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Last Updated: 4 September 2004
THE SUPREME COURT OF APPEAL
OF SOUTH
AFRICA
CASE NO: 218/2003
Reportable
In the matter between
THE MINISTER OF SAFETY AND SECURITY First Appellant
JOHAN JACOBUS BECKER Second
Appellant
and
PIETER NICOLAAS RUDMAN
First Respondent
PETRUS BOTHA SCHABORT
Second Respondent
CORAM: MPATI DP, FARLAM JA et
VAN HEERDEN AJA
HEARD: 23
MARCH 2004
DELIVERED: 18 AUGUST
2004
Summary: Delict – child suffering severe hypoxic
brain damage from near drowning in unsecured family swimming pool –
whether
policeman attending scene and stopping cardio-pulmonary resuscitation
commenced earlier acted wrongfully and negligently and, if
so, whether his
action causally connected with brain damage – applicability of s 2 of
Apportionment of damages Act 34 of 1956
– successive wrongdoers –
person who had left pool unsecured also negligent – allocation of
liability for damages
suffered.
Order set out in para
[90].
JUDGMENT
VAN HEERDEN AJA
Introduction
[1] On 6 October 1997, Roald John Rudman, then a toddler of two years and eight months ('Roald'), fell into the swimming pool at the Pretoria home of his father, the first respondent, Pieter Nicolaas Rudman. The South African Police Service ('SAPS') were summoned to the scene of the accident and the second appellant, Johan Jacobus Becker ('Becker'), then a sergeant with the SAPS, acting within the course and scope of his employment with the first appellant, the Minister of Safety and Security ('the Minister'), attended to the scene together with his colleague, Sergeant Daniël Pienaar. Roald survived this incident (hereinafter referred to as 'the near-drowning incident'), but sustained severe hypoxic brain damage as a result of which he is now a spastic tetraplegic with an epileptic tendency.
[2] This appeal primarily concerns the issues of whether
Becker's actions and/or omissions at the scene of the near-drowning incident,
in
his capacity as a servant of the Minister, were wrongful and negligent. There
are also further issues of whether Becker's negligence,
if it is held to
exist, is causally connected with the brain damage suffered by Roald and, if so,
the extent to which the Minister is
vicariously liable for such
damage.
[3] In September 1998, Mr Rudman instituted an action for
delictual damages against the Minister and Becker in the Pretoria High Court,
acting in his personal capacity as well as in his capacity as Roald's father and
natural guardian. In his particulars of claim he
alleged that Becker, in his
capacity as an official of the SAPS, who attended to the scene where Roald had
fallen into the swimming
pool, owed Roald 'a duty of care' and that Becker
–
'. . . breached this duty of care and acted in a negligent manner in
one or more or all of the following respects :
7.1 He prevented,
alternatively prohibited, further alternatively, hindered, the
continued administration of cardio-pulmonary resuscitation ['CPR'] which had
been commenced and continued throughout
prior to his arrival at the
scene;
7.2 He failed to continue with, alternatively assist with, the
administration of cardio-pulmonary resuscitation upon his arrival at the scene
and thereafter in circumstances where
he could and should have done so;
7.3 He declared baby Rudman [Roald] dead, without examining baby Rudman,
alternatively, whilst he examined baby Rudman insufficiently, further
alternatively, whilst he examined baby Rudman inappropriately, whereas in
truth and fact, baby Rudman was still alive;
7.4 He allowed baby Rudman to
remain without essential cardio-pulmonary resuscitation for approximately ten
minutes in circumstances
where he could and should not have done so.'
[4] The Minister and Becker denied liability. Furthermore, they issued a third party notice, joining the second respondent, Petrus Botha Schabort ('Bo'), Mr Rudman's stepson and the son of Roald's mother, Mrs Elna Rudman, born from a previous marriage, as a third party. They claimed a contribution from him in the event of the trial court holding that Becker acted negligently and that such negligence contributed to the damages suffered by Mr Rudman and Roald. This joinder was based on the allegation that Bo acted negligently in that, although he was aware of the fact that his toddler step-brother, Roald, was on the premises and that there was a danger of his falling into the swimming pool, he (Bo) removed the safety net from the pool, opened the door and security gate leading to the pool, failed to inform the domestic worker looking after Roald of the fact that the pool was unprotected and unattended, and then left the premises, only instructing his seven-year-old sister, Chantal, to look after Roald.
[5] The trial was run during May 2001. At the pre-trial conference held in late April 2001, the parties agreed that 'subject to the honourable court's approval . . . a separation of issues is indicated and [that] at commencement of the trial [they would] apply for an order that the issue of liability be decided first and separately from the issue of quantum. The issue of liability will include the issue of the negligence of the employee of the first defendant as well as the third party, as well as the defendants' special plea and the question of causality.'
At the commencement of the trial, the trial judge, Motata J, made an order, in terms of rule 33(4), to the effect that 'the issue of liability will be decided first, separate from the issue of quantum'.
[6] The trial on the separated issue was concluded during May
2001 and judgment was delivered on 7 June 2002. The trial court declared,
inter alia, that the Minister and Becker were jointly and severally
liable to Mr Rudman for the full extent of such damages as Mr Rudman might
prove
in his personal and/or his representative capacity. The extent of the third
party's contribution to the damages to be paid
by the Minister and Becker was
declared to be 20 per cent.
[7] The appellants now appeal against these
orders of the trial court, leave to appeal having been granted by this Court, on
petition
to it, during April 2003. Although leave to appeal was also granted in
respect of the trial judge's dismissal of the appellants'
special plea
(non-compliance with s 57(2) of the South African Police Service Act 68 of
1995), the appellants are not proceeding
with their grounds of appeal relating
to such special plea. They are also not proceeding with their additional
grounds of appeal,
being those relating to Mr Rudman's alleged vicarious
liability based on the alleged negligence of Mrs Siena Baloi, the domestic
worker who was looking after Roald at the time of the near-drowning
incident.
Factual evidence
[8] As indicated above,
Roald fell into the swimming pool at the Rudman residence in Pretoria whilst he
was in the care of Mrs Baloi
on 6 October 1997. Roald's half-brother, Bo, had on
that day arranged with his friend, Kobus Pienaar ('Kobus'), the manager of the
video shop just up the street from the Rudman residence, at which Bo worked
part-time, to relieve Kobus for a short while so that
Kobus could visit the
Rudman residence for a swim. Before leaving for the video shop, Bo took the
safety net off the swimming pool
and opened both the sliding door of the sitting
room leading out to the swimming pool area, as well as the expanding security
gate
on the sliding door. He did not tell Mrs Baloi that he had done so, nor
did he tell her that he would be leaving the premises, but
simply asked Chantal
to 'watch' Roald.
[9] Mr Rudman testified that, on the afternoon in question, he came home to collect a suit that needed adjustment. On his arrival, he met his step-daughter, Chantal, at the front gate of the property, wearing a swimming costume. Chantal told him that 'they' were waiting to swim with Bo. Having collected his suit from his bedroom, Mr Rudman departed, leaving Roald in the kitchen where Mrs Baloi was preparing the evening meal. He did not see Bo, nor did he know that the safety net had been removed from the swimming pool and that the sliding door and security gate leading to the swimming pool area were open. He left the premises in his car at 16h02 and went to the Menlyn Shopping Centre. A while later, he received a call on his cellular telephone from his wife, telling him that Roald had fallen into the swimming pool and was dead. According to the telephone records handed in as an exhibit by the respondents’ counsel during the trial, this call was made from Mrs Rudman's cellular telephone at 16h36. Mr Rudman asked his wife if somebody was 'doing CPR' and she replied in the affirmative. He sped home, arriving at approximately 16h45, by which time the qualified paramedics were already on the scene, working to revive Roald who was lying on the carpet in the dining room. His wife and one of her colleagues, Mr Cornel Windell, were standing outside the house, together with two policemen, while Bo and Kobus were in the dining room and Mrs Baloi was in, or in the vicinity of, the kitchen. Mr Rudman testified that neither Roald nor Chantal was allowed to be in the swimming pool area without supervision, even when the safety net was fixed on the pool, and that every member of the Rudman household, including Bo and Mrs Baloi, knew that the security gate and door leading to the swimming pool area had to be closed and the swimming pool safety net fixed in place at all times when the pool was not in use.
[10] Mr Rudman further testified that, very early on the morning after the near-drowning incident, Becker came to the Unitas Hospital, where Roald had been admitted the previous day, to enquire about the little boy's condition. He conceded that Becker had no duty to be there and that he was not 'completely insensitive' to what had happened.
