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South Africa: Supreme Court of Appeal |
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OF SOUTH AFRICA
Case No. 648/97
In the matter
between:
DANIEL JOSEPH
HUGHES Appellant
and
THE
STATE Respondent
Coram: HOWIE, PLEWMAN JJA and MELUNSKY AJA
Delivered: 26 MAY
1999
________________________________________________________
JUDGMENT
_________________________________________________
MELUNSKY AJA/
MELUNSKY AJA:
[1] The deceased died
shortly before 6 am on 23 September 1993. On the previous evening he had been
to a place of entertainment
known as the Sports Cafe, Village Walk, Sandton. The
appellant was one of a number of security officers (colloquially known as
"bouncers")
on duty at the Sports Cafe on the night of 22 to 23 September. He
was employed by Tri-Falcon CC, a close corporation which supplied
security
personnel to various night clubs including the Sports Cafe. At some time after
midnight the deceased was involved in a
fight inside the night club. As a
result two of the security officers, Shane Cass and Brian Kimmel, asked him to
leave and escorted
him outside. The appellant followed them. The deceased was
a well-built young man in his early twenties. At the time of the incident
he
was under the influence of liquor. He became aggressive and, possibly egged on
by one of his companions, taunted some of the
security officers and challenged
them to fight him. Eventually he and the appellant became engaged in a fight in
the car park area
of the night club, in the course of which the deceased fell to
the ground. Whether this was due to the appellant punching or kicking
him is in
dispute. What seems to be certain is that he fell onto the back of his head and
lost consciousness. Some twenty minutes
later he was taken by ambulance to the
Sandton Clinic. Initially he appeared to respond to treatment but he suffered a
relapse and
died without regaining consciousness.
[2] The appellant was
charged in the Randburg regional court with culpable homicide arising out of the
deceased's death. Despite
his plea of not guilty he was convicted and sentenced
to a fine of R3000 or eighteen months imprisonment. A further three years
imprisonment
was conditionally suspended. The appellant's appeal to the
Witwatersrand Local Division (Joffe and Cassim JJ) was unsuccessful but
he was
granted leave to appeal to this Court against his conviction.
[3] The State
case, in short, is that after the appellant and the deceased had fought, and
while the deceased was lying on the ground,
the appellant kicked and tramped on
him (the word "stomped" was used by some of the witnesses), that the kicks
caused internal haemorrhaging
which, in turn, led to cardiac arrest and the
death of the deceased. All of the above-mentioned facts are in issue and it
becomes
necessary to analyse the events in more detail. A convenient starting
point is the medical evidence.
[4] Paramedic personnel of the Sandton Fire
and Emergency Services, including Ian Rex, commenced resuscitating the deceased
at the
car park. The deceased was in a serious condition, with a markedly
depressed level of consciousness, no recordable blood pressure
and very weak
peripheral pulses. He was admitted to the Sandton Clinic at 02:41 where he came
under the care of Dr Soicher. There
was no noticeable improvement in his
condition. X-Rays of his chest and cervical spine showed no abnormalities and
clinical examination
of his chest and abdomen did not reveal blood loss or
internal injuries. A computerised brain scan was obtained and this, too, was
normal. Dr Zwonnikoff, a neurosurgeon, arrived at the clinic while the deceased
was still on the scanning machine. He saw to the
deceased's removal to the
intensive care unit. By this time the deceased's blood pressure had improved,
his peripheral pulses were
satisfactory and his level of consciousness showed
considerable improvement, so much so that Dr Zwonnikoff was able to return to
his home for about 30 minutes. At about 04:30, and while Dr Zwonnikoff was
driving into the clinic to commence his early morning
ward rounds, the
deceased's condition deteriorated. His blood pressure fell and he showed no
response to painful stimuli. He was
placed on a ventilator and was given blood
intravenously. At about 04:45 he suffered a cardiac arrest. Cardio-respiratory
resuscitation
was commenced. It was noted that the deceased's abdomen had
become slightly distended. Despite all attempts at resuscitation, including
intravenous infusions, defibrillation and the administration of intra-cardiac
adrenalin, he died at 05:50. Dr Zwonnikoff and Dr
Soicher assisted in the
resuscitation process and called in a general surgeon when the distension of the
deceased's abdomen gave
rise to a suspicion that there might be a source of
haemorrhage in his abdomen. The surgeon arrived when it was too late to provide
any effective treatment for the abdominal injuries.
