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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 17156/2011

Reportable:No

Of interest to other judges: No

Revised.

8/12/2016

In the matter between:

ROETS, JOHANNA HERCULINA                                                                              Plaintiff

and

MAGOBOTHO, SEBASTIAN KEITH McDONALD                                       First Defendant

PEER, ZANUL ABERDEEN ABUBAKER                                                Second Defendant

MEC: HEALTH AND SOCIAL DEVELOPMENT,

GAUTENG PROVINCE                                                                                Third Defendant

 

Judgment on application for absolution from the instance

 

Van der Linde, J:

[1] “[1] Counsel who applies for absolution from the instance at the end of a plaintiff’s case takes a risk, even though the plaintiff’s case be weak. If the application succeeds the plaintiff’s action is ended, he must pay the costs and the defendant is relieved of the decision whether to lead evidence and of having his body of evidence scrutinized should he choose to provide it. But time and time again plaintiffs against whom absolution has been ordered have appealed successfully and left the defendant to pay the costs of both the application and the appeal and with the need to decide what is to be done next. The question in this case is whether the plaintiff has crossed the low threshold of proof that the law sets when a plaintiff’s case is closed but the defendant’s is not.”[1]

[2] The plaintiff sues the defendants for damages arising from the alleged negligent performance of a hip replacement. The case is that the plaintiff is now wheelchair-bound as a result of not having a proper hip, but instead girdle-stone. The alleged damages are said to derive from this condition.

[3] The plaintiff led Prof van der Jagt and called herself as witnesses and then closed her case. The defendants, who are said to have performed the negligent hip replacement that led to the plaintiff's current condition, have applied for absolution from the instance.

[4] The test at this stage is a low threshold. It is whether there is evidence on which a court might find for the plaintiff.

[5] The defendants' negligence is said to reside in the misalignment of the acetabulum component of the prosthesis, in consequence of which the femoral component was prone to dislocation. The misalignment consisted in the face of the acetabulum being at an 80' angle to the horizontal, whereas the known and accepted standard was 45', with a margin of error of 5'. This misalignment necessitated a revision.

[6] That was the end of the plaintiff's case on negligence and causation. Of course, if these facts are viewed starkly, all they proved is that a court might find that the plaintiff was entitled to the costs of a revision, as well as the additional off-time and possibly a permanently weakened hip. But the plaintiff's case is not that. It is that she is now wheelchair-bound and jobless as a result of that initial negligent procedure.

[7] This has led the defendants to apply for absolution. They point to the further facts that the plaintiff went to get a second opinion. This was furnished by Dr Steyn, and in consequence he performed a revision involving a de novo hip replacement, replacing both the acetabulum and the femoral head. However, this was not successful because not only did the plaintiff develop sepsis, but she had another dislocation incident.

[8] This caused Dr Steyn, some three weeks later while the plaintiff was still in hospital, to open the wound, clean it out, remove the prosthesis he himself had fixed,[2] and cemented in a girdle-stone device. That left the plaintiff where she currently finds herself, that is without an articulated right hip.

[9] The evidence of Dr van der Jagt was that the plaintiff should have been able, once the sepsis was cleared, to have had another hip replacement, and that there is no reason why that would not have been successful. But the defendants' argument is that the immobility which currently besets the plaintiff is a function of the negligent intervention of Dr Steyn. Had he intervened non-negligently, then his hip replacement would have been dislocation free, and sepsis free.

[10] This is an attractive argument, but I am afraid that on reflection it cannot succeed. It is dependent for its success on the proposition that the trial court cannot avoid a finding of a novus actus interveniens in the form of Dr Steyn's negligence revision, inviting dislocation and sepsis. It is as well that one reminds oneself of precisely what is required for a true novus actus:[3]

“30.In the result, the defence under consideration was correctly rejected. This conclusion makes it unnecessary to decide whether, in any event, (i) this was not one of those cases where the intervening negligence of a third party ought to have been foreseen by the wrong-doer, or, (ii) addiction was a risk inherent in the situation created by him (so that, in either event, the defence of novus actus could not be relied on), or., (iii) gross or extraordinary negligence was required to be shown. (As to (i) and (ii), see LAWSA, Vol 8,

31. para 52, p 101; as to (iii), see Hart and Honore: Causation in the Law 169-170).”