[11] Mrs Baloi testified that she had seen the safety net in place on the swimming pool earlier on the day in question. At the time that Mr Rudman left the Rudman residence, she was in the kitchen, cooking. Immediately thereafter, she had, at Roald's request, switched on the television in the sitting room so that he could watch KTV. She had not checked whether or not the sliding door and security gate were open, because she knew that they were always kept closed. She had then telephoned her husband and was again cooking in the kitchen after this telephone call when Kobus arrived to have a swim. (Chantal had told her earlier that Kobus was 'coming to swim with them'.) She had opened the main gate for Kobus by activating the switch next to the front door. Shortly thereafter, as Mrs Baloi was walking from the kitchen to the sitting room to fetch Roald (apparently to go for a swim), she met Chantal who informed her that Roald had fallen into the swimming pool.
[12] Mrs Baloi immediately ran outside to the swimming pool and
found that Kobus had already taken Roald out of the pool and had by
then laid
him on the lawn. According to Mrs Baloi, Roald was lying on his stomach and
Kobus Pienaar was pressing at his back. She
testified that she could see 'the
breathing movement of his body'. She ran back into the house to telephone her
employer (Mrs Rudman)
at the latter's office, which call is recorded as having
been made at 16h15. She told Mrs Rudman that Roald had fallen into the
swimming
pool, whereupon Mrs Rudman said that she was coming home at once. Mrs Baloi
then returned to the swimming pool area and,
apparently acting on Mrs Rudman's
instructions, told Kobus that they must take Roald into the house. Kobus
carried Roald into the
dining room and laid him on the dining room table. He
blew into the toddler's mouth, then used one or more of his fingers to 'try
to
unblock something in his [Roald's] throat or something in his mouth', and
thereafter pressed him on the chest.
[13] Mrs Baloi answered a telephone
call and held the telephone receiver to Kobus's ear while 'Kobus was listening
to the instructions
being given by the rescue people from the ambulance centre'.
It is common cause that Roald was dressed only in a pair of red underpants
and
that neither Kobus nor Mrs Baloi had made any attempt to dry his body off after
he was removed from the pool. Mrs Baloi described
his colour as 'between being
white and red, but not being blue and not black', while she described the
temperature of the toddler's
body as 'not cold . . . warm, not hot but medium'.
She stated that, while Roald was lying on the dining room table, being helped
by
Kobus in the manner described, she (Mrs Baloi) had touched Roald's chest with
her right hand and had listened for a heartbeat
by placing her ear on the
left-hand side of Roald's chest. According to Mrs Baloi, she had heard a
heartbeat but it was 'too low';
the heart was beating 'slowly' and and she could
hear the heartbeat only very faintly. Although she was 'very glad' and had
'some
hope' when she heard and felt the heartbeat, she did not tell Kobus about
this; indeed, she did not speak to Kobus while all this
was going on.
[14] While Mrs Baloi was listening and feeling for the
heartbeat, Kobus was 'busy massaging him and pressing the body'. She thought
that Kobus had been 'working on' Roald in the dining room for about three
minutes when the police (Becker and Sergeant Pienaar) arrived.
She stated that,
when the police arrived, Becker spoke aggressively to Kobus and told him to move
away from the child, as he (Becker)
wanted to see him. Although her evidence was
somewhat unclear in this regard, it would appear that Becker had only told Kobus
to
'move away' from Roald after Becker had examined the child and looked into
his eyes with the aid of a small torch. Becker asked
Mrs Baloi to fetch a
blanket, telling her that the child was dead, and after she had done so, he had
covered the toddler's body with
the duvet she had fetched. She could give no
coherent version as to what had happened after this, but stated that she had
certainly
not seen either Becker or Sergeant Pienaar performing any CPR on
Roald. Although she said in her statement that she had told Becker,
prior to
his examination of Roald, that she had heard a heartbeat and that he had ignored
this information, Mrs Baloi testified in
court that she had not spoken to the
police at all until she was sent by them to fetch a blanket.
[15] Kobus
had just turned twenty at the time of the near-drowning incident. He confirmed
that Bo had offered to relieve him at the
video shop on the day in question so
that he (Kobus) could go for a swim at the Rudman residence. Bo had come to
relieve Kobus at
approximately 16h00 and Kobus had arrived at the Rudman
residence very shortly thereafter. He had pressed the bell at the main gate
and
someone had opened the gate for him, whereafter he had walked around the house
to the swimming pool area.
[16] After having changed into swimming
gear, he found Roald in the swimming pool, floating face down at the shallow
end. The safety
net had been totally removed from the pool. Kobus immediately
jumped into the swimming pool at the shallow end, lifted Roald out
of the water
and, while still standing in the pool, placed the child next to the pool on his
back and looked in his mouth to ascertain
whether there were any 'obstructions'
there. He then turned Roald onto his side and pressed with both hands above the
child's hips
in the area of the 'short rib'. This caused water and a vomit-like
substance to run out of the child's mouth. It would appear that
the latter
substance was the remains of the egg which Roald had eaten for lunch. Kobus
then turned the child back onto his back,
once again looked in his mouth and
'het goed uitgekrap uit sy mond uit'.
[17] When Kobus lifted Roald out of
the swimming pool, the toddler showed no signs of life whatsoever. Kobus
listened to Roald's
chest in order to ascertain whether there was a heartbeat or
a pulse, but there was nothing of the kind. He also looked at the child's
chest
to determine whether he was breathing, but the chest was not moving at all. The
temperature of the body was cold and the colour
was very
pale.
[18] Whilst still standing in the water at the shallow end of the
swimming pool, Kobus put his hand under Roald's head and ensured
that it was
tilted back and that there were no obstructions in his mouth or throat. He then
pinched the child's nose closed, put
his mouth over the child's mouth and blew
five times into his lungs, thereafter pressing with both hands five times on the
child's
chest. He testified that, each time he blew into Roald's mouth, the
child's chest rose and thereafter fell. He performed these
actions
rhythmically, administering approximately five breaths every five seconds,
following by five compressions every five seconds.
[19] While still
standing in the pool, Kobus became nauseous and vomited on the side of the pool.
He therefore climbed out of the
pool and carried Roald to a nearby patch of
lawn, where he continued with the same procedure of alternative mouth-to-mouth
resuscitation
and chest compressions.
[20] At some stage (it is not clear
exactly when) Kobus asked Chantal, who was outside, to fetch somebody to
telephone for help.
Chantal apparently went inside and conveyed the message to
Mrs Baloi, who came outside and was told by Kobus to summon help. Mrs
Baloi
thereafter informed Kobus that the people from the emergency services were on
the telephone, whereupon Kobus carried Roald
into the house, placed him on the
dining room table and continued performing CPR on the child. At no stage,
however, did the child
show any reaction whatsoever to the CPR, remaining
without any sign of life, his body temperature remaining cold and his colour
very
pale.
[21] While in the dining room, Kobus spoke very briefly over
the telephone to an official from the emergency services, while Mrs Baloi
held
the telephone receiver to his ear and he continued with CPR. As far as Kobus
could recall, the telephone conversation lasted
only a few seconds, the official
simply telling him to look in the child's throat, to blow into his mouth and to
compress his chest.
According to Kobus, he was satisfied that he was already
doing these things correctly. Kobus further testified that, while he was
performing CPR on Roald on the dining room table, he saw Mrs Baloi holding her
ear next to Roald's upper body, apparently listening
for a heartbeat. Mrs Baloi
had not, however, told him whether she had heard a heartbeat or anything else,
and he had not asked.
[22] According to Kobus, he had been performing CPR
on Roald for a total of between ten and fifteen minutes when two policemen
(Becker
and Sergeant Pienaar) arrived at the Rudman residence. Becker came over
to Kobus and told Kobus in a rather brusque manner (`'n
bietjie van 'n krasse
manier') to stand aside. Kobus did so, because Becker was a policeman and he
(Kobus) was under the impression
that the police were going to 'take over the
situation' and that they would continue with the resuscitation.
[23] Becker then examined Roald, lifting up his arm and feeling for a
pulse, shining a little torch into the child's eyes, and bending
down and
looking into the child's mouth. Kobus conceded that, at that time, Roald's body
was still lifeless, cold and very pale.
Although Kobus agreed that Becker had
not found any pulse, he was not able to confirm Becker's evidence to the effect
that, when
Becker shone the torch into the child's eyes, the pupils were fully
open, fixed and dilated. Becker then said quite loudly that
Roald was dead and,
for this reason, he told Mrs Baloi to fetch a blanket to cover the child. Kobus
stated that he was so astounded
('verbaas') when Becker said that Roald was dead
that he did not know what to think. He asked Becker if there was not anything
more
that they could do ('ek het vir hom gevra of ons nie nog iets kan doen nie,
of ons nie moet aangaan of wat kan ons doen nie'), but
Becker replied in the
negative. Like Mrs Baloi, Kobus insisted that neither Becker nor Sergeant
Pienaar had performed any form of
CPR on Roald, in contrast to the evidence of
Becker and Sergeant Pienaar to the effect that they had commenced with CPR, but
had
stopped very shortly thereafter.
