Hal obo Mml v MEC for Health, Free State

• Jurisdiction: South Africa
• Judge: Wallis JA, Molemela JA, Makgoka JA, Rogers AJA and Unterhalter AJA
• Judgment Date: 22 October 2021
• Court: Supreme Court of Appeal
• Hearing Date: 22 October 2021
• Citation: 2022 (3) SA 571 (SCA)
• Counsel: GJ Strydom SC (with A Viljoen) for the appellant. JY Claasen SC (with L Manye) for the respondent.
• Docket Number: 1021/2019 [2021] ZASCA 149

Makgoka JA (Wallis JA and Unterhalter AJA concurring):

[1] On 1 May 2005 a pregnant Ms HAL (the appellant), then 21 years old, was admitted to the Thebe Hospital (the hospital) in Harrismith, Free State, at approximately 13h00. The following morning, 2 May 2005 at approximately 05h00, she gave birth to a baby boy (MML) by way of a normal vaginal delivery. At the time neither she nor the hospital raised an alarm about his condition, but some considerable time later he showed signs of neurological regression and eventually he was diagnosed with cerebral palsy. A magnetic resonance imaging (MRI) scan of the child's brain taken in August 2014, a little over nine years later and immediately before the commencement of this action, revealed that he had suffered a hypoxic ischemic encephalopathy (HIE), a brain injury caused by lack of oxygen and lack of blood flow in the brain. It was further confirmed that this was a partial prolonged type brain injury, which develops slowly over 30 to 45 minutes (or longer), and occurs with partial asphyxia. [1] The brain's response is to direct the flow of blood entirely to its central area, thereby depriving the outside portion of blood and oxygen and causing damage there.

[2] On 2 September 2014, the appellant instituted action against the respondent, the Free State Member of the Executive Council (MEC) for Health, in the Free State Division of the High Court, Bloemfontein (the High Court). She claimed that MML had suffered the brain injury during the latter stages of the labour and birth process (ie the intrapartum period). She attributed MML's injury to the negligence of the hospital staff, alleging they did not adequately monitor her and her unborn child, as a result of which they failed to detect foetal distress. This, she alleged, led to MML's brain injury. The respondent denied liability. After a lengthy trial, the High Court dismissed the appellant's action with the costs of two counsel, but subsequently granted the appellant leave to appeal to this court.

[3] From its inception, the matter was hampered by the absence of neonatal and obstetric records. The experts who compiled their reports did so on the basis of the limited available records and the appellant's factual statements. The factual matrix that was before the High Court comprised the following: the reports of the experts and in some instances, their oral evidence; the evidence of the appellant and some of the midwives who were on duty at the hospital on 1 and 2 May 2005 or at the clinic she attended after MML's birth; the limited hospital records in the form of the Maternity Register, the Delivery Register, the Ward

Makgoka JA (Wallis JA and Unterhalter AJA concurring)

and Discharge Summary forms and the Road to Health Chart; the extra-judicial statements made by the appellant to some of the experts during their consultations with her as recorded in their reports; and the appellant's statements in the form of affidavits in an application for condonation of the late delivery of the statutory notice in terms of s 3(4)(a) of the Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002 (the condonation application).

[4] In the absence of the full hospital records, I deem it necessary to set out in some detail the contents of the available records. But before I do so, I have to address the suggestion that somehow these records were either hearsay evidence or that their contents were disputed. This is simply incorrect. These documents were discovered and placed before the court by the appellant's counsel during his opening address as the appellant's merits documents. Whether formally under rule 36(9) or informally, they appear to have been accepted as having been completed by the persons shown to have compiled them and to be what they purport to be. The Discharge Summary and the Road to Health document had been in the appellant's possession all along. They were referred to by all the expert witnesses on the basis that they were accurate.

[5] During the course of the trial no reservation was expressed in regard to the accuracy of these documents, although in certain respects the appellant's evidence was inconsistent with them. They featured in the joint minutes agreed between Mrs Bekker and Prof Nolte and between Dr Hofmeyr and Dr Schoon, without any question being raised about the accuracy of their contents. No one suggested that they had been formulated with a view to putting a favourable gloss on the treatment the appellant received. There is no merit in the contention that their contents were disputed or were inadmissible hearsay, as opposed to being an accurate reflection of what the lost hospital records contained.

