Minister of Safety and Security and Others v Craig and Others NNO

• Jurisdiction: South Africa
• Judge: Navsa JA, Brand JA, Ponnan JA, Mlambo JA and Mhlantla JA
• Judgment Date: 17 September 2009
• Citation: 2011 (1) SACR 469 (SCA)
• Docket Number: 572/2008
• Hearing Date: 27 August 2009
• Counsel: R Seegobin SC (with TSI Mthembu) for the appellants. J Marais SC (with VM Naidoo) for the respondents.
• Court: Supreme Court of Appeal

Navsa JA (Brand JA, Ponnan JA, Mlambo JA and Mhlantla JA concurring):

[1] At approximately 21h00 on Saturday, 19 July 2003, 34-year-old Mr Andre Vincent Craig, who was heavily under the influence of alcohol, drove in a southerly direction, and in the face of oncoming G traffic, on the northbound carriageway of the N3 national freeway. He drove his Toyota motor vehicle into the path of an oncoming BMW motor vehicle, with disastrous consequences. The BMW caught alight and two children within that car burnt to death. Other passengers in the BMW were seriously injured. The collision occurred near Hammarsdale, H in the province of KwaZulu-Natal.

[2] Mr Craig survived the collision. He was arrested at the scene by two members of the South African Police Service. At approximately 21h40, another policeman, the third appellant, Detective Inspector Musawakhe Mwandla, [1] transported Mr Craig to Camperdown, to the rooms of the I district surgeon, Dr Richard Thompson, to have blood drawn for the purpose of a blood-alcohol test.

[3] They arrived at Dr Thompson's rooms at approximately 23h50. Dr Thompson conducted an examination and blood was drawn. Tests

Navsa JA

later revealed that Mr Craig's blood-alcohol content was five times over A the legal limit. The official form, completed by Dr Thompson, at that stage noted small cuts and bruises on Mr Craig's body, recorded that he had a painful shoulder blade, but stated that he was otherwise 'well'.

[4] After the blood sample had been taken, Inspector Mwandla transported B Mr Craig to the Hammarsdale Police Station, as he had received radio instructions that members of the latter's family were waiting there to attempt to secure his release on bail.

[5] Mrs Craig's mother, his wife Loraine, and her nephew Mr Russell Everton, were all waiting at the Hammarsdale Police Station. After C Mr Craig's arrival the family requested that he be released on bail, but this was refused. Inspector Mwandla left the police station shortly thereafter.

[6] Mr Craig's family then urged the police to allow them to take Mr Craig to hospital, but this too was refused. However, the police, in D order to appease them, summoned paramedics to examine him. The paramedics arrived during the early hours of Sunday morning.

[7] There is a dispute about whether Mr Craig allowed the paramedics to examine him. I interpose to state that there are other material disputes about: (a) the nature and extent of the district surgeon's examination of E Mr Craig; (b) whether he had given Inspector Mwandla specific instructions concerning further treatment or hospitalisation; (c) the nature of the complaints made by family members to the police concerning Mr Craig's condition; and (d) whether Mr Craig was in obvious physical discomfort at the police station. These disputes will be addressed in due course. F

[8] According to Mrs Loraine Craig, the paramedics conducted a most cursory examination of her husband and then pronounced that there was nothing wrong with him. According to a paramedic and the police, Mr Craig was obstructive and refused to be examined. G

[9] A short while after the paramedics had left the police station, Mr Craig's family departed. At approximately 03h45 that Sunday morning, because Hammarsdale Police Station had no holding facilities, Mr Craig was transported by the police to the holding cells at Mpumalanga Police Station. At approximately 10h35 Mr Craig complained that he was feeling unwell. H

[10] Inspector Mwandla was summoned and instructed to take Mr Craig to Dr Thompson for treatment. Acting on his own initiative Inspector Mwandla instead transported Mr Craig to Grey's Hospital. Shortly after his arrival there, and despite the hospital staff's best efforts I to resuscitate him, Mr Craig died at approximately 13h45.

[11] The cause of death was diagnosed as a delayed rupture of the descending aorta. Although not a frequent occurrence, it is a well-known result of high-impact collisions. It is necessary to describe the relevant physiology and the nature of this injury. J

Navsa JA

A [12] The aorta is the main artery that transports oxygenated blood from the heart to the rest of the body. The descending thoracic aorta — as the name suggests — is where the aorta turns to supply blood to the thoracic wall and then the abdomen and the lower limbs. That part of the aorta is partially fixed. The rest of the aorta and the heart are mobile and that B is why there is a predisposition to rupture, particularly where a person is involved in a high-impact collision. The victim's body stops as a result of the collision, but the heart, the ascending aorta and the aortic arch continue to move. At the point where the descending aorta begins it is relatively immobile and has a propensity to tear. This explains how the C rupture occurred in the present case.

[13] Most of these ruptures are lethal at the scene of the collision, because the rupture is usually such that the injured person bleeds to death almost instantly. In rare cases where this does not occur, victims experience what is referred to as a contained rupture, which consists of D a blood clot within the outer lining of the aorta. This has a fair amount of resistance, but, with the passage of time and without surgical intervention, it ultimately gives way and death ensues. Where there is a contained rupture there are pointers and telltale signs to assist in a diagnosis.

E [14] The first indicator is a high-impact collision, which would alert a medical practitioner to the need for x-rays. A clinical examination would reveal either unusually high or unusually low blood pressures. There will usually be blood-pressure differentials between arms and legs. Rib fractures, particularly of the first, second or third ribs, are usually associated with this condition. These fractures are indicative of direct F significant physical trauma best detected by x-rays. Such fractures are usually associated with a high degree of pain.

[15] In Mr Craig's case the post-mortem examination revealed such fractures. During the trial in the court below there was a debate about what could have caused the fractures, including a suggestion that they G might have been caused by attempts at Grey's Hospital to resuscitate Mr Craig. This aspect will be dealt with later in the judgment. I shall hereafter refer to Mr Craig as the deceased.

[16] Whilst there was some expert evidence indicating that State hospitals such as Grey's were not geared to deal with the kind of injury H sustained by the deceased, it appears, however, that one can, on the totality of the expert evidence, accept that, had the police transported the deceased to hospital shortly after his arrival at the Hammarsdale Police Station, surgical intervention would in all probability have saved his life.

[17] Towards the end of June 2006 Mrs Loraine Craig, the first I respondent, instituted action in the Pietermaritzburg High Court against the three appellants, the Minister of Safety and Security, the officer commanding the Hammarsdale Police Station, and Inspector Mwandla. Mrs Craig instituted the action, both in her personal capacity and as legal guardian of her three minor daughters, claiming delictual damages for loss of support. In her particulars of claim she asserted that police at J the Hammarsdale Police Station were under a legal duty to ensure the

Navsa JA

well-being of an arrested person, such as the deceased, and that they had A negligently breached that duty in relation to him.

[18] According to Mrs Craig, the police were negligent in the following respects. They had detained the deceased without ensuring that he had immediate medical attention. Furthermore, they had failed to ensure that he was transported to hospital immediately, and only did so some B 16 hours later. In addition, they failed to heed complaints concerning recurring pain made by the deceased to the officer commanding, and they had ignored an instruction by Dr Thompson that the deceased should be transported to hospital.

[19] At the commencement of the trial and after the parties had reached C agreement in this regard, the court below made an order in terms of Uniform Rule 33(4), that the trial proceed first on the question of liability, the issue of quantum to stand over for determination at a later stage, if necessary.

[20] After...