[24] As stated above, Kobus
testified that he had ceased performing CPR on Roald when told by Becker to
stand aside, because Becker
was a policeman and he (Kobus) thought that Becker
was going to 'take over the situation' and continue with resuscitation. When
this did not happen, despite Kobus asking Becker whether there was not something
more that they should be doing, Kobus felt helpless
and accepted Becker's
statement that Roald was dead. He did so because Becker's actions in 'taking
over the situation' and examining
the child made him think that Becker knew what
he was doing. He conceded, however, that at the stage when Becker examined the
child,
there were still no signs whatsoever that Roald was
alive.
[25] According to Kobus, approximately ten minutes after he had
been instructed by Becker to stand aside and had ceased performing
CPR on Roald,
Mrs Rudman arrived at the house, together with Mr Windell.
[26] In his
affidavit, Kobus stated that shortly after Mrs Rudman and Mr Windell had arrived
at the house, further policemen arrived,
one of whom was a paramedic, and the
latter then resumed performing CPR on Roald. This was at about 16h30. He also
stated in his
affidavit that the time lapse between the time that he stopped
performing CPR on Roald and the time when CPR was resumed 'would have
been
approximately ten minutes'. He inferred that one of the policemen was a
paramedic because he was carrying a small medical bag
and, as Kobus could
recall, he gave Roald an injection (which Kobus assumed was an adrenaline
injection) directly into the child's
lungs. According to Kobus, the policeman
with the medical bag (apparently Sergeant Louis Adriaan Nel) who had given Roald
the injection,
had also started with CPR. Other paramedics thereafter arrived
at the Rudman residence. They put a pipe into Roald's trachea and
lungs and
worked on Roald, using a machine with electrical leads and sensor points, until
a pulse was detected, whereafter Roald
was rushed to hospital in an
ambulance.
[27] Kobus's brother had explained to him how to do CPR when
he (Kobus) was in standard six or seven. His brother, who was a medical
student
at that time, had demonstrated on Kobus how CPR should be performed, although
the CPR which he had demonstrated was that
applicable to adults. Since that
time, Kobus had not had the opportunity to apply what his brother had taught
him. When asked in
chief how he knew that the CPR should be continued until
Roald revived or until somebody arrived him to assist him, Kobus answered
as
follows:
'. . . Jy sien dit orals, jy kan dit op TV ook sien. Jy moet aanhou
tot iemand jou kom hulp bied, tot die ambulans aankom en hulle
kan
aangaan.'
According to Pienaar, if Becker had indicated to Kobus that he
(Becker) did not know how to do CPR, Kobus would have continued with
the CPR
which he was doing until expert help arrived.
[28] Mrs Rudman testified
that, on the day of the near-drowning incident, she was at her place of
employment when she received a call
from Mrs Baloi at 16h15, telling her that
Roald had fallen into the swimming pool and that she should come home at once.
She immediately
thereafter telephoned the emergency services, told them what had
happened, gave them her address and asked them to send help to her
home, as also
to telephone her home to give instructions how to perform CPR. This call was
made at approximately 16h17. At that
stage, she thought only Mrs Baloi and her
seven-year-old daughter, Chantal, were at home and was unaware that Kobus was
also there.
[29] Mrs Rudman then left her office and a friend, Mr
Windell, drove her in her own vehicle to her residence. While travelling in
the
motor vehicle on her way home, she made two telephone calls on her mobile phone,
one to her husband's office (recorded at 16h19)
in a futile attempt to contact
him, and the second one (recorded at 16h21) to her home. According to Mrs
Rudman, during the second
telephone call, she spoke to her daughter, and 'in a
child-like way that she would understand I explained to her what to do until
we
arrived home'. Under cross-examination, she elaborated by saying that she had
told her daughter to continue rubbing Roald's chest,
closing his nose and
blowing into his mouth, doing this rhythmically until she got there. She
testified that she knew how important
it was for Roald to get immediate
attention after being removed from the swimming pool, and that she had gained
this knowledge 'from
reading and listening'. She had never performed CPR on
anybody or even on a model, but knew about CPR from what she had seen on
'actuality programmes or on TV'. At a later stage in her evidence under
cross-examination, Mrs Rudman stated that she had not asked
Kobus how he had
performed the CPR, as she was not a medical expert and she thought that, even if
he had explained to her what he
had done, she would not have understood it. She
had asked the emergency services to give telephonic instructions how to do CPR
and
she had trusted that the instructions given were correct. When asked by
counsel for the appellants what the correct method was of
performing CPR on an
infant, she refrained from answering this question, stating that she was not a
medical expert.
[30] From her affidavit, it would appear that she and Mr
Windell arrived at the Rudman residence at about approximately 16h25, about
the
same time as her eldest son, Bo. She jumped out of the car while it was still in
motion and ran into the house. Two policemen
were already on the premises. One
of them who was outside the house (apparently Sergeant Pienaar) followed her
inside and the other
(apparently Becker) was already in the dining room,
standing at the dining room table on which Roald was lying. Roald's whole body,
including his head, was covered by a duvet. She was about three paces away from
Roald when Sergeant Pienaar stopped her by holding
her arm and Becker lifted the
duvet, telling her that her son was dead. Her son's body looked very pale. Mr
Windell had in the meantime
stopped the car and followed her into the house,
while her son Bo had run into the house with her. Kobus was already in the
dining
room.
[31] Upon being told that her son was dead, she was
'terribly shocked' and 'very upset' and ran out of the house. As she stated in
her affidavit :
'I lost total control of the situation for a period and
cannot calculate the time that passed since then in that I was in total
shock'.
After spending a short while outside, she re-entered the house,
spoke to Mrs Baloi in the kitchen, and then went to her bedroom to
try to
telephone Mr Rudman, once again without success. She then went outside again,
where she saw a police vehicle, which was driving
very fast, stopping abruptly
in front of the house. Two policemen got out of the vehicle and entered the
house. Mr Windell told
her that these people would perform CPR on Roald. She
returned to the bedroom and used her cellular telephone to telephone her
sister-in-law
(at 16h35) to tell her what had happened and that Roald was dead.
She testified that this was shortly after the second group of
policemen
(Sergeants Nel and Binneman) arrived.
[32] At 16h36, she eventually got
through telephonically to her husband on his cellular telephone number and told
him what had happened.
She waited outside the house for Mr Rudman, who arrived
shortly thereafter and who went inside to check what was going on, while
she
remained outside. A while after the second set of policemen - who had
recommenced CPR - arrived, an ambulance arrived with paramedics.
She was still
outside at that time talking to Mr Windell and Becker. Her evidence was that,
when Becker told her that her son was
dead and also subsequently, he spoke to
her abruptly and roughly, certainly not in a soothing or comforting
way.
[33] After the emergency personnel had arrived in the ambulance, she
knew that they were performing CPR and 'eventually, what felt
like hours later',
she was told that they had detected a pulse. Roald was then taken by ambulance
to the Unitas Hospital.
[34] According to Mrs Rudman, Becker was
responsible for what had happened to Roald because 'he should not have declared
my son dead'.
She conceded, however, that Becker had answered a call for help,
had driven to her home at high speed to render assistance and had
found a
critical situation upon arrival there. She also conceded that, if in
fact Roald had been dead at the time he was examined by Becker, putting a
blanket over his body 'would have been a humane thing
to do'. Nevertheless, she
reiterated her strong belief that the CPR should have been continued by Kobus,
who had received telephonic
instructions from the emergency services, until
expert help arrived and that Becker should not have caused the CPR to be
interrupted.
She was of the view that her son's brain damage was (at least
partially) the result of the interruption, on Becker’s instructions,
of
the CPR being performed by Kobus, and she blamed Becker for this.
[35] As
indicated above, Mr Windell drove Mrs Rudman to her home after she had received
the telephone call from Mrs Baloi. He was
in fact with her in her office when
this call had come through. On the way to the Rudman residence, he had driven
'fairly fast with
hazards on and my emergency lights', although the traffic at
that time was 'fairly high or dense' because it was peak time. They
arrived at
the Rudman residence at approximately 16h25 and Mrs Rudman's daughter, Chantal,
ran out and told Mrs Rudman that Roald
was dead. Mrs Rudman, who was
understandably 'very, very upset' at that stage, ran into the house, Mr Windell
following two to five
metres behind her. He was on his way to the front door
when Mrs Rudman, who had been in the house for a very short period, came
running
out again, 'shouting and screaming'.
