Cameron J in Oppelt v Head: Health, Department of Health Provincial Administration: Western Cape (CCT185/14)  ZACC 33 (14 October 2015) in the minority judgment.
 Last, can we find the Department directly liable as an institution, rather than vicariously, for negligence on the part of the doctors it employed? Here the question is: should the Department have ensured its medical personnel knew about Dr Newton’s theory? Should it have spread the word that low-velocity injuries should go directly to Conradie? Is it directly liable for negligently failing to do so? The facts already detailed are in point. Given that experienced medical practitioners in spinal injuries simply did not know about the four-hour theory, and that even a “brilliant” senior surgeon like Dr Dunn did not perform closed reductions at all, it is impossible to conclude that the Department was itself negligent for failing to adopt and disseminate Dr Newton’s theory. Before we find that an institution must take practical steps to inform on-site personnel or to establish a protocol embodying a particular treatment, there must first be some measure of professional consensus – some normativity – about what is proper treatment. In this case, there is none. Dr Newton’s theory was new, unpublished, and unknown to the doctors working hard that Saturday afternoon to do the best for their patients. This means that negligence on the part of the Department and its personnel was not proved. For these reasons, I would have dismissed the appeal.