably have occurred, based upon the evidence
and what
can be expected to occur in the ordinary course of human affairs
rather than an exercise in metaphysics.”
[27]
[46]
And in
Gore NO
it held:
“
Application
of the ‘but-for’ test is
not
based on mathematics
,
pure
science or philosophy
.  It is a
matter of common sense, based on the practical way in which the
ordinary person’s mind works against the background
of everyday
life experiences.”
[28]
(Emphasis added.)
[47]
In
Lee
,
Nkabinde J said the following about causation in the case of a
negligent omission:
“
[I]n
the case of an omission the but-for test requires that a hypothetical
positive act be inserted in the particular set of facts,
the
so-called mental removal of the defendant’s omission.
This means that reasonable conduct of the defendant would
be inserted
into the set of facts.  However, as will be shown in detail
later, the rule regarding the application of the test
in positive
acts and omission cases is not inflexible.  There are cases in
which the strict application of the rule would
result in an
injustice, hence a requirement for flexibility.”
[29]
(Footnotes omitted.)
[48]
While it may be more difficult to prove a
causal link in the context of a negligent omission than of a
commission,
Lee
explains that the “but-for” test is not always the be-all
and end-all of the causation enquiry when dealing with negligent

omissions.  The starting point, in terms of the “but-for”
test, is to introduce into the facts a hypothetical
non-negligent
conduct of the defendant and then ask the question whether the harm
would have nonetheless ensued.  If, but
for the negligent
omission, the harm would not have ensued, the requisite causal link
would have been established.  The rule
is not inflexible.
Ultimately, it is a matter of common sense whether the facts
establish a sufficiently close link between
the harm and the
unreasonable omission.
[49]
Here, the so-called “mental removal
of the defendant’s omission” points to an indisputable
causal link between
the omission and the resultant quadriplegia.
[30]
Reverting to the present facts, the applicant asserts, correctly in
my view, that failure by the respondent’s employee
to provide
him with reasonable medical attention within four hours denied him a
64% chance of probably making a full recovery or
substantial recovery
from the harm of permanent quadriplegia.  In this Court, the
respondent’s counsel conceded that
if a possibility of recovery
is about 50% then causation is established.  This concession was
correctly made.
[50]
Dr Newton’s unrefuted evidence is
that the applicant would have had a 64% chance of making a full
recovery from Frankel Grade
A – complete paralysis – to
Frankel Grade E – complete recovery – or substantial
recovery if he had received
the rapid closed reduction treatment
within four hours of his injury.  The omission of the employees
of the respondent to
provide him with the appropriate closed
reduction treatment within four hours of his injury is causally
linked to his permanent
and complete paralysis.  Put
differently, the respondent’s employees did not give
satisfactory explanation for the unreasonable
delay which resulted in
a failure to perform closed reduction on the applicant within four
hours.  This denied him a 64% chance
of making a full or
substantial recovery.  The requisite causal link has been
established.
Wrongfulness
[51]
The next enquiry is whether the “negligent
omission is unlawful only if it occurs in circumstances that the law
regards as
sufficient to give rise to a legal duty to avoid
negligently causing harm”.
[31]
In
Loureiro,
Van der Westhuizen J explained that the wrongfulness enquiry is based
on the duty not to cause harm, and that in the case of negligent

omissions; the focus is on the reasonableness of imposing
liability.
[32]
An
enquiry into wrongfulness is determined by weighing competing norms
and interests.
[33]
The criterion of wrongfulness ultimately depends on a judicial
determination of whether, assuming all the other elements
of
delictual liability are present, it would be reasonable to impose
liability on a defendant for the damages flowing from specific

conduct.
[34]
Whether conduct is wrongful is tested against the legal convictions
of the community which are, “by necessity
underpinned
and informed by the norms and values of our society, embodied in the
Constitution”.
[35]
[52]
The applicant pleaded that the respondent
owed at least three legal duties to all victims of low velocity neck
or spinal cord injuries,
including him.  The first duty was to
“ensure that such patients were transferred to the Conradie in
time for them to
be treated within four hours of the injury, or as
shortly thereafter as was possible in the circumstances”.
The second
duty was to “ensure that such patients received
appropriate treatment at the Conradie with the greatest possible
urgency”.
And the third duty was to “ensure that
hospital personnel, particularly those working in trauma and casualty
units, were
instructed that low velocity spinal cord injuries should
be treated with the greatest urgency, and where possible at
[Conradie]
within four hours of the injury”.
[53]
In its plea, the respondent admitted the
existence of “a legal duty to dispense reasonable medical
care”.  However,
the respondent disputed the duty to do so
within the four-hour cut-off time and to transfer the applicant
within that time to Conradie.
In the face of an admitted legal
duty of care,
the applicant needed to show
only that the legal duty was breached.
[54]
The respondent’s admission of a legal
duty to dispense reasonable medical care is properly made.  The
law requires hospitals
to provide urgent and appropriate emergency
medical treatment to a person in the position of the applicant.
There is no doubt
that the legal convictions of the community demand
that hospitals and health care practitioners must provide proficient
healthcare
services to members of the public.  These convictions
also demand that those who fail to do so must incur liability.
[55]
Section 27 of the Constitution enshrines
the right to health care services.  Chaskalson P, in
Soobramoney
,
stated that the purpose of the right granted in
terms of section 27(3) was to ensure that treatment be given in
an emergency.
He said:
“
The
purpose of the [section 27(3)] right seems to be to ensure that
treatment be given in an emergency, and is not frustrated by
reason
of bureaucratic requirements or other formalities.  A person who
suffers a sudden catastrophe which calls for immediate
medical
attention, such as the injured person in
Paschim
Banga Khet Mazdoor Samity v State of West Bengal
,
should not be refused ambulance or other emergency services which are
available and should not be turned away from a hospital
which is able
to provide the necessary treatment.  What the section requires
is that remedial treatment that is necessary
and available be given
immediately to avert that harm.”
[36]
(Footnote omitted.)
[56]
Proficient health care entails providing
urgent and appropriate emergency treatment whenever a medical
condition requires it.
As
Sachs
J noted in
Soobramoney
,
the right to emergency care provides reassurance to all members of
society that emergency departments will be available to deal
with the
unforeseeable catastrophes that could
befall any person,
anywhere and at any time.
[37]
Section 25(2)(m) of the
National Health Act
[38]
outlines some of the duties of the provincial health services and
general functions of provincial departments.  It provides:
“
(2)
The head of a provincial department must, in accordance with national
health policy and the relevant
provincial health policy in respect of
or within the relevant province—
(m)
provide and coordinate emergency . . .
provision of
medico-legal mortuaries
and
medico-legal services
.”
(Emphasis added.)
[57]
Four factors warrant closer consideration.
They are whether—
(a)
there was an emergency;
(b)
there was a necessity for remedial treatment;
(c)
remedial treatment was available and could be provided to avert the
harm; and
(d)
remedial treatment was not provided or refused.
(a)
Was there an emergency?
[58]
The Constitution provides no definition of
the phrase “emergency medical condition”.  For
present purposes, it
would be unhelpful and imprudent to make an
attempt to define the phrase.  This is so because there is no
dispute amongst
the parties or their medical experts that the
hospitals were dealing with a condition that required “emergency
medical treatment”.
The applicant was, according to the
respondent’s own triage system, designated as someone in need
of emergency care.
Dr Newton repeatedly stated that cervical
dislocations are an absolute emergency.  Professor Noakes
described neck injuries
as catastrophic.  Dr Baalbergen, a
medical doctor and co-director of the University of Cape Town
Neurorehabilitation Unit,
who performed over a hundred closed
reduction procedures and worked at Conradie under Dr Newton, said
that “[a]ll responsible
neurosurgeons would attend to a
compromised spinal cord
immediately
unless it can be conclusively shown that the spinal cord has been
severed”.
[59]
None of the respondent’s witnesses
suggested that they did not know that the reduction treatment had to
be done promptly.
Dr Welsh in fact conceded that spinal cord
injuries are an emergency.  A quadriplegic injury seriously
impairs bodily functions
and squarely falls within the definition of
an emergency.  The events at Groote Schuur are irrelevant to the
negligence enquiry
because they occurred beyond the four-hour cut-off
point mooted by Dr Newton.  And yet the disposition of the
medical caregivers
points to the widespread awareness amongst them
that a neck injury called for an urgent and specified procedure.
This is
also borne out by Dr Rothemeyer’s request,
albeit belatedly, that the applicant be urgently transported from
Wesfleur
to Groote Schuur by helicopter.  Dr Civitanich too
requested an ambulance to be urgently dispatched for the applicant’s

