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[2018] ZACC 2
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Loni v Member of the Executive Council, Department of Health, Eastern Cape Bhisho (CCT54/17) [2018] ZACC 2; 2018 (3) SA 335 (CC); 2018 (6) BCLR 659 (CC) (22 February 2018)
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Heads of arguments
CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 54/17
In
the matter between:
MZWANDILE
OWEN
LONI
Applicant
and
MEMBER
OF THE EXECUTIVE COUNCIL,
DEPARTMENT
OF HEALTH, EASTERN CAPE,
BHISHO
Respondent
Neutral
citation:
Loni v Member of the
Executive Council, Department of Health, Eastern Cape, Bhisho
[2018]
ZACC 2
Coram:
Mogoeng CJ, Zondo DCJ, Cameron J, Froneman J,
Jafta J, Kathree-Setiloane AJ, Kollapen AJ, Madlanga J,
Mhlantla J,
Theron J and Zondi AJ
Judgments:
The Court
Decided
on:
22 February 2018
Summary:
Prescription Act 68 of 1969
—
section 12(3)
— medical negligence claim — knowledge of
the facts upon which a claim is based — objective assessment —
reasonable person — correctly applied by lower courts
ORDER
On
appeal from the Supreme Court of Appeal (hearing an appeal from the
Full Court of the High Court of South Africa, Eastern Cape
Division,
Grahamstown):
1.
The application for leave to appeal is
dismissed.
2.
There is no order as to costs.
JUDGMENT
THE
COURT:
Introduction
[1]
This is an application for leave to
appeal against an order of the Supreme Court of Appeal.
That Court had
refused leave to appeal against a decision of
the Full Court of the High Court of South Africa, Eastern Cape
Division, Grahamstown
[1]
(Full Court).
[2]
The applicant, Mr Mzwandile Loni,
had instituted proceedings against the respondent, the Member of the
Executive Council of the
Department of Health, Eastern Cape, Bhisho
(MEC), in the High Court of South Africa, Eastern Cape Local
Division, Bhisho
[2]
(High Court) for damages arising out of the alleged negligence of
doctors and nurses in the MEC’s employ. The applicant
was
unsuccessful in the High Court and his appeal to the Full Court was
dismissed.
[3]
The Chief Justice directed the
parties to file written submissions firstly, on whether this Court’s
decision in
Links
[3]
would find application in this case and secondly, whether leave to
appeal should be granted and the remedy this Court should grant.
The
parties complied with the directions and the matter was decided
without oral argument.
[4]
Background
[4]
The applicant was admitted to
Cecelia Makiwane Hospital on 6 August 1999 after sustaining a gunshot
wound in his left buttock which
shattered his left femur. The
bullet was lodged in his body. Upon arrival at the hospital, he
was given an injection
for pain and x-rays were taken. The next
morning, the doctors arrived, perused his file and left without
saying anything
to him. On 10 August 1999, a Denham pin was
inserted to alleviate the pain. On 23 August 1999, an operation
was performed
in order to insert a plate and screws on his femur.
The bullet was not removed.
[5]
He was later discharged and given
painkillers, crutches and medical supplies to clean the wound. He
was also given his medical
file so that if the painkillers or the
wound cleaning items ran out, he could visit the nearest clinic.
When he visited the
clinic, he was referred to the hospital.
During January or February 2000, he went to the hospital. He
was examined
by a doctor who took x-rays and told him to use one
crutch instead of the two. After some time, the gunshot entry
wound healed.
However, the operation wound took a long time to
heal. Pus oozed out of the wound and an infection set in. He
was at home when he noticed yarn in the wound but was unable to
remove it. He returned to the hospital and the pin was
removed.
The wound closed and a month later the pus stopped
oozing.
[6]
During December 2000, and while the
applicant was at initiation school, his leg became swollen and he
removed the bullet himself.
He returned to the hospital and he
was informed his leg was fine. At some stage the applicant
developed a limp.
[7]
In 2008, the applicant secured
employment at the South African Police Services (SAPS) as a clerk.
