On 25 March 2011 the Supreme Court of Appeal handed down judgment in the matter of The Premier of the Western Cape Province and 1 other v Johannes Hendrik Loots N.O..
The judgment related to a medical negligence claim which was brought on behalf of Johannes Hendrik Loots N.O. who acted in his capacity as the duly appointed Curator ad Litem for Mrs Johanna Cecelia Erasmus. The Curator ad Litem’s appointment was necessitated due to the tragic events giving rise to the claim which left Mrs Erasmus brain damaged and unable to manage her own affairs.
The background to the action was that on 21 January 1999 when Mrs Erasmus was one month short of her 38th birthday, she underwent a sterilization operation at Tygerberg Hospital. The operation, performed by the Second Appellant (Dr K du Plessis) involved a laparoscopic occlusion of both fallopian tubes. It was later discovered however that the Second Appellant had mistakenly occluded the round ligaments of the patient instead of her fallopian tubes, meaning that she had not been sterilized at all.
As a result of Dr du Plessis’ mistake, Mrs Erasmus fell pregnant soon thereafter. When this was confirmed in April 1999, Mrs Erasmus was about 8 weeks pregnant. For religious reasons Mr and Mrs Erasmus declined the option to terminate the pregnancy which Tygerberg Hospital presented to her and the pregnancy continued uneventfully until 5 November 1999. On that date, the tragic train of events started which left Mrs Erasmus in a permanent vegetative state, completely unable to care or think for herself. Initially Mrs Erasmus was admitted to Tygerberg Hospital for high blood pressure. This was followed by an emergency caesarean section because of foetal distress. The baby was however severely compromised and did not survive. Either shortly before, during or after the caesarean section Mrs Erasmus must have developed what is known to medical experts as amniotic fluid embolism (AFE), which occurs when foetal antigens entered the maternal circulation. The AFE caused severe haemorrhaging and cardiac arrest, which in turn led to brain anoxia and eventually to the irreversible brain damage which Mrs Erasmus suffered.
The case was initially heard in the Western Cape High Court by Traverso, DJP, who found in favour of the Plaintiff. Of the various defences raised by the Appellants (then Defendants) in the Western Cape High Court they persisted in only two on appeal to the Supreme Court of Appeal, where the matter was heard by 5 Judges of Appeal.
The first defence was that the Second Appellant was not negligent with regard to the consequences of the failed sterilization for which the Plaintiff (Respondent on Appeal) sought to hold him liable. The factual basis of the argument advanced in this regard was the proposition that the harm which the patient actually suffered was not of a general kind reasonably foreseeable as AFE is an unpredictable and unpreventable event which occurs about 1 in 8 000 to 30 000 deliveries. The Supreme Court of Appeal did not accept this argument. In light of the expert testimony presented on behalf of the Plaintiff at the initial hearing the Judges of Appeal accepted that pregnancy is a dangerous condition associated with a myriad of potential complications, one of which was AFE. The Supreme Court of Appeal consequently concluded that the Second Appellant was negligent with regard to the harm that Mrs Erasmus had suffered.
The second defence advanced by the Appellants on appeal was founded on the contention that the causal link between the Second Appellant’s negligence and the harm suffered by Mrs Erasmus was too tenuous to justify the imposition of delictual liability on them for that harm. The Court accepted that foreseeability played a role in determining the issue of legal causation in this context and held that the nature of this enquiry was different to that within the context of negligence. The Court therefore held that within the context of legal causation, it must mean foreseeability of the actual harm as opposed to harm of a general kind and on this basis accepted that because of the unforeseen intervention of AFE, the actual harm suffered by Mrs Erasmus was not a reasonably foreseeable consequence of Second Respondent’s negligence. The Court however went on to hold that on the other hand, AFE was not unknown to medical science and was therefore not the kind of “freakish occurrence” that has never happened before, as had been the case in previous decisions.
Ultimately the Supreme Court of Appeal concluded that in all the circumstances, considerations of reasonableness, justice and fairness dictated that the Respondents should be held liable for the harm suffered by Mrs Erasmus and dismissed the appeal with costs.
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