[36] Mr Windell then entered the
house and saw Roald lying on the dining room table covered with a duvet. Mrs
Baloi and Kobus were
near the table on which Roald was lying, Mrs Baloi crying
and Kobus in a state of shock. According to Mr Windell, he thought that
he
would attempt to start CPR on the little boy and he therefore went up to the
table and removed the duvet. Roald was very pale
and cold, but Mr Windell did
not listen for any breathing, try to find a pulse or to detect any breathing, or
check the pupils of
the child's eyes. When asked under cross-examination why he
wanted to start CPR, he stated that 'I just thought that I am going
to try
something. Elna is a friend of mine and maybe, maybe we can, I can do
something.' He had previously been in the police force
and, although he had had
a bit of training in CPR in the police college, using a model, he had never
himself performed CPR on a person.
He testified that, when he was in the police
force, this 'bit of training' was part of the basic training that all policemen
received.
[37] Before Mr Windell was able to start performing CPR on
Roald, another policeman from the flying squad, whom he knew very well
and with
whom he had worked, one Pierre Binneman ('Sergeant Binneman'), arrived at the
house, accompanied by Sergeant Nel whom Mr
Windell did not know. As Mr Windell
knew that 'Pierre was a medic or had medic experience', he left the situation to
Sergeant Binneman
and walked out of the house. He testified that Sergeants Nel
and Binneman took Roald off the table and 'were busy with the child'
as he (Mr
Windell) left the house.
[38] Mr Windell recalls the paramedics arriving
on the scene in an ambulance approximately fifteen minutes after the arrival of
Sergeants
Nel and Binneman. He was still at the house after Roald was taken by
ambulance to the hospital. He also remembered Mr Rudman arriving
at the house
just before the ambulance took Roald away. According to Mr Windell, Mr Rudman
was 'also quite out of it, hysterical,
did not know what had happened'.
[39] Sergeants Nel and Binneman, members of the Highway Patrol at the relevant
time, were patrolling in their vehicle on the afternoon
in question when they
heard a radio call made from a Lyttelton police vehicle to the relevant police
station requesting an ambulance
for a child who had possibly drowned. Because
Sergeant Nel was a police diver and had also been trained by the military in
emergency
help (he was a Level 3 emergency worker), they decided to react to the
call as they knew that they could get to the scene quicker
than the emergency
services. Neither of them was able to say how long it had taken them to get to
the Rudman residence, but they
had driven relatively fast in a BMW 328i, using
their siren and emergency blue lights. They thought that they must have picked
up
the call after 16h00 because it was already peak traffic
time.
[40] They arrived at the Rudman residence after Becker and Sergeant
Pienaar. Sergeant Nel asked Becker and Sergeant Pienaar what had
happened and
was told that a child had fallen in the pool and had drowned or almost drowned.
They immediately took Sergeant Nel,
with Sergeant Binneman close on his heels,
to the dining room where they found Roald lying on the dining room table
completely covered
with a duvet. It would appear that Kobus was in the dining
room at that time, while Mrs Baloi was screaming hysterically in the
kitchen.
[41] Sergeant Nel removed the duvet, finding Roald's body to be
ice cold and already showing sianotic patches (viz the skin had a
bluish tinge).
Roald did not react to Sergeant Nel's voice. Sergeant Nel performed a finger
sweep in Roald's mouth and found what
looked like food and mucus ('slym') there,
which he removed. He held his ear to the child's mouth, listening and feeling
with his
cheek for any breathing, while at the same time touching the child's
chest with his hand. This he did for ten seconds, as he had
been trained to do,
without any success. He also used a stethoscope held against the child's chest
to try to find a heartbeat, while
feeling for a brachial pulse at the child's
wrist. This too he did for ten seconds, as he had been trained, without any
success.
It would appear that Kobus told him that, although they did not know
how long the child had been in the water, CPR had already been
performed.
According to Sergeant Nel, Roald's Glasgow Coma scale was three (the lowest
possible figure), as the child had showed
no reaction whatsoever to sound or to
pain and his eyes did not react in any way to light.
[42] It was at this
stage that Sergeant Nel decided to do CPR :
'Toe moet ek vir myself besluit
of ek kan begin om KPR [te doen] of ek dit gaan los waarop ek besluit het ek
gaan probeer en ek het
die kind van die tafel afgehaal en op die vloer
neergesit.'
He took this decision because, if someone had already
performed CPR, there was perhaps a small possibility that this could have
helped.
[43] Once the child had been lifted from the table onto the
floor, Sergeant Nel performed another finger sweep to check whether there
were
any obstructions in his mouth. At that stage, the paramedic, Mr Jan Adriaan
Oosthuizen, from the Pretoria Fire Department and
Ambulance Services, arrived on
the scene. According to Sergeant Nel, Mr Oosthuizen took over the scene as he
was much better qualified
to deal with the situation than Sergeant Nel.
Sergeant Nel could not remember whether, by this time, he had 'ventilated' the
child
at all. Helped by Sergeant Nel, Mr Oosthuizen began with active and
advanced resuscitation, intubating the child (ie putting a pipe
into the child's
trachea and into the lungs), and making use of a so-called 'ambusack' to pump
air into the child's lungs. Sergeant
Nel also testified that Mr Oosthuizen had
made use of a heart monitor, but that he himself did not understand how such
equipment
worked. Sergeant Nel estimated that Mr Oosthuizen had 'worked on' the
child for between thirty and forty-five minutes before a heartbeat
was detected.
He reiterated that, at the time that he, Sergeant Nel, had examined the child,
he had found the body to be completely
lifeless.
[44] It is also
important to note that Sergeant Nel testified that he had not received any
instruction in CPR or other such 'behandeling'
during his police college
training (he had joined the SAPS in December 1988, while Becker had joined in
January 1986), although he
had received some training in emergency help. He
conceded that, before he had done his course in emergency help at the military
base, he had 'reeds geweet daar is iets soos KPR en min of meer wat dit is'. He
also conceded that, before he had received his formal
training, he knew that CPR
was an important component in an attempt to save somebody, particularly in the
case of a drowning. However,
although his wife was a paramedic, it was only
when he had done his formal training in emergency help that he had learnt how
CPR
actually worked ('hoe dit regtig werk'). The course which he had done at
the military base (in Gauteng) in about 1997 had stretched
over five weeks and
had qualified him as a Level 3 emergency helper. At the time of the trial, he
was no longer registered as such,
because his qualification had to be renewed
every three years by writing a refresher examination and he had not done this.
As far
as he knew, Sergeant Binneman had no similar
qualifications.
[45] The following exchange between counsel for the
respondent and Sergeant Nel, during the latter's cross-examination, is an
important
one:
'Sou dit korrek wees om te sê sersant, dat as iemand by
u gekom het voordat u self formele opleiding gekry het en vir u gesê
het
moet 'n mens probeer met KPR en as jy eers begin het daarmee moet jy ag, sommer
na 'n rukkie net ophou of sou u, is u kennis
dat 'n mens moet aanhou so lank
soos wat jy kan totdat iemand daar kom wat regtig weet wat aangaan? - - - Dit
sal moeilik wees vir
my om so te antwoord. Na my opleiding kan ek vir u
sê ja, 'n ou kan nie net ophou met KPR nie.
U kan nie onthou wat u
kennis was vantevore nie, lei ek af. - - - Dit is moeilik. Ek kan nie sê
of ek sou dit geweet het of
ek dit nie so geweet het nie.
Sersant, kom ons
soos hulle sê, "let's talk frankly". Ek verstout my om te sê daar
is, ek wonder of daar mense is wat
nie weet, ek praat nie van doktors en
paramedici en noodhulpers, volgens wat u nou al gesien het – u het moes
nou al 'n bietjie
rondbeweeg in die wêreld – dat daar kwalik mense
wat nie weet (ek praat nou van volwassenes) dat as jy met KPR begin
moet jy
aanhou so lank as wat jy kan. Nie waar nie? - - - Dit is waar, maar die
voorbeeld wat jy gebruik het soos op TV's en dié
goed. Ek kan selfs my
opleiding vat. Die manier wat ek KPR geleer is en die manier wat ek nou al
gesien het hoe paramedici KPR
doen verskil ook van mekaar. So daar is –
ek kan nie met eerlikheid sê dat ek dit sou gedoen het of ek sou só
gemaak het nie.
Wel, in dié geval wou ek dit doen. - - - Op
dié spesifieke dag sou ek alles in my vermoë gedoen het om daardie
kind te probeer help.'
[46] Mr Oosthuizen, the paramedic who took over
from Sergeant Nel, conceded that his independent recollection of the incident
was
rather vague (obviously because of his frequent involvement in multiple
trauma incidents – between eight and twelve such incidents
in an eight
hour shift). Nevertheless, he testified that he 'took over the scene' and
treated Roald according to 'protocol', inter alia intubating Roald,
administering adrenaline (as far as he could remember), and using an ECG
monitor, with leads and electrodes placed
on the patient, to detect electrical
current in the heart, if any. He could not remember how long it took before he
detected a pulse,
although in his statement, made some ten months after the
near-drowning incident, he stated that :
'Na 'n hele paar minute het ek 'n
pols teruggekry en besluit om die kind na die Unitas Hospitaal te neem vir
verdere behandeling wat
toe ook gedoen is.'