As a result of his employment,
he was able to secure medical
insurance. He thereafter approached doctors in private practice
to establish the reason for
his limp and constant pain in his leg.
He was informed that he was disabled. He was referred to
Dr Olivier, an orthopaedic
surgeon. In November 2011, Dr
Olivier considered his hospital file and advised him that his
condition was attributable to
medical negligence.
Litigation
history
High
Court
[8]
The applicant instituted proceedings
in the High Court against the MEC for damages arising out of the
treatment he had received
at Cecelia Makiwane Hospital. The
applicant’s claim against the MEC was founded in contract and,
only in the alternative,
in delict.
[9]
The MEC, in his plea, denied that
the doctors and nurses were negligent. The MEC also raised a
special plea of prescription.
He pleaded that the applicant’s
claim had prescribed in terms of the
Prescription Act
[5
]
since the summons was only served on 20 June 2012. Furthermore,
he pleaded that the applicant had not complied with section
3 of the
Legal Proceedings Act
[6]
as he had failed to give the required notice before instituting the
proceedings. The applicant denied that his claim had
prescribed
as alleged. He submitted that before he met Dr Olivier, he was
unaware that he had a claim for damages against
the MEC. He
averred that he only acquired that knowledge in November 2011 when Dr
Olivier advised him that the medical staff
at the hospital had been
negligent.
[10]
During the trial, Dr Olivier
testified on behalf of the applicant. He stated that the
applicant’s treatment from 1999
was sub-standard in many
respects. For instance, he criticised the medical team for
failing to prescribe antibiotics, clean
the wound and remove the
dead, infected tissue. Dr Olivier stated that the development
of chronic osteitis (inflammation
of the bone) could have been
prevented by the application of standard medical care. There
was no proper assessment of the
wound and the applicant was not
observed during the material times notwithstanding the fact that he
was a high-risk category patient.
The oozing of pus should have
been investigated urgently, as it was a sign that the wound was
infected. Dr Olivier concluded
that all this resulted in the
applicant developing osteitis, involving the proximal 50% of the
femur, and he also developed advanced
degenerative changes of the
left hip joint. In the same proceedings the MEC did not adduce
any evidence.
[11]
The High Court considered the
special plea raised by the MEC. Regarding the plea in terms of
section 12(3)
of the
Prescription Act,
[7
]
the High Court held that the “deemed knowledge” imputed
to the “creditor” requires the application of an
objective standard rather than a subjective one. In order to
determine whether the applicant exercised “reasonable
care”
his conduct must be tested by reference to the steps which a
reasonable person in his position would have taken to
acquire
knowledge of the facts.
[12]
The High Court held that the
applicant had acquired the knowledge to enable him to institute
proceedings long before he met Dr Olivier.
It relied on the
fact that the wound was still oozing pus after the applicant was
discharged; he had removed the bullet himself;
he continued to
experience pain; was limping; and that he was given his medical file
when he was discharged. It further held
that the applicant
could have gone back to the hospital or to another hospital in order
to get another assessment. The Court
held that a reasonable
person would not have waited for seven years in order to institute
proceedings and that a reasonable person
would not have endured pain
for seven years before seeking help to find out the cause of the
pain.
[13]
The High Court therefore upheld the
special plea and dismissed the applicant’s claim.
Full
Court
[14]
The applicant was granted leave to
appeal to the Full Court. That Court held that it was evident
that the applicant’s
condition and the wound became worse over
time. When he was discharged in October 1999, he had a visible
infection with pus
oozing from the operation site. This
situation did not change until the fixtures were removed in 2001.
For years, thereafter,
he experienced pain. The Court held that
it was inconceivable that the applicant could have thought he had
received adequate
medical treatment after all his experiences.
The pain he experienced, coupled with the infection of the wound and
oozing
of pus, must have been an indication that the medical staff
had failed to provide him with proper care and treatment.
