In the matter of Maphosa v MEC for Health Limpopo, the Pretoria High Court found the MEC for Health 100% liable for damages suffered by Mr Maphosa due to the negligent medical treatment he received after presenting with an ankle injury inflicted by a police officer. There was a significant delay in providing treatment, resulting in the plaintiff being left with what was described as a “second-hand” ankle.
The Appeal Court, in its seminal decision of S v Tembani in 2006, held that negligent medical treatment did not exculpate an assailant in circumstances where he had inflicted a wound on his victim that would have been fatal in the absence of medical intervention. The Appeal Court held, somewhat disparagingly, that improper medical treatment should not be construed as abnormal or extraordinary. Although not part of its decision, the Appeal Court also commented that even gross negligence in the administration of medical treatment would not be sufficient to relieve the original perpetrator of criminal liability for an ensuing death.
In contrast, the High Court in Maphosa’s case found that the negligent medical intervention not only contributed to, but wholly constituted both the factual and legal cause of all consequences associated with his injuries. The court reasoned that the failure of the hospital staff to ensure that the necessary surgery was performed timeously should be regarded as an intervening cause which extinguished the causal connection between the conduct of the wrongdoer [the police officer] and the eventual consequence. This is the opposite of what the Appeal Court suggested should be the case.
It will be interesting to see whether this latest case represents a change in approach to the issues of causation and apportionment or whether it was simply a decision which turned on its peculiar facts, with a judge keen to arrive at a just result.
Author: Jay Page, senior associate, and Sian Fagan, candidate attorney, Bowmans