transfer to Conradie.  The applicant’s emergency condition
persisted from the time he was admitted at Wesfleur at 15h15
up to
the conclusion of the reduction procedure.  This is shown by
Dr Civitanich’s concerns at 20h22, at which
stage he still
considered the applicant to be an emergency case warranting “acute
referral” to Conradie for a closed
reduction procedure.
There can be no doubt that the applicant’s injuries constituted
a medical emergency and all concerned
employees of the respondent
knew this.
(b)
Was there a necessity for remedial treatment?
[60]
Spinal cord injuries are very serious and
can, according to Dr Newton, lead to serious medical
complications with the passage
of time, including death.
Professor Noakes testified that they are life threatening.
Dr Baalbergen expressed
the following view:
“
It
is the accepted medical position that when dealing with any patient
who has sustained a spinal cord injury the reduction procedure,
be it
an open or closed reduction, is essential and must be performed
without delay.  Persistent compression of the spinal
cord is a
cause of potentially irreversible secondary injury.  Failure to
reduce the dislocation, allows the compression to
persist.”
[61]
The dislocation of the applicant’s
neck vertebrae rendered him quadriplegic.  A reduction procedure
was necessary.
Dr Newton and Dr Welsh agreed on this.  The
necessity for the transfer of the applicant to Conradie and the
prompt performance
of the closed reduction procedure was beyond doubt
in the minds of all concerned.
[39]
(c)
Was remedial treatment available and could it be provided to avert
the harm?
[62]
It seems plain that the availability of
remedial treatment must be assessed in light of all relevant facts
about the nature and
capacity of a medical or health care facility as
a whole.  Emergency treatment must be rationally related to the
emergency
situation or trauma at hand.  The mere admission of an
acutely ill patient to a hospital does not, in itself, end the
characterisation
of his condition as “urgent” or
“acute”.  Similarly, the emergency nature of a
medical condition does
not cease to be so merely because the patient
has been examined by a doctor or been supplied with analgesics.
Appropriate
and reasonable trauma-related interventions have to be
made.  From the evidence, it was clear to the medical
practitioners
concerned that the appropriate intervention was a
decompression of the dislocation so as to restore the much-needed
supply of oxygen
to the nerve cells.
[63]
I accept that the availability of remedial
treatment is informed by the availability of resources, even in the
case of an emergency.
Here, the respondent does not claim a
paucity of resources.  Unlike in the case of
Soobramoney
,
we are not dealing with a respondent that is advancing a lack of
resources as the reason for not dispensing appropriate medical

treatment.  A disclaimer of limited or unavailable resources
would, in any event, be without merit, as uncontroverted evidence

showed that the closed reduction method preferred by Dr Newton was
inexpensive and of a short duration.  The equipment necessary

for this procedure was available at Conradie.  Dr Newton’s
evidence that medical personnel were always available
at Conradie on
Saturday afternoons to do closed reduction was uncontested.
Significantly, Dr Newton and Dr Welsh agreed
that the
closed reductions procedure was sometimes performed at Groote Schuur.
[64]
Availability of transport for
inter-hospital transfers from Wesfleur to Conradie was not an issue.
The respondent’s
witnesses could not give any plausible reason
why on the day concerned the applicant could not be transported by
helicopter from
Wesfleur to Groote Schuur or directly to Conradie,
given Dr Venter’s diagnosis of a spinal cord dislocation.
Dr Venter
could, of his own accord, have summoned helicopter
transport soon after the applicant’s admission at 15h15.
The helicopter
transport was still available at that stage and was
only dispatched on another mission at 15h40.
[65]
The need to perform this procedure promptly
is also apparent from Dr Newton’s evidence.  In
addition, Dr Welsh conceded
that a deprivation of oxygen to the nerve
cells as a result of a decompression of the spinal cord could result
in irreversible
damage, and that bifacet dislocations have a better
prognosis of recovery than other spinal cord injuries.  It is
evident
that the appropriate urgent remedial treatment that would
have probably averted harm is the closed reduction procedure that was

available at Groote Schuur, and in a more specialised focus at
Conradie.  The High Court thus correctly concluded that there

was no consistent, rational and acceptable explanation why the
applicant was not given medical treatment that was appropriate for

low velocity spinal cord injuries.
(d)
Was remedial treatment not provided or refused?
[66]
No plausible reason was advanced to show
why urgent and appropriate remedial treatment needed by the applicant
was not dispensed
to him.  None of the medical personnel of
Wesfleur testified.  No explanation has been given for keeping a
seriously
injured patient like the applicant at Wesfleur for nearly
two hours when that hospital did not even have x-ray facilities.

No reason was advanced for Dr Venter’s failure to contact
Conradie directly, when it was the known specialised unit
for spinal
cord injuries.
[67]
The minority judgment holds that there has
been no breach of the provisions of section 27(3) relating to
emergency treatment,
[40]
nor any proof of negligence.
[41]
I disagree.  Like the respondent, it reasons that because
the applicant received medical treatment at three hospitals,
he was
at no stage refused emergency treatment.  It is crucial to note
that appropriate remedial treatment aligned to the
medical emergency
at hand had to be given promptly.  The appropriate remedy was a
closed reduction decompression procedure.
It is so that the
applicant was not turned away from any hospital.  However, this
does not detract from the fact that a closed
reduction, that
ordinarily takes 30 to 45 minutes to complete, was performed
only at the third hospital.  This was 12
and a half hours after
his admission to the first hospital.  If the applicant had been
promptly transferred to any of the
two hospitals, the procedure could
have been performed within four hours at Conradie or Groote Schuur,
both of which had the facilities
to perform open and closed
reductions.
[68]
In essence, the only reason the respondent
has advanced for the delays is the protocol that precluded a direct
transfer to Conradie.
This reason was advanced by Dr Welsh
and by way of statements put to Dr Newton under cross-examination.
Although protocols
are vital for the proper functioning of a health
care system, reliance on rigid protocols cannot be allowed to trump
section 27(3)
of the Constitution.  Dr Welsh admitted under
cross-examination that referral pathways were not to be blindly
obeyed
despite the presence of an emergency situation.  A
hospital protocol that made no provision for a direct transfer of a
recently
injured spinal patient to Conradie, as a specialised spinal
cord unit, was unreasonable because it did not take cognisance of the

specialised level of healthcare that Conradie could provide.
The unreasonableness of the protocol is even clearer in light
of the
fact that both Groote Schuur and Conradie are located within a fairly
short distance of each other.  That protocol
was clearly not
conducive to the efficient functioning of the health care system.
An explanation that is based on this protocol
is thus unreasonable.
No reasonable explanation has been advanced for the inordinate delays
in performing a simple, brief
and inexpensive closed reduction
procedure that is both available and absolutely necessary.  The
respondent constructively
refused to provide the necessary emergency
medical treatment and breached its legal duty to provide the
applicant with medical
treatment promptly or within the required four
hours and thus acted unlawfully.
Negligence
[69]
The proper approach for establishing the
existence or otherwise of negligence was formulated by Holmes JA in
Kruger v Coetzee
[42]
and has been endorsed by this Court.
[43]
In that case, Holmes JA stated 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; and
(b)
the defendant failed to take such steps.
. . .
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.”
[44]
[70]
In
Sea
Harvest
, the following was stated:
“
[I]t
should not be overlooked that in the ultimate analysis the true
criterion for determining negligence is whether in the particular