He conceded under
cross-examination that he would not have used the words `'n hele paar minute' if
it had taken thirty to forty-five
minutes (as was estimated by Sergeant Nel) to
detect a pulse.
[47] When asked by counsel for the appellants why he had
commenced with resuscitation despite the child's apparent lifeless condition
(ie, ice-cold, no breathing, no heartbeat, no reaction to external stimuli), he
responded as follows :
'In die eerste plek, dit is my werk. Ons moet maar
altyd probeer en oor die geskiedenis wat ek gekry het baie vaag was. Niemand
kon vir my sê hoe lank die kind onder die water was nie en hoe lank die
kind al so was nie, en 'n ou probeer.'
It is also important to note that
when asked by counsel for the appellants whence he obtained his knowledge that,
particularly in
the case of a drowning, one should not stop CPR until qualified
medical personnel arrived to take over, Mr Oosthuizen stated that
'ek is dit
geleer uit boeke uit en deur my opleiding'.
[48] As regards the
evidence given by both Becker and Sergeant Pienaar, it is in my view clear from
the record as a whole that counsel
for the first respondent was correct in his
submission that both were in many respects unreliable witnesses and that,
insofar as
their evidence differed from the evidence given by Kobus and Mrs
Baloi, the evidence of the lastmentioned two witnesses should be
accepted.
[49] It would appear that, whilst on police motor patrol on the
day in question, Becker and Sergeant Pienaar (the driver of the police
motor
vehicle) received a radio message concerning a possible drowning at an address
in Wingate Park (the Rudman residence). At
that time, they were some 11.8
kilometres away from the Rudman residence. As pointed out by counsel for the
appellants, they could
not have received this radio message any earlier than
16h17, the approximate time at which Mrs Rudman telephoned the emergency
services
from her office, as this call still had to be relayed to the police
radio control room and sent out to police vehicles within its
reception area.
It would appear that they immediately proceeded as quickly as possible to the
address given, taking approximately
seven minutes (in peak hour traffic) to
reach the scene.
[50] Upon entering the house, they found a small boy
lying on the dining room table, with an unknown young man (Kobus) giving the
child mouth-to-mouth resuscitation. Although both testified that Kobus was
struggling and was performing the CPR incorrectly, neither
was able to explain
at all convincingly what Kobus was doing incorrectly. Becker approached the
table and told Kobus to stand aside.
Under cross-examination, Becker conceded
that he was upset, that he spoke in a louder tone than usual, and that he might
have shown
some of the emotion which he was feeling at that
stage.
[51] Becker then apparently examined the child, feeling for a
pulse, possibly listening to Roald's chest for a heartbeat, and shining
a little
torch into the child's eyes. There were no signs of life whatsoever – the
body was very cold and very pale and the
pupils of the child's eyes were dilated
and fixed.
[52] Both Becker and Sergeant Pienaar testified that they
'took over' the performance of CPR from Kobus, Sergeant Pienaar performing
the
mouth-to-mouth resuscitation while Becker performed chest compressions. In my
view, however, it is clear from the record as
a whole that, after Becker had
told Kobus to stand aside and had examined the child, he had concluded that the
child was dead and
had asked Mrs Baloi to fetch something to cover the child's
body. He had then covered the body completely with the duvet which Mrs
Baloi
had fetched. When asked why he had done so, he responded as follows :
'Omdat
Roald vir my . . . na my mening dood was wou ek hom bedek. Dit was vir my
toepaslik om hierdie klein seun toe te maak dat
almal hom nie kan sien nie. Dit
is vir my waaroor dit gegaan het.'
[53] That Becker had believed from the
outset that Roald was dead and that neither he, nor Sergeant Pienaar, had
performed any CPR
on the child, was the version put several times to Becker by
the first respondent's counsel during cross-examination. In my view,
this was
established by the first respondent on the requisite balance of probabilities,
having regard to the record as a whole.
It is, however, important to note that
it was not suggested at any stage by the first respondent that Becker's belief
that Roald
was dead was not a genuine and bona fide belief, nor was this
put to Becker during cross-examination.
Expert
evidence
[54] Most of the expert evidence given during the trial for both
sides was devoted to the effectiveness or otherwise of the CPR performed
by
Kobus on Roald after the child had been removed from the swimming pool. All the
experts also testified on the question whether
the discontinuation of such CPR
upon Becker's instructions and Becker's failure himself to perform CPR on the
child, coupled with
Becker's conclusion that Roald was dead and his decision to
cover the child completely with a duvet, caused or significantly contributed
to
the brain damage ultimately suffered by Roald. Much of the judgment of the
trial court was devoted to an analysis of the expert
evidence on both sides, the
trial court ultimately concluding that the neurological outcome for the child
would have been significantly
different if Becker had not intervened and caused
the CPR being performed by Kobus to be stopped. However, in argument before
this
Court, counsel for the appellants conceded that, on the expert evidence as
a whole, the respondents had succeeded in proving, on
the requisite balance of
probabilities, that there was a causal connection between Becker's conduct in
causing the CPR to be discontinued
and at least some of the brain damage
ultimately sustained by Roald.
[55] From the expert evidence as a
whole, including that given by the experts for the respondents, it is clear that
at least part
of the irreversible brain damage sustained by Roald was caused by
the initial submersion in the swimming pool and that this damage
could well have
been significant. The experts for both sides were agreed that it was simply not
medically possible to determine
to what extent the interruption of the CPR upon
Becker's instructions exacerbated the brain damage suffered by Roald and
contributed
to his present condition. In view of the conclusion which I have
reached on the aspects of wrongfulness and negligence, however,
it is not
necessary to analyse the medical evidence on the aspect of causation in any
further detail.
Existence of legal duty
(wrongfulness)
[56] Before this Court, counsel for the first respondent
submitted that the latter's case in the trial court was not that Becker had
a
special legal duty imposed upon him solely by reason of the fact that he was a
policeman, and that Mr Rudman's case would have
been exactly the same even if
Becker had not been a policeman but a member of the public. To my mind, this
submission is not really
borne out by the manner in which the particulars of
claim were framed.[1] Moreover,
counsel for first the respondent submitted further that the case against Becker
(and hence also against the Minister)
was that Becker, being in a position of
authority, elected to exercise authority, purposely interfered with the
steps which were being taken to administer CPR and assumed responsibility.
According to counsel, this imposed upon Becker a legal duty vis à vis
Roald, as a matter of common sense and justice, and
because, in the
circumstances of this case, it was fair, just and reasonable to impose such a
duty. Moreover, the imposition of
such a duty would be in accordance with the
legal convictions of the community, which would demand that Becker's
interference with
the CPR which Kobus was performing; his failure himself to
perform CPR on the child; his conclusion in the absence of the required
medical
knowledge that Roald was dead; and his decision to cover Roald's body with a
duvet, ought to be regarded as unlawful.
[57] Insofar as the negligence
relied upon by the first respondent consists in positive acts by Becker causing
physical harm to Roald,
it is presumed to be
unlawful.[2] Thus, Becker's conduct
in interrupting the CPR which Kobus was performing at the time of Becker's
arrival at the scene of the near-drowning
incident, his conclusion in the
absence of the required medical knowledge that Roald was dead, and his decision
to cover the child's
body with a duvet, give rise to a presumption of
wrongfulness in respect of such conduct. However, insofar as Becker's alleged
negligence
consists of his failure - after having caused the CPR which Kobus was
performing to be ceased - himself to perform CPR on the child,
this omission
would be wrongful only if it occurs in circumstances that the law regards as
sufficient to give rise to a legal duty
to avoid negligently causing
harm.
[58] The test for determining the wrongfulness or otherwise of an
omission or failure to act in the context of an action for delictual
damages was
formulated as follows by this Court in Van Eeden v Minister of Safety and
Security (Women's Legal Centre Trust, as Amicus
Curiae):[3]
'[9] . . . An
omission is wrongful if the defendant is under a legal duty to act positively to
prevent the harm suffered by the plaintiff.
The test is one of reasonableness.