[6] Much store was placed on the fact that the principal maternity and obstetric records were missing. This does not assist the case of either party. The records were not available, and we do not know what has happened to them. Whether this was due to incompetence in the administration of the records or something nefarious we cannot say. Nor can any inference, favourable or unfavourable, be drawn from their absence. As I explain more fully in paras [77] and [78] below, the absence of hospital records in the context of this case is a neutral point. There is mutual suspicion by the parties that the other had a hand in the disappearance of the records.

[7] I therefore respectfully differ from the view expressed by my sister Molemela JA in paras [116] – [123] of her judgment, where she suggests that this warrants a 'charitable approach, which gives cognizance to the plight of the litigant'. The MEC was as handicapped by the absence of the records as the appellant. If there was nothing untoward about MML's birth or his appearance when taken to the clinic thereafter, the MEC's key witnesses, the three midwives, would not be expected to remember the appellant and MML after 13 years. In their evidence they said this was the

Makgoka JA (Wallis JA and Unterhalter AJA concurring)

case. If they had purported to remember and claimed that MML's birth was uneventful and that he appeared normal when observed at the clinic, they would have been accused of fabricating evidence, because after that lapse of time no one can be expected to remember unremarkable events. They needed to consult records in order to refresh their memory of events.

[8] All that is available are the documents to which reference is about to be made, one of which — the Discharge Summary form — can only have been derived from the entries in the missing record and the remainder of which were original records. The entries in regard to the appellant were consistent with those of other patients who gave birth at the same time and were listed on the same page of the registers. There is no reason to regard them with suspicion. Given that there is no suggestion in these records that anything was amiss in regard to the appellant's delivery and MML, that is at most an indication that the missing records did not record a problem. However, one cannot go further than that to infer anything about the treatment received by the appellant and MML.

[9] In regard to these missing records the appellant's counsel submitted that an adverse inference should be drawn against the MEC for not calling Mr Rakatsinyane, the keeper of the key to the strong room where the records were stored at Thebe Hospital. Leaving aside the fact that he did not indicate what inference the court should draw from this, it is as well to reiterate that the basis for a court to draw an adverse inference from the failure to call a witness, in accordance with the decision of this court in Elgin Fireclays v Webb, [2] is that:

'(I)t is true that if a party fails to place the evidence of a witness, who is available and able to elucidate the facts, before the trial Court, this failure leads naturally to the inference that he fears that such evidence will expose facts unfavourable to him. See Wigmore (secs. 285 and 286).) But the inference is only a proper one if the evidence is available and if it would elucidate the facts. . . . (T)he position . . . was not investigated; he may not have been available as a witness, or he may have seen no more of the occurrence than was testified to by the other witnesses. Consequently, no inference unfavourable to the respondent could properly be drawn.'

Mr Rakatsinyane may have been available, but there was no indication of what he could say about the records other than that they were missing. No inference could be drawn from that. There was nothing in the evidence to suggest that he obviously had something relevant to say and was being shielded from hostile cross-examination.

[10] The same was true of the other witnesses whom it was suggested should have been called and whose absence was said to justify an undefined adverse inference. They were Ms Hlophe who made entries in the registers reflecting that both the appellant and MML were stable on discharge; Dr Matla, who is reflected in the registers as being both the

Makgoka JA (Wallis JA and Unterhalter AJA concurring)

admitting and discharging doctor; [3] Sister Skosana, a general nursing assistant, who was present at the birth; and Sisters Moloi and Xaba, who dealt with MML at the clinic on occasions. They too, would not be expected to have independent recollection of the events of 1 and 2 May 2005. Other than the respective entries made by them, in regard to which there was no dispute, they would have had very little to testify about. It would therefore have served no purpose to call them as witnesses. Accordingly, nothing turns on the fact that they were not called as witnesses.

[11] Turning to the records, it is convenient to start with the Discharge Summary form and Ward Register. The person who completed these records was not identified, but Sister Mokoena said that they would have...