circumstances the conduct complained of falls short of the standard
of the reasonable person.
Dividing
the inquiry into various stages, however useful, is no more than an
aid or guideline for resolving this issue
.
. . .  It is probably so that there can be no universally
applicable formula which will prove to be appropriate in every
case.
. . .  [I]t has been recognised that while the precise or exact
manner in which the harm occurs need not be foreseeable,
the general
manner of its occurrence must indeed be reasonably foreseeable.”
[45]
(Emphasis added.)
[71]
In simple terms, negligence refers to the
blameworthy conduct of a person who has acted unlawfully.  In
respect of medical
negligence, the question is how a reasonable
medical practitioner in the position of the defendant would have
acted in the particular
circumstances.
[46]
[72]
In
Pitzer
,
the Court stated:
“
What
is or is not reasonably foreseeable in any particular case
is
a fact bound enquiry
. . . .  Where
questions that fall to be answered are fact bound there is seldom any
assistance to be had from other cases
that do not share all the same
facts.”
[47]
(Emphasis added.)
[73]
The negligence of medical practitioners is
assessed against the standards in the medical profession at the
time.  In this case,
the important questions are therefore
whether on the facts, the first respondent’s personnel foresaw
that the applicant would
be permanently paralysed, and whether –
according to the general level of knowledge then available to them –
they took
reasonable steps, in the light of that foresight, to
prevent permanent paralysis from happening.  In answering these
questions,
the negligence of the respondent’s employees will be
tested in at least three respects:
(a)
it was well known in the medical community at the time that spinal
cord injuries like those
sustained by the applicant had to be treated
within four hours or with the greatest possible urgency;
(b)
it was well known that Conradie was best-equipped to administer this
treatment; and
(c)
the failure to allow for an exception to the Conradie admission
protocol to allow for direct
transfer to Conradie was negligent.
[74]
The crucial question is whether the
respondent’s employees knew or ought to have known that spinal
cord injuries were to be
treated with urgency and not later than
within four hours.  None of the respondent’s medical
practitioners and the expert,
Dr Welsh, suggested that they did
not know the need for urgent decompression treatment for spinal cord
injured patients.
For instance, Dr Welsh candidly said that as
a doctor, one would want “to intervene quickly”
[48]
to transfer spinal cord injured patients urgently and to decompress
their dislocations as soon as possible.  It seems plain
that a
reasonable doctor would have provided or arranged for a prompt
intervention and would have foreseen the harm that would
flow from
delayed intervention.  The more intractable question is whether
the doctors concerned knew of the specialised role
of Conradie, and
that an open or closed reduction within four hours was likely to save
the applicant from permanent paralysis.
[75]
The centrality of Conradie in treating
acute spinal injuries was well known within the respondent’s
health care system.
This, according to Dr Welsh, was well known
in the provincial setup.  Given this widespread knowledge, a
reasonable doctor
in the position of the respondent’s employees
would have transferred the applicant directly to Conradie.  Dr
Welsh also
conceded that barring the respondent’s protocol, Dr
Venter could have contacted Conradie directly instead of Groote
Schuur.
[76]
Despite the fact that Conradie was nearer
to Wesfleur, the applicant was transported to Groote Schuur,
evidently out of a slavish
adherence to protocol.  This rigid
approach, which resulted in a failure to recognise circumstances that
warranted deviation
from protocols, frustrates the provision of
emergency treatment.
[77]
In
Soobramoney
,
this Court held that “[t]he purpose of the right [to emergency
treatment] seems to be to ensure that treatment be given
in an
emergency, and is not frustrated by reason of bureaucratic
requirements or other formalities”.
[49]
The evidence showed that there was an established protocol that
spinal cord injuries would first be referred to Groote Schuur.
This
was what happened here as well.  As we have seen, the evidence
also shows that it was generally known that Conradie
was the
specialised institution for the treatment of spinal cord injuries,
corroborated by the fact that the applicant was eventually
referred
to Conradie by the doctors at Groote Schuur.  There is no
explanation for the rigid adherence to protocol in
circumstances of
emergency.  It appears to be a “bureaucratic requirement”
or formality that frustrated the giving
of appropriate emergency
medical treatment in contravention of section 27(3) of the
Constitution.
[78]
Crucial to the determination of negligence
was the four-hour period calculated from the time of the injury,
approximately 14h15.
Although there is evidence showing that
the closed reduction procedure was sometimes performed at Groote
Schuur, for all
practical purposes, the arrival of the applicant at
Groote Schuur at 17h40 followed by his medical examination at 18h00
lessened
the probability of a closed reduction procedure being
concluded within four hours and thus prevented the probability of
recovery
by treatment there.
[79]
The applicant arrived at Wesfleur Hospital
at 15h15.  He could have been transferred directly to Conradie
and treated there
by closed reduction within the four hour
period.  Was the failure to do this negligent?  The first
part of the negligence
enquiry,
[50]
foreseeability of the possibility of harm, has clearly been
established.  It is the general foreseeability of the
possibility
that must be established, which is not dependent on
specific knowledge of Dr Newton’s four-hour theory.  And
that was
common cause on the evidence.  The second part,
preventability, is somewhat trickier.  The minority judgment
holds that
the applicant failed to discharge the onus of proving this
requirement.  As I understand the underlying reasoning, it is
based
primarily on two considerations.
[80]
The first is that there is no evidence that
Dr Newton’s four-hour theory was generally known even within
the Western Cape
public medical community and that the alternative
medical treatment, by reference to and treatment at Groote Schuur,
was thus not
contrary to any established medical norm.
[51]
Given the approach this judgment adopts in respect of negligence, it
is unnecessary to subject the conduct of the doctors
at Groote Schuur
to any further scrutiny.
[81]
The second consideration is that there is
no evidence that the medical practitioners relied on the Department’s
protocol in
referring the applicant to Groote Schuur rather than
directly to Conradie.
[52]
I disagree.  Evidence was led of the contents of the
protocol.  They required reference first to Groote Schuur.

There was no specific evidence to suggest that medical
practitioners did not need to adhere to its contents.  Dr
Venter,
the doctor who treated the applicant at Wesfleur, was not
called as a witness to explain his conduct in referring the applicant

first to Groote Schuur and not directly to Conradie.  The other
promised witnesses – to explain the situation at Wesfleur
–
were never called and no explanation for that failure was ever given.
Even without specific knowledge of Dr Newton’s
four-hour
theory, it was generally known that Conradie was the specialised
institution for the treatment of spinal cord injuries.
[82]
Contrary to the approach adopted in the
minority judgment, it appears to me that the most probable inference
why the applicant was
not sent to Conradie is that it was done in
accordance with and because of the existing protocol.  In view
of the general
knowledge that Conradie was the more appropriate
treatment centre for acute spinal injuries, the failure by the
Department to inform
its personnel that the protocol was not
inflexible and that direct referral to Conradie should have been done
in urgent spinal
cord injury cases, amounted to negligence.  Had
it done so, the available evidence suggests that the applicant could
probably
have been treated at Conradie within four hours of
sustaining the injury and the sad and tragic consequences of that
injury
could probably have been avoided.
[83]
The respondent failed to ensure that all
reasonable steps were taken to provide the medical treatment that was
required to treat
the applicant’s spinal cord injuries, namely
urgent closed reduction, in order to decompress the ischaemia-causing
dislocation.
It failed to guard against the eventuation of the
harm in the form of permanent paralysis.
[84]
Reasonable healthcare practitioners in the
position of the respondent’s employees, armed with the
knowledge that Conradie
was the respondent’s specialised unit
for spinal cord injuries in the Western Cape, and the knowledge that
patients who had
suffered spinal cord injuries had to be treated
urgently, would have transferred the applicant directly to Conradie.
This
was not done.  The inescapable inference is that the
applicant was not treated with the reasonable care and skill required

of the respondent’s employees at Wesfleur.  The conduct of
the respondent’s employees coupled with their slavish
adherence
to transfer protocols was substantially short of the standard of
practice that a member of the public is entitled to
expect from a
reasonably proficient hospital and reasonably proficient doctors.
I am also satisfied that the negligence of
the respondent’s
employees led to the applicant’s permanent paralysis.
Costs
[85]
The applicant was only partially successful
in the High Court, because the claim against the other defendants was
dismissed.
He is entitled to 50% of the costs in that Court.
The applicant has succeeded in his appeal against the decision of the
Supreme
Court of Appeal.  He is thus entitled to costs in that
Court and in this Court.  The costs will reflect the costs of
two counsel.
Order
[86]
In the result, the following order is made:
1.
Leave to appeal is granted.
2.
The appeal is upheld.
3.
The order granted by the Supreme Court of Appeal is set aside.
4.
The applicant’s claim against the respondent succeeds and the
respondent
is declared liable to pay damages as the applicant may
prove to have suffered as a result of the neck injury sustained in
the rugby
match on 23 March 2002.
5.
The respondent is to pay 50% of the applicant’s costs in the
High Court
and full costs in both the Supreme Court of Appeal and in
this Court.  In all instances costs arising from the use of two
counsel is included.
CAMERON J
(Jappie AJ concurring):
[87]
I have had the benefit of reading the
majority judgment of Molemela AJ.  I am grateful for its
detailed account of the facts
and issues, but I do not agree with its
conclusion and some of its reasoning.  My main sticking points
are its approach to
the wrongfulness enquiry and its findings on
negligence.  I do not consider it justified to find that the
Department or its
employees were negligent in treating Mr Oppelt.
[88]
At the age of 17, in a club rugby game on
the Saturday afternoon of 23 March 2002, Mr Oppelt was
terribly injured.
He was the hooker in a scrum when it
collapsed.  In the press he suffered a bilateral cervical facet
dislocation of the vertebrae
in his neck.  The damage to his
spinal cord resulted in paralysis.  He is now a quadriplegic.
Mr Oppelt seeks damages
from the Department on the basis that it is
vicariously liable for a delict committed by its hospital personnel.
Mr Oppelt’s
case is that—
“
if
he had been treated within four hours of . . . sustaining the injury
by means of the rapid close reduction procedure which was
routinely
performed at Conradie Hospital Spinal Cord Unit under Dr Newton, he
would have probably made a full or substantial recovery,
and would
not now have been a quadriplegic.”
[89]
He alleges that the Department’s
personnel were negligent in that they failed to get him to Conradie
Hospital (Conradie) within
four hours, and that the Department itself
negligently failed to inform its personnel of the need to transfer a
patient with injuries
like his to Conradie within four hours.
He also says that the referral protocols within the Department should
not have been
adhered to blindly.
[90]
The High Court found for Mr Oppelt.
It concluded that the Department was unreasonable in not taking Mr
Oppelt directly and
urgently to Conradie within four hours.
That finding was based primarily on the evidence of Dr Newton, an
orthopaedic surgeon
specialising in spinal cord injuries.  Dr
Newton testified that, had Mr Oppelt been brought to Conradie
within four hours,
he would have been saved from paralysis.
That was because the closed reduction procedure he practised there
had been shown
to have a 64% success rate in comparable cases.
The High Court found Dr Newton’s theory to be “well-reasoned
and logical”.
[53]
In particular, it found that there was no acceptable evidence
controverting his approach.
[91]
In coming to this conclusion, the High
Court recognised the expertise of the Department’s witnesses,
Dr Welsh and Professor
Wallace, but concluded that their evidence was
speculative in many respects.  Further, the Court acknowledged
that protocols
were “vital for the functioning of a proper
emergency health system”.
[54]
But it held that protocol should not preclude urgent treatment.
In any event, the Court held that the Department’s
attempt to
justify Mr Oppelt’s treatment by invoking the protocol was
unconvincing.  This was because it rejected, as
hearsay,
evidence that there was no working x-ray machine at Wesfleur (where
Mr Oppelt was first taken immediately after his injury
– the
x-ray being necessary under the protocol for admission to Conradie),
and that Mr Oppelt had already been diagnosed
as “T2 complete”,
meaning already paralysed, by the time he arrived there.  This
was because the evidence
was hearsay and therefore rejected because
the Department failed to present first-hand evidence from medical
staff at Wesfleur
to back this up.
[92]
The Supreme Court of Appeal reversed the
High Court judgment.  It did so solely because it rejected the
evidence of Dr Newton.
It did that for empirical and logical
reasons.  It found, first, that the evidence on which Dr Newton
based his approach was
not reliable, and, second, that Dr Newton’s
reasoning from that evidence was flawed.
[55]
Mr Oppelt’s claim was dismissed because causation had not been
established.  The Department was not legally obliged
to treat Mr
Oppelt within four hours because, even if it had done so, he had not
shown that he would have avoided his paralysis.
Hence its
actions were not wrongful.  The Court further held that a
reasonable doctor in the employ of the Department could
not have
foreseen that the failure to treat Mr Oppelt within four hours
would have resulted in his paralysis.
Causation
[93]
I agree with the majority judgment that the
Supreme Court of Appeal erred in not sticking to the approach to the
evaluation of expert
evidence set out in
Linksfield
.
[56]
Indeed, the Supreme Court of Appeal failed in evaluating Dr Newton’s
expert evidence to distinguish between the requirement
that there be
“logical reasoning”
[57]
on the one hand, and, on the other, the requirement that evidence be
generally accepted as a general medical norm.
[58]
This led the Court to err in rejecting Dr Newton’s evidence.
[94]
Dr Newton’s evidence that Mr Oppelt
would have had a 64% chance of making a full recovery had he received
the rapid closed
reduction procedure within four hours of the injury
was accepted by the High Court.
[59]
[95]
I thus agree that causation has been
established on a balance of probabilities.  However, the caveat
is that factual causation
has been proved only to the extent that,
had Mr Oppelt been treated within the four-hour period, he was likely
to recover.
What remains is whether the Department culpably
erred in not getting Mr Oppelt to Conradie within four hours.
[96]
The caveat has implications for the further
normative issues of wrongfulness and negligence.  Dr Newton’s
four-hour theory
is inextricably linked to the assessment whether
liability on the part of the Department follows.  This means
that finding
wrongfulness and negligence after the four-hour period
cannot help Mr Oppelt.  No negligent conduct would be
causally
related to the harm he suffered.
Wrongfulness
[97]
I agree with the majority judgment’s
conclusion on wrongfulness.  But I differ somewhat in
reasoning.  Wrongfulness
is incontestable.
[60]
The question is this:
[61]
if we assume that the Department’s personnel could have
prevented Mr Oppelt’s paralysis but negligently failed to do

