THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 1258/2018
In the matter between:
ANDRÉ MCGREGOR

FIRST APPELLANT
SHARON MCGREGOR

SECOND APPELLANT
and
MEC FOR HEALTH, WESTERN CAPE
RESPONDENT

Neutral citation: McGregor and another v MEC Health, Western Cape
(1258/2018) [2020] ZASCA 89 (31 July 2020)
Coram:
Wallis, Swain, Molemela, Mokgohloa and Dlodlo JJA
Heard:
10 March 2020
Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme Court of Appeal website
and release to SAFLII. The date and time for hand-down is deemed to be 09h45 on
Friday the 31st day of July 2020.
Summary: Medical negligence – plaintiff's case based on expert
evidence – requirements for such evidence to be admitted – duties of
expert witnesses – direct evidence preferable to reconstruction after the
event – trial court's findings of fact - not lightly disregarded – diagnosis
and treatment of child presenting with head injury – instructions on
discharge.

ORDER

On appeal from: Western Cape Division of the High Court (Binns-Ward
J sitting as court of first instance):
The appeal is dismissed.

JUDGMENT

Wallis JA (Swain, Mokgohloa and Dlodlo JJA concurring)
[1] Shortly after 6.00 pm on 23 August 2011 the first appellant,
Mr McGregor brought his six year old son, Justin, to the Trauma Unit at
Red Cross Memorial Hospital. A trauma nurse determined that all his
vital signs (blood pressure, heart and respiratory rate and temperature)
were normal. He was walking, alert and responsive. Dr Horn, the duty
registrar, examined him and concluded that he had suffered a minor
injury, which she described as a bump on the head. After a brief
discussion with his father, she discharged him. He was taken home,
arriving shortly after 7.00 pm, and put to bed in the bed he shared with
his parents. They came to bed at about 9.30 pm. In the ordinary course his
father woke at around 3.30 am to prepare for work. He tried to rouse
Justin to take him to the toilet, but found him to be in an unusually deep
sleep. Concerned, Mr McGregor telephoned the hospital and was told
that, if Justin was still sleeping deeply at his normal waking time of
6.30 am, he should be brought back to the hospital. Shortly after this
Justin wet the bed and vomited and his parents rushed him back to the
hospital arriving at about 4.00 am. Tragically this was too late, because a
CT scan disclosed that he had suffered an extradural haematoma, caused,

in common parlance, by a bleed between the skull and the brain.1 An
emergency craniotomy was performed, but it was too late to prevent the
serious brain injury that has left Justin with cerebral palsy and spastic
quadriplegia.

[2] Mr and Mrs McGregor instituted action in both their personal
capacities and on behalf of Justin against the Member of the Executive
Committee, Health of the Western Cape (the MEC) to recover damages
arising from Justin’s injuries. The action came to trial before Binns-
Ward J, who delivered a comprehensive judgment rejecting the
allegations of negligence levelled against Dr Horn and dismissing the
McGregors’ claims. The appeal is with his leave.

[3] The sole issue in the appeal is whether Dr Horn was negligent in
her treatment of Justin. The nature of the allegations of negligence
requires some explanation of Justin’s injuries. A CT scan performed
when Justin returned to hospital on 24 August 2011, established that the
‘bump’ on his head was caused by a subgaleal haemotoma,2 and that he
had sustained a linear fracture in the left temporo-parietal area of the
scalp behind his left ear. This was accompanied by the rupture of the
middle meningeal artery resulting in a left extradural haematoma between
the skull and the dura surrounding the brain. The pressure exerted by this
on the brain caused Justin’s injury.

1 The haemorrhage occurs between the dura mata that surrounds the brain and the periosteum that
covers the internal surface of the skull. An extradural (or epidural) haemorrhage is to be distinguished
from a subdural haemorrhage (commonly referred to as a brain haemorrhage), which is the rupture of
an artery causing bleeding in the brain, as opposed to a bleed between the dura surrounding the brain
and the skull covering.
2 A subgaleal haematoma occurs between the skull and the scalp. In technical language it occurs,
between the periosteum that covers the skull and the galeal aponeurotica, which is a firm, thick fascial
layer between the scalp and the periosteum of the skull, but is not firmly adherent to the skull.2
Bleeding can take place between the galeal aponeurotica and the periosteum. Where this occurs it is
called a subgaleal haematoma.

[4] Dr Horn could not have detected this fracture from her
examination of Justin on 23 August 2011, because a linear fracture cannot
be detected by a routine examination and palpation of a head injury such
as that suffered by Justin. It would have been detected by a CT scan or a
skull X-ray. At Red Cross Memorial Hospital any further investigation
would have been by way of a CT scan. Accordingly, the first question the
trial court needed to answer was whether Dr Horn should have ordered a
CT scan.

