HAL obo MML v MEC for Health, Free State

SCA confirmed the position regarding joint minutes of experts “In accordance with Bee, if they agree on issues of fact and the appropriate approach to technical analysis, the litigants are bound by those agreements, unless they have been withdrawn in circumstances where no prejudice results, or any prejudice can be cured by an adjournment or other means. If the experts have reached agreement on a common opinion on a matter within their joint expertise, that is merely part of the total body of evidence.”

Essence

Experts joint minutes discussed in a majority judgment and stressed that litigation is not a game and appeal disallowed by majority decision of SCA.

Decision

(SCA Case no 1021/2019) [2021] ZASCA 149 (22 October 2021)

Order:

Majority decision disallowed appeal with costs.

Judges

Makgoka JA (Wallis JA and Unterhalter AJA concurring) and (Molemela JA and Rogers AJA dissenting)

Heard:       9 March 2021
Delivered: 22 October 2021

Reasons

[197] It has on several occasions been said by this court that litigation is not a game. This case resembles nothing so much as a game commenced by hopefully kicking the ball of a summons into play, without any factual basis for a claim
beyond knowing that MML had cerebral palsy caused by a hypoxic-ischemic incident and, if I may mix my metaphors, hoping Micawber-like that something would turn up in the course of pre-trial preparation. The end result was that, when
counsel opened the case before the judge, he was unable to identify the issues to be decided crisply and coherently. Beyond saying that the insult suffered by MML had probably occurred intra-partum, he said nothing about the specific acts
of negligence that were to be relied on, who was responsible for those acts, and what should have been done if there had been no negligence.”

Quotations from judgment

Note: Footnotes omitted and emphasis added

Wallis JA (Makgoka JA and Unterhalter AJA concurring)

[179] I have had the privilege of reading the judgments of my colleagues Makgoka JA and Molemela JA and am in full agreement with that of Makgoka JA. I write separately to express my disquiet over two matters. They are
the circumstances in which these proceedings were brought and the approach to the conduct of this trial, typical of others in the medical negligence cases that are now burgeoning in our courts.

Institution of the litigation

[180] MML was born on 2 May 2005. The action was instituted on 2 September 2014, over nine years later. There are two different descriptions in the record of how his mother (HL), who my sister describes in her judgment as indigent and ill-informed, came to commence proceedings.

[181] The first description was in her affidavit in an application for condonation of her failure to give notice in terms of s 3(2) of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002. HL testified that she had been unaware of the possibility of making a claim arising out of MML’s cerebral palsy until early 2014, when she met a woman, apparently at Thebe Hospital, who indicated that she had instituted an action for damages against the government due to negligence on the part of a hospital when she gave birth. Her affidavit then reads:

She suggested that I contact her attorneys and after receiving details of my current attorneys from her, I consulted Kagiso Mokoduo of Mokoduo Incorporated currently known as MED Attorneys during May 2014.’

The oddity of a chance encounter with an unidentified stranger79 leading an indigent, unemployed person living in or near Harrismith, to consult an attorney practising in Johannesburg, was not explained. According to her the attorney advised that there needed to be further investigation of a potential claim, but that they should in the meantime give notice of her intention to institute an action.

[182] Notice was given by registered post on 30 June 2014. As was to be expected, the letter was bereft of any detail about the claim. It read:

‘We are advised that the medical and nursing staff at the hospital failed to render and provide the necessary medical, surgical and nursing care, advice, treatment and supervision with such skill and diligence as is reasonably required and expected of doctors, nurses and other medical and administrative staff acting within the course and scope of their employment with the Department of Health of the Free State Provincial Government …
As a result of this the minor sustained various birth injuries, as a result of which the minor now suffers with inter alia Cerebral Palsy and mental retardation …’

[183] Notwithstanding the failure to make any attempt to comply with s 3(2)(b) of the statute by providing ‘the facts giving rise to the debt’, a claim for R20 million was made. The letter’s speculative nature was demonstrated by what followed, which was twenty-five paragraphs of demands for information from the MEC. The letter manifestly did not serve its statutory purpose of informing the MEC of sufficient particulars to enable the matter to be investigated and consideration to be given to whether to resist the claim.80 It was largely a fishing expedition.

[184] The Constitutional Court has explained the purpose of provisions such as these in Mohlomi. 81 It is that:

‘Inordinate delays in litigating damage the interests of justice. They protract the disputes over the rights and obligations sought to be enforced, prolonging the uncertainty of all concerned about their affairs. Nor in the end is it always possible to adjudicate satisfactorily on cases that have gone stale. By then witnesses may no longer be available to testify. The memories of ones whose testimony can still be obtained may have faded and become unreliable. Documentary evidence may have disappeared. Such rules prevent procrastination and those harmful consequences of it.’

I appreciate that there are good reasons why HL had not approached attorneys at an earlier stage, but that does not mean that the problems of litigating in relation to a delayed claim such as the present one disappear. They remained and were manifest when the matter came to trial thirteen years after MML was born.