so, should they (and the Department, which is vicariously responsible
for their conduct), as a matter of public and legal policy,
be held
liable for the loss he suffered because of the harm?  Yes.
As the Department’s plea conceded, medical
personnel
self-evidently owe their patients a legal duty to dispense reasonable
care.
[62]
Section 27 of the Bill of Rights merely bolsters this.
[63]
Wrongfulness is established.
[98]
On breach of section 27, the majority
judgment rightly sets out the test in
Soobramoney
.
[64]
The reference point is the legal convictions of the community, as
informed by the norms and values of our society, embodied
by the
Constitution.
[65]
But that test is not satisfied here.  Mr Oppelt was not
refused emergency medical treatment.  In my view it
was not
established that he was unreasonably refused medical care.
[99]
Mr Oppelt was assessed, stabilised, and
catheterised.  He was given oxygen and a high dose of steroids.
The system received
him and treated him with due care.  It
afforded him the standard of treatment the circumstances demanded of
reasonable hospital
personnel and delivered him to Conradie.  He
was not refused treatment.
[100]
In assessing the availability of remedial
treatment, the majority judgment places insufficient weight on the
circumstances in which
the doctors and medical personnel worked on
the critical day.
Soobramoney
acknowledges that the obligations section 27 places on the state
depend on the resources available.  Chaskalson P, for
the
majority, expressly noted that lack of resources may limit the rights
the provision confers.
[66]
[101]
The critical doctor on duty was Dr
Rothemeyer, and the critical evidence was hers.  She was a
registrar specialising in neurosurgery.
She testified that at
the time, in a single 24-hour shift, she had to serve both Groote
Schuur and the Red Cross Children’s
Hospital.  And she
accomplished this by driving between the two.  Dr Rothemeyer
recalled that the nursing staff
in the trauma unit at Groote Schuur
were usually “incredibly busy”.  They were treating
between six and 10 acutely
ill patients at any one time, while trying
to assist doctors.
[102]
Moreover, Groote Schuur’s trauma unit
register for the crucial day, which was proved in evidence, confirms
that the unit was
burdened with acute trauma cases.  These
included multiple motor vehicle accidents, gunshot wounds, stabbings,
assaults and
resuscitations.
[67]
It is in this near-hellish situation that we must pass judgment on
the care the medical personnel at Groote Schuur afforded
Mr Oppelt –
and on the decision Dr Rothemeyer took that Mr Oppelt should be
brought from Wesfleur to Groote Schuur.
[103]
Given these circumstances, I find it
impossible to conclude that Mr Oppelt was refused emergency medical
treatment.  In light
of the desperate situation of resource
scarcity and pressure on the medical personnel, we cannot say he was
inappropriately treated.
[104]
The majority concludes that the observance
of rigid protocols was allowed to trump section 27(3)
[68]
and this frustrated giving Mr Oppelt appropriate emergency
treatment.  The difficulty is that there is no evidence that the

referral pathway Drs Venter, Rothemeyer and Stander adopted was
informed by or attributable to the protocol.  The statements

debated with Drs Newton and Welsh in cross-examination, upon which
the majority judgment relies,
[69]
are not first-hand accounts of what transpired on the day.  So
they are not helpful.
[105]
The majority judgment concludes Mr Oppelt
was “constructively refused” treatment.
[70]
But this seems to be another way of saying he did not get the
treatment he ought to have received.  This leads to the
same
question: was Mr Oppelt treated negligently?  For the reasons
that follow, I find he was not.  In summary, Mr Oppelt’s

right to receive emergency medical treatment was not breached, and
finding that it was doesn’t help us with the crucial question,

which is negligence.
Negligence
[106]
In our law,
Kruger
[71]
embodies the classic test.  There are two steps.  The first
is foreseeability – would a reasonable person in the
position
of the defendant foresee the reasonable possibility of injuring
another and causing loss?  The second is preventability
–
would that person take reasonable steps to guard against the injury
happening?
[72]
[107]
The key point is that negligence must be
evaluated in light of all the circumstances.
[73]
And, because the test is defendant-specific (“in the position
of the defendant”),
[74]
the standard is upgraded for medical professionals.
[75]
The question, for them, is whether a reasonable medical professional
would have foreseen the damage and taken steps to avoid
it.
[76]
In
Mitchell v Dixon
,
the then Appellate Division noted that this standard does not expect
the impossible of medical personnel:
“
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 he is liable
for the consequences if he does not.”
[77]
[108]
This means that we must not ask: what would
exceptionally competent and exceptionally knowledgeable doctors have
done?
[78]
We must ask: “what can be expected of the ordinary or average
doctor in view of the general level of knowledge, ability,

experience, skill and diligence possessed and exercised by the
profession, bearing in mind that a doctor is a human being and not
a
machine and that no human being is infallible”.
[79]
Practically, we must also ask: was the medical professional’s
approach consonant with a reasonable and responsible
body of medical
opinion?
[80]
This test always depends on the facts.  With a medical
specialist, the standard is that of the reasonable specialist.
[81]
[109]
In determining whether the Department’s
personnel were negligent, we must focus on the four-hour
cut-off.
[82]
It was the basis of Mr Oppelt’s case.  For him to succeed,
any negligent conduct attributable to the Department
must be causally
related to the harm he suffered.
[83]
So the question is whether Mr Oppelt should have been taken to
Conradie within four hours, or shortly thereafter.
In more
detail, we must ask whether the Department’s personnel foresaw
the reasonable possibility that Mr Oppelt would be
permanently
paralysed, and whether – according to the general level of
knowledge then available to them – they took
reasonable steps,
in light of that foresight, to prevent him becoming permanently
paralysed.
[110]
So, on the negligence test’s first
question: could the medical officers charged with Mr Oppelt’s
care have reasonably
foreseen a danger that he would be permanently
paralysed?  The answer is Yes.  Clearly.  Dr Welsh,
Professor Wallis
and Dr Rothemeyer gave evidence for the
Department and Dr Newton, Dr Baalbergen and Professor Noakes gave
evidence for Mr
Oppelt.  They all agreed that a reasonable
medical officer would have foreseen the risk that Mr Oppelt would
suffer paralysis
from his neck injuries.
[111]
The Department’s doctors’ own
diagnoses support this: Mr Oppelt already presented signs of
paralysis on arrival at Wesfleur.
The records there show that
Dr Venter, the casualty doctor on duty, classified him as “T2
complete”.
[84]
Later at Groote Schuur, Dr Civitanich, an orthopaedic registrar,
diagnosed Mr Oppelt as having a bifacet dislocation at C5/C6.

