Eastern Cape MEC liable for damages caused by 'negligent' staff - SCA

2016-11-28 15:27
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Bloemfontein – The Eastern Cape Health MEC is liable for damages caused by medical staff who failed to treat a woman injured in a vehicle collision, the Supreme Court of Appeal has ruled. 

In a judgment dated November 25, the SCA dismissed an application for leave to appeal the MEC, who had been refusing to be held liable for damages suffered by Ongezwa Mkhitha. 

The Eastern Cape High Court in Mthatha previously dismissed the MEC's special plea, in which she alleged that the Road Accident Fund (RAF) is obliged to compensate Mkhitha for any loss or damage suffered arising from the driving of a motor vehicle. 

The MEC then approached the Supreme Court of Appeal in Bloemfontein.    

Mkhitha was involved in an accident on January 23, 2011, when two vehicles crashed.  She was a passenger in one of the vehicles.   

She sued the RAF and the MEC for damages of R5m as a result of injuries sustained in the collision.

Sub-standard orthopaedic care

Mkhitha's claim against the fund was that the driver of the insured vehicle drove negligently and caused the collision.

Her claim against the MEC was based on negligence on the part of the medical practitioners employed by the Eastern Cape department of health at Bedford Orthopaedic Hospital (BOH), where she was treated a week after the collision.

A doctor who testified in the Eastern Cape High Court in Mthatha said Mkhitha sustained a head injury, a fracture of the right femur and fractures of the right and left tibia.

She lost consciousness and was admitted to the intensive care unit at Nelson Mandela Academic Hospital, where she remained for about a week, before being transported to BOH.

According to the SCA judgment, Mkhitha alleged that she had received sub-standard orthopaedic care at BOH.

She also claimed that BOH had failed to employ medical practitioners with the requisite skill and expertise. She said they failed to treat her properly and that they were negligent.

She said, as a result of this negligence, she could not walk or function independently and would require knee surgery and various forms of therapy and special adaptive aids and devices.

'No prospect of success on appeal'

The fund has conceded that the insured driver was negligent and that his negligence caused the collision.

However, the MEC delivered a special plea in which it was alleged that the fund is obliged to compensate Mkhitha for any loss or damage suffered as a result of any bodily injury caused by or arising from the driving of a motor vehicle, if the injury is due to the negligence or other wrongful act by the driver or owner of the vehicle.

The MEC said the damages Mkhitha suffered arose from the driving of a motor vehicle and the department was not liable for any damages sustained in the collision.

The MEC also denied that medical staff at BOH were negligent.  

However, Mkhitha said negligence of the MEC's employees was an "unforeseeable intervening act that caused her to suffer harm, independent of the negligence of the insured driver; and that the consequences of the negligence of the MEC's employees were not caused by and did not arise from the driving of the insured vehicle, and were also too remote to render the fund liable for those damages".

The SCA dismissed the application for leave to appeal saying, "it is plainly bad and had no prospect of success on appeal". 

Read more on:    east london  |  healthcare

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