[185] At the trial an entirely different and more plausible explanation emerged when HL was cross-examined about the circumstances in which she consulted her attorneys. She said that she first saw her attorney on 31 August 2017 and described what happened as follows:

‘And how did it happen that you decide to visit an attorney, to see an attorney, in 2017? _ _ _
What happened exactly My Lord is that there was a certain lady who arrived at Dimakatso Disabled Centre.
At the what, sorry … _ _ _ Dimakatso Disabled Centre and she told us about their attorneys and there were children there at that centre and five children were selected and we were taken for an interview.
Sorry, who selected the children _ _ _ That lady selected those five children and my child was also amongst those five. We went for an interview but four of those five did not qualify … Yes, only my child qualified. That is why he was picked.’

[186] HL explained that the woman who came to the school was called Charmaine. When asked who made the decision of who qualified and who did not qualify, her answer was:

‘We were told at school that a certain lady arrived and she picked up [Quaere: out] five children and we as the parents to those children, we also accompanied our children and [on] our arrival there, there were these two ladies… that Charmaine lady and the other white lady. And what happened is that we got into a room, but we did not got in [at] the same time, we got into that room one by one for that interview.’

[187] No doubt concerned by this turn of events, which was wholly inconsistent with the explanation given in the condonation application and involved an egregious example of touting for work among vulnerable children, HL’s counsel questioned the relevance of this line of cross-examination. The objection was correctly rejected and HL was asked on what basis the selection had taken place.

She was hard put to say, her evidence being:

‘After I explained everything to that lady, she said to me that child might have got injured during birth, because I have already told her everything about the birth of the child, the whole process. That is how she said that she qualified to take this matter to the lawyers based on the information I furnished to her.’

HL said that the lady later called and arranged for her to see a doctor, but not at that stage – which she placed in July or August 2015 – an attorney.

[188] If the version to which HL attested in court is correct, other than in respect of the dates, it seems to me to be a matter for investigation by the Legal Practice Council. While many rules have been relaxed to aid access to justice, such as the rules governing advertising and those permitting the charging of contingency fees, active touting is not permitted. Going to a school for disabled children to select promising cases for litigious purposes strikes me as something that should not be condoned. Rule 18(10) of the Code of Conduct for attorneys promulgated in terms of the Legal Practice Act 28 of 2014, provides that attorneys may not:

‘buy instructions in matters from a third party and may not, directly or indirectly, pay or reward a third party, or give any other consideration for the referral of clients other than an allowance on fees to an attorney for referral of work.’

Rule 18.22 provides succinctly that attorneys may not:

‘Tout for work’
and provides that:
‘An attorney will be regarded as being guilty of touting for professional work if he or she either personally or through the agency of another, procures or seeks to procure, or solicits or for, professional work in an improper or unprofessional manner or by unfair or unethical means …’

On the face of the appellant’s evidence it appears that these rules may have been breached in this case.

Conduct of the trial

The pleadings

[189] The action commenced by the issue of summons on 2 September 2014. According to the medical reports in the record the only investigation of MML’s condition at that stage was an MRI scan in respect of which a report by Prof Andronikou dated 20 August 2014 was available. The report’s conclusion was that the MRI scan showed:

‘Features are those of chronic evolution of a global insult to the brain due to hypoxic ischaemic injury, of the partial prolonged variety, most likely occurring at term.’

As was to be expected the report said nothing about the cause of the injury or what, if anything could have been done by the hospital staff to prevent the injury or ameliorate its consequences.

[190] The necessary consequence of this was that the particulars of claim were based entirely on the imagination of the attorney who drafted them, rather than any endeavour to comply with the Uniform Rules governing pleadings. Rule 18(4) requires a pleading to contain a clear and concise statement of the material facts upon which the pleader relies for the claim, with sufficient particularity to enable the opposite party to reply thereto. The latter is obliged by rule 18(5) not to plead evasively, but to meet the point of substance. If that point does not emerge from the particulars of claim they cannot do this.

[191] In breach of Rule 18(4) the particulars of claim made no attempt to identify the facts giving rise to the claim. It consisted entirely of vague generalities summarised in the following paragraphs:

‘During the course of 1 and 2 May 2005 the Plaintiff endured prolonged periods of labour in circumstances where more and/or alternative and dedicated medical attention, treatment and/or advice was required to ensure the safe birth of a healthy child and in particular a timely Caesarean Section.

As a result of the prolonged labour, a lack of attention and medical care as may be reasonably required in the circumstances and in particular a failure to timeously perform Caesarean Section to deliver the Minor, the Minor suffered a hypoxic-ischemic insult due to peri-natal asphyxia and/or hypoxia, causing the Minor to sustain severe brain damage, as a result of which the Minor is permanently suffering from cerebral palsy and mental retardation (“the Complications”).