This diagnosis was eventually confirmed at Conradie.  The
foreseeability of possible paralysis was obvious.
[112]
Given this, the pivotal question is the
second part of the negligence test – what steps would a
reasonable casualty doctor,
registrar, specialist or ambulance
attendant have taken to guard against this foreseeable harm?
The facts are these:
(a)
Forty minutes after the scrum collapsed at
Mamre rugby field, an ambulance was called to collect Mr Oppelt.
(b)
Ten minutes later, the ambulance arrived.
(c)
Mr Oppelt was taken directly from the rugby
field to the nearest hospital, Wesfleur, to be stabilised and
assessed.
(d)
At Wesfleur he was treated by Dr Venter, a
casualty doctor.
(e)
Dr Venter called Groote Schuur and obtained
the advice of Dr Rothemeyer.  (We know this from Dr
Rothemeyer’s evidence,
since Dr Venter was not called to
give evidence.)
(f)
At approximately 16h00, Dr Rothemeyer
instructed that Mr Oppelt be brought to Groote Schuur.
(g)
She recommended that he be brought urgently
– by helicopter specifically.
(h)
Groote Schuur had doctors who were
specialists in spinal injuries – Dr Dunn in particular.
(i)
No helicopter appears to have been
available.  Instead, Mr Oppelt was brought to Groote Schuur by
ambulance.
(j)
Mr Oppelt arrived at Groote Schuur at
approximately 17h40.  That was still within Dr Newton’s
four-hour period.
(k)
About two hours later, Dr Rothemeyer
examined Mr Oppelt.  She then consulted with other doctors more
specialised in spinal
cord injuries than she – Dr Civitanich,
who discussed Mr Oppelt’s case with his consultant, Dr Dunn.
(l)
Within an hour of being consulted, Dr Dunn
recommended that Mr Oppelt be urgently transferred to Conradie.
(m)
Mr Oppelt arrived at Conradie about 12
hours after his injury.
(n)
The closed reduction procedure Dr Newton
recommended was performed on him two and half hours after arriving at
Conradie.
(o)
By then it was too late.
[113]
This sad chronology shows that the crucial
turning point for the harm Mr Oppelt suffered was the decision
that he be brought
to Groote Schuur, and not taken directly to
Conradie.  If he had been taken directly to Conradie, and had he
received prompt
attention there, he would probably have recovered.
[114]
What is clear is that reasonable medical
officers would not have done nothing: they would have taken any
reasonable precautionary
steps that they knew should and could have
been taken, fitting the specific case with which they were dealing.
The events
at Groote Schuur and before show no pattern of inaction or
unconcern.  On the contrary, Mr Oppelt was moved through the
system.
Given the circumstances,
[85]
he was treated as an emergency.  This very fact shows that the
medical personnel foresaw the risk of paralysis.  Their
actions
show an attempt to guard against it.  But the system moved
cumbrously.  He got to Conradie too late.  The
question is
whether what the personnel did was negligent.
[115]
Mr Oppelt had to prove negligence on a
balance of probabilities.  He had to show that the doctors
treating him should probably
have acted differently, according to the
reasonableness standard set out above.  Here, again, as with
causation, he relied
heavily on the evidence of Dr Newton.  At
the time of Mr Oppelt’s injury, Dr Newton was in charge of
the Conradie
Spinal Cord Injuries Unit, a position he held for
14 years.  Dr Newton had a particular interest in rugby
injuries, with
extensive knowledge on the subject.  The High
Court found him to be a credible witness and accepted his evidence.
[116]
The nub of Dr Newton’s evidence on
negligence was that a reasonable medical officer would have ensured
that Mr Oppelt was
referred to Conradie within four hours so that the
closed reduction procedure could be performed on him.  In
particular, Dr Newton
testified that Mr Oppelt should have been
sent straight to Conradie from the rugby field.  But, since this
did not happen,
he should have been sent at least directly from
Wesfleur.
[117]
Dr Newton considered four hours the “magic
number”.
[86]
If the procedure was not performed within that period then “[t]he
horse was already out of the paddock”.
Dr Baalbergen, Dr
Newton’s colleague at Conradie, supported this approach.
He differed only in that he suggested a
crucial period of four to six
hours.
[118]
So the question is whether the ambulance
and medical personnel, particularly Dr Rothemeyer, knew this in
2002.  Dr Newton
said Yes.  He testified that his approach
and the four-hour cut-off should have been well known in the Western
Cape.
He was, he said, “evangelical” about his
approach.  He spread the “gospel” at various
conferences,
to medical students, to teachers, to rugby officials and
referees.  He told the trial court: “I was like an
evangelical
preacher of the gospel; I was spreading this good news
that there was life for spinal cords after low velocity injury”.
[119]
But, apart from Dr Newton’s fervent
assertions about his evangelism, and what it should have achieved,
there is no evidence
that his approach was well-known.  In fact,
the contrary is true.  As the Supreme Court of Appeal rightly
noted, Dr Newton
conceded that there was no consensus in the medical
scientific literature concerning the relationship between the success
of a
decompression following an acute spinal cord injury and the
timing of the decompression.
[87]
[120]
More importantly, Dr Newton also conceded
that his theory was “brand new”.  In 2002, there
were no academic articles
directly supporting his approach.  He
agreed that contrary specialist opinions were current.  Some
surgeons advocated
for a reduction within 24 hours.  Others said
within five to seven hours.  And some, although few, contended
that the
treating doctor should not reduce at all.
[121]
Dr Welsh was the Department’s
expert.  He accepted that in general, a doctor would want to
intervene quickly and transfer
a patient like Mr Oppelt urgently so
that he can receive treatment.  But he testified that there was
no consensus in the medical
literature relating to the timing of a
decompression and consequent neurological improvement.  He said
that anything between
eight and 24 hours for intervention was
“early”, given the insufficiency of data to support
particular treatment standards
or guidelines.  This was Dr
Welsh’s evidence at trial.  This indicates, so much the
more, that at the time of Mr
Oppelt’s injury there was no
consensus or clarity on Dr Newton’s theory.
[122]
And, at the end of all this, Dr
Rothemeyer’s evidence is, again, crucial.  The critical
focus in determining negligence
falls on her decision to have Mr
Oppelt brought to Groote Schuur, instead of sending him direct to
Conradie.  It was she whom
Dr Venter phoned from Wesfleur when
Mr Oppelt had just been brought in.  It was she who so radically
appreciated the necessity
for speed that she recommended a helicopter
transfer.
[123]
But Dr Rothemeyer didn’t recommend
that Mr Oppelt be taken straight to Conradie.  She instructed
that he be brought to
Groote Schuur, where she, along with Dr
Civitanich and her superior, Dr Dunn, could give Mr Oppelt the care,
treatment and intervention
he needed.  Did Dr Rothemeyer know –
should she have known – that Groote Schuur was the wrong place
to bring Mr
Oppelt that Saturday afternoon?
[124]
Dr Rothemeyer was an exemplary witness.
Her professionalism and dedication shine from the record.  It is
clear that she
worked desperately hard, and that she had the best
interests of her patients – all her patients – close at
heart.
She was a young specialising registrar alert to doing
the best for her patients.  This included Mr Oppelt on that
Saturday
afternoon, 23 March 2002.
[125]
Dr Rothemeyer testified unequivocally that
on that afternoon she had never heard of Dr Newton’s four-hour
theory.  More
significantly, had there been a formalised
protocol giving effect to the theory, she said, she would “most
certainly have
followed it”.
[88]
[126]
This evidence is impossible to rebut.
How can we ignore it?  We can discard it only by finding that Dr
Rothemeyer was
incompetent or dishonest.  In fact, her medical
professionalism shows us the opposite.  She was exemplary.
Her
account of medical practice and its limitations in 2002, and the
constraints under which she worked at both Groote Schuur and Red

