Truter and Another v Deysel

• Jurisdiction: South Africa
• Court: Supreme Court of Appeal
• Judge: Harms JA, Zulman JA, Navsa JA, Mthiyane JA and Van Heerden JA
• Judgment Date: 17 March 2006
• Citation: 2006 (4) SA 168 (SCA)
• Hearing Date: 24 February 2006
• Docket Number: 043/2005
• Counsel: J G Dickerson SC for the appellants. A C Oosthuizen SC for the respondent.

Van Heerden JA:

[1] In April 2000, the respondent, Mr Marthinus Albertus Deysel, instituted action in the Cape High Court against the appellants, Dr Rene Truter and Dr Jan Venter, for damages arising from a personal injury allegedly sustained by him as a result of a series of E medical and surgical procedures performed on him by Drs Truter and Venter in the period July 1993 to September 1993. Drs Truter and Venter raised a special plea of prescription which was, in terms of Uniform Rule 33(4), set down for separate adjudication. The High Court (Mlonzi AJ) dismissed the special plea with costs, on 2 November 2004. The F present appeal against this order is with the leave the High Court.

[2] The sole issue before the trial Court, and indeed also before this Court, concerns the time at which prescription started to run in respect of Deysel's claim for damages against Drs Truter and Venter. In terms of s 11(d) of the Prescription Act 68 of G 1969 (the Act), this claim is subject to a three-year extinctive prescription period. According to the special plea, Deysel's summons was served on Drs Truter and Venter on 17 April 2000. Thus, if the date on which the three-year prescription period commenced running was before 17 April 1997, then any claim which Deysel may have had H would have become prescribed, and the special plea should have been upheld.

[3] For purposes of the adjudication of the special plea, the facts averred in Deysel's particulars of claim, as amplified by his trial particulars, were taken to be admitted. The six operations which gave rise to Deysel's claim were the following: I

Van Heerden JA

Date	operation	performed by A
5 July 1993	Extra-capsular cataract extraction and posterior lens implantation	Dr Truter
15 July 1993	Emergency iridectomy to correct iris prolapse	Dr Truter
5 August 1993	Irrigation of residual lens material	Dr Truter B
25 August 1993	Posterior laser capsulotomy	Dr Truter
7 September 1993	Anterior vitrectomy and removal of lens material	Dr Venter
± 7 September 1993	Insertion of new intra-ocular lens	Dr Venter C

[4] It was also alleged and, for the purposes of the special plea only, was common cause, that the foreseeable and actual consequence of these procedures performed by Drs Truter and Venter were decompensation of the cornea of Deysel's right eye, necessitating a corneal graft operation which was performed by a Dr Burger on 12 D December 1996. This, in turn, developed complications involving the onset of infection of a corneal stitch and, ultimately, led to an evisceration of Deysel's right eye, on 23 April 1997. As Deysel had, at the time of the operations in 1993, already lost his left eye, he was thus rendered totally blind. E

[5] It should be noted that, in his trial particulars, Deysel made the following allegations (which were admitted for the purposes of the special plea):

'Throughout all the surgical procedures, the defendants [Drs Truter and Venter] could and should have known that repeated surgery irreparably damages the endolethial cells lining the cornea, F and that it was reasonably foreseeable that it could and probably would lead to bullous kerotopathy. It was further reasonably foreseeable that this would, in turn, require a corneal graft and, if not uncomplicated, eventual loss of the eye if an infection were to set in.'

[6] As early as 27 July 1994 Deysel wrote to the Medical and Dental Council (the Council) lodging a complaint against Dr Truter. In this letter, he recounted the operations performed upon him G by Drs Truter and Venter, complained of the conduct of Dr Truter and asked the Council to investigate the matter 'as I feel there was no need for five operations, plus all the pain and suffering and unnecessary sums of money for one cataract'. He also mentioned that, according to a Dr Mouton, who had given him an opinion of the condition H of his eye at the request of a Dr Claassen, under whose care he had been placed, there was 'permanent damage to the eye'.

[7] After asking for and receiving from Dr Truter her account of how she had treated Deysel, the Council responded to Deysel in writing on 20 July 1995, attaching a copy of Dr Truter's explanation, and I stating that:

'After careful consideration, the Committee is of the opinion that there has not been conduct which can be said to have been improper or disgraceful, and resolved that no further action be taken.' J

Van Heerden JA

[8] In 1995, Deysel appointed attorneys Malcolm Lyons Munro and Sohn to investigate and prosecute a malpractice claim against Drs A Truter and Venter arising from their treatment of him in 1993. These attorneys obtained professional reports from two experts in the field of ophthalmology, namely Professor Murray, the Head of the Department of Ophthalmology at the University of Cape Town, and Dr Sacks, an B ophthalmic surgeon. Both these experts were provided with all the relevant medical records and other documents, including Deysel's letter of complaint to the Council, Dr Truter's report to the Council, the Council's response to Deysel, Dr Truter and Dr Venter's clinical notes, and a medical report dated 9 November 1994 by a Dr Kruger, another ophthalmic surgeon whom Deysel had consulted for a second opinion. In addition, Dr Sacks was provided with a letter dated 16 C October 1995 by the above-mentioned Dr Claassen, also an ophthalmologist, who had treated Deysel's right eye on various occasions from late 1993 to July 1995, setting out the details of his findings in respect of Deysel's right eye. None of these medical experts concluded that an inference of negligence on the part of Drs D Truter and Venter was justified. Apart from Drs Kruger and Claassen, Deysel was referred to yet another eye specialist, a Dr Mouton, in June 1994. This doctor ascribed the reduction in Deysel's visual acuity to 'previous chronic macular oedema'. A fourth expert consulted by Deysel, in February 1996, a Dr Woods, concluded that 'he had reduced vision probably due to changes in the cornea' and that 'it appeared E from my initial assessments that nothing could be done to improve his vision'.

[9] After Deysel's right eye had been removed by Dr Burger, in April 1997, he made further complaints about Drs Truter and Venter to, inter alia, the Council and the MEC for Health in the Western Cape. New attorneys appointed by him in 1998, D Butlion and F Associates, obtained a further medico-legal report, this time from a Professor Stulting, the Head of the Department of Ophthalmology at the University of the Orange Free State...