[5] The scope of that issue was considerably narrowed because the
experts agreed, subject to the one point mentioned below, that on
Dr Horn’s observations a CT scan was not indicated.3 The qualification
was that had the bump on Justin’s head felt fluctuant or ‘boggy’ on
palpation reference for a CT scan was indicated. Dr Horn agreed and said
she would have ordered a CT scan if the bump had felt boggy on
palpation. The only dispute was therefore the narrow factual one of
whether on palpation the bump felt boggy. The judge held that it was not
established on a balance of probabilities that it was boggy. The primary
thrust of the appeal is against that factual finding.

[6] Two alternative arguments were addressed on behalf of the
appellants. The first was that Dr Horn should not have discharged Justin,
but kept him at the hospital for further observation and re-examination. It
was claimed that this would have resulted in his condition being detected
and treated earlier. The other was that the advice given to Mr McGregor
when Justin was discharged in regard to monitoring his condition was

3 Goosen, said so expressly. The judge understood Dr Edeling to have conceded that Justin would not
have qualified for a CT scan and this was not challenged either by counsel or Dr Edeling.

inadequate and he should have been told to wake him every two hours.
Had this been done it was submitted that the deterioration in his condition
would have been detected earlier and he would have been brought back to
the hospital for the necessary treatment.

The issues and the approach to the appeal
[7] Whether the bump on Justin’s head was fluctuant or boggy was a
factual question. In determining it the judge assessed the evidence and
credibility of Dr Horn. She said that in the course of her examination she
had felt the bump. While at the time of the trial, nearly seven years later,
she did not have a specific recollection of how it felt, she believed that it
was firm and not boggy. Otherwise she would not have described it in her
notes as a bump and her usual practice in dealing with a head injury that
felt boggy was to order a CT scan. Against that was the evidence of
Dr Edeling, who said that given the nature of the underlying subgaleal
haematoma it must inevitably have felt boggy on palpation. Professor
Taylor disagreed for reasons that will be examined later

[8] The judge found Dr Horn to be a careful and credible witness. He
said that her evidence on this point could not be rejected. That involved
both findings of credibility and fact. It is trite that an appeal court is
reluctant to disturb findings of that character by a trial judge, who was
steeped in the atmosphere of a lengthy trial and had the advantage of
seeing and hearing the witnesses. Such findings are only overturned if
there is a clear misdirection or the trial court’s findings are clearly
erroneous.4 That has consistently been the approach of this court and the

4 R v Dhlumayo 1948 (2) SA 677 9A) at 705-706; S v Francis 1991 (1) SACR 198 (A) at 204C-E.

Constitutional Court as reflected recently in the following passage from
ST v CT:5
‘In Makate v Vodacom (Pty) Ltd the Constitutional Court, in reaffirming the trite
principles outlined in Dhlumayo, quoted the following dictum of Lord Wright
in Powell & Wife v Streatham Nursing Home:
“Not to have seen the witnesses puts appellate judges in a permanent position of
disadvantage as against the trial judges, and unless it can be  shown that he has failed
to use or has palpably misused his advantage, the higher court ought not to take the
responsibility of reversing conclusions so arrived at, merely on the result of their own
comparisons and criticisms of the witnesses and of their own view of the probabilities
of the case.”’ (Citations omitted.)

[9] The appellants did not point to any misdirection by the judge in
regard to this issue. Their task therefore was to demonstrate that his
conclusion that he could not reject Dr Horn’s evidence was clearly
erroneous and that he should have accepted Dr Edeling’s evidence that
the bump inevitably had to have been fluctuant (boggy). Both conclusions
were necessary in order to discharge the onus of proving negligence. That
was a formidable task. It was made more formidable by the fact that
Dr Horn’s evidence was direct evidence, whereas Dr Edeling’s was a
reconstruction based on Dr Horn’s clinical notes and the information that
became available the following day from the CT scan. It has frequently
been pointed out that direct and credible evidence of events usually
carries greater weight than the opinion of an expert seeking to reconstruct
those events afterwards, especially where the material on which that is
based is scant.6

5 ST v CT [2018] ZASCA 73; 2018 (5) SA 479 (SCA) para 26.
6 Motor Vehicle Assurance Fund v Kenny 1984 (4) SA 432 € at 436H-I; Stacey v Kent 1995 (3) SA 344
(E) at 348-349; Biddlecombe v Road Accident Fund [2011] ZASCA 225 para 10; Roux v Hattingh
[2012] ZASCA 57; 2012 (4) SA 300 (SCA) paras 50-53.

