Louis Case Reports

MEDICAL NEGLIGENCE AND HUMAN BITE

Human bite leading to finger amputation – Two mutually destructive versions – Whether medical staff were told that injury was human bite – This requiring concerted treatment – Doctors found liable for proven damages.
Malan v Dr FG Du Toit Inc [2022] ZAGPPHC 417 at [71]-[84]

In January 2016, Ms Malan and her family were victims of an armed robbery where both she and her husband were assaulted. Ms Malan was bitten on her ring finger by one of the assailants in an attempt to remove her wedding ring. She was rushed to an emergency centre and treated. Prescriptions were issued, but a few days later the pain in the left ring finger became unbearable and her hand became swollen. She urgently contacted her general practitioner, who referred her immediately to an orthopedic surgeon who then treated her. On 15 March 2017 her ring finger was amputated. Ms Malan claims damages from the doctors totalling R2 million for hospital expenses, future loss of earning capacity and general damages.

Kooverjie J discusses the allegations of breach of duty in regard to medical treatment of human bite wounds; the defendant’s contentions that they could not know, or reasonably expected to have known or have foreseen that the injury was caused by a human bite; the further contention that no causal connection was established between the alleged negligent treatment and the amputation of the ring finger, considering the long period from initial treatment in January 2016 to the date when her finger was amputated in March 2017. The court discusses the essential issue of whether or not the nurse and the doctor treating Ms Malan were made aware that she had been bitten by the assailant on her ring finger; the testimony of the witnesses and two mutually destructive versions; the concession that the medical record was incomplete and in certain instances inconsistent, particularly when compared to the notes of the doctor as well as the instructions from the doctor; the expert’s report that the amputation was due to joint damage caused by bacterial infection and that human bites require concerted treatment.

The court finds that the treatment of Ms Malan was inappropriate. She had, on a balance of probabilities, proved that the disclosure of the bite was made to the staff of the defendant. The defendant is ordered to pay her proven damages.

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DEFAMATION AND GOOD FAITH

Defamation – Letter sent to police raising concerns about a family and the children – Containing allegations of sexual deviancy against plaintiff – Reporting of children in need of care and protection to social services or the police – Children’s Act 38 of 2005, s 110.
Buckland v Du Toit [2022] A07-2022 (WCC)at [33]-[46]

Ms Buckland, the appellant, owned a holiday home on a farm in the Koue Bokkeveld region. Mr N was a labourer at the farm where he resided with his family. During 2016 the appellant sent a letter to a social worker and to a police officer at the Family Violence, Child Protection and Sexual Offences Unit. The letter expressed concerns for the N family, in particular the two children, and detailed allegations of sexual deviancy and sexual predatory behaviour on the part of Mr Du Toit, the respondent. The respondent successfully claimed damages in the magistrate’s court for defamation and was awarded R50,000.

Slingers J discusses the test for defamation; section 28(1)(d) of the Constitution; section 110 of the Children’s Act 38 of 2005 and the reporting of an abused or neglected child and a child in need of care and protection; the appellant’s contentions that the statements were made in discharge of a duty to protect minor children and were made to a person or persons in the SAPS and the community welfare organisation who had a duty and a right to receive the statements to investigate complaints; the contention that the email was not sent with the intention to defame the respondent or to injure his reputation; that the appellant testified that she only wrote the letter and reported the matter to the police because she was advised by the social worker to do so in terms of the Children’s Act; the interpretation of reasonable grounds and good faith as set out in section 110 of the Children’s Act; the presence of animus injuriandi; whether the appellant made the report in good faith and was indemnified by section 110; and whether even if the appellant was not indemnified by section 110 of the Children’s Act, she believed that she was.
The appeal is upheld and the court a quo’s order replaced with one dismissing the claim. (Nyati AJ concurred.)

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COSTS AGAINST OMBUD SERVICE

Community Schemes Ombud Service – Owners Association aggrieved by adjudicator’s decision – Obtaining relief in High Court – Costs award against Service – Service, ombuds and adjudicators are immune from costs orders – Community Schemes Ombud Service Act 9 of 2011, ss 33 & 37.
CSOS v Stonehurst Mountain Owners Association [2022] ZAWCHC 126 at [9]-[23]

Following a dispute between the Association and certain of its members, one of the members referred the matter to the Community Schemes Ombud Service for adjudication. The Service in turn appointed the related party, a Mr Ralawe, to adjudicate the dispute. He handed down an adjudication order, but the Association was aggrieved by the ruling and launched an application in the High Court. Relief was sought urgently in Part A and then a range of relief in Part B. The Court granted all but the review relief (which was not necessary since it was claimed in the alternative) and further ordered that the Service bear the Association’s costs.

Cloete J discusses the Service and its powers and duties in terms of the Community Schemes Ombud Service Act 9 of 2011; section 33 of the Act and limitation of liability; and section 37 and privileges, immunities and non-waiver. It was clear that the chief ombud, an ombud, a deputy ombud and an adjudicator are all immune from costs orders. In addition, in terms of s 33, the Service and any of its employees are only liable for loss or damage if they act unlawfully, in a grossly negligent manner, or in bad faith. The ruling of the adjudicator may have been wrong, however the legislature anticipated that there would be such instances, and for this reason provided, in s 57(1) of the Act, for an automatic right of appeal to the High Court on a question of law. The order previously granted is varied such that there is no order as to costs.

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

You can read his full CV and more about Louis on his LinkedIn profile where he shares interesting and recent cases.

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