Oppelt v Department of Health, Western Cape

• Jurisdiction: South Africa

Oppelt v Department of Health, Western Cape
2016 (1) SA 325 (CC)

2016 (1) SA p325

Citation	2016 (1) SA 325 (CC)
Case No	CCT 185/14; [2015] ZACC 33
Court	Constitutional Court
Judge	Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J, Jappie AJ, Khampepe J, Madlanga J, Molemela AJ, Nkabinde J and Theron AJ
Heard	February 26, 2015
Judgment	October 14, 2015
Counsel	W Duminy SC (with J van der Merwe) for the applicant.; T Potgieter SC (with M Salie) for the respondent.

Flynote : Sleutelwoorde B

Delict — Elements — Unlawfulness or wrongfulness — Liability for omission — Rugby player's spinal vertebrae dislocated during rugby game — Doctors failing to reduce dislocation within four hours. C

Constitutional law — Human rights — Right not to be refused emergency medical treatment — Rugby player's spinal vertebrae dislocated during rugby game — Doctors failing to reduce dislocation within four hours — Whether right breached — Constitution, s 27(3). D

Headnote : Kopnota

Events in this case began in Mamre on the Cape's west coast. There, at 14h15 on a Saturday during a game of rugby, Mr Oppelt suffered a dislocation of vertebrae in his spine.

Such a dislocation compresses the spinal cord and interferes with its blood supply, which results in paralysis. The treatment is to 'reduce' the dislocation and so E decrease the compression. This can be accomplished by stretching the spine and realigning the vertebrae in a procedure known as a 'closed reduction' of the dislocation. On one theory (Dr Newton's), if the closed reduction is performed within four hours of the injury the chance of complete recovery is 64%. (Paragraphs [23] and [28] at 325F – H and 337C – E.)

From the rugby field Oppelt was taken to Wesfleur Hospital in Atlantis, arriving at 15h15. There he was attended to by Dr V, who at 16h00 phoned Dr R, F a neurosurgery registrar at Groote Schuur, who suggested transporting Oppelt to Groote Schuur by helicopter. (Wesfleur Hospital is about 50 kilometres from Groote Schuur and approximately 47 kilometres from Conradie Hospital.) None were available, and he was brought by ambulance, arriving at 17h40. At 18h00 Dr R saw him, and at 20h22 Dr C, an orthopaedic-surgery registrar, called for an ambulance to transport him to G

2016 (1) SA p326

A Conradie Hospital's spinal injury unit. (Conradie Hospital is about 7,5 kilometres from Groote Schuur.) The ambulance departed at 01h08 and arrived at 01h23; and a closed reduction was performed at 03h50. However, ultimately Oppelt was paralysed from the neck down.

He sued the Western Cape Department of Health for his damages, claiming the Department was dutied to treat an injury such as his within four hours of its occurrence. Oppelt was successful in the High Court, but its decision was B reversed by the Supreme Court of Appeal (SCA). He appealed to the Constitutional Court. (Paragraphs [6] – [7] at 330D – 331D.)

The majority judgment (Molemela AJ)

The issues were:

(1)

C Whether the failure to perform a closed reduction within four hours was the factual cause of the paralysis. Held, that it was. In coming to this conclusion the court rejected the SCA's approach to the expert evidence. The SCA had dismissed Dr Newton's four-hour thesis and had preferred one Dr W's testimony that there was no medical consensus on time of decompression and outcome. The court held that the SCA had incorrectly applied the D scientific rather than the legal standard to the assessment of the evidence. Correctly assessed, Newton's evidence was to be preferred. (Paragraphs [32], [35], [37] – [44] and [49] – [50] at 338C – G, 339A – C, 340F – 342C and 343B – F.)

(2)

Whether the omission was wrongful. (Whether it would be reasonable to impose liability for the damages flowing from the omission.) Held, that the omission was wrongful. Compelling this conclusion were the constitutional E right to emergency medical treatment (which was infringed); the common-law right to reasonable medical care; the absence of constraint on the resource (the closed-reduction procedure); and parliament's intention — embodied in legislation — that emergency medical services be provided. (Paragraphs [51], [53] – [56], [63] and [67] – [68] at 343G – 344A, 344E – 345D, 347B – E and 348B – I.)

(3)

F Whether the failure to provide a closed reduction within four hours was negligent. (Whether reasonable doctors in the position of the Department's doctors would have foreseen the possibility of the omission causing the harm; and whether they would have taken steps to prevent it occurring.) Held, that it was. Reasonable doctors would have foreseen the possibility of permanent paralysis if a closed reduction were not performed within four hours; and would have transferred Oppelt directly to Conradie Hospital for G this to be done. (Paragraphs [69], [73] and [83] – [84] at 349A – D, 349H – 350C and 352E – H.)

Appeal upheld, the SCA's judgment set aside, and the Department declared liable for Oppelt's damages. (Paragraph [86] at 353A – C.)

