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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

(1)   REPORTABLE: NO

(2)   OF INTEREST TO OTHER JUDGES: NO

(3)   REVISED.

                                                                                                                        Case No: 46837/12

30/7/2020

 

In the matter between:

 

MUZI FIESEL WANGUBANI INNOCENT DLUDLU                       Plaintiff

 

and

 

THE MEMBER OF THE EXECUTIVE COUNCIL FOR

THE DEPARTMENT OF HEALTH OF THE

MPUMALANGA PROVINCIAL GOVERNMENT                              Defendant

 

JUDGMENT

 

MNGQIBISA-THUSI, J

 

[1]        On 18 August 2009 the plaintiff was involved in a collision at the Elukwatini Filling Station, Elukwatini when he was hit by a motor vehicle bearing registration number BVB 818 MP.  At the time of the collision the plaintiff was a pedestrian.  After the collision the plaintiff was taken to Embhuleni Hospital (“the hospital”) where he was admitted until discharged on 21 September 2009.  As a result of injuries he sustained, the plaintiff instituted an action for damages against the Road Accident Fund for loss suffered (“the RAF action”).

 

[2]        As appears in paragraph 6 of the particulars of claim in the RAF action (attached to the defendant’s heads of argument), the plaintiff pleaded that he sustained the following injuries for which he sought compensation:

 

“2.1   An amputation of his left leg above the knee;

2.2    Various lacerations, abrasions and bruises”.

 

[3]        The plaintiff calculated the loss suffered as follows:

 

3.1    Estimated future medical hospital and related

expenditure                                        s 17(4)(a) undertaking

 

3.2    The costs incidental to the medical treatment and

care of the plaintiff, his therapy, operations to his leg,

medical equipment and related equipment, assistance,

caregiving and assistive devices which he will require in

future                                                        R5000, 000.00

3.3        Past and future loss of earnings               R2,000,000.00

3.4    General damages                                        R5000, 000.00

 

[4]     On 28 January 2016 the plaintiff and the RAF concluded a settlement agreement on the issue of liability on an 80%/20% basis in favour of the plaintiff.

 

[5]    On 14 August 2012 the plaintiff instituted a separate action against the defendant, the Member of the Executive Council for the Department of Health of the Mpumalanga Provincial Government, for damages arising from an alleged breach of contract as a result of the negligent treatment he received from doctors and nurses (“defendant’s employees”) at the hospital which allegedly resulted in the amputation of his left leg above the knee.  The Embhuleni Hospital falls under the control of the defendant in his official capacity.

 

[6]    The plaintiff seeks damages against the defendant for the sequelae of the amputation of his left leg on the ground that in breach of the contract between himself and the hospital, the defendant’s employees were negligent in the following respect as pleaded in paragraph 11 of the particulars of claim:

 

“The infection or compartmental syndrome of the injured leg or the combination of both which eventually resulted in irreversible gangrene and a left above knee amputation, was caused by the negligent breach of their contractual duties by the doctors and nurses of the hospital who attended to the plaintiff, alternatively, their breach of the legal duty which they had towards the plaintiff, in that they were negligent in one or more of the following respects:

 

11.2  they failed to diagnose the open proximal tibia fracture as a serious injury which required urgent treatment;

11.2  they failed to establish beyond a reasonable doubt that the injured leg had an adequate blood supply and probably neurological function;

11.3  they failed to administer ongoing antibiotic treatment as would be the norm and when it was required;

11.4  they failed to institute proper treatment such as debridement to the left leg fracture and wound within hours of admission while this is the generally accepted treatment and they were required to do so;

11.5  they failed to adequately address and treat the inadequate blood supply to and of the injured left leg along recognised principles of management such as surgery and/or adequate blood transfusion;

11.6  they failed to immobilise the injured leg adequately and/or to keep the injured leg reasonably and adequately immobilised with an external skeletal fixture;

11.7  they failed to properly and regularly monitor the plaintiff’s condition;

11.8  they failed to take all reasonable steps to prevent irreversible circulatory impairment, gangrene and amputation of the plaintiff left leg;

11.9  they failed to call in the assistance of a specialist senior medical practitioner or arrange for an urgent referral of the plaintiff to a higher level of care hospital where he could have been treated in accordance with recognised and reasonable acceptable orthopaedic principles;

11.10 they failed to treat and monitor the plaintiff’s condition properly and appropriately in accordance with generally accepted norms and standards of treating and monitoring a serious compound proximal tibial fracture with a laceration;

11.11 they failed to carry out their duties towards the plaintiff with such skill, care and diligence as could reasonably be expected of medical doctors and nursing staff in their position”.