A defendant is under a legal duty to act positively to prevent the harm to the
plaintiff if
it is reasonable to expect of the defendant to have taken positive
measures to prevent the harm. The Court determines whether it
is reasonable to
have expected of the defendant to have done so by making a value judgment based,
inter alia, upon its perception of the legal convictions of the community
and on considerations of policy. The question whether a legal duty
exists in a
particular case is thus a conclusion of law depending on a consideration of all
the circumstances of the case and on
the interplay of the many factors which
have to be considered. See the judgment of this Court in Carmichele
[Carmichele v Minister of Safety and Security and Another 2001 (1) SA
489 (SCA)] at para [7] and recent decisions of this Court in Cape Town
Municipality v Bakkerud 2000 (3) SA 1049 (SCA) paras [14]-[17]; Cape
Metropolitan Council v Graham 2001 (3) SA 1197 (SCA) para [6]; Olitzki
Property Holdings v State Tender Board and Another 2001 (3) SA 1247 (SCA)
paras [11] and [31]; BOE Bank Ltd v Ries 2002 (2) SA 39 (SCA) para [13]
and the unreported judgment of this Court in Minister of Safety and Security
v Van Duivenboden, case No 209/2001 delivered on 22 August 2002 [now
reported at 2002 (6) SA 431 (SCA)], para [16].
[10] In applying the concept
of the legal convictions of the community the Court is not concerned with what
the community regards
as socially, morally, ethically or religiously right or
wrong, but whether or not the community regards a particular act or form
of
conduct as delictually wrongful. The legal convictions of the community must
further be seen as the legal convictions of the
legal policy makers of the
community, such as the Legislature and Judges. . . . '.
[59] In
Minister of Law and Order v
Kadir,[4] this Court,
dealing with the alleged wrongfulness of the conduct of two police constables in
failing to take down the particulars
of an offending driver and his vehicle,
which information would have enabled the seriously injured respondent to pursue
a claim against
the Multilateral Motor Vehicle Accidents Fund, despite such
constables having been informed by a witness to the collision of the
circumstances under which it occurred, stated as follows :
'As the judgments
in the cases referred to earlier demonstrate, conclusions as to the existence of
a legal duty in cases for which
there is no precedent entail policy decisions
and value judgments which "shape and, at times, refashion the common law [and]
must
reflect the wishes, often unspoken, and the perceptions, often dimly
discerned, of the people" (per M M Corbett in a lecture reported sub
nom 'Aspects of the Role of Policy in the Evolution of the Common Law' in
(1987) SALJ 104 at 67). What is in effect required is that, not merely
the interests of the parties inter se, but also the conflicting interests
of the community, be carefully weighed and that a balance be struck in
accordance with what the
Court conceives to be society's notions of what justice
demands.'
[60] In Knop v Johannesburg City
Council[5] Botha JA stated that
the general nature of the enquiry in this regard is correctly set out in the
following well-known passage in
Fleming The Law of Torts 4 ed at 136 (as
quoted in Administrateur, Natal v Trust Bank van Afrika
Bpk):[6]
'In short, recognition
of a duty of care is the outcome of a value judgment, that the plaintiff's
invaded interest is deemed worthy
of legal protection against negligent
interference by conduct of the kind alleged against the defendant. In the
decision whether
or not there is a duty, many factors interplay: the hand of
history, our ideas of morals and justice, the convenience of administering
the
rule and our social ideas as to where the loss should fall. Hence, the
incidence and extent of duties are liable to adjustment
in the light of the
constant shifts and changes in community
attitudes.'[7]
[61] In this
case, Roald's 'invaded interest' is his right to bodily integrity and security
of the person, a right long regarded in
our law as 'one of an individual's
absolute rights of personality'.[8]
As is abundantly clear from the inclusion of this right in the Bill of Rights in
both the 1993 and the 1996
Constitution,[9] it is most certainly
a right 'deemed worthy of legal protection'. However, it must be emphasised
that:
'[21] When determining whether the law should recognise the existence
of a legal duty in any particular circumstances what is called
for is not an
intuitive reaction to a collection of arbitrary factors but rather a balancing
against one another of identifiable
norms. Where the conduct of the State, as
represented by the persons who perform functions on its behalf, is in conflict
when its
constitutional duty to protect rights in the Bill of Rights, in my
view, the norm of accountability must necessarily assume an important
role in
determining whether a legal duty ought to be recognised in any particular case.
The norm of accountability, however, need
not always translate constitutional
duties into private law duties enforceable by an action for damages, for there
will be cases
in which other appropriate remedies are available for holding the
State to account. Where the conduct in issue relates to questions
of the State
policy, or where it affects a broad and indeterminate segment of society,
constitutional accountability might at the
time be appropriately secured through
the political process or through one of the variety of other remedies that the
courts are capable
of granting . . . There are also cases in which non-judicial
remedies, or remedies by way of review and mandamus or interdict, allow
for accountability in an appropriate form and that might also provide further
grounds upon which to deny an action
for damages. However, where the State's
failure occurs in circumstances that offer no effective remedy other than an
action for
damages the norm of accountability will, in my view, ordinarily
demand the recognition of a legal duty unless there are other considerations
affecting the public interest that outweigh that norm . . .
[22]. . . It
might be that in some cases the need for effective government, or some other
constitutional norm or consideration of
public policy, will outweigh
accountability in the process of balancing the various interests that are to be
taken into account in
determining whether an action should be allowed, as there
were to be found in Knop v Johannesburg City Council [supra] . . .
I accept (without deciding) that there might be particular aspects of police
activity in respect of which the public interest
is best served by denying an
action for negligence . .
.'.[10]
[62] As was pointed
out in both Van
Duivenboden[11] and in the most
recent Carmichele (SCA)
case,[12] where there is no
effective way to hold the State to account other than by way of a private law
action for damages, and in the absence
of any norm or consideration of public
policy that outweighs it, a legal duty should be recognised unless there are
public policy
considerations which point in the other direction.
[63] In
my opinion, there are, in the circumstances of this case, compelling public
policy considerations which militate against imposing
upon policemen such as
Becker any positive duty to save people from drowning or to administer CPR on
near-drowning victims. As emphasised
by this Court in Minister of Law and
Order v Kadir:[13]
'. . . The
police force is first and foremost an agency employed by the State for the
maintenance of law and order and the prevention,
detection and investigation of
crime with a view to bringing criminals to justice.'
Thus, in terms of s
205(3) of the 1996 Constitution:
'The objects of the police service are to
prevent, combat and investigate crime, to maintain public order, to protect and
secure the
inhabitants of the Republic and their property, and to uphold and
enforce the law.'
So too, under the South African Police Service Act 68
of 1995,[14] the functions of the
police are in the main the maintenance of law and order and the prevention of
crime. Unlike the situation in
Van
Duivenboden[15] and in
Minister of Safety and Security v
Hamilton,[16] the recognition of
a legal duty on the police to save people from drowning or to attempt to
resuscitate near-drowning victims would
indeed, to my mind, have the potential
to disrupt the effective functioning of the police and would require the
provision of substantial
additional training and resources. In my view, while
the imposition of such a duty upon policemen in the position of Becker and
Sergeant Pienaar might possibly be in accordance with the moral convictions of
the community (upon which question I express no opinion
one way or the other),
the legal convictions of the community do not demand that Becker's failure to
attempt to perform CPR on Roald
ought to be regarded as unlawful.
[64] In
summary, therefore, while I am of the view that Becker's positive acts in
preventing the continuance of the CPR which Kobus
was performing,
his conclusion in the absence of the required medical knowledge that Roald was
dead, and his decision to cover Roald's body with
a duvet, were indeed prima
facie unlawful, any failure on his part himself to attempt to perform CPR on
the child was not.
Negligence
[65] The following question is
whether or not Becker acted negligently. The classic test for establishing the
existence or otherwise
of negligence, quoted with approval in numerous decisions
of this Court, is that formulated by Holmes JA in Kruger v
Coetzee[17] in the following
terms:
'For the purposes of liability culpa arises if –
(a) a
diligens paterfamilias in the position of the defendant –
(i) would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss; and
(ii) would take reasonable steps to guard
against such occurrence; and
(b) the defendant failed to take such
steps.
. . . Whether a diligens paterfamilias in the position of the
person concerned would take any guarding steps at all and, if so, what steps
would be reasonable, must always
depend upon the particular circumstances of
each case. No hard and fast basis can be laid down.'
[66] As was emphasised
by this Court in Sea Harvest Corporation (Pty) Ltd and Another v Duncan Dock
Cold Storage (Pty) Limited and
Another:[18]
'[21]. . . it
should not be overlooked that in the ultimate analysis the true criterion for
determining negligence is whether in the
particular circumstances the conduct
complained of falls short of the standard of the reasonable person. Dividing
the inquiry into
various stages, however useful, is no more than an aid or
guideline for resolving this issue.
[22] It is probably so that there can be
no universally applicable formula which will prove to be appropriate in every
case . . .