The Complications occurred as a result of the negligence of the Defendant, alternatively as a result of the negligence of the Defendant’s employees and/or representatives and/or agents, alternatively, as a result of the combined and cumulative negligence of the Defendant and the Defendant’s aforesaid employees, representatives and/or agents.’

[192] The pleaded particulars of negligence were if anything even vaguer. It was alleged that ‘the Defendant and/or the Defendant’s aforesaid employees, representatives and/or agents’ were negligent in one or more or all of the following respects:

‘10.1 they failed to employ and/or ensure medical attention by suitably qualified and/or proficient and/or experienced medical practitioners and/or nursing staff who would be available, able and/or capable to examine, treat and/or provide whatever reasonably required assistance and/or advice to the Plaintiff as may be reasonably required and/or appropriate regarding her labour and delivery, and in particular in respect of performing a Caesarean Section if and when required, either at the Hospital or at all;
10.2 they failed to ensure that such medical practitioners and/or nursing staff were in attendance at all material and relevant times;
10.3 they failed to employ and/or ensure medical attention by suitably qualified and/or proficient and/or experienced medical practitioners v nursing staff who were able to assess, monitor and manage the Plaintiff’s labour and delivery;
10.4 they failed to ensure that the Hospital was suitably, adequately, appropriately and/or properly equipped to provide such medical attention as was reasonably required by the Plaintiff at all relevant times hereto, and in particular to allow the timeous and proper performance of a Caesarean section when it was required;
10.5 they failed to take any and/or any reasonably required steps to ensure the proper, timeous and professional assessment of the Plaintiff, her monitoring and management of labour and/or assistance during the Plaintiff’s labour and her process of birth;
10.6 they failed to implement such steps as could and would reasonably be required to prevent the occurrence of the Complications;
10.7 they failed to avoid the Complications when by the exercise of reasonable care, skill and diligence they could and should have done so.’

[193] Not content with this exercise in obfuscation, the pleader added a further paragraph with eighteen sub-paragraphs of equally general allegations about the hospital staff, culminating with the allegation that they failed to prevent MML from suffering a hypoxic-ischemic incident, causing him to suffer severe brain damage, as a result of which he suffers from cerebral palsy and mental retardation, when by the exercise of reasonable skill, care and diligence they could have done so.
One can allow a measure of generality in pleading allegations of negligence, but simply to allege everything the pleader can conjure up as potential negligence is unacceptable. There needs to be clarity as to the case being made and the nature of the impugned conduct on the part of the defendant, or those for whose conduct the defendant is said to be liable, who must at the least be identifiable.

[194] There is much to be said for the proposition that these particulars of claim could have been set aside as an irregular proceeding under Rule 30, but instead the defendant pleaded a bald and general denial of all these allegations. An attempt was then made by way of a detailed request for further particulars for trial to ascertain what the case was that the defendant had to meet. By way of example, para 4 of the request read:

‘4.1 What were the risk factors presented by the mother indicating the need for a caesarean section?
4.2 What were the risk factors presented by the unborn child indicating the need for a caesarean section?
4.3 Exactly in what time, during 1st and 2nd May 2005, was each indicator present?
4.4 Who was the surgeon who should have performed the caesarean section?
4.5 At what hospital was the operation to be performed?
4.6 The exact date and approximate time and duration of Plaintiff’s stages of labour.
4.7 The exact date and approximate time and duration of Plaintiff’s second stage of labour.
4.8 The exact date and approximate time and duration of Plaintiff’s third stage of labour.’

The utterly unhelpful response to the first of these questions was:

‘In so far as the particulars sought are not contained in the Notices filed and to be filed by the Plaintiff in terms of Rule 36(9)(b), they remain matters for evidence.’
That answer was repeated in response to a question whether MML suffered any birth injury during the delivery process and to the detailed questions in paras 10 to 27 of the request. The end result was that after this the defendant was no wiser as to the factual basis for the claim. Neither the defendant, nor the court, should be required to analyse the expert notices and accompanying reports in order to ascertain what the case is about.

[195] Two other questions and answers deserve mention. In response to a question about the qualifications that the relevant medical practitioners and nursing staff should have possessed – relevant given the allegations that they were not suitably qualified – the answer was:

‘The Defendant is the party better suited to answer this question.’

In response to questions about which doctors and nurses attended to HL and the date and time of her admission to a general ward, the maternity ward and the labour ward, the answer was:

‘The Defendant is directed to the Thebe Hospital records held under number 840821 in the possession of the Thebe Hospital.’

At the time this answer was given discovery had been made of the records that were available and HL’s attorney knew that the remaining records were missing.

The impression this leaves is that HL’s attorneys were unwilling, or unable, to clarify their case.

[196] The pre-trial conferences did nothing to address the problem that the issues in dispute were wholly undefined. Both the pleadings process and the pre-trial procedures failed to serve their purpose of clarifying the issues in dispute between the parties. HL’s legal representatives seem to have laboured under the misapprehension that everything was resolved by way of a series of joint minutes by medical experts consulted by the parties.

