Wright v Medi-Clinic Ltd

• Jurisdiction: South Africa
• Citation: 2007 (4) SA 327 (C)

Wright v Medi-Clinic Ltd
2007 (4) SA 327 (C)

2007 (4) SA p327

Citation	2007 (4) SA 327 (C)
Case No	172/05
Court	Cape Provincial Division
Judge	Blignault J, Thring J and Bozalek J
Heard	July 26, 2006
Judgment	August 11, 2006
Counsel	R S van der Riet SC for the appellant.; D F Irish SC (with M Harrington) for the respondent.

Flynote : Sleutelwoorde B

Medicine — Medical practitioner — Negligence of — Multiple wrongdoers — Damages claim against attending obstetrician and hospital arising out of brain injury sustained by plaintiffs' child at time of birth — Obstetrician claiming such damages caused only partly by his negligence and therefore liable for part only of plaintiffs' damages — On facts, damage divisible — C Obstetrician's contribution to damage estimated at 40% — Section 2(8)(a)(iii) of Apportionment of Damages Act 34 of 1956 applied as between obstetrician and hospital in respect of said 40% recoverable damages — Obstetrician held liable for 20% of recoverable damages, hospital for 80%. D

Delict — Damages — Liability for — Causation — Divisibility of damage — Measure of damages.

Negligence — Liability for — Causation — Divisibility of damage — Multiple causes of injury — Just attribution of responsibility — Liability of defendant for particular injury he has caused — Whether defendant should be held liable for all or only part of plaintiff's loss where concurrent, successive E or supervening causes have combined to effect that loss.

Delict — Damages — Assessment — Multiple wrongdoers — Divisibility of damage — Damage caused or contributed to by two or more persons — Process by which part of divisible damages attributed to particular person (attribution) distinguished from process under Apportionment of Damages F Act 34 of 1956 (apportionment) — Act requiring that joint wrongdoers must for purposes of apportionment have caused 'the same damage' — Possible, however, that multiple wrongdoers by separate acts of negligence causing or contributing to harm suffered — Question then one of divisibility.

Delict — Damages — Assessment — Multiple wrongdoers — Divisibility of G damage — Assessment of damages where impossible to establish individual responsibility with exactitude — Where co-defendants' respective contributions to damages incapable of precise calculation, Court to make best estimate on available evidence.

Delict — Damages — Assessment — Multiple wrongdoers — Divisibility of H damages — Presumption against — May be negated by facts.

Delict — Damages — Assessment — Multiple wrongdoers — Divisibility of damages — Test for — Test sometimes formulated in terms of logic and reason, and other times on more pragmatic basis, ie whether wrongdoer causing some part of damage even though part impossible to identify. I

Headnote : Kopnota

In the High Court, damages were claimed against the appellant and respondent, jointly and severally, as the first and second defendants, respectively, for a brain injury sustained by the plaintiffs' son at the time of his birth. The appellant was the obstetrician who attended to the child's birth and the respondent was the owner of the clinic at which the child was born. The J

2007 (4) SA p328

appellant A and respondent conceded the merits of the plaintiffs' claim, but agreed that the question of which of them was liable for the plaintiffs' damages, and, if both of them, in what measure, should be held over for determination by the Court. The Court (per Erasmus J) found the appellant and the respondent to be jointly liable for all of the damages sustained, and on the basis of their respective degrees of negligence, apportioned their B liability to 60% and 40%.

The appellant appealed against the Court's decision, contending that the plaintiffs' damages were divisible as between him and the respondent, and that he was liable for only that part of the plaintiffs' damages that could be attributed to him. The respondent contended, inter alia, that:

(1)

there was a rule against the divisibility of damages;

(2)

C the appellant was precluded from relying on the divisibility of the plaintiffs' damages because it had not been pleaded or agreed upon as an issue for determination by the Court in the pretrial agreement, or raised and dealt with in evidence; and

(3)

as a matter of practical application, the plaintiffs' damages could not be divided between the appellant and respondent.

Held, D that the purpose of categorising the damage as divisible or indivisible was to determine the measure of the damage to be attributed to appellant. If the damage was divisible, the appellant would, as between him and the respondent, be liable only for that part of the damage that could be attributed to him. If the damage was indivisible, the appellant would be liable in respect of all the damage. (Paragraph [116] at 360F - G.)

As to (1): E

Held, that there was no basic fact, the proof of which would trigger the application of a presumption of indivisibility. Indeed, the factual issue for determination was precisely whether or not the damage was divisible. (Paragraph [136] at 370H.)