. . . it has been recognised that, while the precise or exact
manner in which the harm occurs need not be foreseeable, the general
manner of
its occurrence must indeed be reasonably
foreseeable.'[19]
[67] Moreover,
it must constantly be borne in mind that, in considering the question as to what
is reasonably foreseeable:
'. . . one must guard against what Williamson JA
called "the insidious subconscious influence of ex post facto knowledge"
(in S v Mini 1963 (3) SA 188 (A) at 196E-F). Negligence is not
established by showing merely that the occurrence happened (unless the case is
one where res ipsa loquitur), or showing after it happened how it could
have been prevented. The diligens paterfamilias does not have "prophetic
foresight" . . . In Overseas Tankship (UK) Ltd v Morts Dock &
Engineering Co Ltd (The Wagon Mound) [1961] AC 388 (PC) ([1961] 1 All
ER 404) Viscount Simonds said at 424 (AC) and at 414G-H (in All ER) :
"After the event, even a fool is wise. But it is not the hindsight of the
fool; it is the foresight of a reasonable man which alone
can determine the
responsibility."'[20]
[68] Counsel
for the first respondent submitted that Becker clearly had training in CPR and
had a fair knowledge of the importance
of CPR in a situation such as the
present. I am of the view that this has by no means been established. In his
examination in chief,
Becker testified that he had received some CPR training in
1987 as part of his operational 'bush warfare' training, but that this
training
did not cover mouth-to-mouth resuscitation and was directed to the treatment of
wounded persons in a war situation. Becker
testified further that, in 1993, he
had undergone a basic training course at the military base and that, during this
course, basic
CPR principles had been explained. However, no part of this
course concerned the performance of CPR on infants. It is significant
to note
that, during his cross-examination, Becker was not questioned in any way as to
the content of either course or as to the
actual extent of his knowledge of CPR
and matters connected therewith. Moreover, as was submitted by counsel for the
appellants,
there is no probative value in any allegation that any reasonable
person should and would know that a near-drowning victim should
be resuscitated
until medical assistance arrives, because it is apparently so propagated in the
media, particularly in so-called
'actuality programmes' on television. It is
clear from Becker's evidence that, at the time of the trial, and having listened
to
the expert evidence, he realised, with hindsight, that he should not
have stopped Kobus from performing CPR. However, at the time he examined the
child, he genuinely thought that
Roald was dead, with no pulse, no breathing,
fixed and dilated pupils, very pale and ice-cold. In this regard, it is
important to
note that both Sergeant Nel, who was a Level 3 emergency helper at
the time, and Mr Oosthuizen, a qualified paramedic, testified
that they had
acquired their knowledge regarding the importance of continuing with CPR on a
near-drowning victim until the victim
revives or until expert help arrives,
during the course of their specialised training.
[69] Both Dr
Naudé and Professor Fritz, the expert witnesses who testified for the
respondents, acknowledged that near-drowning
victims do often appear to be dead
to persons without any proper medical training and that, in such cases, it may
be extremely difficult
to detect any signs of life such as a pulse, breathing, a
heartbeat, or pupil reflexes of the eye. Dr Naudé agreed that a
layperson would consider that CPR was something to be performed on somebody who
was still alive. It is also clear from the record
that Kobus himself observed
no signs of life whatsoever in Roald after he had been removed from the pool and
after CPR had been performed
upon him for some time. As Becker had no
specialised medical training and did not know at the relevant time that CPR
should be continued,
in the case of a near- drowning incident, until suitably
medically qualified personnel arrived, I am of the view that it cannot be
concluded that Becker should, at the relevant time, have realised that medical
advances might be able to revive the child. Without
any specialised knowledge
of the importance of CPR, it cannot, in my opinion, be said that a reasonable
person in Becker's position
would have foreseen the reasonable possibility that
an interruption of CPR on a child whom he genuinely believed to be dead, or the
covering of such a child with a blanket (which he believed to be the decent and
humane thing to do), could cause further harm to
Roald. To my mind, it cannot
be said that the respondents succeeded in establishing, on the requisite balance
of probabilities,
that Becker's conduct on the day in question fell short of the
standard of the reasonable person in his position and with his
knowledge.
[70] During the course of argument before this Court,
reference was made for the first time to the possible applicability of the maxim
imperitia culpae adnumeratur, ie that ‘it is negligent to engage
voluntarily in any potentially dangerous activity unless one has the skill and
knowledge
usually associated with the proper discharge of the duties connected
with such activity’.[21]
However, as is evident from the case law on the application of this maxim, it
applies only if the person undertaking the activity
in question knows or ought
reasonably to know that he lacks the requisite expert knowledge or skill, so
that the undertaking of the
task or the engagement in the activity is itself
blameworthy.[22] In the
circumstances of the present case, it was not, in my view, established that
Becker knew, or ought reasonably to have known,
that deciding that Roald was
dead and acting accordingly - when the child showed no signs of life whatsoever
and when (as conceded
by Dr Naudé) CPR would be considered by a layperson
as something to be performed on a live ‘patient’ – was
something for which special knowledge was required and that he did not have such
knowledge. This being so, the maxim cannot be applied
so as to establish
negligence on Becker’s part.
[71] Thus, as the first respondent
did not, to my mind, succeed in proving, on the requisite balance of
probabilities, that Becker
was negligent in his conduct on the day in question,
I would have allowed the appeal with costs and would have amended the order
made
by the court a quo so as to dismiss Mr Rudman’s action with costs.
As this is a minority judgment, however, it is not necessary for me to craft
any
order.
__________________________
B J VAN HEERDEN
ACTING JUDGE OF APPEAL
FARLAM
JA
[72] I have had the advantage of reading the judgment written
by my colleague Van Heerden AJA. While I agree with her conclusion that
Becker’s
positive action in preventing the continuance of the CPR which
Kobus was performing was unlawful and that his failure himself to
attempt CPR on
the child was not, I am unable to agree with her further conclusion that Becker
did not act negligently in doing what
he did.
[73] In my opinion, by
taking charge of the situation and giving what amounted to an instruction to
Kobus to discontinue CPR in circumstances
where, because of his ignorance, he
did not appreciate that it was inappropriate to do so, that there was a
possibility that the
child was still alive and that the latter’s chances
of making as full a recovery as was possible were being reduced, Becker
acted
negligently. He knew that his own knowledge of CPR was limited and he also knew
that members of the police service whose knowledge
in this regard was more
extensive than his were on their way to the scene. There was no necessity for
him to interfere. If he had
allowed Kobus to continue with the CPR which Kobus
was administering, then it is clear that at least some of the brain damage
ultimately
sustained by Roald would not have been caused.
[74] In
other words Becker’s negligence consisted, not in being ignorant about CPR
and whether it could be of any assistance to a
child who had apparently drowned,
but in undertaking the responsibility of deciding whether it should be
discontinued when he lacked
the skill and knowledge required for the proper
exercise of the authority that went with that responsibility: see McKerron
The Law of Delict 7 ed 38.
[75] In my opinion a reasonable person would
not have undertaken the responsibility, in the circumstances then prevailing, to
cause
CPR to be discontinued because he or she would have appreciated the extent
of his or her ignorance on the point. After all, the consequences
of stopping
the CPR (which were potentially catastrophic if it was efficacious) were far
more serious than those of continuing with
it (if it were not doing any
good).
[76] This finding makes it necessary for me to consider the
further question as to whether Motata J was correct in holding that the Minister
and Becker were liable for the full amount of the damages suffered by Mr Rudman
in his personal and his representative capacities
and that, vis-à-vis
Bo, Becker was liable for 80 per cent of the damages and Bo for 20 per
cent.
[77] The medical witnesses all agreed that it was simply not
medically possible to determine to what extent the interruption of the CPR
on
Becker’s instruction exacerbated the brain damage suffered by Roald and
contributed to his present condition.
[78] Motata J held that
Becker’s negligence far exceeded that of Bo, that Becker and Bo
‘were both concurrent wrongdoers at
common law and joint wrongdoers for
the purposes of the apportionment of damages’. He found that Becker was 80
percent negligent
and Bo 20 percent negligent, hence his finding as to their
respective percentages of liability to which I have already
referred.
[79] I do not agree that Becker and Bo are to be regarded as
‘joint wrongdoers for the purposes of apportionment of damages’.
The
matter is governed by s 2(1) of the Apportionment of Damages Act 34 of 1956,
which is in the following terms:
‘Where it is alleged that two or more
persons are jointly or severally liable in delict to a third person (hereinafter
referred
to as the plaintiff) for the same damage, such persons (hereinafter
referred to as joint wrongdoers) may be sued in the same action.’
As
was held in Mkwanazi v Van der Merwe and Another 1970 (1) SA 609 (A) at
622 B-D and Minister of Communications and Public Works v Renown Food
Products 1988 (4) SA 151 (C), to fall within the Act the two defendants must
have caused ‘the same damage’ and, where two separate
acts of
negligence have caused different damage and resultant loss to a plaintiff, each
defendant is liable only for such damage
as he or she has personally caused.