[15]
The Full Court concluded that the
applicant had all the necessary facts, such as his personal knowledge
of his maltreatment and
a full record of his treatment, or lack
thereof, as contained in his hospital file which gave rise to his
claim. The Court
further held that the applicant’s
knowledge constituted reasonable grounds for suspecting fault that
would justify him seeking
further advice. This knowledge was
sufficient for him to act and in fact it was this same information
that caused him to
ultimately seek further advice in 2011. Moreover,
the Court relied on
Links
and held that although the applicant did not know the causative link
between the known breaches of contract and the harm which
he knew
that he had suffered, knowledge of causative negligence is not
required for purposes of
section 12(3)
of the
Prescription Act. The
Full Court thus dismissed the appeal.
Supreme
Court of Appeal
[16]
An application for leave to appeal
to the Supreme Court of Appeal was unsuccessful as the requirements
for special leave to appeal
were not satisfied.
In this
Court
[17]
The applicant submits that the High
Court and the Full Court failed to take into account the fact that
when he was discharged in
2001, a medical professional informed him
that his leg was fine and that he just needed to exercise it. He
avers that the
mere possession of the hospital file did not mean that
he had knowledge of its content. Instead, he had been told to
present
the file at the nearest clinic when he needed new bandages
and swabs. Therefore, the file would be used to facilitate the
provision of medical supplies and appropriate treatment. The
applicant submits that both courts erred in finding that he
had
failed to act as a reasonable person would have acted in his shoes.
He contends that as a layperson he could not have
suspected
that the doctors at the hospital caused him any harm at all
especially when they had told him he was fine and fit.
The
applicant further contends that both courts denied him his right to a
fair trial by placing the onus on him to show what he
had done over a
period of more than seven years to enforce his claim against the MEC.
[18]
In the alternative and in light of
this Court’s judgment in
Links
,
the applicant seeks leave to appeal to the Supreme Court of Appeal
and to place further evidence before that Court. This
evidence
includes the medico-legal report prepared by an orthopaedic surgeon.
[19]
The MEC opposes the application and
contends that both courts correctly applied the provisions of
section
12(3)
of the
Prescription Act. Regarding
the further evidence
sought to be adduced, the MEC contends that the application does not
satisfy the requirements for the lodging
of further factual material
in accordance with the provisions of
rule 31
[8]
of this Court.
Leave
to Appeal
[20]
Constitutional issues are implicated
because the matter involves an interpretation of legislation, namely
the
Prescription Act, which
limits the applicant’s fair trial
right in terms of section 34 of the Constitution.
[9]
Whether it is in the interests of justice to grant leave to
appeal is linked to the merits of the matter.
Merits
[21]
The correct interpretation of the
provisions of
section 12(3)
of the
Prescription Act and
the
application of the relevant principles, have been dealt with
authoritatively by this Court in
Links.
[10]
[22]
On 26 June 2006, the applicant in
Links
was
treated at the Kimberley Hospital for a dislocated left thumb.
His left hand and forearm were placed in a plaster of
Paris cast and
he was told to return in ten days. The applicant returned to
the hospital twice, complaining of pain. He
was eventually
admitted and on 5 July 2006, he underwent surgery during which his
left thumb was amputated. He had to undergo
three further
operations for the debridement of the left thumb. Upon being
discharged at the end of August 2006, he was informed
by a doctor
employed at the hospital, that he might permanently lose the use of
his left arm. It was only during September
2006, when his left
hand “clawed”, that the full extent of the damage became
apparent. The applicant alleged
he was never informed why his
thumb needed to be amputated, what the cause of his problems was, nor
the reason he lost the use
of his left hand. The applicant
approached the Legal Aid Centre for assistance in December 2006.
However, Legal Aid
only referred the applicant to consult with
his lawyers a week before the expiry of the three year prescription
period.
[23]
In
Links
,
this Court found that in order for a party to successfully rely on a
prescription claim in terms of
section 12(3)
of the
Prescription Act,
he
or she must first prove “what the facts are that the
applicant is required to know before prescription could commence
running”
and secondly, that “the applicant had knowledge
of those facts”.
[11]
The first issue that this Court considered in
Links
was “what [were] the facts from which the debt arose”.
It explained that these would be the “facts which
are
material to the debt”.