 

[7]        The plaintiff seeks the following as damages:

 

7.1    The costs incidental to the medical treatment and

care of the plaintiff, his therapy, operations to his

leg, medical equipment and related equipment,

assistance, caregiving and assistive devices which

he will require in future                                R5,000,000.00

7.1    Past and future loss of earnings                    R2,000,000.00

7.3    General damages                                         R5,000,000.00

[8]        Inasmuch as the amount claimed, save for the amount of past medical treatment, is the same as the amount claimed from the RAF, in his particulars of claim the plaintiff avers that the amount claimed in this action will be reduced by the amount recovered from the RAF.  In other words, the plaintiff is actually claiming the 20% of his RAF claim which he could not recover as he was found to be liable for part of the negligence resulting in his loss.

 

[9]        In terms of Uniform Rule 33(4) and by agreement between the parties, the issue to be determined is whether plaintiff is legally barred from claiming damages from the defendant under the following circumstances:

 

9.1    where plaintiff failed to give notice to defendant as an alleged wrongdoer in terms of s 2(2) of the Apportionment of Damages Act[1] (“the Act”);

9.2    where plaintiff had previously claimed damages from the RAF following the collision in which he was injured and was subsequently admitted at the Embhuleni Hospital.

 

[10]    Section 2 of the Act reads in part as follows:

 

“JOINT OR SEVERAL WRONGDOERS

Proceedings against and contributions between joint and several wrongdoers

2(1)   Where it is alleged that two or more persons are jointly or severally liable in delict to a third person (herein after referred to as the plaintiff) for the same damage, such persons (hereinafter referred to as joint wrongdoers) may be sued in the same action.

…

(2)         Notice of any action may at any time before the close of pleadings in that action be given-

(a)     by the plaintiff;

(b)     by any joint wrongdoer who is sued in that action,

to any joint wrongdoer who is not sued in that action, and such joint wrongdoer may thereupon intervene as a defendant in that action.

…

(4)(a) If a joint wrongdoer is not sued in an action instituted against another joint wrongdoer and no notice is given to him in terms of paragraph (a) of sub-section (2), the plaintiff shall not thereafter sue him except with the leave of the court on good cause shown as to why notice was not given as aforesaid.

    (b) If no notice is under paragraph (a) or (b) of subsection (2) given to a joint wrongdoer who is not sued by the plaintiff, no proceedings for a contribution shall be instituted against him under sub-section (6) or (7) by any joint wrongdoer except with the leave of the court on good cause shown as to why notice was not given to him under paragraph (b) of subsection (2)”.

 

[11]    On behalf of the defendant it was argued that since the effect of the plaintiff’s claim in the current matter amounts to an apportionment of the damages he suffered as a result of the injuries sustained in the collision of 18 August 2009, the Act was applicable.  It is the defendant’s contention that by instituting the action, the plaintiff is treating the defendant as a joint wrongdoer (an allegation disputed by the defendant), and should have served it with a s 2(2) notice at the time it instituted its claim against the RAF.  Counsel submitted that since the plaintiff failed to serve it with the relevant notice, in terms of s 1(2)[2] of the Act, the plaintiff does not have any claim against it relating to the loss suffered as a result of the collision.

 

[12]    The defendant contends that it is not a joint wrongdoer together with the insured driver in respect of the amputation of the plaintiff’s left leg which forms the basis of the plaintiff’s claim against the RAF and in the present action.  It was further submitted that the plaintiff is bound by his pleadings in that in both the RAF action and the current claim the plaintiff has based its claims on the same injury, namely, the amputation of the left leg.  The defendant relies on s 2(4) of the Act which provides that in the event that a s 2(2) notice is not served on an alleged joint-wrongdoer, the plaintiff cannot claim a contribution from it as an alleged joint wrongdoer except with leave of court on good cause shown.