Cross Children’s Hospital, commands sad respect and attention.
[127]
Her ignorance of Dr Newton’s theory
shows that, despite his evangelical efforts, none of the Department’s
experts at
Groote Schuur – a world-famous treatment centre, and
one of the country’s leading medical centres – had heard

of his four-hour approach in March 2002.
[128]
And this casts up a paradox.  Dr
Newton’s fervid account of how he proselytised for the
four-hour cut off, how he evangelised
and spread the gospel for
closed reduction within four hours, itself shows that his was a view,
one view, within a contested terrain
of surgical practice.  It
was not the accepted, dominant or orthodox view.  He would not
have had to evangelise if it
was.  Dr Newton’s own
evidence shows that his was a developing insight in an empirically
contested area of treatment,
rather than an established norm that was
unreasonable not to apply.
[89]
[129]
A further point must be driven home.
This is not a case where the Court has to decide which of different
“schools of
thought” would have been reasonable for the
personnel treating Mr Oppelt to follow.  In March 2002, Dr
Newton’s
view did not even constitute a “school”.
It was an emerging new doctrine, seeking converts.  It was in
need
of recognition and followers.  Hence Dr Newton’s
evangelism.
[130]
Dr Newton’s theory was published for
the first time only in December 2011.
[90]
The proofs of his article were handed in as evidence to the High
Court – more than nine years after Mr Oppelt’s

injury.
[91]
Had Dr Rothemeyer known of the theory in 2002, and ought she to
have endorsed it, she would clearly have been negligent
not to send
Mr Oppelt straight to Conradie.  But she did not know of the
theory.  At best for Mr Oppelt, Dr Newton’s
theory
was a newly emerging school of thought.  And as
Carstens and Pearmain say:
“
Where
there is more than one school of thought or medical opinion about the
indicated procedure / technique to be applied to, or
intervention to
be performed upon a patient, the attending physician is obliged to
meet the required standard set by the medical
practitioner who
subscribes to that particular school of thought.  The attending
physician who opts for a choice between different,
but accepted
schools of thought, is not negligent, even though the opted school of
thought may be that of an accepted or respectable
minority in the
medical profession.”
[92]
(Footnote omitted.)
[131]
Given that Dr Newton’s theory was
still being evangelised, and that it had not been published until the
trial, the only standard
to which the Department’s medical
personnel can fairly be held is the “general level of
knowledge” in 2002.
[93]
The experts’ consensus at the time was that all spinal injuries
were urgent, and that earlier intervention was best.
But there
was no consensus about what point was crucial, or about how many
hours would constitute a cut-off – nor was there
any consensus
then about what delay would be negligent.
[132]
This Court’s task, in these difficult
circumstances, is to assess from all the evidence whether on a
balance of probabilities
the medical staff took reasonable steps to
prevent paralysis.
[94]
In doing so we must forbear from hindsight.
[133]
Does the Department’s reliance on the
protocol for admission to Conradie show culpable remissness?
The protocol required
that an x-ray be taken.  It was the
Department that used the protocol as a defence, to try to counter the
Mr Oppelt’s
averment that he should have been taken straight to
Conradie.  The Department submitted that he was treated and
dealt with
according to the protocol.  This was to try to show
that Mr Oppelt’s treatment accorded with acceptable practice at
that time.
[134]
But what the Department tried to show
through the protocol is quite different from the factual question
whether the medical doctors
who treated Mr Oppelt were actually bound
by it, or
felt
bound by it.  On that, the evidence is clear.  None of
those who treated Mr Oppelt suggested that he was brought to Groote

Schuur because of protocol.
[135]
The majority judgment finds that there was
no evidence to suggest that medical practitioners did not need to
adhere to the protocol’s
contents.  It infers that the
most probable reason why Mr Oppelt was not sent direct to Conradie is
that the referral pathway
was selected in accordance with and because
of the existing protocol.
[95]
I differ.
[136]
First, Dr Newton himself testified that the
protocol did not need to be (or should not be) followed in
emergencies.
[96]
Indeed, at the time, Conradie could take patients directly, outside
of the protocol, as it had a functioning casualty section.