[10]   The alternative argument that Dr Horn should have kept Justin in
the Trauma Unit for further observation falls in a different category. The
first underlying premise was that, notwithstanding Dr Horn’s conclusion
after her examination of Justin that his injury was minor, she should not
have discharged him because good practice required her to keep him in
the unit for further observation for a period of time, suggested to be one
hour. The second premise was that had she done so Justin would, as he
did in the car on his way home, have fallen asleep and this would have
caused alarm bells to sound leading to further investigation, more
particularly a CT scan.

[11]   It was common cause that the decision to discharge Justin was a
matter of clinical judgment. The only attack on the accuracy of her
diagnosis was based on the contention that the bump must have been
fluctuant or boggy. If that attack failed the further argument had to
proceed on the basis that Dr Horn’s diagnosis that Justin had suffered a
minor head injury was correct given her clinical observations. The
question then was whether a reasonable medical practitioner applying the
degree of professional skill and diligence of a member of the medical
profession in charge of a trauma unit at a hospital,7 would not have
discharged Justin but kept him at the unit for further observation. There
was a dispute between the expert witnesses on that issue. It fell to be
considered by the trial judge in terms of principles discussed in Michael v
Linksfield Clinic8 and MediClinic v Vermeulen.9 Provided Dr Horn’s
decision to discharge Justin had the support of a reasonable and

7 The applicable principles were summarised with reference to the leading cases in Goliath v MEC for
Health, Eastern Cape [2014] ZASCA 182; 2015 (2) SA 97 (SCA) para 8.
8 Michael and Another v Linksfield Park Clinic (Pty) Ltd and Another [2001] ZASCA 12; 2001 (3) SA
188 (SCA) paras 34-40. These principles were approved by the Constitutional Court in Oppelt v Head,
Department of Health Provincial Administration, Western Cape [2015] ZACC 33; 2016 (1) SA 325
(CC) para 36.
9 Medi-Clinic Ltd v Vermeulen [2014] ZASCA 150; 2015 (1) SA 241 (SCA) paras 4-8.

respectable body of medical opinion she was not negligent, even though
other reasonable and respectable medical opinions might have held a
different view.

[12]  If the decision to discharge Justin was not negligent, the second
argument fell to be rejected. If she was negligent there was the further
issue of whether, had she kept him for observation for an hour, the course
of events would probably have been different. That involved a
consideration of the observation and treatment that Justin would have
received had he not been discharged. The trial judge did not reach that
point because he concluded that there was no negligence in the decision
to discharge Justin.

[13] The third argument raised a number of factual issues. The first was
what Mr McGregor was told when Justin was discharged into his care. It
was common cause that he was handed a standard document prepared by
the hospital and intended to be given to parents and guardians of children
who had presented with head injuries and were being discharged. He
conceded under cross-examination that Dr Horn had told him to monitor
Justin’s condition. Whether her explanation went beyond that was
disputed. The judge held that it was not established that she had ‘failed to
say enough’. The appellants contended that he should have found that
Dr Horn did not give adequate instructions to Mr McGregor on how to
monitor Justin during the night and in particular should have instructed
him to wake Justin at least every two hours to check for unusual
drowsiness. This raised issues of credibility and a challenge to the judge’s
factual findings similar to those that arose in relation to the first issue.

[14]  As with the second issue, a finding in favour of the appellants
would have raised the further question of whether Mr and Mrs
McGregor’s actions would have resulted in a different course of events
had such instructions been given. To determine that required findings of
fact as to the probable steps they would have taken; if and when they
would have been alerted to the possibility that there was something
seriously amiss; what they would then have done; and whether that would
have resulted in the problem being surgically addressed and resolved
before any harm was suffered. In view of the grounds on which he
decided the case the judge did not reach, or make any findings in regard
to, these factual matters.

The evidence
[15] The only witnesses who gave evidence in regard to the events of
23 August 2011 were Mr McGregor and Dr Horn. Even that was
attenuated in that Mr McGregor was not present at most of the events in
regard to which he testified. Most importantly, he was not present when
the accident happened or during Dr Horn’s examination of Justin as he
had gone to fetch the hospital file. The correct approach to their evidence,
especially where it was disputed, was to weigh it against the general
probabilities in the light of any issues concerning their credibility or
reliability.10

[16] Three doctors testified as expert witnesses. They were Dr Goosen,
a general surgeon with experience of trauma surgery and the director of
the Netcare Union Hospital Trauma Unit, Alberton. The second was
Dr H J Edeling, a qualified neuro-surgeon, who retired from surgical

10 Stellenbosch Farmers’ Winery Group Ltd and Another v Martell et Cie and Others 2003 (1) SA 11
(SCA) para 5.

practice in 2008 and has since then spent almost 95 percent of his time in
medico-legal practice. He has consulted as a professional witness and
provided over 3000 medico-legal reports; attended over 1000 pre-trial
expert meetings and given evidence in over 200 cases. Both he and
Dr Goosen gave evidence on behalf of the appellants. The third expert,
called on behalf of the MEC, was Professor A Taylor, the clinical head of
adult neurosurgery at Groote Schuur Hospital, an associate professor at
the University of Cape Town. He was also at the time the president of the
Society for Neurological Surgeons of South Africa; the president of the
Federation of South African Surgical Societies and the incoming
president of the World Federation of Interventional and Therapeutic
Neuroradiology. He was still in active surgical practice operating usually
on four or more days a week.

