JA obo Da v MEC for Health, Eastern Cape

• Jurisdiction: South Africa

JA obo Da v MEC for Health, Eastern Cape
2022 (3) SA 475 (ECB)

2022 (3) SA p475

Citation	2022 (3) SA 475 (ECB)
Case No	CA&R 8/2021
Court	Eastern Cape Local Division, Bhisho
Judge	Van Zyl DJP, Majiki J and Malusi J
Heard	January 21, 2022
Judgment	January 21, 2022
Counsel	G Austin for the appellant.; HJ van der Linde SC (with T Mqobi) for the respondent.

Flynote : Sleutelwoorde

Evidence — Expert evidence — Evaluation — Conflicting expert opinions — Restatement of applicable legal principles.

Headnote : Kopnota

The present matter concerned a claim for delictual damages by the appellant on behalf of her minor child, DMA, in respect of a brain injury he had sustained. The appellant claimed that DMA's injury was caused by the negligence of the employees of the MEC in treating her when she gave birth to DMA at the Andries Vosloo Hospital in Somerset East in the Eastern Cape. The appellant had launched her action for damages in the Bhisho High Court. Before the trial court, it was common cause that DMA had a brain impairment/injury, ie that of a left-sided spastic hemiplegic-type of cerebral palsy with microcephaly. It was also admitted that the nursing staff treating the appellant had been negligent in unduly prolonging her labour, which was obstructed, and which had led to the foetus being deprived of oxygen. What was in dispute was the question of causation, whether it was such oxygen deprivation that had led to DMA's injury. The appellant's expert witness, the paediatric neurologist Van Toorn, expressed the opinion that it was. Van Toorn held the view that DMA's condition was the result of a brain injury known as hypoxic-ischemic encephalopathy, which he had sustained during labour, and was caused by prolonged partial hypoxic ischemia. The respondent's expert, the paediatric neurologist Keshave, contended otherwise, and expressed the view that, on the clinical evidence, DMA had an underlying neurometabolic disorder in keeping with Nonketotic Hyperglycinemia (NKH), which might account for his clinical condition. Based on its assessment of the evidence, the trial court found that both expert opinions were capable of logical support. Unwilling to choose one version over the other based on mere preference, the court refused to find for the appellant, and it granted absolution from the instance. The appellant successfully appealed to the full court of the Bhisho High Court.

That full court identified the key issue to be determined as whether the trial court was correct in concluding that the two opinions were equally placed, on the evidence before it, and that the appellant as a consequence had to be found not to have discharged the burden of proving that it was the respondent's negligence that was the cause of the injury sustained by DMA (see [9]). Before determining this issue, the court provided a thorough overview of the law dealing with how expert opinion evidence must be approached and evaluated where there was conflicting or inconsistent evidence from two or more expert witnesses (see [10] – [17]), with regard to (a) the assumed facts (see [11]); (b) the analysis of the established facts and inferences to be drawn therefrom by opposing witnesses ([12] – [14]); (c) competing theories of a purely scientific nature (see [15]); and (d) the accepted standard of a medical professional (see [16]).

Moving on to the issue in dispute, the court found that Van Toorn's opinion evidence with regard to the cause of the injury, when measured against that of Keshave, proved to be more reliable, with there being nothing, at least not of a material nature, that may detract from the probative value thereof. His evidence, the full court held, not only had a logical basis, but the

2022 (3) SA p476

conclusions reached by him were well reasoned, and consistent with the clinical evidence, the joint reports of the expert witnesses engaged by the respective parties, the oral evidence of the other expert witnesses, and the probabilities as the they arose therefrom. (See [19] and [51].)

By contrast, the full court held, Keshave's opinion on what was the cause of DMA's injury and clinical condition showed that it did not support a defensible conclusion when measured against the facts and other largely uncontested evidence (see [38]): Keshave wavered between different opinions (see [38] and [39]); he sought to draw inferences that were tenuous, and gave evidence that was largely of a speculative nature (see [38], [39] and [46]); he expressed views on aspects he was not qualified to do (see [38] and [42]); and he relied on incorrect facts, and reached conclusions not supported by the evidence (see [38], [40], [44], [46] and [51]).

The court concluded that, on the whole, the clinical evidence supported the appellant's expert opinion that it was more likely than not that the brain injury sustained by DMA, and the disabilities that later followed, was the result of prolonged partial hypoxic ischemia during labour, as opposed to NKH. The injury, it held, was consistent with the conduct of the respondent in allowing a severely prolonged obstructed labour of the appellant to continue, which exposed the foetus to a real risk of sustaining a hypoxic-type of brain injury, and it further accorded with the clinical condition of DMA immediately following his birth. The conduct of the respondent's employees created a risk of harm, and the more plausible explanation was that the injury occurred within that area of risk. (See [52].) Accordingly, appeal upheld (see [53]).