I will revert to those later in this judgment, but for the present it suffices to say that minutes of experts are no substitute for a proper definition of the issues in the pleadings, preferably narrowed by the proper conduct of pre-trial conferences under rule 37. As matters stood, when the trial commenced all that could be said about the nature of the claim was that MML had cerebral palsy caused by a hypoxic-ischemic incident, which may or may not have occurred during labour. It was alleged that some unidentified member or members of the medical or nursing staff should have prevented this by unspecified means, possibly including delivery by Caesarean section.

[197] It has on several occasions been said by this court that litigation is not a game. This case resembles nothing so much as a game commenced by hopefully kicking the ball of a summons into play, without any factual basis for a claim beyond knowing that MML had cerebral palsy caused by a hypoxic-ischemic incident and, if I may mix my metaphors, hoping Micawber-like that something would turn up in the course of pre-trial preparation. The end result was that, when counsel opened the case before the judge, he was unable to identify the issues to be decided crisply and coherently. Beyond saying that the insult suffered by MML had probably occurred intra-partum, he said nothing about the specific acts of negligence that were to be relied on, who was responsible for those acts, and what should have been done if there had been no negligence.

[198] This diffuse, unfocussed approach to the conduct of complex litigation is to be deprecated. If the issues are not properly and clearly defined the conduct of the trial cannot be controlled in a properly efficient manner. On appeal, by which stage the issues should have been clear and the alleged negligence defined in terms of the acts or omissions of specific individuals, HL’s counsel contented themselves with saying that the appellant’s case was that:

‘… as a result of her prolonged labour and the lack of attention and medical care she received, in particular the failure by the personnel to properly monitor her and the foetal in order to either expedite delivery or perform an emergency caesarean section delivery upon detecting foetal distress, [MML] suffered a hypoxic ischemic insult in the intrapartum period.’

The heads of argument proceeded by saying that the trial focussed on an almost complete absence of hospital records and submitting that the res ipsa loquitur principle should be applied.82 The impression is that even at this stage the precise basis of the claim is uncertain.

[199] The remedy is straightforward. In any case where the pleadings and pre-trial procedures have not resulted in a clear statement of the issues, the trial judge should require the parties to deliver a statement of the issues in accordance with Rule 37A(9)(a), that is, a statement of what is not in dispute and a statement of what is in dispute, setting out the parties’ respective contentions on those issues.

If the matter is subject to judicial case management under that rule such a detailed statement is a requirement. If it is not, it is within the judge’s powers, under Rule 38(8)(c) and their inherent power to regulate the proceedings, to require that such a statement be provided.

Sequence of witnesses

[200] This is where the next problem arose. The first three witnesses for the appellant were experts – a professor of nursing, an obstetrician and a specialist paediatrician and medical geneticist. Only the last of these had consulted with the plaintiff and her son, and the usual documentary material that is sometimes a sufficient basis for the experts to consider and express their opinions was not available. The only available hospital records reflected that the appellant experienced a normal delivery with nothing untoward occurring. Her baby was delivered at 5.00 am on 2 May 2005 and she was discharged the following afternoon. Nothing untoward was noted in the Road to Health Chart of her clinic visits until some 18 months later.

[201] The judge needed to determine when the insult that caused MML’s cerebral palsy occurred; the underlying cause; whether foetal distress should have been detected during the appellant’s labour and, if so, what should have been done about it. The experts were unable to answer these questions on the basis of an MRI scan; the scanty medical records, which reflected that his birth was normal and not attended by any complications; the examinations of MML in the presence of the appellant undertaken by Prof Solomons, Dr Gericke and Dr Kganane and the interview of the appellant by Dr Mogashoa.

All of the experts based their reports and, where they gave oral evidence, that evidence, on information obtained from the appellant either directly, or by reference to Prof Solomons report and notes or a statement apparently provided by the appellant’s attorneys. This underpinned all the opinions being expressed.

[202] The evidence of the appellant as to what had occurred was essential for the conduct of her case. Nine years had elapsed since MML’s birth before the action was instituted and the trial took place four years after that. In the absence of medical records, it could not be expected that the nursing staff would have any independent recollection of the plaintiff, or MML’s delivery, especially if the delivery was normal as reflected in the available records. Only the appellant could give any direct evidence. The reliability of her evidence was accordingly fundamental. If it was reliable then the opinions of the experts based upon it would be acceptable. If it was not, that evidence could not be accepted.

[203] The report of the first witness, Prof Nolte, dated 20 September 2017, was based on information provided by third parties in the form of a report by Prof Solomons and what she described as ‘consultation records’ of the plaintiff.

The second witness, Dr Hofmeyr, whose report was dated 6 September 2017, relied on the Road to Health Chart, the Maternity Register, appellant’s obstetric Discharge Summary, a report on the MRI scan on MML by Prof Andronikou, the report of Prof Solomons and a ‘factual statement’ dated 31 August 2017 by the appellant. Neither the statement, nor the consultation records, which may have referred to the same document, were made available to the court.