[17] Something needs to be said about the role of expert witnesses and
the expert evidence in this case. The functions of an expert witness are
threefold.11 First, where they have themselves observed relevant facts that
evidence will be evidence of fact and admissible as such.12 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.

11 This analysis is not novel. See the 1933 lecture delivered to the Medico-Legal Society of Melbourne
by Justice Owen Dixon (as he then was), reprinted in Jesting Pilate 18.
12 As was the evidence of an experienced pilot concerning the effect of wind and waves on a ship
entering Cape Town harbour in The Owners of the MV ‘Banglar Mookh’ v Transnet Ltd [2012]
ZASCA 57; 2012 (4) SA 300 (SCA) para 51.

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.

[18] Before an expert witness may be called it is necessary to deliver a
summary of the witness’s opinions and the reasons therefor in terms of
Uniform Rule 36 (9)(b). This court held in Coopers13 that the summary
must at least include:
‘… the facts or data on which the opinion is based. The facts or data would include
those personally or directly known to or ascertained by the expert witness, e.g., from
general scientific knowledge, experiments, or investigations conducted by him, or
known to or ascertained by others of which he has been informed in order to
formulate his opinions, e.g., experiments or investigations by others, or information
from text-books, which are to be duly proved at the trial.’

[19] In the same case, Wessels JA said:14
‘… an expert's opinion represents his reasoned conclusion based on certain facts or
data, which are either common cause, or established by his own evidence or that of
some other competent witness. Except possibly where it is not controverted, an
expert's bald statement of his opinion is not of any real assistance. Proper evaluation
of the opinion can only be undertaken if the process of reasoning which led to the
conclusion, including the premises from which the reasoning proceeds, are disclosed
by the expert.’
For those reasons the court said that ‘the summary must at least state the
sum and substance of the facts and data which lead to the reasoned
conclusion (i.e., the opinion)’

13 Coopers (South Africa) (Pty) Ltd v Deutsche Gesellschaft für Schädlingsbekämpfung MBH 1976 (3)
SA 352 (A) at 371 A-H.
14 At 371F-H.

[20] The need for clarity as to the facts on which an expert’s opinion is
based
has
been
stressed
in
a
number
of
cases.
In
PriceWaterhouseCoopers v National Potato Co-operative Ltd15 the
following passage from a Canadian judgment16 was cited with approval:
‘[326] “Before any weight can be given to an expert’s opinion, the facts upon which
the opinion is based must be found to exist”
[327] “As long as there is some admissible evidence on which the expert’s testimony
is based it cannot be ignored; but it follows that the more an expert relies on facts not
in evidence, the weight given to his opinion will diminish”.
[328] An opinion based on facts not in evidence has no value for the Court.’

[21] 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.17 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. As
Lord Wright said in his speech in Caswell v Powell Duffryn Associated
Collieries Ltd:
‘Inference must be carefully distinguished from conjecture or speculation. There can
be no inference unless there are objective facts from which to infer the other facts
which it is sought to establish … But if there are no positive proved facts from which
the inference can be made, the method of inference fails and what is left is mere
speculation or conjecture.’18

15 PriceWaterhouseCoopers Inc and Others v National Potato Co-operative Ltd and Another [2015]
ZASCA 2; [2015] 2 All SA 403 (SCA) para 99.
16 Widdrington (Estate of) c. Wightman, 2011 QCCS 1788 (CanLII) paras 326-328.
17 Filippo Lembo, MV; MV Pasquale della Gatta: Imperial Marine Co v Deiulemar Compagnia di
Navigazione Spa [2011] ZASCA 131; 2012 (1) SA 58 (SCA) para 24.
18  [1939] 3 All ER 722 (HL) at 733E-F, cited in Motor Vehicle Assurance Fund v Dubuzane 1984 (1)
SA 700 (A) at 706B-D. See also Great River Shipping Inc v Sunnyface Marine Limited 1994 (1) SA 65
(C) at 75I-76C and particularly the statement that ‘evidence does not include contention, submission or
conjecture.’