H The minority judgment (Cameron J)

Cameron J agreed that the SCA had erred in its approach to the expert evidence and in rejecting Newton's four-hour thesis. Accepting his evidence, the omission to perform a closed reduction within four hours was the factual cause of Oppelt's paralysis. (Paragraphs [93] – [95] at 354G – 355C.)

Cameron J also agreed that the omission was wrongful, that is, that public and legal policy required the Department to be held liable for the damages I flowing from the omission. This conclusion was supported by the common- law right of a patient to reasonable medical care from his doctor. (Paragraph [97] at 355E – 356A.)

Cameron J disagreed that Oppelt's constitutional right to emergency medical treatment had been breached. (Paragraph [105] at 357E – F.)

He also differed from the majority's finding that the omission was negligent. J He held that a reasonable doctor at the time would have foreseen the

2016 (1) SA p327

possibility of permanent paralysis; but might have taken the steps that were A in fact taken to prevent it occurring. More specifically, the key step, Dr R's direction that Oppelt be brought to Groote Schuur rather than to Conradie, was reasonable: Groote Schuur had its own spinal injury specialists and could do reductions; and a reasonable doctor at the time would not have known of the four-hour thesis. (Paragraphs [110], [127], [131], [143] – [144] and [150] at 359B, 362D, 363F, 365F – 366B and 366H.) B

Cameron J would have dismissed Oppelt's appeal. (Paragraph [150] at 366H.)

Cases Considered

Annotations

Case law C

Southern Africa

Blyth v Van den Heever 1980 (1) SA 191 (A): dictum at 221A applied

Buls and Another v Tsatsarolakis 1976 (2) SA 891 (T): referred to

Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal Studies Intervening) 2001 (4) SA 938 (CC) (2002 (1) SACR 79; D 2001 (10) BCLR 995; [2001] ZACC 22): referred to

Castell v De Greef 1993 (3) SA 501 (C): referred to

Collins v Administrator, Cape 1995 (4) SA 73 (C): referred to

Coppen v Impey 1916 CPD 309: referred to

Country Cloud Trading CC v MEC, Department of Infrastructure Development 2015 (1) SA 1 (CC) (2014 (12) BCLR 1397; [2014] ZACC 28): referred E to

Dale v Hamilton 1924 WLD 184: referred to

Hawekwa Youth Camp and Another v Byrne 2010 (6) SA 83 (SCA) ([2010] 2 All SA 312): referred to

Head of Department of Health, Western Cape v Oppelt [2014] ZASCA 135: reversed on appeal

International Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 (A) ([1989] ZASCA 138): F dictum at 700F applied

Kovalsky v Krige 1910 CTR 822: referred to

Kruger v Coetzee 1966 (2) SA 428 (A): dictum at 430E applied

Le Roux and Others v Dey (Freedom of Expression Institute and Restorative Justice Centre as Amici Curiae) G 2011 (3) SA 274 (CC) (2011 (6) BCLR 577; [2011] ZACC 4): dictum in para [122] applied

Lee v Minister for Correctional Services 2013 (2) SA 144 (CC) (2013 (2) BCLR 129; [2012] ZACC 30): dictum in para [39] applied

Lee v Schönnberg (1877) 7 Buch 136: referred to

Loureiro and Others v Imvula Quality Protection (Pty) Ltd H 2014 (3) SA 394 (CC) (2014 (5) BCLR 511; [2014] ZACC 4): dictum in para [53] applied

Medi-Clinic Ltd v Vermeulen 2015 (1) SA 241 (SCA) ([2014 ZASCA 150): referred to

Michael and Another v Linksfield Park Clinic (Pty) Ltd and Another I 2001 (3) SA 1188 (SCA) ([2002] 1 All SA 384): dicta in paras [34] – [40] 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 Police v Skosana 1977 (1) SA 31 (A): 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 J

2016 (1) SA p328

Mitchell v Dixon A 1914 AD 519: referred to

Oppelt v Head of Department of Health, Western Cape WCC case No 2094/07: approved

Pitzer v Eskom [2012] ZASCA 44: dictum in para [24] applied

President of the Republic of South Africa and Others v South African Rugby Football Union and Others B 2000 (1) SA 1 (CC) (1999 (10) BCLR 1059; [1999] ZACC 11): referred to

Pringle v Administrator, Transvaal 1990 (2) SA 379 (W): referred to

Roux v Hattingh 2012 (6) SA 428 (SCA) ([2012] ZASCA 132): referred to

S v Kramer and Another 1987 (1) SA 887 (W): referred to

SATAWU and Another v Garvas and Others 2013 (1) SA 83 (CC) (2012 (8) BCLR 840; C [2012] ZACC 13): referred to

Sea Harvest Corporation (Pty) Ltd and Another v Duncan Dock Cold Storage (Pty) Ltd and Another 2000 (1) SA 827 (SCA) ([2000] 1 All SA 128): referred to

Siman & Co (Pty) Ltd v Barclays National Bank Ltd 1984 (2) SA 888 (A): referred to

Soobramoney v Minister of Health, KwaZulu-Natal D 1998 (1) SA 765 (CC) (1997 (12) BCLR 1696; [1997] ZACC 17): referred to

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