[11] The difficulty with the defendants’ argument is threefold. First, it accepts that a dislocation is res ipsa loqcuitur and that negligence follows from it. But that is not so. Our courts have repeatedly said that there mere fact that something goes wrong in a medical operation, does not mean that somewhere someone was negligent.

[12] Second, the same applies for the sepsis. As I have said, it is only the negligent causing of sepsis that might have been a proper novus actus. If the sepsis was an expected risk of the procedure, then it cannot constitute a novus actus intervenience. And there is no evidence of any negligence on the part of Dr Steyn in this regard.

[13] Third, there is at least the possibility that the trial court might find that the defendants' negligent misalignment of the acetabulum caused the risk of a revision operation, and that that always carried with it the concomitant risk of the development of sepsis; or even of another misalignment being caused. Such a court may find that to expose someone to a surgical intervention is to expose that person to risk of further injury.

[14] It must not be forgotten that once an event qualifies as a true novus actus interveniens, prior potentially causative events are excluded, at least according to the but for reasoning, from being a legally relevant cause of the subsequent event.

[15] Recently, in a slightly different factual but conceptually similar scenario, I held as follows:[4]

“[55] It is necessary now finally to consider the position of the driver of the stationary vehicle combination, from the point of view of causative negligence. Here the argument for the second defendant was that even if the vehicle combination should and could have been lit up better, the fact is that the reason why Mr Ntuli could not stop in time was the immediacy of the approaching bus. That being so, the cause of the collision was not the unlit vehicle, but the approaching bus.

[56] But that cannot be so. The entire catastrophic scenario would not have eventuated were it not for the stationary combination vehicle which in bad light had no warning that it was stationary, and likely conveyed the opposite, obscuring practically the entire left lane on a busy highway. The pat application of the but-for test for establishing factual causation is a handy tool; but it is just a tool, not a principle of law.

[57] Put differently, in this case it could potentially be permissible to think away the unacceptable and unlawful proximity of the approaching bus, and then to ask whether the collision would still have occurred. On Mr Ntuli’s evidence, the collision could have been avoided, because he would then have been able to stop in time in the left lane behind the combination vehicle without colliding with it.

[58] He may have been right, but even applying the but-for test, the unlawful conduct of the bus driver is not a novus actus interveniens, and it does not immunise the unlawful conduct of the first defendant. More importantly, in our law the question of factual causation is ultimately a probability exercise: is the alleged unlawful conduct more probably than not the cause of the plaintiff’s harm?  This was authoritatively restated by the majority of the Constitutional Court in Lee v Minister for Correctional Services. 

[59] Nkabinde, J, for the majority put it simply:  ‘[55] There was thus nothing in our law that prevented the high court from approaching the question of causation simply by asking whether the factual conditions of Mr Lee's incarceration were a more probable cause of his tuberculosis, than that which would have been the case had he not been incarcerated in those conditions. That is what the high court did and there was no reason, based on our law, to interfere with that finding.’”

[16] The point is, as matter of common sense, in the present matter a court might find for the plaintiff on the basis that the entire sad sequence of events after the initial right hip replacement is ultimately a function of the misalignment that first time.

[17] In the circumstances the application for absolution from the instance is refused. Costs of the application are costs in the cause.

 

WHG van der Linde

Judge, High Court

Johannesburg

For the plaintiff: Adv. P. Uys

Instructed by: Schoemans Attorneys

Golf Gardens Office Park, Unit 2

Cnr John Vorster and Marco Polo Streets

Highveld X12

Centurion

Tel: 012 665 4807

Ref: 0992/ROE001

 

For the first - third defendants: Adv. V. Notshe SC

                                                         Adv. Kadjee

Instructed by:  State Attorney

10^th Floor, North State Building

Corner Kruis Street

Johannesburg

Tel: 011 330 7678

Ref: 2090/11/P71

 

Date argued: 7 December 2016

Date judgment: 8 December 2016

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