[22]  In my view these requirements were disregarded in this case. The
experts instructed on behalf of the McGregors were in certain respects not
instructed on the basis of facts that could be, or were, proved at the trial
in regard to the mechanics of Justin’s injury. There was no endeavour to
clarify the facts known to Dr Horn, or the facts about her diagnosis and
treatment of Justin. She was criticised in relation to matters that were
known to be irrelevant, such as her failure to perform an otoscopy. Her
notes and other documents were subjected to forensic scrutiny and
criticism of a type one encounters with the most pedantic lawyers.
Conclusions contrary to her diagnosis were expressed on the basis that
her notes were not as complete as Dr Goosen and Dr Edeling thought
desirable. The medical literature was used selectively to bolster
arguments and not for the purpose of informing the court of the current
approach to the clinical assessment of head injuries in children and the
range of accepted medical views. Instead it was directed at justifying
exceptions to the established consensus. Initial theories, advanced to
justify claims that a skull X-ray or CT scan should have been performed,
were shown under cross-examination to be untenable and abandoned.

[23] In the result, the eventual argument that Dr Horn negligently
diagnosed Justin with a minor injury proceeded on a basis that was not
pleaded; was not reflected in the expert’s summaries; was not debated at
the pre-trial meetings between the experts; was referred to in passing
during counsel’s opening address; and first emerged, fully formed, in
Dr Edeling’s evidence on the fourth day of the trial. All the other
arguments directed at suggesting that Dr Horn was negligent in arriving
at her diagnosis have been abandoned. This is an unsatisfactory state of

affairs and resulted in a lengthy trial much of which was devoted to
ploughing through the minutiae of academic articles.

[24] A proper use of the provisions of Uniform Rules 37 and 37A
would have avoided many of these problems and enabled the trial to
proceed and finish in the estimated three to four days instead of taking ten
days spread over three months. The ten pre-trial meeting minutes, or
progress certificates in relation to such meetings, show that the
‘meetings’ were conducted telephonically or by way of correspondence,
without any engagement on the nature of the disputes between the parties
or any real endeavour to clarify and limit the issues. The impression is
overwhelming that these were seen as nothing more than a necessary
formality in order to secure a trial date. What should have happened in an
endeavour to narrow the issues was that witness statements should have
been delivered from both Mr McGregor and Dr Horn. Broadly speaking
that is what Rule 37A(10)(e) contemplates. It is what is customary in
many jurisdictions.

[25]  Turning to the experts the instructions given to them on the facts
should have been disclosed. Where necessary, clarification should have
been sought to enable proper instructions to be given. Instead opinions
were expressed on the basis of conjecture and, in one instance, on a
misreading of Dr Horn’s notes. An agreed bundle of academic articles
should have been prepared together with an executive summary of their
contents. That would have largely obviated the need to trawl through
them, reading sections into the record disguised as questions. The issues
at the trial should have been clearly defined in terms of Rule 37A(11)(c).
Instead of refusing the particulars for trial requested in relation to the

expert summaries of Drs Goosen and Edeling they should have been
furnished.

[26]  Following that course, as is required in many jurisdictions,
especially when dealing with expert witnesses, would have brought
greater clarity to the proceedings. While Rule 36(9) was innovative when
introduced in 1963, times have moved on and the preparation of expert
summaries by lawyers, who often have only a tenuous grasp of the real
issues in a case, frequently give rise to problems of this type. It would be
desirable for the Rules Board to reconsider the rule. A useful change
would be to require the experts to prepare and deliver their reports in their
own words and to include both a statement recognising that the report is
furnished for the assistance of the court and a statement of truth.19 Having
said that I turn to consider the three issues described earlier.

Was the bump on Justin’s head fluctuant?
[27] The fracture suffered by Justin was not detectable by a
conventional examination involving palpation of the bump on his head.
The rupture to the middle meningeal artery was likewise not detectable
by those means. However, there is always a risk, albeit small,20 of such a
fracture in that position on the head. The presence of a subgaleal
haemorrhage or haematoma is a recognised warning sign of the possible
presence of a fracture. All this was common cause and known to
Dr Horn. My colleague Molemela JA, whose dissent (the second
judgment) I have read, refers to an article21 that makes this very point.
Two observations are necessary about this article. First, it considered a

19 This is required in the United Kingdom and by Rule 26(2) of the Federal Rules of Civil Procedure.
20 Dr Goosen put it at 4 percent.
21 Burns and Others ‘Scalp Hematoma Characteristics Associated with Intracranial Injury in Pediatric
Minor Head Injury’ Society Academic Emergency Medicine (2016). See para 6 of the second
judgment.

cohort of patients who had suffered blunt trauma to the head leading to
loss of consciousness, definite amnesia, witnessed disorientation,
persistent vomiting or persistent irritability. Justin presented with none of
these features. Second, while it is correct that 51% of those children who
had both a scalp haematoma and an inter-cranial injury had suffered a
linear skull fracture, this represented only 10,3 percent of those children
who presented with a scalp haematoma.