[5] The post-mortem
examination on the deceased's body was conducted by the district surgeon of
Randburg, Dr Wilken, on 27 September.
This disclosed a 3,5cm horizontal tear of
the abdominal aorta, extensive bleeding into the peritoneal cavity, into the
liver and
duodenal region and around the pancreas and anterior pericardial sac.
The aorta was not ruptured but the tear is indicative of the
amount of force
that was applied. The cause of death was described as catastrophic abdominal
bleeding. In evidence Dr Wilken explained
that the bleeding was due to the
rupture of the mesenteric vessels. The abdominal injuries were consistent with
the application
of considerable blunt force to the abdomen. The post-mortem
examination also disclosed a small subarachnoid haematoma to the left
temporal
region of the skull which was too small to be picked up by the scan. Although
the head injury probably caused the deceased
to lose consciousness it did not
cause his death. Dr Zwonnikoff agreed with Dr Wilken's view that the most likely
cause of death
was the abdominal bleeding which resulted in inadequate cardiac
output to perfuse the body and, more importantly, inadequate blood
pressure and
blood volume to perfuse the heart itself, thus leading to cardiac
arrest.
[6] Dr Milroy, a pathologist, and Dr Moyes, a specialist
anaesthetist, who gave evidence for the defence, doubted whether the deceased's
abdominal haemorrhage had caused the cardiac arrest. They suggested that a 2.5
milligram dosage of a drug known as Dormicum, which
was administered
intravenously to the deceased in order to sedate him before undergoing the brain
scan, could have resulted in the
cardiac arrest particularly because it was
given to a patient who had consumed a considerable quantity of alcohol. It may
be observed
that the deceased's blood alcohol content at the time was estimated
to be in excess of 0.20 grams per 100 millilitres and that, according
to Dr
Moyes, the combination of Dormicum and alcohol created a high risk of cardiac
arrest. He added, however, that the risk would
be greatly diminished "if you
have an anaesthetist or experienced person to pump oxygen into his
lungs".
[7] Dr Moyes was under the impression that the improvement in the
deceased's condition, which was commented on by Dr Zwonnikoff,
had occurred
before he underwent the brain scan. This was not so. It is quite clear that Dr
Soicher telephoned Dr Zwonnikoff immediately
after he examined the deceased for
the first time, that Dr Zwonnikoff recommended a scan and that Dr Soicher made
the necessary arrangements
for the scan to be taken. When Dr Zwonnikoff arrived
at the clinic, at about 03:00 or 03:15, the deceased was already on the scanning
machine, under the care of a radiologist, Dr Papert, who had been called in by
Dr Soicher. It was after the scan that the deceased's condition improved
and he was admitted to the intensive care unit in an improved condition. He
maintained
his improvement, according to Dr Zwonnikoff, for about 45 minutes to
an hour. Any adverse side-effects of Dormicum would have become
apparent within
fifteen minutes of the administration of the drug. It seems to be inconceivable
that Dormicum could have played
any part in the deceased's death, for not only
did no ill-effects manifest themselves immediately after its administration but
the
indications were that the deceased might have been on the road to recovery
after the scan. It is probable that Dr Moyes' supposition
that Dormicum was
administered to the deceased after the improvement in his condition might have
led him to believe that the drug
had caused the relapse.
[8] Dr Moyes,
moreover, was under the impression that the deceased was first admitted to the
intensive care unit at 04:15 and that
he was then in an "unsalvageable"
condition. He reached this conclusion on the strength of notes apparently made
by members of the
clinic's nursing staff. At the trial the notes were admitted
provisionally, at the instance of the defence, and subject to later
proof.
However, Dr Zwonnikoff testified that he saw to the deceased's admission to the
intensive care unit and it is clear that,
at that stage, the deceased's
condition was still improving. Moreover the deceased must have been admitted to
the unit well before
04:15. Dr Zwonnikoff must have left the clinic at about
04:00, some time after he had taken the deceased to the intensive care section.
(Dr Soicher's statement that he first saw the deceased at 03:15 was clearly
wrong. The deceased arrived at the clinic at 02:41
and Dr Soicher saw him
almost immediately thereafter. He then telephoned Dr Zwonnikoff and arranged
for the scan and Dr Zwonnikoff
arrived at the clinic at about 03:00 or 03:15.)