Dr Welsh confirmed both Dr Newton’s assertions.  The
evidence thus established that the Department’s personnel
were
not required to adhere to the protocol in emergency cases.
[137]
Second, there is no evidence that Dr Venter
– who was not a spinal injury specialist – on duty at
Wesfleur casualty,
blindly followed protocol.  We don’t
have evidence of what was in his mind.  Rightly, the trial court
and the majority
judgment counts that against the Department, which
did not procure his first-hand evidence.  But we do know this.
Dr
Venter checked with Dr Rothemeyer at Groote Schuur.  He
didn’t send Mr Oppelt to Groote Schuur himself.  He
consulted
with the casualty expert on duty there.
[138]
And there is no evidence that Dr Rothemeyer
had Mr Oppelt brought to Groote Schuur merely because of
the protocol.
It was not put to Dr Rothemeyer that she did so.
And, that being so, an adverse inference cannot fairly be drawn
against
her.  This Court in
SARFU
emphasised the importance of expressly affording a witness the
opportunity to rebut a negative inference or imputation:
“
The precise nature of the
imputation should be made clear to the witness so that it can be met
and destroyed, particularly where
the imputation relies upon
inferences to be drawn from other evidence in the proceedings.
It should be made clear not only
that the evidence is to be
challenged but also how it is to be challenged.
This is so because the witness must be given an opportunity to deny
the challenge, to call corroborative evidence, to qualify
the
evidence given by the witness or others and to explain contradictions
on which reliance is to be placed.”
[97]
(Footnotes omitted and emphasis added.)
[139]
Dr Rothemeyer was not challenged with the
suggestion that she brought Mr Oppelt to Groote Schuur because
of the protocol.
So it seems wrong to find that the most
probable inference why Mr Oppelt was not sent to Conradie is because
of the existing protocol.
[98]
[140]
When Dr Venter telephoned Dr Rothemeyer
from Wesfleur, just after he had examined Mr Oppelt in casualty, it
was Dr Rothemeyer who
recommended that Mr Oppelt be brought to
Groote Schuur.  There is no credible basis for finding that
Dr Rothemeyer
did so simply to follow protocol.  She did
so, not because of any protocol, or other bureaucratic requirement,
but because
she thought that at Groote Schuur Mr Oppelt would
receive the best treatment available.
[99]
[141]
The most probable inference is that
Drs Venter and Rothemeyer selected Groote Schuur because they
honestly and competently
considered it the most appropriate option,
given Dr Venter’s examination and assessment of Mr Oppelt,
together with Dr Rothemeyer’s
view that Mr Oppelt would be best
treated at Groote Schuur.
[142]
Were they wrong?  Yes.
Tragically so.  Had they struck out the Groote Schuur option,
and sent Mr Oppelt straight
to Conradie, he would, on Dr Newton’s
theory, probably not be paralysed today.  But were they
negligently
wrong?  No.  Culpability depends on what they knew or
should have known at the time.  As shown, Dr Rothemeyer
had
no notion whatsoever of Dr Newton’s four-hour theory.
That is why, in Mr Oppelt’s best interests, she had
him brought
to Groote Schuur.
[143]
So it would be unjust to impose an
after-the-fact wisdom on the doctors’ best professional
judgment at the time.  The
medical personnel’s course of
conduct was, at the time, and given their means of knowledge,
reasonable.
[100]
[144]
What is more, Dr Newton conceded that
Groote Schuur could be the right place to send a patient: but, he
said, this would be more
risky, as you could not know whether the
specialist on-hand was a “closed reducer”.  He
complimented Dr Dunn,
who had evaluated Mr Oppelt at Groote
Schuur, as “a brilliant spinal surgeon”.  But he
noted that Dr Dunn
was someone who did not do closed
reductions.  So Groote Schuur had specialists in spinal
injuries – Dr Dunn in
particular.  Given this, and at that
time, on her knowledge, Dr Rothemeyer’s course of action was
reasonable.
[145]
Finally, the chronology shows some
disquieting delays at Groote Schuur.  But the High Court
concluded, significantly, that
there was no negligence at all in any
delays at Groote Schuur.
[101]
In any event, since the Groote Schuur delays occurred after the
four-hour mark, they are not causally related to the harm
Mr Oppelt
suffered.  And so they cannot help Mr Oppelt in his claim for
damages based on delict.  We cannot rely on conduct
on the part
of the respondent and its employees beyond the four hour period
to find the respondent liable.
[146]
Overall, what emerges is that the medical
officers took steps to ensure that Mr Oppelt was treated
appropriately.  His
case was immediately coded red.  He was
treated as an emergency patient throughout.  Acute referral was
requested.
[147]
Last, can we find the Department directly
liable as an institution, rather than vicariously, for negligence on
the part of the doctors
it employed?  Here the question is:
should the Department have ensured its medical personnel knew about
Dr Newton’s
theory?  Should it have spread the word
that low-velocity injuries should go directly to Conradie?  Is
it directly liable
for negligently failing to do so?
[148]
The facts already detailed are in point.
Given that experienced medical practitioners in spinal injuries
simply did not know
about the four-hour theory, and that even a
“brilliant” senior surgeon like Dr Dunn did not perform
closed reductions
at all, it is impossible to conclude that the
Department was itself negligent for failing to adopt and disseminate
Dr Newton’s
theory.
[149]
Before we find that an institution must
take practical steps to inform on-site personnel or to establish a
protocol embodying a
particular treatment, there must first be some
measure of professional consensus – some normativity –
about what is
proper treatment.  In this case, there is none.
Dr Newton’s theory was new, unpublished, and unknown to the
doctors
working hard that Saturday afternoon to do the best for their
patients.
[150]
This means that negligence on the part of
the Department and its personnel was not proved.  For these
reasons, I would have
dismissed the appeal.
For the Applicant:
For the Respondent:
W R E Duminy SC and J
A van der Merwe instructed by Sheibert & Associates
T D Potgieter SC and M
Salie instructed by the State Attorney
[1]
The Head: Health, Department of Health,
Provincial Administration: Western Cape v Oppelt
[2014] ZASCA 135
(Supreme Court of Appeal judgment).
[2]
Oppelt v The Head: Health, Department of
Health, Provincial
Administration:
Western Cape and Others
unreported
judgment of the then Western Cape High Court, Cape Town, Case No
2094/07 (21 November 2012) (High Court judgment).
[3]
The applicant’s pleaded claim was that:
“
The
hospital personnel at Wesfleur Hospital and Groote Schuur Hospital
acted, or omitted to act, wrongfully and negligently in
the
following respects:
16.1
The hospital personnel at Wesfleur Hospital—
16.1.1
delayed unreasonably
in having the [applicant] transferred
either to Groote Schuur Hospital or to the Conradie Hospital spinal
unit; and
16.1.2
only arranged for his delivery to Groote Schuur Hospital by
ambulance at about 18h00, some
3 hours after his arrival at Wesfleur
Hospital;
16.1.3
failed to take any steps to have the [applicant] transferred to
Groote Schuur Hospital or
the Conradie Hospital spinal unit
timeously
;
16.1.4
failed to ensure that the [applicant] was transferred to the
Conradie Hospital spinal unit
within 4 hours of the injury
;
16.1.5
failed to seek any advice or guidance from the Conradie Hospital
spinal unit;
16.1.6
failed to seek any assistance from the SA Rugby Spine Line.
16.2
The hospital personnel at Groote Schuur Hospital—
16.2.1
failed to seek advice or guidance from the Conradie Hospital spinal
unit, or to consult with
anyone there
timeously
or at all;
16.2.2
delayed unreasonably for a further two hours until about 20h00 to
advise the orthopaedic
registrar of the need to see the [applicant];
16.2.3
thereafter the orthopaedic registrar saw the [applicant] only at
about 21h00, some five and
a half to 6 hours after his first arrival
at a hospital operated or controlled by the [respondent];
16.2.4
thereafter further delayed unreasonably until approximately 00h30 on
24 March 2002,
to arrange for the [applicant’s] transfer
to the Conradie Hospital spinal unit;
16.2.5
failed to take steps to have the [applicant] transferred to Conradie
Hospital spinal unit
timeously
;
16.2.6
unreasonably delayed further in having the [applicant] transported
to Conradie Hospital,
where he was received and treated only at
about 05h00 on 24 March 2002;
16.2.7
failed to seek assistance from the SA Rugby Spine Line and/or the SA
Red Cross Air Mercy
Service.”  (Emphasis added.)
[4]
The essence of the claim is that where low
velocity spinal injuries are treated within four hours, the patients
had a substantially
better prospect of not suffering permanent
damage, or of suffering damage to a lesser degree than those that
are not treated
within the four-hour period; that Conradie had a
specialist 24-hour spinal cord unit; helicopter transport was
available for
patients who had suffered neck and/or spinal cord
injuries from anywhere in the Western Cape to Conradie; and that
recourse could
have been made to the South African Rugby Spine Line
service and/or the South African Red Cross Air Mercy service for
emergency
transfer of the applicant to the spinal cord unit at
Conradie.
[5]
High Court judgment above n 2 at para 64.
[6]
Id at para 80.  Section 27(3) of the
Constitution provides that “[n]o one may be refused emergency
medical treatment”.
[7]
Supreme Court of Appeal judgment above n 1 at
para 22 (footnotes omitted).
[8]
Section 27(3) of the Constitution above n 6.
[9]
Section 34 of the Constitution provides:
“
Everyone
has the right to have any dispute that can be resolved by the
application of law decided in a fair public hearing before
a court
or, where appropriate, another independent and impartial tribunal or
forum.”
[10]
Michael and Another v Linksfield Park Clinic
(Pty) Ltd and Another
[2001] ZASCA 12
;
2001 (3) SA 1188
(SCA) (
Linksfield
).
[11]
During the trial, reference was made to several
articles that supported early reduction.  Articles by Aebi et
al and by Dunn
alluded to the benefits of a reduction within four to
six hours after the injury.  Aebi et al “The Internal
Skeletal
Fixation System: A New Treatment of Thoracolumbar Fractures
and Other Spinal Disorders” (1988)
Clinical
Orthopaedics
227 and Dunn and Van der
Spuy “Rugby and cervical spine injuries – has anything
changed?  A 5-year review in
the Western Cape” (2010)
South African Medical Journal
235.
[12]
Dr Wallis is a professor and head of the division
of emergency medicine at the University of Cape Town and
Stellenbosch University.
He is also a chief specialist and
head of emergency medicine for the Western Cape Provincial
Government.
[13]
Aebi et al above n 11.
[14]
Id at 32.
[15]
Id at 30.
[16]
Id at 32.
[17]
Hacke et al “Association of Outcome with
Early Stroke Treatment: Pooled Analysis of ATLANTIS, ECASS, and
NINDS rt-PA Stroke
Trials” (2004) 363
Lancet
768.
[18]
Dunn “Acute Spinal Cord Injury: The 4-6
Hour Window Debate”
Boksmart
(2010), available at
http://www.sarugby.co.za/boksmart/pdf/BokSmart%202010 The%2046%20hour%20window%20of%20ASCI%20Treatment.pdf
at para 20.
[19]
Newton et al “The Case for Early Treatment
of Dislocations of the Cervical Spine with Cord Involvement
Sustained Playing
Rugby” (2011) 93B-12
Journal
of Bone and Joint Surgery
1646.
[20]
High Court judgment above n 2 at para 56.7.
[21]
International Shipping Co (Pty) Ltd v Bentley
1990 (1) SA 680
(A) at 700F-I;
Siman
& Co (Pty) Ltd v Barclays National Bank Ltd
1984
(2) SA 888
(A) at 915B-H; and
Minister
of Police v Skosana
1977 (1) SA 31
(A)
at 35C-E.
[22]
Lee v Minister of Correctional Services
[2012] ZACC 30
;
2013 (2) SA 144
(CC);
2013 (2) BCLR 129
(CC) at para
39.
[23]
Linksfield
above
n 10 at paras 34-40.
[24]
Id.
[25]
Id.
[26]
Daubert v Merrell Dow Pharmaceuticals Inc
[1993] USSC 99
;
509
US 579
(1993) at 16 and 18-9.
[27]
Minister of Safety and Security v Van
Duivenboden
[2002] ZASCA 79
;
2002 (6)
SA 431
(SCA) at para 25.
[28]
Minister of Finance and Others v Gore NO
[2006] ZASCA 98
;
2007 (1) SA 111
(SCA) at para 33.
[29]
Lee
above n 22
at para 41.
[30]
Id at para 41.
[31]
Van Duivenboden
above n 27 at para 12.  In
Sea
Harvest Corporation (Pty) Ltd and Another v Duncan Dock Cold Storage
(Pty) Ltd and
Another
[1999] ZASCA 87
;
2000 (1) SA 827
(
Sea
Harvest
) at para 19, the Court stated:
“
Since
the decision in
Minister van Polisie v
Ewels
. . . the courts have employed
the element of wrongfulness as a means of regulating liability in
the cases of omissions.”
[32]
Loureiro and Others v Imvula
Quality Protection (Pty) Ltd
[2014]
ZACC 4
;
2014 (3) SA 394
(CC);
2014 (5) BCLR 511
(CC) (
Loureiro
)
at para 53.  See also
Country
Cloud Trading CC v MEC, Department of Infrastructure Development,
Gauteng
[2014] ZACC 28
;
2015 (1) SA 1
(CC);
2014 (12) BCLR 1397
(CC) at para 21.
[33]
Loureiro
id at
para 34.
[34]
Le Roux and
Others v Dey
(Freedom
of Expression Institute and Restorative Justice Centre as Amicus
Curiae)
[2011]
ZACC 4
;
2011 (3) SA 274
(CC);
2011 (6) BCLR 577
(CC) (
Le
Roux v Dey
)
at para 122.
[35]
Loureiro
above n
32 at para 34.
[36]
Soobramoney
v
Minister of Health, KwaZulu-Natal
[1997]
ZACC 17
;
1998 (1) SA 765
(CC);
1997 (12) BCLR 1696
(CC) at para 20.
[37]
Id at para 51.
[38]
61 of 2003.
[39]
This was also the view of all concerned doctors
at Groote Schuur.  After a consultation with a neurosurgeon, Dr
Dunn, Dr
Civitanich gave an instruction that the applicant be
urgently transported to Conradie for the closed reduction
procedure.
Dr Rothemeyer also testified that she thought that
the closed reduction procedure and the transfer to Conradie was the
correct
course of action.
[40]
Minority judgment [98] and [103].
[41]
Minority judgment [150].
[42]
Kruger v Coetzee
1966
(2) SA 428 (A).
[43]
Lee
above n 22
at para 18 and
South
African Transport and Allied Workers Union and
Another v Garvas and Others
[2012]
ZACC 13
;
2013 (1) SA 83
(CC);
2012 (8) BCLR 840
(CC) at fn 19.
[44]
Kruger
above n
42 at 430E-G.
[45]
Sea Harvest
above n 31 at paras 21-2.
[46]
Blyth v Van den Heever
1980 (1) SA 191
(A) at 221A-B.
[47]
Pitzer v Eskom
[2012] ZASCA 44
; JOL [2012] 29007 (SCA) at para 24.
[48]
High Court judgment above n 2 at para 56.7.
[49]
Soobramoney
above n 36 at para 20.
[50]
The classic test for negligence was laid out in
Kruger
above n 42.
[51]
Minority judgment [118] to [131].
[52]
Minority judgment [133] to [141].
[53]
High Court judgment above n 2 at para 64.
[54]
Id at para 70.
[55]
Supreme Court of Appeal judgment above n 1 at
paras 15-9.
[56]
Majority judgment [36] to [42].  The Supreme
Court of Appeal returned to the
Linksfield
(above n 10) test in
Medi-Clinic
Ltd v Vermeulen
[2014] ZASCA 150
;
2015
(1) SA 241
(SCA) (
Medi-Clinic
),
a judgment that it handed down the day after its decision in Mr
Oppelt’s case.
[57]
Linksfield
id at
para 36.
[58]
Majority judgment [40].
[59]
High Court judgment above n 2 at para 64.
[60]
See
Roux v Hattingh
[2012] ZASCA 132
;
2012 (6) SA 428
(SCA) at para 33 where Brand JA
noted that the basic principles underlying the element of
wrongfulness remain the same in all
instances.  Brand JA went
on to quote the principles as summarised by this Court in
Le
Roux v Dey
above n 34 at para 122:
“
In
the more recent past our courts have come to recognise, however,
that in the context of the law of delict: (a) the criterion
of
wrongfulness ultimately depends on a judicial determination of
whether – assuming all the other elements of delictual