 

[13]    In view of the fact that the plaintiff has already settled the issue of liability on an 80/20% basis and has been awarded a global amount on his claim, it is the defendant’s case that it is inconceivable that the plaintiff would seek another order dealing with the same injury which would result in the plaintiff being compensated for his own negligence.  It is the defendant’s contention that the settlement agreement and the award of damages settled all of the plaintiff’s claim as relating to the relevant collision. 

 

[14]    On behalf of the plaintiff it was argued that the Act is not applicable to the claim against the defendant as the plaintiff’s claim is based on a breach of contract and not on a delict committed by the defendant’s employees.  Counsel relied on the decision in Thoroughbred Breeders’ Association v Price Waterhouse[3] where the court, in answering the question whether the Act is applicable to a claim for damages for breach of contract where the breach consists of the negligent performance of a professional duty, stated the following:

 

“[74] As was stated in paras 63-67 above the extraneous defence of culpa compensatio was known to the common law in the law of delict but not in the law of contract. In the law of contract, the claim of the claimant would not have been “defeated” by his own culpa. (Of course, it would have been a defence available to a defendant, even in a contractual setting, if the claimant’s carelessness was the sole cause of the loss – but that would ex hypothesi not have been a case where the damage was caused “partly by his own fault and partly by the fault of any other person”.) That remained the position at the time the Act was promulgated in 1956. The intention of the legislature as to the scope and range of the Act must be determined in the light of the situation prevailing at the time it was enacted. At that time the concepts of both contributory negligence and “last opportunity” were unknown to a claim based on breach of contract. That being so, it seems to me to follow that the Act was designed to address and correct a particular mischief that was identified as such within the law of delict; that it was confined to that particular mischief; and that the corresponding problem that might arise within the law of contract was never within the legislature’s compass. The express wording used in the Act does not fit a contractual claim. In my view the comfort of the Act was accordingly not available to PW in this case to counter or curtail TBA’s claim for damages”.

 

[15]    Counsel for the plaintiff further submitted that with regard to the claim against the RAF, the plaintiff’s negligence related only to the causation of the initial collision whereas with regard to the events leading to his leg being amputated which was as a result of the failure by the defendant’s employees to perform their duties in terms of the agreement between the parties, the plaintiff’s negligence was irrelevant.  It was further submitted on behalf of the plaintiff that when the plaintiff was admitted to the hospital, he and the hospital concluded an oral, alternatively, a partly written and partly oral agreement in terms of which the hospital undertook to provide the plaintiff with proper medical treatment and care.  That the hospital failed in its legal duty to provide the plaintiff with proper care and treatment which led to his left being amputated. 

 

[16]     On behalf of the plaintiff it was submitted that the cause of action under the RAF action is distinct from that in the current action.  Under the RAF action the cause of action was the negligent conduct of both the insured driver and the plaintiff, whereas in the current action the cause of action is the negligence of the employees of the defendant which culminated in the plaintiff’s leg being amputated.  Counsel submitted that with regard to the amputation of the leg, no negligence can be imputed to the plaintiff in that the conduct resulting in the amputation of his left leg was solely that of the employees of the defendant through their failure comply with their legal duty towards the plaintiff.  The court was referred to a passage in the Thoroughbred Breeders’ matter (above) where the court held that:

“[66]  The defence of a preponderance of fault on the part of the plaintiff, on which the Court a quo appears to rely, is incongruent within the field of contract. Where a plaintiff can prove that the breach of the defendant was a cause of the loss (as opposed to the cause thereof) he should succeed even if there was another contributing cause for the loss, be it an innocent one, the actions of a third party (compare Nedcor Bank Ltd t/a Nedbank v Lloyd-Gray Lithographers (Pty) Ltd  2000 (4) SA 915 (SCA) para 10-12), or, logically, the carelessness of the plaintiff himself in failing to take reasonable precautions to avoid it. A defendant who commits a breach of contract does so independently of any of the extraneous factors mentioned above. All the requirements for his liability will have been fulfilled.  In the absence of a contrary term in the agreement itself or of legislative intervention excluding or reducing his claim, he should therefore be held fully liable, regardless of whether the plaintiff’s culpa was the dominant or pre-eminent cause of the loss. What was said for Australia in Alexander v Cambridge Credit Corporation Ltd and Another, supra, 315B, applies, I believe, with equal force to South Africa:

‘It is irrelevant to inquire whether the defendants’ default was the dominant, effective or real cause of the plaintiff’s loss. If the evidence is suggestive of multiple causation, the inquiry to be made is whether the defendants’ default was a cause of the plaintiff’s loss: Fitzgerald v Penn  [1954] HCA 74;  (1954) 91 CLR 268 at 273’”.