It is necessary to add that the nursing notes were not proved and, consequently,
no weight can be attached to their contents, where they were in conflict with
the evidence of Dr Zwonnikoff. What is more it was
never suggested to Dr
Zwonnikoff that Dormicum could have been responsible for the deceased's death.
And although Dr Soicher was
asked whether any negative effect was observed
after the administration of the drug, his response, that no negative effect was
noted,
was not challenged by the cross-examiner.
[9] Another issue relating
to the medical aspect raised in this Court concerned the assumption made by Dr
Moyes to the effect that
the deceased was not properly monitored and that
ventilation was not properly applied after the administration of Dormicum. Once
it is accepted, as I do, that the drug was not causally connected to the
deceased's cardiac arrest, the failure to monitor or to
provide ventilation
would appear to be irrelevant in relation to the issues to be decided. In any
event there was no evidence to
support the inferences raised by Dr Moyes. On
the contrary Dr Soicher stated that the deceased was monitored by Dr Papert and
members
of the Sandton Fire and Emergency Services during the scan and it is
quite clear that he suffered no ill-effect while undergoing
the scan. Nor was
it ever put to either Dr Soicher or Dr Zwannikoff that the deceased was not
ventilated. Dr Moyes' assumption
in this regard was based solely on the
unproved and untested nursing notes and no regard should be had to
them.
[10] In the trial court it was suggested by the defence witnesses that
the abdominal bleeding could have been caused by forceful
external cardiac
massage which was employed during the attempt to revive the deceased. This
submission was not argued in this Court
and it is therefore not necessary to
deal with it in any detail. It is sufficient to say that the abdominal
haemorrhage was the
cause, and not the effect, of the cardiac arrest. This is
obvious from the evidence of Dr Zwonnikoff. Indeed no other reason for
the
cardiac arrest was advanced on the appellant's behalf - apart from the question
of Dormicum. Moreover Dr Zwonnikoff made it
perfectly clear that the nature and
severity of the internal injuries could not reasonably have been incurred during
the application
of external cardiac massage.
[11] In the result it has, in
my view, been established beyond reasonable doubt that it was the abdominal
bleeding which resulted
in the cardiac arrest.
[12] The only other matter
raised in this Court in relation to the medical evidence was whether the failure
of the doctors at the
Sandton Clinic to detect the abdominal bleeding before it
was too late to save the deceased's life was a novus actus interveniens.
Counsel for the appellant argued that it was. He submitted that while Rex
detected tenderness in the area of the deceased's liver
when he examined him in
the parking area of the Sports Cafe, the doctors who attended the deceased at
the clinic failed to notice
this on palpation of the patient's abdomen. He also
submitted that internal investigations of the deceased's abdomen would probably
have revealed the presence of blood but the doctors concentrated on the
deceased's head and chest and failed to carry out any abdominal
procedures. In
the circumstances, according to the argument, the doctors were grossly
negligent.
[13] Assuming, without deciding, that negligence of the medical
practitioners would, if established, amount to a novus actus as contended
for on the appellant's behalf, it is clear that the evidence falls far short of
showing that the doctors were negligent.
What is more, it was not suggested to
either Dr Zwonnikoff or Dr Soicher in cross-examination that they were negligent
in the respects
relied upon by the appellant's counsel. In the circumstances
the arguments raised by counsel must fail.
[14] The evidence relating to
the events at the Sports Cafe do not have to be recounted in detail in this
judgment. It may be noted
that there were almost as many versions as there were
observers, possibly because the view of some of the witnesses was partially
obscured by parked cars. In essence, however, there are only two issues that
need to be decided - to what extent and under what
circumstances did the
appellant kick the deceased and whether Kimmel kicked the deceased after he was
lying on the ground.
[15] The second matter can be disposed of with relative
ease. One of the witnesses - Robert Anderson - testified that after the
deceased fell it appeared to him that the appellant kicked him as he lay on the
ground. Anderson did not see the kicks landing as
a parked car obscured his
view but he added that Kimmel then "came in and kicked the deceased as well."
The appellant's counsel
submitted that if it was reasonably possible that Kimmel
had kicked the deceased, the State had not excluded the possibility that
the
deceased's death was caused by Kimmel and not the appellant. The magistrate held
that while Anderson was a "good" and honest
witness, there were shortcomings in
his evidence which might have been due to the fact that he had drunk a
considerable amount of
liquor during the evening. Kimmel, perhaps not
unexpectedly, denied that he had kicked the deceased. He was, however, an
unsatisfactory
witness. What is important is that no other witness supported
Anderson's version concerning Kimmel's alleged assault on the deceased.