liability to be present – it would be reasonable to impose
liability on a defendant for the damages flowing from specific

conduct; and (b) that the judicial determination of that
reasonableness would in turn depend on considerations of public and

legal policy in accordance with constitutional norms. Incidentally,
to avoid confusion it should be borne in mind that, what
is meant by
reasonableness in the context of wrongfulness has nothing to do with
the reasonableness of the defendant’s
conduct [which is part
of the element of negligence], but it concerns the reasonableness of
imposing liability on the defendant
for the harm resulting from that
conduct.”  (Footnotes omitted.)
[61]
Framed from the judgment of Brand JA in
Hawekwa
Youth Camp and Another v Byrne
[2009]
ZASCA 156
;
2010 (6) SA 83
(SCA) at para 25.
[62]
Van Wyk v Lewis
1924
AD 438.
[63]
Neethling and Potgieter
Law
of
Delict
6 ed (LexisNexis, Durban 2010) at 50
and 54 distinguish between two wrongfulness enquiries: wrongfulness
as a breach of a legal
duty and wrongfulness as an infringement of a
right.  The former requires: the defendant to be under a legal
duty to act
positively in order to prevent harm to the plaintiff or
be in breach of a statutory duty; and that it is reasonable to
expect
the defendant to have taken positive measures to prevent the
harm.  The latter requires the infringement of a subjective
right. It must further be established whether the infringement of
the right is reasonable and legally permissible with reference
to
the legal convictions of the community.
[64]
Soobramoney
above
n 36 at para 11.
[65]
Carmichele v Minister of Safety and Security
and Another (Centre for Applied Legal Studies intervening)
[2001] ZACC 22
;
2001 (4) SA 938
(CC);
2001 (10)
BCLR 995
(CC) at para 56.
[66]
Soobramoney
above n 36 at para 11.
[67]
The trauma unit register records nine motor
vehicle accidents, six assaults, three gunshot wounds and five
resuscitations.
[68]
Majority judgment [68].
[69]
Id.
[70]
Id.
[71]
Kruger
above n
42.
[72]
Id at 430E-G.
[73]
Id at 430G.
[74]
Id at 430E.
[75]
Carstens and Pearmain
Foundational
Principles of South African Medical Law
(LexisNexis, Durban 2007) (Carstens and Pearmain) at 621.
[76]
Id.
[77]
Mitchell v Dixon
1914 AD 519
at 525.  See also
Kovalsky
v Krige
1910 CTR 822 at 823 and
Coppen
v Impey
1916 CPA 309 at 314.
[78]
See
Medi-Clinic
above n 56 at para 3.
[79]
Carstens and Pearmain above n 75 at 622.
See also
Linksfield
above
n 10 at para 35;
Blyth v Van den Heever
1980 (1) SA 191
(A) at 192 and 221;
Van
Wyk
above n 62 at 444;
Mitchell
v Dixon
above n 77 at 525;
Collins
v Administrator, Cape
1995 (4) SA 73
(C) at 81-2;
Castell v De Greef
1993 (3) SA 501
(C) at 509;
Pringle v
Administrator, Transvaal
1990 (2) SA
379
(W) at 385;
S v Kramer and
Another
1987 (1) SA 887
(W) at 893;
Buls and Another v Tsatsarolakis
1976 (2) SA 891
(T) at 893-4;
Dale v
Hamilton
1924 WLD 184
at 200;
Coppen
v Impey
above n 77 at 314;
Kovalsky
v Krige
above n 77 at 823; and
Lee
v Schönnberg
(1877) 7 Buch 136.
[80]
See
Medi-Clinic
above n 56 paras 3-9.
[81]
Carstens and Pearmain above n 75 at 623.
[82]
See [117] below.  Dr Newton testified that
“[f]our hours is the magic number”.
[83]
See [96] above.
[84]
The High Court, as pointed out in [91], rejected
this evidence as hearsay, but it can be accepted for the point about
foreseeability.
[85]
See [101] to [102] above.
[86]
Newton et al above n 19 at 1651.
[87]
Supreme Court of Appeal judgment above n 2 at
para 9.
[88]
This is confirmed by the exchange in evidence
in-chief between counsel for the Department, Mr Potgieter, and Dr
Rothemeyer:
“
[Mr
Potgieter:] And then just in this case we have heard a lot about
Dr Newton’s four-hour cut off time and the procedures

that were followed at Conradie.  At that time as far as you
especially can recall in 2002 were you aware of that –
shall I
call it that procedure and specifically the four-hour limit as far
as you recall?
[Dr
Rothemeyer:] No.  No, I was not.
[Mr
Potgieter:] Can you recall whether you had ever attended seminars or
meetings or where it was discussed or propounded . .
. ?
[Dr
Rothemeyer:] No, I recall no such lectures or seminars.
[Mr
Potgieter:] And can you recall at that stage and now has there ever
been any kind of protocol or policy in – at Groote
Schuur
relating to that?
[Dr
Rothemeyer:] Sorry, are we referring to then or now?
[Mr
Potgieter:] Well first let’s take then.
[Dr
Rothemeyer:] Sure.  Then at that time to the best of my
recollection as a diligent registrar there was no formalised

protocol in place.
I like following protocols, I believe in
them, and if there was a formal protocol that I was aware of I would
most certainly have
followed it.
”  (Emphasis added.)
[89]
See
Medi-Clinic
above n 56.
[90]
Newton et al above n 19.
[91]
The trial commenced on 11 April 2011 and appears
to have run until 30 March 2012.  The High Court delivered
judgment on 21
November 2012.  Dr Newton testified on 13 April
2011.
[92]
Carstens and Pearmain above n 75 at 641.
[93]
Van Wyk
above n
62 at 444.
[94]
Dingley v The Chief Constable, Strathclyde
Police
2000 SC (HL) 77 at 89D-E.
[95]
Majority judgment [82].
[96]
Dr Welsh also conceded that the latter parts of
the protocol did not relate to an acute (emergency) referral, but
rather to a
more chronic one.
[97]
President of the Republic of South Africa and
Others v South African Rugby Football Union and Others
[1999]
ZACC 11
;
2000 (1) SA 1
(CC);
1999 (10) BCLR 1059
(CC) at para 63.
[98]
Majority judgment [82].
[99]
Dr Rothemeyer’s notes simply record that:
no x-rays were available at Wesfleur; she suggested urgent
helicopter transfer;
and an urgent ambulance transfer was rather
arranged.  In hindsight, Dr Rothemeyer postulated that these
notes indicate
that she evidently considered that Mr Oppelt should
be brought to Groote Schuur as soon as possible for assessment
and further
management.
[100]
As Dr Rothemeyer noted when testifying, at the
time of the trial, nine years after Mr Oppelt’s injury, there
were “more
well defined guidelines” as to “where
spinal cord injury patients should go”.  This was not the
case in
2002.
[101]
The Supreme Court of Appeal accepted that there
was a heavy workload at Groote Schuur and as a result “[t]here
[was] no
basis for a finding that the [Department was] liable for
any delay at Groote Schuur causing [Mr Oppelt] not to be treated
within
the four hour cut-off point” (Supreme Court of Appeal
judgment above n 2 at para 61).