[12]
This Court opined that it would be setting the bar too high to
require knowledge of causative negligence. In answer
to this
issue, this Court held that in cases involving professional
negligence, the facts from which the debt arises are those
facts
which would cause a plaintiff, on reasonable grounds, to suspect that
there was fault on the part of the medical staff and
that caused him
or her to “seek further advice”.
[13]
The Court held that it would be unrealistic to expect a party,
with no knowledge of medicine, to have knowledge of the facts
of his
condition, without seeking professional medical advice.
[14]
[24]
In applying those principles to the
facts before it, in
Links
,
this Court held that the applicant would have to have had “knowledge
of [the] facts [which] would have led him to think
that possibly
there had been negligence and that this had caused his
disability”.
[15]
This Court placed emphasis on the fact that the applicant was unable
to acquire knowledge of the material facts from any
medical doctor or
nurse independent of the hospital until he was discharged.
[16]
This Court decided in favour of the applicant, as it found the
claim had not prescribed as the applicant “did not know
or have
reasonable grounds to suspect” that it was the medical staff’s
negligent treatment that led to the amputation
and the loss of the
use of his left hand.
[17]
[25]
The main finding of this Court was
that:
“
However, in cases of this type, involving
professional negligence, the party relying on prescription must at
least show that the
plaintiff was in possession of sufficient facts
to cause them on reasonable grounds to think that the injuries were
due to the
fault of the medical staff. Until there are
reasonable grounds for suspecting fault so as to cause the plaintiff
to seek
further advice, the claimant cannot be said to have knowledge
of the facts from which the debt arises.”
[18]
[26]
It is appropriate to point out that
the facts in
Links
are entirely distinguishable from the facts of this matter. In
Links
, the
claimant plainly required expert medical opinion, firstly, in order
to establish that the treatment that he had received had
been
negligent, and secondly, in order to draw the causative link between
the harm suffered and the negligent treatment.
[27]
It was in this context that this
Court in
Links
stated:
“
It seems to me that it would be unrealistic
for the law to expect a litigant who has no knowledge of medicine to
have knowledge
of what caused his condition without having first had
an opportunity of consulting a relevant medical professional or
specialist
for advice. That in turn requires that the litigant
is in possession of sufficient facts to cause a reasonable person to
suspect that something has gone wrong and to seek advice.”
[19]
[28]
As previously mentioned, the
applicant’s claim against the MEC was founded in contract and
alternatively in delict.
The alternative claim fell away by
virtue of the MEC having admitted the contract. The matter fell
to be adjudicated upon
the basis of the main claim founded in
contract.
[29]
Accordingly, and whilst the
allegations relied upon by the applicant refer pertinently to alleged
negligent acts, these allegations
in essence amount to an allegation
that the MEC’s employees acted in breach of the contract by
failing to afford the applicant
appropriate treatment and care, this
plainly being a term of the admitted contract.
[30]
The debt claimed by the applicant
arose from the breach of the contract by the employees of the MEC
with regard to his care and
treatment and upon him having suffered
harm as a result thereof. The focus by the applicant on his
lack of knowledge of the
development of osteitis was not the correct
focus of the investigation in regard to this issue. The
applicant, on his own
evidence, had received sub-standard care and
treatment, had suffered harm as a result thereof and this was, on an
appropriate assessment
of his evidence, plainly apparent to him long
before the issue of osteitis arose and the link to such sub-standard
care, treatment
and harm being dealt with by expert medical opinion.
The authorities are clear. It is not necessary for the extent
of the harm to be known, the debt arises once harm has indeed been
suffered.
[20]
[31]
In this regard, the uncontroverted
evidence of the applicant was:
(a) He matriculated in 2001, was employed by the Department of
Environmental Affairs and Tourism, then with a private company for
some time, and subsequently was employed by the SAPS in September
2008.
(b) The applicant was still in the employ of the SAPS as a clerk in
Law Management.
(c) In casualty or after admission the applicant was given an
injection to stabilise pain but nothing else.
(d) After x-rays were taken, he was taken to a ward and spent the
night wearing the same clothes, including the jeans, presumably
through which he had been shot.
(e) His wound was not cleaned that night.
