Mitchell v Dixon

• Jurisdiction: South Africa
• Judge: Innes ACJ, Solomon JA and De Villiers Acting JA
• Judgment Date: 08 October 1914
• Citation: 1914 AD 519
• Court: Appellate Division

Innes, A.C.J.:

About the 22nd February, 1913, the plaintiff consulted Dr. Howden, of Durban, to whom at that time Dr. Mitchell, the defendant in these proceedings, was acting as assistant. He complained of a pain in the chest, breathlessness, and general discomfort. He was given a prescription and ordered to remain in bed, which he did, under the care of his mother, with whom he was then residing. He was visited once thereafter by Dr. Howden, but several times by Dr. Mitchell, who seems to have taken charge of the case. The diagnosis of both medical men was that he was suffering from pneumo-thorax on the right side; that is a distention of the pleural cavity due to the presence of liquid or of air. The cause may be either an external wound or an internal lesion; and the condition thereby induced is apt, unless relief be given, to become highly dangerous. It was decided on the 3rd March to explore the chest cavity and the defendant took with him for that purpose an astra syringe, fitted with a steel needle. He also, he says, took a potain asperator to be employed in case fluid in considerable quantities should prove to be present: in the event, however, the asperator was not used. Dr. Mitchell did not employ an anaesthetic; he caused the plaintiff to recline on his left side, With his right arm raised, the hand resting on his head and firmly held there by his mother. Then cautioning the patient not to move, he inserted the needle between the ribs at a spot in his back, the exact locality which is in dispute, and will he more fully discussed hereafter. When the instrument was right in, and

Innes, A.C.J.

before the defendant had pulled out the piston of the syringe, the needle broke short off at the shoulder. The cause of this breaking is one of the disputed points in the case. The defendant tried to recover the broken portion, but failed to do so, it being deeply imbedded and out of sight in the flesh; and he at once went or Dr. Howden. Together they administered chloroform, and made an incision into the cavity with the dual purpose (as they say) of coming upon the needle and relieving the patient. According to them, there was a marked escape of air, but they did not find the needle, which, though the patient has completely recovered in other respects, still remains in his body; and this action has been brought to recover damages in consequence.

The grounds of action are very widely stated in the declaration. Negligence, both in advising and in performing the operation, is relied upon in general terms, no details being specified. And there is a further allegation that the instrument used was not one proper for the purpose. Damages are claimed in the sum of £1,000. The defendant, without asking for particulars, filed a plea denying negligence, stating that the operation was necessary and was performed with the consent of the plaintiff and his mother, and specially that the needle broke in consequence of a sudden movement on the part of the plaintiff against which he had been specially cautioned. As might have been expected, from the very general allegations of negligence put forward, the evidence ranged over a wide area; the plaintiff seeking in a variety of ways to question the defendant's skill, and the latter calling six medical witnesses to strengthen his own evidence in meeting the various developments of the attack. The presiding judge, at the conclusion of his summing up, left the following specific questions to the jury: -

1. Was the defendant negligent that is, was he wanting in competent care or competent skill in advising and performing the operation on the patient?

2. Did the defendant negligently use an improper instrument for the operation?

3. Was it the result of any such negligence as in section 1 and 2 that the needle broke off and still remains in the plaintiff's body?

If the last question be answered in the affirmative, then what damages should be awarded.

He told them, however, that they were not bound to answer the special questions, but could return a general verdict if they so

Innes, A.C.J.

pleased; and that four to one was the minimum majority by which any verdict could be carried. When the jury, having retired for consideration, returned to Court, the Registrar put to the foreman certain statutory questions. To the inquiry what their verdict was upon the special issues submitted, the answer was: "We could not come to an agreement on that; we could on the general verdict." They then proceeded by a majority of four to one to return a general verdict for £100 in favour of the plaintiff, and...