[204] The third witness, Dr Gericke, whose report was dated 21 September 2017, had at least seen HL and examined MML on 31 August 2017. In addition, he relied on ‘the personal injury claims consultation notes’, which may have been the same document as was provided to Prof Nolte and Dr Hofmeyr, but was not disclosed, the Road to Health Chart, the report by Prof Andronikou and the report by Prof Solomons.

[205] Prof Solomons did not give evidence because the parties agreed, during the course of the trial and before the appellant testified, that the joint minute between him and Dr Griessel could stand as a record of what they agreed, subject to qualifications expressed by Dr Griessel. That agreement did not render anything other than Prof Solomons’ opinions admissible.

While his report was before the court, insofar as it contained factual matter on which the evidence of these three witnesses was based, it was inadmissible hearsay. The following facts set out in his report were accordingly not facts on which the other experts were entitled to rely without proof, namely that:

(a) On 1 May 2005 at 01h00 HL presented with mild lower abdominal pain;
(b) At 07h00 this had ‘increased in severity’ indicating that this was a continuation of the pain at 01h00;
(c) HL’s membranes ruptured at 11h00 that morning and she went to Thebe Hospital at 12h00 arriving at 12h30;
(d) At the hospital she was assessed by nursing staff and was told that the baby was ‘still far’ and the cervix was 3 cm dilated;
(e) On one occasion a CTG was placed on her whilst she was in the labour ward, but she did not recall any abnormalities;
(f) HL was assessed by the nursing staff at 18h00 and 20h00 on 1 May and at 01h00; 02h00 and 04h00 on 2 May 2005;
(g) On each occasion she was told that the baby was ‘far’ and that she should not push, but lie on her left side;
(h) The abdominal pains were severe from the previous evening;
(i) The baby’s head crowned at 04h45 and the mother shouted for assistance and three nurses came to help;
(j) MML was born at 05h00 on 2 May 2005;
(k) At delivery MML did not cry and two tubes were placed in his nostrils indicating nasal prong oxygen;
(l) The nursing staff did not inform HL of MML’s condition, which suggested that there was something to inform her about.

[206] Almost all of those facts depended upon HL. The only ones derived from the hospital records were that she had been admitted to the hospital on 1 May 2005 at about 13h00 ‘in labour’ and that MML was born at 05h00 on 2 May 2005. Yet the basis for Prof Nolte’s report was that labour commenced at 01h00 on 1 May 2015. She said that there was prolonged labour of about 28 hours duration. Her description of HL’s labour was taken directly from Prof Solomons’ report, although she omitted the assessments by the nursing staff at 01h00 and 02h00 that he reported. Did she in that regard rely on the statement by HL in preference to the report of Prof Solomons? We do not know.

What we do know is, for example, that she was apparently unaware that HL would testify that she felt a minor pain on her bladder at 01h00 on 1 May, but it passed and she went back to sleep until 07h00. Prof Nolte did not mention that and she could not be cross-examined on it. Nor did she or any of the experts mention that between 20h00 and midnight HL would say that she slept again and awoke because of a pain. The implications of this could not be explored because that evidence had not been given. Nor could any of them take into account her answer under cross-examination that she was not told on her initial examination at the hospital that she was 3cm dilated.

[207] The materiality of the appellant’s evidence was apparent from the reports of these two experts. Dr Hofmeyr based her opinion on an absence of foetal monitoring during labour; inadequate maternal monitoring and probable prolonged labour. Her report and the joint minute compiled by her and Dr Schoon noted the absence of records and said that it hindered their ability as witnesses to fairly assess the circumstances surrounding the claim of obstetric negligence.
Prof Nolte said that HL was in prolonged labour for 28 hours; that the active stage of labour was only 20 minutes; and that the nursing care was sub-standard. These opinions were all based on hearsay material said to emanate from the appellant.

[208] In those circumstances HL had to be the first witness in order to set the stage for the experts. When the trial commenced and appellant’s counsel indicated that Prof Nolte would be the first witness, respondent’s counsel objected that, because HL would not have given evidence, he did not know on which data the expert would base her evidence. He correctly pointed out that the facts on which the expert evidence was based needed to be admitted or proved.83 That is clear.

This court has said that84 before any weight can be given to an expert’s opinion, the facts upon which the opinion is based must be found to exist and an opinion based on facts not in evidence has no value for the court.

[209] The judge responded to the objection by saying:

‘Well your viewpoint might be that the evidence that is relied upon would be hearsay evidence and that you object thereto and you have got an assurance that the witness be called.’

Counsel replied that this was an expert witness who had to report on a factual basis, or on some data, if there was to be any merit to their evidence. He pointed out that in her expert summary Prof Nolte referred to Prof Solomons’ report and a ‘kind of statement’ of HL that someone else had drafted. He expressed concern over the value of evidence given on that basis.