[28] It was also common cause that if the bump was fluctuant to the
touch when being palpated that would have been a clear indication that
Justin had suffered a subgaleal haemorrhage, calling for further
investigation in the form of a CT scan. Hence, if the bump on Justin’s
head felt fluctuant when palpated, Dr Horn should have ordered a CT
scan. Dr Goosen testified that it is something that is taught at
undergraduate level and Dr Horn said she was aware of it. Therefore, if
the bump was fluctuant the failure to refer Justin for a CT scan was
negligent.

[29]  Such negligence could only have arisen in one of three ways. The
first was that Dr Horn did not palpate the bump at all. The second was
that she did so, but in such an inept manner that she failed to detect that it
was fluctuant. The third was that she did detect that it was fluctuant, but
nonetheless did nothing about it. That last possibility can be discarded
because it was not suggested to her in cross-examination and there is no
reason to think that she would have behaved in a fashion that flew in the
face of her own medical knowledge.

[30]    In her evidence in chief Dr Horn was clear that she had palpated
the lump on Justin’s head. She said:

‘He did have a noticeable bump behind the ear. Therefore I would look then at the
bump, note its location – not necessarily in my notes – but I did, and then examine the
bump itself in order to feel its consistency, and in the case of that being a possibility,
the potential of an underlying skull fracture, which cannot always be palpated.’22
In regard to the consistency of the bump, she said:
‘I unfortunately do not recall what it felt like, but I do believe that in order for me to
have written ‘bump’ it may have been solid. I am very sure that at the time had it been
a boggy fluctuant swelling I would have made a note of that at the very least, but I am
afraid I do not specifically recall the consistency of the bump.’
There is nothing implausible in this. The description of the swelling as a
bump, without qualification conveyed that there was nothing untoward
about it. It was unnecessary to add anything to that simple description.
What difference would it have made to have added the adjective ‘firm’
before ‘bump’? The description only required qualification if it was
fluctuant or boggy. Dr Horn explained that in the case of a fluctuant or
boggy swelling she would have noted it because of her awareness of the
risk of an underlying skull fracture. In answer to a question from the
judge she said that her examination of the bump ‘was not at the time
suspicious of an underlying skull fracture’. The absence of an adjective
describing the bump provided no evidence to support a conclusion that it
was fluctuant or boggy.

[31] The second judgment attaches some importance to the following
passage in Dr Horn’s cross-examination:
‘You had fairly conceded yesterday, and I think this morning in your evidence, that
you did not in fact or you cannot remember feeling the consistency of the bump? -- I
cannot remember what the bump felt like, no.

22 The passage was typed in the record without any punctuation so punctuation has been inserted to
assist the reader. This highlights a further difficulty faced by an appellate court faced with the cold
words of a record, namely that the punctuation is that of the typist who prepared the record and
experience of reading the words aloud demonstrates that this is frequently inapt to convey the cadence
or nuance of the spoken word. The trial judge is under no such disadvantage.

. . .
I am suggesting to you, Dr Horn, that you probably missed it, you did not feel it. You
did not feel for consistency and therefore did not note it. Do you accept that? -- I
cannot refute it.
Court:
Sorry your question was I put it to you that it is?
Mr van der Merwe:
What I suggest is that it is likely that you in fact did not feel the
bump for consistency and therefore did not record it. -- It is possible but that would
not have been my normal practice.’
My colleague views that as a concession by Dr Horn. I do not, because in
saying that she could not refute the proposition being put to her by
counsel Dr Horn was not agreeing to it. Consistent with the careful
approach that characterised the entirety of her evidence, adverted to in
paras 48 and 56, she said that she could not refute counsel’s proposition,
that is, prove that it was wrong or disprove it.23 She did not accept it or
agree with it as a matter of fact, because she added that it would have
been contrary to her normal practice and indeed her knowledge of what
she should be looking for in palpating the swelling on Justin’s head.

[32] The second judgment criticises Dr Horn’s notes and quotes
Dr Goosen as saying that students are taught ‘if it’s not there it wasn’t
done’. That aphorism was inapplicable here, because Dr Horn recorded
that there was a bump, so there was something there in the note. The
question was what this meant and the criticism related to her failure to
describe it in detail. This overlooked the fact that in her view there was
nothing more to describe. The absence of a reference to it being boggy is
not evidence that it was boggy. On the contrary it was evidence that it
was not boggy, because, had it been otherwise, she would have recorded
it. This is very different from the situation in Topham,24 where the doctor

23 Shorter Oxford English Dictionary (6 ed, 2007) sv ‘refute’ meanings 2 and 3.
24 Topham v MEC for the Department of Health, Mpumalanga [2012] ZASCA 65, para 15.

had failed to detect a dislocation of the patient’s femur. He claimed that,
in addition to obtaining and examining an X-ray, he had examined her
pelvis to check for such a dislocation, but no such examination was
reflected in his notes. In those circumstances evidence of his usual
practice was unhelpful as was his suggestion that the patient must have
suffered the dislocation after his examination.

