Dube v Administrator, Transvaal

• Jurisdiction: South Africa
• Judge: Trollip J
• Judgment Date: 29 May 1963
• Court: Witwatersrand Local Division

F Trollip, J.:

During the evening of Sunday, the 25th June, 1961, the plaintiff, a young unmarried Zulu of about 32 years of age, was assaulted by being struck twice on his left forearm, immediately below the elbow, with a stick or similar weapon when he raised that arm across his face in order to ward off the blows. His arm was sore that night so next morning he visited the casualty section for non-Europeans at the G General Hospital in the central part of Johannesburg (herein called 'the Hospital'). The Hospital is an institution in terms of the Public Hospitals Ordinance, 14 of 1958 (T), which is controlled and managed by the Transvaal Provincial Administration. That was on Monday, the 26th June. At the Hospital his arm was examined and X-rayed. It was found H that he had sustained a comminuted fracture of the ulnar bone of the upper forearm near the elbow joint. It is common cause that the fracture was uncomplicated with no undue displacement of the bone fragments and that no manipulation was required to set it. It was thereupon set in plaster at the Hospital at 90# flexion, i.e. with the forearm at right angles to the upper arm and across the body just below the chest. The plaster cast extended from the top of the upper arm, near the shoulder, to the first knuckles or beginning of the fingers on the back of the hand, and on the front of the hand to the beginning

Trollip J

of the palm with a strip running diagonally across the palm from the bottom of the palm to the groove of the thumb. The fingers and thumb were thus exposed, but the back of the hand, wrist, forearm, elbow and upper arm were wholly covered by the cast.

A The plaster was probably applied sometime between 12.15 p.m. and the early afternoon on the 26th June.

Thereafter, that same afternoon, the plaintiff reported at his place of work, the Jacaranda Electrical Company in Loveday Street South, Johannesburg, to inform them of his misfortune and that he was disabled B from working. His duties included the connecting of electric wires to heaters for which he required both hands and fingers, and with his left arm in plaster he could not continue with his work. It is inferred that he so reported on that same afternoon and not on the following day because in answer to the Court he said that he remained at home the C whole of the following day. Thereafter, at no time relevant hereto, could he work, but he stayed at home waiting for his arm to heal.

On Wednesday, the 28th June, he visited the Hospital again. This is the day of the week on which the fracture clinic is held at the Hospital. Dr. Wolf, one of the doctors on duty at the casualty section of the D Hospital, was in charge of the clinic. She examined his arm, considered it to be in a satisfactory condition, prescribed certain pain relieving tablets, popularly known as A.P. Cods (derived from the abbreviation of its constituents), and plaintiff then departed.

He returned to the Hospital on Monday the 3rd July and again saw Dr. E Wolf. The hand was then grossly swollen and septic with loss of movement in the fingers. The plaster was immediately removed and replaced with a smaller one merely to cover the elbow (an 'elbow slab'). Dr. Wolf diagnosed the condition of the hand to be merely due to sepsis. The plaintiff was admitted to the recovery room (a small ward at the Hospital to which patients are admitted temporarily for observation) and F was treated for sepsis of the hand. On the 13th July he was discharged at his own request and thereafter attended as an outpatient. The condition of his hand had not progressed satisfactorily by the 21st August, so he was sent to the Baragwanath Hospital. Eventually, the whole hand and fingers permanently contracted into a clawlike state with G the hand flexed downwards at the wrist, and became useless. The sepsis spread and gangrene set in in some of the fingers. First the little finger was amputated, but eventually, because of the spread of the sepsis and the fact that the hand had anyway become useless, it was considered advisable to amputate the limb at about the middle of the left forearm. That was successfully done in January, 1962. It was common cause that this final amputation was necessary.

H The plaintiff has now sued the defendant for damages alleging that the Hospital's servants were negligent in their treatment of him resulting ultimately in the said amputation.

At the hearing the quantum of the plaintiff's damages was fixed by agreement at R6,000. In announcing that agreement counsel also intimated that whatever the outcome of the case the Hospital had undertaken to keep the plaintiff supplied and fitted with a suitable artificial limb for the rest of his life.

Trollip J

On the medical aspects of the claim the plaintiff called Mr. Basil de Saxe, a specialist-surgeon practising in Johannesburg. The plaintiff had been examined by him at the instance of the Legal Aid Bureau on the 29th September, 1961, that is, before either of the amputations had been A carried out. The witness for the defendant on such aspects was Mr. Paul Keen, also a specialist-surgeon, who is the senior surgeon and medical administrative officer at the non-European section of the Hospital, and who, as such, has been in charge of the non-European surgical wards and casualty section for the past six years. Both were impressive witnesses who were well experienced and qualified to speak authoritatively on the B relevant medical aspects, on which they expressed their views fairly and impartially. Mr. Keen was not a disinterested witness because the allegations of negligence were directed against members of his staff to whom he naturally owed a loyalty, but despite that, I think that he was quite objective and impartial in the views he expressed on the C medical aspects. Indeed, on the main relevant features of those aspects there was little conflict in the views of these two experts when they were correlated with the actual facts.

According to Mr. de Saxe, the plaintiff's hand on the 29th September, when he saw it, was in a condition typically known as Volkmann's Ischemic Contracture. Mr. Keen said that because of certain features D which were not quite typical of a Volkmann's Contracture, he preferred to label it, (if it had to be labelled) simply as an Ischemic Contracture, but nothing turns on that differentiation in terminology because the causes, symptoms, progression and consequences of both disabilities, for the purposes of this case, are substantially the same. In the pleadings the condition was referred to as Volkmann's E Contracture, and I shall simply call it a Volkmann in this judgment.

According to the evidence, a Volkmann is a contraction inwards of the hand and fingers, with an upward or downward flexion of the hand at the wrist. It is a permanent deformity. It is due to an interference with F the free supply of blood to the forearm and hand resulting in the death of and consequent contraction of the muscles in those parts, especially in the hand. The degree of deformity depends upon the extent of the interference. That interference is due to a constriction or obstruction in the main blood vessels in the arm. The possible causes for the obstruction or constriction, which might be relevant in this case, are:

(1)

swelling of the arm at the site of, and due to, the fracture itself;

(2)

G damage to the blood vessel itself as...