(g) The following morning, a doctor did ward rounds and perused a
folder but did not communicate with him.
(h) The applicant was admitted to hospital on 6 August 1999 and
remained there for a period of two to three months during which
time
an operation was performed. The wound turned septic and oozed
pus.
(i) Notwithstanding that the wound worsened, the applicant was
discharged from hospital on 10 October 1999 in a bad condition with
the wound not closed.
(j) Notwithstanding the applicant’s condition, he was merely
given pain medication and items to clean the wound and was instructed
to go to the nearest clinic if they ran out.
(k) The applicant returned to the hospital in the first months of
2000, saw a doctor in the orthopaedic section, was referred for
x-rays and was merely advised, it seems, to walk around so that the
wound could close and to use only one crutch whilst walking.
(l) The applicant enquired why he was not treated because the wound
was still oozing but he did not get a response from the doctor.
(m) The wound expanded and the applicant saw “yarn” in
the wound which he tried to pull out. It was only once
the pin
was removed that the wound closed and the oozing stopped.
(n) The applicant continued experiencing pain in
his leg.
[32]
The objective assessment, which was
appropriately applied by both courts, established that a reasonable
person in the position of
the applicant would have realised that the
treatment and care which he had received was sub-standard and was not
in accordance
with what he could have expected from medical
practitioners and staff acting carefully, reasonably and
professionally. On
an assessment of the applicant’s
evidence, it is clear that by December 2000, he had already suffered
significant harm (leaving
aside the question of osteitis), and it
would have been apparent from a reasonable assessment that the pain
and suffering which
he had endured was a direct result of the
sub-standard care which he had received.
[33]
The applicant was discharged from
hospital for the second time during July 2001. Upon his
discharge, he still experienced
pain in his leg and was limping. He
was given his hospital file. There is no evidence of what
transpired, or of the
applicant’s actions, between 2001 and
2008. In 2008, he consulted a number of medical practitioners
and was eventually
advised that he was disabled. In 2011, he
was advised by Dr Olivier that the medical staff at the hospital had
been negligent.
The applicant submits that he was only able to
consult independent medical professionals in 2008 after he had
secured medical insurance.
[34]
When the principle in
Links
is applied to the present facts, the applicant should have over time
suspected fault on the part of the hospital staff. There
were
sufficient indicators that the medical staff had failed to provide
him with proper care and treatment, as he still experienced
pain and
the wound was infected and oozing pus. With that experience, he
could not have thought or believed that he had received
adequate
medical treatment. Furthermore, since he had been given his
medical file, he could have sought advice at that stage.
There
was no basis for him to wait more than seven years to do so.
His explanation that he could not take action as he did
not have
access to independent medical practitioners who could explain to him
why he was limping or why he continued to experience
pain in his leg,
does not help him either. The applicant had all the necessary
facts, being his personal knowledge of his
maltreatment and a full
record of his treatment in his hospital file, which gave rise to his
claim. This knowledge was sufficient
for him to act. This
is the same information that caused him to ultimately seek further
advice in 2011.
[35]
It is clear, that long before the
applicant’s discharge from hospital in 2001 and certainly
thereafter, the applicant had
knowledge of the facts upon which his
claim was based. He had knowledge of his treatment and the
quality (or lack thereof)
from his first day in hospital and had
suffered pain on a continuous basis subsequent thereto. The
fact that he was not aware
that he was disabled or had developed
osteitis is not the relevant consideration.
[36]
With regard to the application to
introduce the medico-legal report of Mr Berkowitz, it is
appropriate to point out that a
bundle of the relevant reports was
handed to the High Court at the hearing and upon a query by the Court
whether such reports went
in by agreement as evidence, the
applicant’s advocate informed the Court that the reports were
merely what they purport to
be and not evidence. The applicant
and his representatives were accordingly, at all times, aware that
the relevant reports
did not constitute evidence before the Court but
made no attempt to address this.