As to (2): F

Held, that the appellant was on the facts not precluded - by the pleadings, the terms of the pretrial agreement, or the manner in which he conducted the trial - from contending that he was responsible only for a part of divisible damage. (Paragraph [139] at 371F.)

As to (3)

Held, that the criterion for divisibility was sometimes formulated on the grounds G of logic or reason, and in other instances on a more pragmatic basis, namely whether the wrongdoer caused some part of the damage, although it was impossible to identify with any precision which part or element of the damage he had caused. (Paragraph [140] at 371G.)

Held, further, applying the criterion in terms of logic or reason, that several considerations pointed strongly to the logical or rational divisibility of the H damage. All the expert witnesses were agreed that the damage had been caused over a period of time. It had not occurred instantaneously, and the experts were agreed that the severity of the brain damage would have increased over time and that there were various objective pointers in the evidence from which inferences could be drawn as to the extent of this development. (Paragraph [141] at 371H - J.)

Held, I further, applying the more pragmatic formulation of the criterion, that it followed from the actual measure of attribution of liability for damages that some part of the brain damage had already occurred by the time appellant's negligent conduct started to have any causal effect. The brain damage in the present case was indeed a divisible injury. (Paragraphs [146] and [148] at 372H and 372J.)

Held, J further, as to the measure of the appellant's contribution to the damage,

2007 (4) SA p329

that a reasonable guess or estimate was that 40% of the damage could be A attributed to the appellant. (Paragraph [172] at 378E.)

Held, further, that although the 40% attribution to the appellant was arrived at in the context of litigation between the two wrongdoers (the appellant and the respondent), the appellant would have been in no better or worse position had the issue arisen in a trial between the wrongdoers and the plaintiffs a quo. He would have been held liable, jointly or severally with B the respondent, for 40% of the plaintiffs' damage. (Paragraph [173] at 378F - G.)

Held, further, that 40% of the plaintiffs' damages for which the appellant and respondent were jointly liable then fell to be apportioned, applying s 2(8)(a)(iii) of the Apportionment of Damages Act 34 of 1956, between C the appellant and respondent on the basis of their respective degrees of negligence, although considerations of justice and equity also played a role in the apportionment. (Paragraphs [174] - [175] at 378H - 379D.)

Held, further, that the 40% of the plaintiffs' damage for which the appellant and respondent were jointly liable had to be apportioned on an equal basis between them. (Paragraph [177] at 379H.) The net result was that the D appellant was liable for 20%, and the respondent for 80%, of the plaintiffs' damages. (Paragraph [180] at 380C.)

Cases Considered

Annotations

Reported cases

Southern African cases E

General Accident Versekeringsmaatskappy SA Bpk v Uijs NO 1993 (4) SA 228 (A): applied

International Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 (A): dictum at 700F - H applied

Jones NO v Santam Bpk 1965 (2) SA 542 (A): dictum at 555C - D applied

Kakamas Bestuursraad v Louw 1960 (2) SA 202 (A): referred to F

Minister of Safety and Security and Another v Rudman and Another 2005 (2) SA 16 (SCA) ([2004] 3 All SA 667): dictum at 43E - 44J (SA) applied

S v De Bruyn en 'n Ander 1968 (4) SA 498 (A): dictum at 507F - G applied

South British Insurance Co Ltd v Smit 1962 (3) SA 826 (A): referred to.

Foreign cases G

Bonnington Castings Ltd v Wardlaw [1956] AC 613 (HL) ([1956] 1 All ER 615): referred to

Holtby v Brigham & Cowan (Hull) Ltd [2000] 3 All ER 421 (CA): referred to

McGhee v National Coal Board [1972] 3 All ER 1008 (HL): referred to H

Rahman v Arearose Ltd and Another [2001] QB 351 (CA): dictum in para [22] applied

Ravo v Rogatnick 70 NY 2d 305 (514 NE 2d 1104; 520 NYS 2d 533; 9 ALR 5th 1170) (1987): distinguished

Thompson and Others v Smiths Shiprepairers (North Shields) Ltd and Other Actions [1984] QB 405 ([1984] 1 All ER 881): referred to I

Wilsher v Essex Area Health Authority [1988] AC 1074 (HL) ([1988] 1 All ER 871): referred to.

Unreported cases

Allen and Others v British Rail Engineering Ltd and Another [2001] EWCA Civ 242: referred to. J

2007 (4) SA p330

Statutes Considered

Statutes A

The Apportionment of Damages Act 34 of 1956, s 2(1) and s 2(8)(a)(iii): see Juta's Statutes of South Africa...