 

[17]    Counsel for the plaintiff further submitted that the initial cause of the plaintiff’s claim is irrelevant to the breach by the defendant’s employees and that it could not avoid liability for the negligence of its employees on the basis of the initial negligence by the insured driver.

 

[18]    In terms of the preamble, the aim of the Act is:

 

“To amend the law relating to contributory negligence and the law relating to the liability of persons jointly and severally liable in delict for the same damage, and to provide for maters incidental thereto”.

 

[19]    It is common cause that as a result of injuries the plaintiff sustained in the collision, he was admitted to the hospital and that as a result of his fractured left leg developing gangrene whilst in hospital, it was amputated below the knee.  Further, it is common cause that plaintiff became aware of the defendant’s employees’ negligence in March 2012 when a nurse informed him that the doctors at the hospital did not give him proper treatment.  As a result of his awareness about the possible liability of the defendant for its employees’ alleged negligence, on 16 April 2012 plaintiff served the defendant with a notice in terms of s 2(a) of the Institution of Legal Proceedings against Certain Organs of State Act[4].

 

[20]    As correctly pointed out by Counsel for the plaintiff and based on the decision in the Thoroughbred Breeders’ matter (above), the Act only applies with regard to delictual and not contractual claims.  There is no dispute that the plaintiff’s claim under the RAF action was a delictual claim based on the loss suffered as a result of the injuries sustained through the negligence of the insured driver.

 

[21]    Nothing turns on the fact that in his pleadings the plaintiff based his claims in both the RAF action and the current action on the amputation of his left leg.  It is common cause that the plaintiff only became aware of a potential claim against the defendant when he was informed by a nurse at the hospital that the doctors and nurses who attended to his fracture did not give him proper medical treatment, hence the leg had to be amputated.

 

[22]    I am satisfied that the plaintiff’s claim under the current action is contractual, based on the contract concluded between the plaintiff and the hospital on his admission to the hospital and throughout his stay in the hospital.  The fact that the plaintiff’s own negligence was found to have contributed to the loss he suffered is irrelevant to his claim based on his contractual relationship with the hospital.  In the Thoroughbred Breeders’ matter (above) the court went further and held that:

“[67]  A plaintiff who sues for damages for breach of contract for a loss allegedly sustained through the negligence of the defendant but who was himself careless in relation to the non-avoidance of such loss may therefore be non-suited: (a) if there was a term in the contract to that effect; (b) if the plaintiff’s own carelessness is held to be the sole cause of the loss, either in its totality or, to that extent, in relation to a particular segment thereof; or (c) if the defendant’s negligence was, comparatively speaking, so negligible or minimal as to be discountable as a significant cause of the loss, which, strictly speaking, is simply an instance of (b)”.

  

[23]  I am of the view that the RAF claim was based on the cause of the collision whereas in the present matter the cause of action is based on the failure by the defendant’s employees to provide proper medical care in terms of the contract between the parties.  The insured driver and the defendant’s employees cannot be said to be joint wrongdoers as contemplated in the Act in the cause of the collision resulting in the plaintiff sustaining the injury he is seeking compensation for.

[24]    In the result the following order is made:

 

1.      The plaintiff is legally entitled to claim damages from the defendant for the alleged negligent conduct of its employees.

2.      Costs to be costs in the cause.

 

 

NP MNGQIBISA-THUSI

Judge of the High Court

 

Appearances:

For Plaintiff:  Adv J G Cilliers SC assisted by Adv M Van Rooyen (instructed by Garhard Von Wielligh Attorneys)

For Defendant:  Adv L Badenhorst (instructed by the State Attorney)

 

 

 

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