Cases cited

Southern Africa

AA Onderlinge Assuransie-Assosiasie Bpk v De Beer 1982 (2) SA 603 (A): dictum at 620E – G applied

AM and Another v MEC For Health, Western Cape 2021 (3) SA 337 (SCA) ([2020] ZASCA 89): applied

AN v MEC for Health, Eastern Cape [2019] 4 All SA 1 (SCA): dictum in para [22] applied

Bee v Road Accident Fund 2018 (4) SA 366 (SCA): dictum in para [23] applied

Blyth v Van den Heever 1980 (1) SA 191 (A): referred to

Buthelezi v Ndaba 2013 (5) SA 437 (SCA) ([2013] ZASCA 72): dictum in para [14] applied

Cooper and Another NNO v Merchant Trade Finance Ltd 2000 (3) SA 1009 (SCA): applied

Coopers (South Africa) (Pty) Ltd v Deutsche Gesellschaft für Schadlingsbekampfung mbH 1976 (3) SA 352 (A): applied

Goliath v MEC for Health, Eastern Cape 2015 (2) SA 97 (SCA) ([2014] ZASCA 182): applied

Great River Shipping Inc v Sunnyface Marine Ltd 1994 (1) SA 65 (C): applied

Lee v Minister of Correctional Services 2013 (2) SA 144 (CC) (2013 (1) SACR 213; 2013 (2) BCLR 129; [2012] ZACC 30): referred to

Mapota v Santam Versekeringsmaatskappy Bpk 1977 (4) SA 515 (A): referred to

Masstores (Pty) Ltd v Pick 'n Pay Retailers (Pty) Ltd and Another 2016 (2) SA 586 (SCA) ([2015] ZASCA 164): dictum in para [15] applied

MEC for Health and Social Development, Gauteng v TM obo MM [2021] ZASCA 110: applied

2022 (3) SA p477

MEC for Health, Eastern Cape v ZM obo LM [2020] ZASCA 160: referred to

Medi-Clinic v Vermeulen 2015 (1) SA 241 (SCA) ([2014] ZASCA 150): applied

Menday v Protea Assurance Co Ltd 1976 (1) SA 565 (E): dictum at 569 applied

Michael and Another v Linksfield Park Clinic (Pty) Ltd and Another 2001 (3) SA 1188 (SCA) ([2002] 1 All SA 384; [2001] ZASCA 12): applied

Minister of Finance and Others v Gore NO 2007 (1) SA 111 (SCA) ([2007] 1 All SA 309; [2006] ZASCA 98): referred to

Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) ([2002] 3 All SA 741; [2002] ZASCA 79): referred to

Motor Vehicle Assurance Fund v Dubuzane 1984 (1) SA 700 (A): referred to

Motor Vehicle Assurance Fund v Kenny 1984 (4) SA 432 (E): referred to

MV Pasquale Della Gatta; MV Filippo Lembo; Imperial Marine Co v Deiulemar Compagnia di Navigazione SPA 2012 (1) SA 58 (SCA) ([2011] ZASCA 131): dictum in para [24] applied

Ocean Accident and Guarantee Corporation Ltd v Koch 1963 (4) SA 147 (A): referred to

Oppelt v Department of Health, Western Cape 2016 (1) SA 325 (CC) (2015 (12) BCLR 1471; [2015] ZACC 33): applied

Representative of Lloyds and Others v Classic Sailing Adventures (Pty) Ltd 2010 (5) SA 90 (SCA) [2010] 4 All SA 366): referred to

Ruto Flour Mills (Pty) Ltd v Adelson (1) 1958 (4) SA 235 (T): dictum at 237A – B applied

S v Gouws 1967 (4) SA 527 (E): dictum at 528D – E applied

Stacey v Kent 1995 (3) SA 344 (E): applied

Thomas v BD Sarens (Pty) Ltd [2012] ZAGPJHC 161: referred to

Van Wyk v Lewis 1924 AD 438: dictum at 447 – 448 applied.

England

Cork v Kirby Maclean Ltd [1952] All ER 402 (CA): referred to

Robins v National Trust Co (4) [1927] AC 515: referred to.

Case Information

G Austin for the appellant.

HJ van der Linde SC (with T Mqobi) for the respondent.

An appeal to the full court of the Eastern Cape Local Division, Bhisho, against the order of a single judge of the court granting absolution from the instance in favour of the respondent.

Order

The appeal must succeed with costs, which costs are to include the costs occasioned by the postponement of the appeal on 2 August 2021 by reason of the respondent's failure to attend the hearing. The order of the trial court is set aside, and it is substituted with the following order:

'It is ordered that:

1.

The defendant is liable to compensate the plaintiff in her representative capacity as the mother and natural guardian of DMA for the damages claimed in this action in such sum as may be agreed to or determined in due course.

2.

The defendant pay the plaintiff's costs of the action, such costs to include the costs occasioned by the declaration hereby made that the plaintiff's expert witnesses who testified, including Dr GS Gericke, were necessary witnesses.'

2022 (3) SA p478

Judgment

Van Zyl DJP (Majiki J and Malusi J concurring):

[1] This is an appeal against an order granting absolution from the instance. The appellant's claim was for delictual damages on behalf...