[33] The appellants’ challenge to Dr Horn’s evidence rested entirely on
Dr Edeling’s assertion in evidence in chief that: ‘If a doctor had put a
finger on that bump at that time, it would have felt boggy.’ When asked
why this was so, he answered: ‘Because it was blood.’ Under cross-
examination he remained adamant that the scalp haematoma with which
Justin presented on 23 August must at that time have felt boggy when
palpated. He expanded on this in cross-examination, saying:
‘[I] cannot say as an absolutely certainty that it was boggy. But [in all] probability, it
can only have been boggy. If you look at the volume of blood that is visible on the CT
scan, or if we imagine the volume of blood that would give rise to a lump that would
be perceived by Dr Horn as having the dimensions of an egg in cross-section, I
believe that a lump of that size contains sufficient fluid to be able to palpate the
fluctuant nature of the bump. So, I cannot accept that the bump described by Dr Horn,
or the volume of blood seen on the CT scan in this case, could have felt anything
other than boggy.’ (The insertions are the natural words in two places where the
transcript reads ‘indistinct’.)

[34]  This was a remarkably dogmatic assertion given that nowhere in
any of the documents filed in relation to Dr Edeling’s evidence had he
previously made such a statement. Its acceptance involves attributing to
Dr Edeling an entirely inexplicable failure, at any stage prior to trial, to
rely on something that he there testified was fundamental, elementary and
obvious to anyone examining Justin. His first expert summary contained

no reference to the consistency of the bump, or to the fact that it had been
caused by a subgaleal haematoma. Nor was there any reference to the
relevance of it being fluctuant or boggy. The summary said that the
statement in Dr Horn’s notes ‘No other neurology’ showed that she had
identified a neurological deficit and this was a clear indication for
admission to hospital, neurosurgical consultation and observation.
Dr Edeling’s opinion was that the presence of a skull fracture and the
development of a subdural haematoma was foreseeable and should have
been investigated by a skull X-ray.

[35]   Dr Goosen did not refer in his expert summary to the significance
of the bump being fluctuant, but complained that the notes did not record
the size or other attributes of the swelling. Like Dr Edeling he construed
Dr Horn’s notes as meaning that she had detected a neurological deficit.
He said that the documented history of Justin’s injury and the clinical
findings, that is, the perceived neurological defect, required further
investigation including either an X-ray or a CT scan.

[36]  Both summaries relied heavily on interpreting Dr Horn’s notes as
saying that she had identified a neurological defect in Justin.  The notes
read:
‘Pt’s foot caught and he fell bumping Ⓛ side of head. °LOC, °vomiting, °seizures.
Examination: Pt awake & alert. GCS 15/15.
Vitals: RR 22, HR 92, BP 104/68, T 36.1°
Bump Ⓛ temporal area above & behind ear.
PEARL. Congruent Ⓝ eye movements.
No other neurology.
Ⓟ - Reassurance
-
HIF

-
F/U PRN’
Save that the figures for Justin’s vital signs have been transposed from
the margin, this is an exact reproduction of the note. A layperson would
require some explanation of the symbols and abbreviations, but not so a
doctor. Transposed into plain language for the benefit of readers of this
judgment it read:
‘Patient’s foot caught and he fell bumping Ⓛ side of head. No loss of consciousness.
No vomiting. No seizures.
Examination: Patient awake & alert. Glasgow Coma Score 15/15.
Vitals: Respiratory rate 22, Heart rate 92, Blood pressure 104/68, Temperature 36.1°
Bump Ⓛ temporal area above & behind ear.
Pupils equal and reactive to light. Congruent normal eye movements.
No other neurology.
Parent - Reassurance
-
Head Injury Form
-
Follow up. As need arises (from the Latin pro re nata)’

[37] All of the metrics in the first four lines of the note were normal.
The next two reflected the results of two standard focal tests when
dealing with head injuries. The first involves shining a light into the
patient’s eyes and checking that the pupils reacted normally. The second
involves asking the patient to follow a moving object, such as the
doctor’s finger or a pen, to see if the eyes follow the movement together.
According to the note the results for both tests were normal. In that
context the note ‘No other neurology’ meant that everything was normal
and Justin displayed no indications of any neurological deficit. How then
did Dr Goosen and Dr Edeling come to think that it meant precisely the
opposite and found their expert opinions on the error?

[38]  There was no satisfactory explanation for this. Both summaries
suggested that the word ‘congruent’ was illegible, although it is not and
should not have been to experienced medical practitioners. They would
have known that Dr Horn performed the two basic tests described in the
previous paragraph and ‘congruent’ would be the word used to describe
the result as normal. Even if it were illegible to them, they should not
have approved a fundamentally defective expert summary without
ascertaining what the word was. The attorneys instructing them should
have been asked to clarify the matter. As Dr Horn was a specialist
orthopaedic surgeon employed at Red Cross Memorial Hospital a simple
request to the defendant’s attorneys would have provided the desired
clarification.