[210] The judge then said that he could not tell the plaintiff how to call the witnesses and that experts rely on factual foundations provided to them so that if the factual foundation falls away the expert evidence is worthless. He then said, with counsel’s acquiescence, that the hearsay evidence would be admitted provisionally and could be struck out later. Counsel for HL then intervened to say that the experts on both sides had used ‘basically the same information’ and, if a dispute arose, he would then call her.

In other words, there was no certainty that HL would give evidence.

[211] This was not an appropriate way in which to conduct the trial. In my view the judge erred in his response to the objection. It was an objection to the expert witnesses being permitted to give evidence on the basis of factual hearsay. Given the fundamental importance of HL’s evidence in this case, the objection should have been upheld. Until the factual basis for the experts’ evidence had been established their opinions were inadmissible. Judging by his comment that he could not tell the HL’s counsel in what order he should call his witnesses, the judge regarded this as a matter of counsel’s discretion in regard to the presentation of a case.

I think that was wrong, as the objection raised issues of the admissibility of the experts’ evidence. Rejecting it placed counsel for the respondent in an impossible position, where he was unable to challenge HL’s experts on the basis that the facts on which they relied were not supported by her evidence. Nor could he test her evidence against the evidence by the experts of what they had been told, either by her or by Prof Solomons, or by the attorneys in the mysterious ‘consultation record’85 or the factual statement by HL dated 31 August 2017.86 I leave aside for present purposes the question whether the obligation of the experts to set out the materials on which their opinions were based, meant that any privilege that might otherwise have attached to these documents was waived.87

[212] In AM v MEC for Health, 88 another medical negligence case, I had occasion to describe the functions of an expert witness in the following terms:

‘The functions of an expert witness are threefold. First, where they have themselves observed relevant facts that evidence will be evidence of fact and admissible as such. Second, they provide the court with abstract or general knowledge concerning their discipline that is necessary to enable the court to understand the issues arising in the litigation. This includes evidence of the current state of knowledge and generally accepted practice in the field in question. Although such evidence can only be given by an expert qualified in the relevant field, it remains, at the end of the day, essentially evidence of fact on which the court will have to make factual findings. It is necessary to enable the court to assess the validity of opinions that they express. Third, they give evidence concerning their own inferences and opinions on the issues in the case and the grounds for drawing those inferences and expressing those conclusions.’ (Footnotes omitted.)

[213] In dealing with the necessity for the expert’s opinion to be based on admitted or proved facts, the judgment continued:89

The opinions of expert witnesses involve the drawing of inferences from facts. The inferences must be reasonably capable of being drawn from those facts. If they are tenuous, or far-fetched, they cannot form the foundation for the court to make any finding of fact. Furthermore, in any process of reasoning the drawing of inferences from the facts must be based on admitted or proven facts and not matters of speculation.’ (Footnotes omitted.)

[214] There may be cases where it is permissible, or even necessary in order to set the scene for the court to appreciate the issues, for experts to give evidence at the outset of the proceedings when the factual evidence on which they base their opinions may still need to be led. That will ordinarily be so where the factual dispute is narrow and clear-cut and the expert can properly express an opinion on all relevant factual scenarios, without relying on disputed facts. This was not such a case and nor are most similar cases.90

[215] It is not apparent whether HL’s counsel adopted this approach as a tactical device, or with a view to meeting the convenience of expert witnesses, but in my view it was impermissible. Where the facts are central to the opinions of the experts, courts should require that those facts be led in evidence before the experts express their opinions. Primarily that is for the benefit of the court, which is thereby placed in a position where the expert’s opinion can be assessed, and, if need be, queried or elucidated, in the light of the factual material before it. It is also conducive to fairness in cross-examination of the experts on behalf of the defendants. Where the case comes on appeal it facilitates a reading of the record.

Lastly, if this principle is borne in mind and objections are upheld to leading the expert evidence without a proper factual foundation being laid, that should avoid situations, such as that in Madikane,91 where the case was conducted entirely on the basis of expert evidence without any factual foundation at all for the opinions being expressed.

Expert minutes

[216] It has become a practice in medical negligence cases for parties to arrange for the expert witnesses to meet and to file agreed minutes of their opinions. In some divisions of the high court this may be a requirement. It is a useful practice that may facilitate the running of the litigation by narrowing the issue and enabling the court and the parties to focus on the central issues in the case. That is reflected in the decision of this court in Bee.92

That was a case involving the computation of damages for loss of past and future earnings. Forensic accountants were employed by the parties and they signed a joint minute setting out the facts on which they were agreed and the areas where they were unable to agree. At the trial the Road Accident Fund’s forensic accountant sought to depart from the factual agreement by relying on a report not available at the time the joint minute was signed and using that to recalculate the agreed figures on which the joint minute had been based. Contrary to the agreement, he also sought to contend that there was no gratuitous element to the remuneration Mr Bee had been receiving since the accident.