[37]
In any event, the medico-legal
report of Mr Berkowitz can establish no more than that Mr Berkowitz
expressed a view that the treatment
received by the applicant was not
negligent. The report does not deal with the extensive factual
evidence that the applicant
adduced during the court proceedings and
is irrelevant to an assessment of the objective facts relied upon in
support of the finding
by the court
a
quo
that the claim had prescribed.
[38]
This is a sad matter that exhibits
the bad treatment the applicant was subjected to by those who had an
obligation imposed by the
Constitution to provide proper health care
for him. Unfortunately for the applicant, and as demonstrated,
Links
does
not assist him.
[39]
There are no prospects of success on
appeal in this matter and it would not be in the interests of justice
to grant leave to appeal.
Condonation
[40]
There are two condonation
applications, by the applicant and the MEC. The applicant
applies for condonation for the late filing
of his application for
leave to appeal. The MEC applies for condonation for the late
filing of her notice of opposition and
replying affidavit. In
both instances, the reasons advanced were reasonable and the delay
slight, as such, the applications
for condonation should be granted.
Order
[41]
The following order is made:
1.
The
application for leave to appeal is dismissed.
2.
There
is no order as to costs
For
the Applicant: S S W Louw instructed by Niehaus McMahon Inc
For
the Respondent: E A S Ford SC and S J Swartbooi instructed by the
State Attorney
[1]
Loni v Member of the Executive Council, Department of Health,
Eastern Cape Bhisho
, unreported judgment of the High Court of
South Africa, Eastern Cape Division, Grahamstown, Case No CA338/2015
(13 October 2016)
(Full Court judgment).
[2]
Loni v Member of the Executive Council, Department of Health,
Eastern Cape Bhisho
, unreported judgment of the High Court of
South Africa, Eastern Cape Local Division, Bhisho, Case No 242/12
(26 March 2015) (High
Court judgment).
[3]
Links v Member of the Executive Council, Department of Health,
Northern Cape Province
[2016] ZACC 10; 2016 (4) SA 414 (CC);
2016 (5) BCLR 656.
[4]
This matter was decided in terms of rule 19(6)(b) of the
Constitutional Court Rules which reads “[a]pplications for
leave
to appeal may be dealt with summarily, without receiving oral
or written argument other than that contained in the application
itself.”
[5]
68 of 1969.
[6]
Institution of Legal Proceedings Against Certain Organs of State Act
40 of 2002 (Legal Proceedings Act). Section 3 provides
that:
“(1) No legal proceedings for the recovery of a debt may be
instituted against an organ of state unless—
(a) the creditor has given the organ of state in question notice in
writing of his or her or its intention to institute the legal
proceedings in question; or
(b) the organ of state in question has consented in writing to the
institution of that legal proceedings—
(i) without such notice; or
(ii) upon receipt of a notice which does not comply with all the
requirements set out in subsection (2).
(2) A notice must—
(a) within six months from the date on which the debt became due, be
served on the organ of state in accordance with section
4(1).”
[7]
Section 12(3) provides that:
“
A debt shall not be deemed to be due until
the creditor has knowledge of the identity of the debtor and of the
facts from which
the debt arises: Provided that a creditor shall be
deemed to have such knowledge if he could have acquired it by
exercising reasonable
care.”
[8]
Rule 31 provides that:
“
(1) Any party to any proceedings before
the Court and an
amicus curaie
properly admitted by the Court in any proceedings shall be entitled,
in documents lodged with the Registrar in terms of these
rules, to
canvass factual material that is relevant to the determination of
the issues before the Court and that does not specifically
appear on
the record: Provided that such facts—
(a) are common cause or otherwise incontrovertible; or
(b) are of an official, scientific, technical or statistical nature
capable of easy verification.”
[9]
Links
above n 3 at para 22. Section 34 of the
Constitution provides that:
“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]
Id at para 23.
[11]
Id at para 24.
[12]
Id at para 30.
[13]
Id at para 42.
[14]
Id at para 47.
[15]
Id at para 45.
[16]
Id at paras 29 and 49.
[17]
Id at para 50.
[18]
Id at para 42.
[19]
Id at para 47.
[20]
Harker v Fussell
2002 (1) SA 170
(T) at 173E-174B.