There is nothing in the Act which detracts from this position. See also
Rahman v Arearose Ltd and Another [2001] QB 351 (CA), a judgment of the
English Court of Appeal, to which counsel for the appellants referred, which
concerned the meaning
of the expression ‘same damage’ in s 1(1) of
the United Kingdom Civil Liability (Contribution) Act 1978 (c 47). I shall
return to this matter later in this judgment after I have considered the extent
to which Bo is liable for all the damage suffered
in this
case.
[80] In the present case there was no basis for holding the
Minister and Becker liable, as Motata J did, for all the damage Roald suffered
from the time of his immersion in the swimming pool. Becker did not cause his
immersion and he cannot be held liable for damage suffered
prior to his
intervention when he caused the CPR being administered to the child to be
stopped. He and the Minister (who is vicariously
liable for his actions) can
only be held liable for the damage he caused.
[81] Where, in a case
such as this, it is simply not possible to make an allocation as to how much of
the damage sustained was caused by
the actions of Becker as opposed to Bo and it
is clear that all the available evidence has been led on the point (the position
may
well be different when all the available evidence has not been led: cf the
Renown case at 154 F-G and I-J), then it would seem that the
court’s duty to do the best it can in such circumstances (cf Esso
Standard SA (Pty) Ltd v Katz 1981 (1) SA 964 (A) at 969 H-970 G and
Caxton Ltd v Reeva Forman (Pty) Ltd 1990 (3) SA 547 (A) at 573 I-J) will
lead to a finding – as counsel for the appellants suggested should be made
in this case
– that Becker and the Minister are liable to pay half of the
damages proved to have been suffered. This is the third of the
three approaches
discussed by Professor AM Honoré at p 72 of his monograph on
‘Causation and Remoteness of Damage’,
published as part of Volume XI
of the International Encyclopaedia of Comparative Law, and the one
preferred by him as commending itself ‘as the fairest to both
parties’, an opinion with which I respectfully
agree.
[82] The
first of the three approaches discussed by Professor Honoré is that in
terms of which a plaintiff is non-suited because
he or she has failed to show
how much damage the particular wrongdoer has caused. This approach is contrary
to the basic principle
of our law referred to in the cases I have cited that,
where a plaintiff proves that he or she has suffered some damage, in respect
of
which all the available evidence on the point has been led, the court does not
non-suit such plaintiff but does the best it can
(even if that best amounts to
no more than an estimate) to assess the damages suffered.
[83] In
terms of the second approach discussed by Professor Honoré, a successive
wrongdoer is held liable for all the loss suffered
because he or she cannot show
what portion thereof such wrongdoer did not cause. This involves putting an onus
on the wrongdoer or
wrongdoers in question, something which was in my view
rightly rejected in the Renown case, supra at 154
E-F.
[84] The next question to be considered is whether Bo is jointly
and severally liable for that portion of the total damage suffered by
the
plaintiff in his personal and his representative capacities for which the first
and second defendants are liable. That Bo was
negligent is not disputed, nor can
it be disputed that he is liable for the damage suffered up to the time when
Becker ordered the
discontinuance of the CPR by Kobus. In my opinion Bo is also
liable for the damage sustained thereafter because the discontinuance
cannot be
regarded as a novus actus interveniens. I say that because I am satisfied
that the discontinuance was an inherent risk created by Bo’s negligent
acts and was reasonably
foreseeable by him: cf Kruger v Van der Merwe and
Another 1966 (2) SA 266 (A) at 273 F-G.
[85] It is now convenient
to return to the question as to whether s 2 of Act 34 of 1956 applies to Bo and
Becker in respect of that portion
of the damage for which Becker and the
Minister are liable. It is true that for the reasons given above, Bo is also
liable for the
damage to the infliction of which Becker contributed, but I do
not think that that makes Becker and Bo ‘joint wrongdoers’
for the
purposes of the Act.
[86] I say this because I am of the view that
the expression ‘the same damage’ in s 2 refers to all the damage
suffered
by the plaintiff in a case falling under Chapter II of the Act: cf s 2
(6) (a), which gives a joint wrongdoer against whom judgment
is given ‘for
the full amount of the damage suffered by the plaintiff’ a right of
recourse against any other ‘joint
wrongdoer’ to claim a contribution
in respect of the other wrongdoer’s responsibility for such damage based
on the degree
to which the latter was at fault in relation to the damage
suffered by the plaintiff, and to the damages awarded. Where, as here,
the
judgment to be given against Becker and the Minister is not for the full amount
of the damage suffered by the plaintiff but only
for that part of the damage for
which Becker is to be regarded as being responsible, then the subsection does
not apply and any right
of recourse available to Becker and the Minister will
have to be sought in the common law.
[87] If such a right does exist
under the common law, it may well amount simply to a right to be reimbursed half
of what Becker and/or
the Minister are liable to pay to the plaintiff, once this
has been paid, and not to a proportion based on the respective degrees
of fault:
cf Windrum v Neunborn 1968 (4) SA 286 (T) at 289 H to 290
G.
[88] While counsel for the Minister and Becker attacked in
argument Motata J’s finding that the extent of Bo’s contribution
to
the damages to be paid by the Minister and Becker was 20% - a finding based on
the assumption that the Act applied and that the
respective degrees of fault of
Bo and Becker were to be determined - the wider questions to be considered if
the common law applies
were not argued. In the circumstances I do not consider
it appropriate to investigate, without the benefit of counsel’s
submissions,
the legal questions left open in Windrum’s case,
supra.
[89] In all the circumstances I am of the view that the
appeal should be allowed with costs.
[90] The following order is
therefore made:
1. The appeal succeeds with costs.
2. Paragraphs 4 and 5
of the order made by the court a quo are set aside and the following
paragraphs are substituted therefor:
‘4. It is declared that the
first and second defendants are liable to the plaintiff, jointly and severally,
the one paying,
the other to be absolved, for one half of the damages which the
plaintiff may prove that he suffered in his personal and in his representative
capacities as a result of the brain damage sustained by his son Roald on 6
October 1997.
5. It is declared that the third party is jointly and severally
liable with the first and second defendants for the damages payable
by
them.’
__________________
IG FARLAM
JUDGE OF
APPEAL
Concur:
MPATI DP
[1] See para 3
above.
[2] See, for example,
Lillicrap, Wassenaar & Partners v Pilkington Brothers (SA) (Pty)
Ltd 1985 (1) SA 475 (A) at 497B-C; Knop v Johannesburg City Council
1995 (2) SA 1 (A) at 26F-H; Minister of Safety and Security v Van
Duivenboden 2002 (6) SA 431 (SCA) para 12 at 441E-F; Minister van
Veiligheid en Sekuriteit v Geldenhuys 2004 (1) SA 515 (SCA) para 24 at
528F-G.
[3] 2003 (1) SA 389 (SCA)
paras 9-10 at 395I-396E (per Vivier
ADP).
[4] 1995 (1) SA 303 (A) at
318F-H.
[5] 1995 (2) SA 1(A) at
27F-I.
[6] 1979 (3) SA 824 (A) at
833 in fine–834A (per Rumpff
CJ).
[7] See too Van
Duivenboden (supra) para 13 at 442C-E.
[8] Minister of Justice v
Hofmeyr 1993 (3) SA 131 (A) at
145I-146C.
[9] Constitution of the
Republic of South Africa Act 200 of 1993 (date of commencement 27 April 1994), s
11; Constitution of the Republic
of South Africa Act 108 of 1996 (date of
commencement 4 February 1997), s
12.
[10] See Van
Duivenboden (supra) paras 21-22 at 446F-448A. See further
Minister of Safety and Security and Another v Carmichele 2004 (2) BCLR
133 (SCA) para 37 at
145B-146B.
[11]Supra para
22 at 448D-E.
[12]Supra
para 38 at 146C.
[13]
Supra at 321F.
[14] Date
of commencement 15 October
1995.
[15]
Supra.
[16] 2004 (2) SA
216 (SCA).
[17] 1966 (2) SA 428
(A) at 430E-G.
[18] 2000 (1) SA
827 (SCA) para 21-22 at
839G-840B.
[19] See too the most
recent Carmichele case (SCA) (supra) para 45 at
148G-149A.
[20] See S v
Bochris Investments (Pty) Ltd and Another 1988 (1) SA 861 (A) at 866J-867B,
quoted in Sea Harvest Corporation (supra) para 27 at 842G-H and in
the most recent Carmichele case (SCA) (supra) para 45 at
149B-D.
[21] J C van der Walt
(revised by J R Midgley) ‘Delict’ 8 Lawsa Part 1 (reissue,
1995) para 94 and the authorites there
cited.
[22] Ibid; see also J
Neethling. J M Potgieter & P J Visser (edited by J C Knobel) Law of
Delict 4 ed (2001) 137 and the cases cited by these writers.
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