[217] In Bee the majority judgment, authored by my brother Rogers AJA, rightly held that this could not be countenanced. The trial had been prepared and conducted under this head of damages on the limited issues identified in the joint minute. Those included an agreement as to the basis for calculating the loss of earnings of the business in which the plaintiff was involved and an agreement that a proportion of his earnings after his injuries was gratuitous and paid only because it was a family business involving him and his brother.

To permit a departure from that course would have required an adjournment and probably the filing of a supplementary expert’s opinion. The decision was expressly based upon the need for fairness in the conduct of legal proceedings and the avoidance of trial by ambush.

[218] The effect of Bee in relation to the agreed minutes of experts in this case involved two misconceptions. The first related to the need to call the experts to give oral evidence in support of their opinions and, where experts were called, their entitlement to expand upon and explain the basis for their opinions. The second related to the weight to be attached to the opinions themselves.

[219] There appeared to be a perception, reflected in both the record and the heads of argument that such agreements are contractual in nature. The agreements were described as having been ‘struck’ and not having been ‘repudiated’. That is the language of contract, and the give and take of negotiation, to arrive at a compromise. It is wholly inappropriate to describe the endeavours of independent experts to explain for the benefit of a court the matters on which they hold the same view and those on which they differ.

That is why it was suggested in AM v MEC for Health93 that the experts should be required to draft these minutes themselves and that the lawyers should play no part in that process.

[220] A clear distinction in principle needs to be drawn between factual evidence given by an expert witness and the opinions expressed by that witness. As to the former, there is no difficulty in applying Bee to the facts on which the experts agree, any more than there is a difficulty where the parties themselves reach agreement on factual issues.

The opinions of the experts stand on a completely different footing. Unlike agreements on questions of fact, the court is not bound by such opinions. It is still required to assess whether they are based on facts and are underpinned by proper reasoning.

Bee94 endorsed a remark by Sutherland J in Thomas95 that the occasions on which that occurs are likely to be rare, but that will only be in cases where the opinion is clear and there is nothing in the evidence to controvert it. Before a court accepts an opinion, it must pay close attention to the qualifications attaching to it. Furthermore, agreement by two experts on an opinion cannot preclude another expert with appropriate qualifications from expressing a different view, either in a report or in oral evidence. That is especially so when the third expert’s views are based on their own speciality, which differs from that of the other two. The only constraint on that is that it should not result in unfairness to the party that has relied on the agreed opinion.

[221] This point can be illustrated by reference to the agreed minute signed by the specialist radiologists, Prof Andronikou and Dr Kamolane. The minute read:

‘The radiologists agree that the MRI demonstrates features of chronic evolution of hypoxic ischaemic injury, of the partial prolonged variety, occurring in a brain of term maturity (≥ 37 weeks), probably occurring in the perinatal time-period and should therefore be correlated with clinical parameters by paediatric and obstetric experts for the establishment of a more exact time-period and causes that led to this result.’

[222] In accordance with her report, Dr Kganane said in evidence that MML had spastic diplegic cerebral palsy that was not typical of HIE. That had been recorded in her joint minute with Dr Gericke. When she explained this in her evidence in chief, she said that if there had been a profound insult to MML’s brain during or around the time of his birth, his clinical features would have been different.

This attracted an objection that this evidence was inconsistent with the agreement between the radiologists. Counsel’s approach was that the radiologists’ agreement confined the insult suffered by MML to the perinatal period and it was not open to Dr Kganane to question the severity of the insult at that time. But the agreed minute related to their opinion in regard to the period when the insult occurred, not to a question of fact. It was always clear that there was a dispute about when MML suffered the insult, and evidence that MML’s condition was not typical of HIE was relevant to whether the judge should accept the joint opinion. In addition, Dr Kganane was expressing a view based on her own speciality and, as has been pointed out elsewhere, experts in the medical field do not operate in hermetically sealed compartments. The court is entitled to the full picture.

[223] Similarly, when Dr Mogashoa came to give her evidence, in accordance with her report and joint minute with Prof Solomons, both of which were in existence before the trial commenced, her evidence was objected to on the grounds that it was inconsistent with the joint minute between Prof Solomons and Dr Griessel.96 The latter referred to MML’s injury being ‘at term’ and Dr Mogashoa sought to explain that a ‘term brain’ was from 35 weeks, while a ‘term pregnancy’ was from 37 weeks.

[224] In pursuing this objection, counsel referred to item 6 of the Solomons/Griessel joint minute, which read:

‘In the setting of absent medical records and maternal history of sucking and swallowing abnormality, timing of the partial prolonged hypoxic ischemic injury to the interpartum period cannot be excluded. – Agree. If disagree state reasons for same. Additional comment: D Griessel: The normal growth first year of life makes severe feeding difficulty unlikely.’