In
particular neither Romy Nomis nor her brother, Gary, both of whom witnessed the
incident, saw Kimmel kick the deceased. They
were regarded as satisfactory and
reliable witnesses and it is clear that they would have seen Kimmel kick the
deceased had this
occurred. In the circumstances Anderson's evidence on this
point is not acceptable. It is therefore unnecessary to consider the
possibility that even on Anderson's version the appellant and Kimmel may have
acted with the common purpose of injuring the deceased.
[16] There is some
dispute on whether the deceased or the appellant issued the challenge that
resulted in the fight that ensued.
Everything points to the likelihood that it
was the deceased, and not the appellant, who was the aggressor in this respect.
However,
the appellant's version went further. He claimed that the deceased
attacked him when he requested the deceased to leave the parking
lot and that
the appellant, in fighting back, acted in self-defence. This version was
correctly rejected by the trial magistrate
and by the court a quo. There
is no need to set out the reasons for the rejection of the appellant's version
as nothing was said to persuade us that his evidence
could reasonably possibly
be true in this respect.
[17] Romy Nomis testified that the appellant
"stomped" the deceased on his stomach after he fell to the ground. Her brother
Gary
agreed that the deceased was "stomped" by the appellant but he did not see
what part of the deceased's body was tramped on because
of the presence of
parked cars which interfered with his view. Anderson and André Barnard,
another witness, also confirmed
that the appellant had kicked the deceased after
he had fallen to the ground. Anderson's evidence should, in my view, be treated
with care and although Barnard was found to be an honest witness his evidence
was regarded as unreliable because of his state of
intoxication. Anderson and
Barnard do, however, provide some support for the evidence of Romy and Gary
Nomis and in my judgment
it was clearly established on the evidence as a whole
that the appellant had kicked the deceased after he had been knocked down.
The
appellant, Kimmel and Cass denied that the appellant had kicked the deceased
while he was lying down. Their evidence was unsatisfactory
and was rightly
rejected by the magistrate. What is more, the nature and severity of the
deceased's abdominal injuries provide powerful
confirmation for the fact that he
was kick or tramped on while he was on the ground. There was some evidence that
the appellant
might have kicked the deceased during the course of the fight. In
fact the appellant said that he had kicked the deceased twice
as they fought. I
assume that it is possible, but unlikely, that kicks during the course of the
fight could have caused some of
the abdominal injuries which Dr Wilken described
in his evidence. But as it was established that the appellant did not kick the
deceased in self-defence, he cannot escape legal responsibility for inflicting
any of the injuries during the course of the fight
as there was absolutely no
reason for him to accept the deceased's challenge. There can be little doubt,
moreover, that the kicking
and/or "stomping" while the deceased was lying on the
ground at least contributed to the abdominal injuries if it was not the sole
cause thereof.
[18] The state has therefore established that the deceased
died as a result of an abdominal haemorrhage which was due to the appellant
unlawfully kicking or tramping on the deceased's abdomen.
[19] The only
other matter that has to be dealt with arises out of the fact that after the
appellant's conviction but before sentence
in the regional court, the magistrate
disclosed, after a query raised by the appellant's attorney, that Dr Wilken had
become the
magistrate's house doctor "long after" he had testified in the trial.
The magistrate explained that he had lost confidence in his
previous doctor's
approach to medicine and emphasized that the doctor/patient relationship with Dr
Wilken had not affected his assessment
and evaluation of his evidence. After
receiving this information, the appellant's attorney stated that he accepted the
magistrate's
explanation and added that he would not take matters any
further.
[20] The appellant's counsel suggested that the attorney's
acceptance of the magistrate's explanation did not bind the appellant.
It is
difficult to see why this should be the case. The matter was dealt with in open
court in the presence of the appellant and
the attorney, according to the
record, informed the court that he raised the matter at the request of his
client and that he would
accept whatever answer was given by the court. It is
obvious that the appellant was satisfied with his attorney's approach to the
matter and it is not open to him to now contend that he is not bound by the way
in which his attorney dealt with it.
[21] The appeal is therefore
dismissed.
_________________________
L S MELUNSKY
ACTING JUDGE OF
APPEAL
CONCUR:
HOWIE JA
PLEWMAN JA
SAFLII:
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