MEDICAL NEGLIGENCE – Cerebral palsy – Monitoring – Timeous detection of foetal distress – Event that led to brain damage occurred before birth and was caused by hypoxia – Deprivation of oxygen at a critical time – Could have been alleviated with implementation of basic treatment protocol designed to alleviate foetal distress – Fell short of the standard of care expected – MEC liable for proven or agreed damages.
Facts: In 2012 plaintiff had a normal pregnancy but experienced pain and was admitted to the labour ward of Hillbrow Clinic. When baby D was delivered, he did not move or cry. He was taken for resuscitation and suctioning and given oxygen. He was then transferred to Charlotte Maxeke hospital for further care where he was admitted to the paediatric ICU.
Claim: For damages based on the contention that the negligence of the staff caused the child to develop cerebral palsy as a consequence of a hypoxic-ischaemic event that resulted in irreversible brain damage.
Discussion: The contention that the staff failed to properly monitor the progress of the plaintiff’s labour and the foetal well-being; the evidence of the witnesses called for the plaintiff and the defendant; that plaintiff is from Ethiopia and is unable to speak or understand any African languages; her contentions that she screamed out for help because of the pain but the nurses did not heed her cries; and that it was common cause between the obstetricians and the paediatric neurologists and radiologists who testified that the insult that led to Baby D’s irreversible brain damage occurred intrapartum (before birth) and the cause was hypoxia.
Findings: The injury that befell baby D was both reasonably foreseeable and preventable by correct monitoring designed to detect foetal distress before an insult leads to injury and correct intervention to alleviate such distress. Deprivation of oxygen occurred at a critical time during which baby D needed it the most and which could have been alleviated in accordance with a basic treatment protocol. This fell short of the standard of care that was required to be provided to baby D by the attending staff who were responsible for monitoring his condition.
Order: The MEC is liable for the proved or agreed damages.
ARBITRATION – Review – Gross irregularity – Order to repay university funds reallocated by accountant and found to be unlawful expenditure – Whether the particular circumstances of the matter before the arbitrators should have given rise to a consideration of the development of the common law – Application of the common law to place onus on accountant to plead and prove his contentions – Arbitrators had not misconceived the nature of the inquiry by simply having failed to consider the development of the common law – Arbitration Act 42 of 1965, s 33(1)(b).
Facts: Mr Roux, a qualified accountant with a LLB degree was employed by the University in its finance department from 2004 to 2010. A scheme conducted by Mr Roux was discovered almost a year after he left the employment of the University in the course of auditors KPMG conducting an investigation into perceived irregularities in the student fees office. The University claims that Mr Roux breached his contract of employment where, without its knowledge, and through the use of a software programme, he re-allocated funds from the unrestricted cost centre to cost centres under his control. The University claimed that it suffered damages of R37,116,402.
Application: The University seeks an order against Mr Roux that a final arbitration award and an arbitration appeal award be made orders of court. Mr Roux was ordered to repay a total amount of R37,116,402 as damages to the University for his unlawful expenditure of the funds.
Discussion: The grounds for the setting aside of the awards by the arbitrators as having committed gross irregularities in the conduct of the proceedings, put forward for Mr Roux; whether the University had in fact received a benefit as a result of the unlawful conduct of Mr Roux and that the expenditure was legitimate and made within the scope of the business of the University; the findings of the initial arbitrator and the Appeal Tribunal; the contention by Mr Roux that the University had not established the quantum of its loss; and whether the particular circumstances of the matter before the arbitrators should have given rise to a consideration of the development of the common law.
Findings: The arbitrators found on the application of the common law Mr Roux carried the onus to plead and prove any benefits he contended for. They found that the loss suffered by the University as result of the unauthorised expenditure was general damages as opposed to special damages notwithstanding that the claim arose in the context to an employment contract. The court is unable to find that the arbitrators had misconceived the nature of the inquiry by simply having failed to consider the development of the common law which resulted in any gross irregularity.
Order: The final arbitration award and the Award of the Appeal Tribunal are made orders of court.
CONSTITUTION – Electricity – Impact on rights – Practice of “loadshedding” by Eskom to save the integrity of the national energy grid impacts prejudicially on rights to health, security and education – Infringement of these rights justify judicial intervention – To limited extent that principle of separation of powers is not overstepped – Minister ordered to take reasonable steps to ensure sufficient supply to prevent interruption through loadshedding at public health establishments, public schools and police services.
Facts: Eskom has been implementing “loadshedding” whereby it effectively cuts off the supply of electricity to areas of the country on a rotational and scheduled basis to protect the integrity of the national energy grid and avoid a total country-wide blackout.
Application: Applicants seek relief aimed at reducing the prejudicial impact of loadshedding on public health facilities, police stations and schools which do not have sufficient alternative energy sources available to them. The applicants claim that without such energy sources the Constitutional rights of citizens to healthcare, security and education are infringed upon.
Discussion: The respondents’ obligation to provide electricity and the resultant infringement of fundamental Constitutional rights in the event that electricity is not sufficiently or consistently supplied; the right to access to healthcare; the right to education; the contention that the right to freedom and security of the person creates an obligation to ensure that the South African Police Service is able to perform their functions; and the argument that even if there may not be a right to electricity mentioned in the Constitution in so many words, other fundamental rights can only be exercised or manifested by way of an uninterrupted supply of electricity.
Findings: There had been repeated breaches by the State of its constitutional and statutory duties and that these breaches are continuing to infringe on citizens’ rights to healthcare, security and education. The court was from the outset acutely aware of the issue of separation of powers. Appropriate relief is justified and called for and such relief can be granted without crossing the dividing line of separation of powers.
Order: Pending determination of part B the Minister shall take all reasonable steps within 60 days to ensure that there shall be sufficient supply or generation of electricity to prevent any interruption of supply as a result of loadshedding to all public health establishments; all public schools; and the South African Police Service and police stations.
DAVIS J (COLLIS J and NYATHI J concurring)
ABOUT THE EDITOR
Louis Podbielski spent ten years at Juta working on various law reports and has read many thousands of judgments for case selection. He has considerable experience in writing flynotes and headnotes, compiling case annotations, and in refining subject indexes. During his four years at LexisNexis he was involved with legal data, analytics and in developing various legal tech solutions. He now runs his own case law service Louis Case Law
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