[225] Counsel relied on the first part as having been agreed, but this disregarded the qualification added by Dr Griessel, which challenged the factual basis for the opinion. As this court recently pointed out, the necessary corollary to an agreement in a joint minute limiting the issues on which evidence is necessary is that, where there is no agreement, the minute can be disregarded and, if a party wishes to pursue the disputed point, evidence will be necessary.97

[226] In Huntley v Simmons98 Waller LJ said in relation to expert minutes that:

‘The evidence of experts is important evidence but it is nevertheless only evidence which the judge must assess with all other evidence. Ultimately issues of fact and assessment are for the judge. Of course if there is no evidence to contradict the evidence of experts it will need very good reason for the judge not to accept it and he must not take on the role of expert so as to, in effect, give evidence himself. So far as Joint Statements are concerned parties can agree the evidence but (as happened in this case) it can be agreed that the joint statements can be put in evidence without the need to call the two experts simply because they do not disagree; but either party is entitled to make clear that the opinion expressed in the joint statement is simply evidence that must be assessed as part of all the evidence.’

[227] Reference to the record indicates that this was the basis upon which the joint minute of Prof Solomons and Dr Griessel was placed before the trial court.

Counsel for HL said that ‘the defendant accepts and abides by those agreements, as qualified by Dr Griessel’. Counsel for the MEC confirmed that:

‘we agree that the joint minute can stand, as per between Dr Solomons and Dr Griessel.

Important is that Dr Griessel did make some qualifications that must be included of course.’

[228] It is clear that the joint minute was simply evidence of the opinions of the two signatories to it, subject to the qualifications raised by Dr Griessel, and was to be taken into account along with all other evidence bearing upon the issue of when the insult causing MML’s condition occurred. That evidence included the expert testimony of Dr Kganane and Dr Mogashoa as well as the factual evidence derived from the testimony of the factual witnesses and the medical records that were available.

[229] In summary, the position in regard to agreements between experts, is as follows. In accordance with Bee, if they agree on issues of fact and the appropriate approach to technical analysis, the litigants are bound by those agreements, unless they have been withdrawn in circumstances where no prejudice results, or any prejudice can be cured by an adjournment or other means. If the experts have reached agreement on a common opinion on a matter within their joint expertise, that is merely part of the total body of evidence.

The court must still determine whether to accept the joint opinion. The existence of that agreement between the experts will not ordinarily preclude evidence that qualifies or contradicts their opinion, unless the case has been conducted on the basis of the agreement and the admission of that evidence will prejudice the other party in a manner that cannot be cured. If the parties choose to place an agreed minute before the court reflecting both shared opinions and areas of disagreement and do not call the parties to the minute to deal with the areas of disagreement, the minute will do no more that reflect that there is disagreement on the point. While it is for the parties to determine which witnesses they call, if they fail to call the authors of a joint minute they cannot object when other witnesses express views that qualify or dissent from the views in the minute.

[230] The existence of joint minutes may not be used to prevent witnesses from explaining the reasons for the conclusions expressed in the minute. For example it would have been most helpful for one or both of Prof Andronikou and Dr Kamolane to have explained how they arrived at the view that the injury occurred in the peri-natal period. That is the sort of question that a court would ask in order to understand the degree of certainty about this opinion. They could also have been asked to comment on Dr Mogashoa’s view that the nature of MML’s disability was more consistent with injury occurring to the preterm brain and inconsistent with hypoxia. The passage from AM cited in para 212 identifies the second purpose of expert evidence as being ‘to provide the court with abstract or general knowledge concerning their discipline that is necessary to enable the court to understand the issues arising in the litigation’.

The existence of a joint minute of experts cannot be used to prevent that function from being fulfilled, whether by the experts who were party to the minute or by another expert. The decision in Bee does not relate to the admissibility of expert opinions, but to the fairness of the trial. Expert opinion evidence should only be excluded when it impacts adversely on the latter.

[231] My final point is that the joint minute does not render the whole of the expert’s report admissible in evidence. Unless the expert gives evidence, or it is agreed that the report will be admissible, it remains inadmissible. The deficiencies in a joint minute cannot be resolved by reference to the report of the expert. As the trial judge remarked in Huntley99 a joint minute is a useful document, but by its nature it is never more than a summary.

Conclusion

[232] Had the issues in this case been properly narrowed prior to trial, the evidence been led in its correct sequence and the function and standing of joint expert minutes been properly appreciated, I venture to suggest that the proceedings would have been curtailed and would have been completed with far greater expedition than a ten day trial, with a six month adjournment after the first week.

[233] As noted at the outset of this judgment I concur in the judgment of Makgoka JA.

Court summary

Summary

“Medical negligence – cerebral palsy – circumstances of brain injury – adequacy of evidence of negligence.
Trial – conduct – obligation of parties to define the issues – sequence of witnesses – joint minutes of experts – agreement on facts contrasted with agreement on opinion – approach to agreements on matters of opinion”

Media summary

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To follow