[39]  Once the error was discovered it was essential that the summaries
be withdrawn and fresh ones filed, but this did not happen. Two months
after these two expert summaries were filed, the respondent filed a
summary by Professor Peter, which contained the following statement:
‘In the two expert witness reports it is alleged that it is implied in the notes that there
was a focal neurological abnormality. I can see nothing to suggest that. It is clear that
Dr Horn thought her neurological examination was normal. I have been instructed that
Dr Horn confirms that she found no neurological abnormalities when she examined
Justin on 23 August 2011.’
Thereafter in July 2016 the experts had a meeting at which they agreed
that, when Dr Horn discharged Justin, he had no physical neurological
deficits, that is, his physical neurological function was probably normal.
Notwithstanding that the whole basis for, or at least a significant portion
of the substratum of, the expert summaries had now disappeared, revised
summaries were not delivered. When a supplementary summary was
delivered in respect of Dr Edeling in November 2016, he made no

mention of the recantation. Dr Goosen glossed over it in his evidence
without explanation beyond a complaint that the examination was brief.
Dr Edeling tried to explain it away by saying that at the time it wasn’t
clear to him at what point the skull fracture was diagnosed and that it was
possible that the skull fracture was known about before the decision to
discharge. This was palpable nonsense as further cross-examination
showed.

[40]  As pointed out in para 22 there was no endeavour to provide
proper expert summaries as required by the Rules of Court in relation to
the evidence given by Drs Goosen and Edeling. In the result the trial
commenced on a basis that was fundamentally flawed based on opinions
of negligence on the part of Dr Horn that were abandoned during the
hearing in favour of a new theory. The suggestion in the heads of
argument in this court that:
‘The expert witness summaries and joint minutes, and subsequently the evidence at
the trial focussed the enquiry relating to culpability on … the size, location and
consistency of the subgaleal haematoma on the side of Justin’s head, with particular
emphasis on whether the swelling was boggy or fluctuant, or firm’ (Emphasis added)
was not borne out by the record.

[41] The original summaries were silent on bogginess, as had been the
particulars of claim and the further particulars for trial. Dr Edeling’s
supplementary summary had a paragraph reading:
‘A significant swelling of the scalp, especially if it is fluctuant or “boggy”, can be a
marker for an underlying skull fracture.’
Professor Taylor agreed that this was so. They also agreed that the Royal
College of Surgeons had published new guidelines for skull X-rays and
CT scans that included ‘presence of a boggy swelling particularly in the
parieto-temporal region’. Dr Edeling said that in accordance with these

guidelines Justin should have been investigated by a skull X-ray, but
Professor Taylor disagreed because ‘Justin was not recorded to have a
boggy scalp swelling’.  Had Dr Edeling’s clear view been that the
swelling had to be boggy, one would have expected him to say so.

[42] Only when the case was being opened was the issue raised, and,
even then, only indirectly, when counsel said:
‘What we say, is that the doctor had not seemingly at least felt the swelling and felt
for a … (intervention)
COURT: Bogginess of …
MR VAN DER MERWE: Bogginess, and, having not done that, the doctor was also
therefore not alerted to the fact that this was a particular type of swelling that needed
to be – where Justin needed to be kept for observation because of the danger of the
haematoma developing.’
It seems that counsel was suggesting that Dr Horn did not palpate the
swelling, a contention not pursued.

[43] It is not as if the point was difficult to explain. All it required was a
statement that, given the amount of blood shown on the CT scan and the
description of the bump by Dr Horn, as well as its situation on the left
tempero-parietal area of the scalp behind the left ear, it was probable that
when Justin was examined on 23 August at 6.15 pm the swelling would
on palpation have been fluctuant or boggy and a reasonably competent
member of the medical profession would have ordered the taking of a CT.
A failure to detect what must have been present would have been
negligent.

[44] No explanation was given for the absence of any such clear
statement of opinion. The judge correctly said that Dr Edeling came to
this view very late in the day. Accordingly, this evidence needed to be

approached with a measure of caution. It bears all the hallmarks of an
attempt to justify his opinions when the initial basis for them proved
untenable.

[45] The medical literature furnished to the trial court identified a boggy
swelling as an indication for further investigation by way of a CT scan.
However, none of it gave support to Dr Edeling’s contention that the
bump on Justin’s head must have felt boggy when palpated by Dr Horn.
The reason for this emerged from the evidence of Professor Taylor. He
explained that, when there is trauma to the skull, bleeding most
frequently occurs where there is damage to the loose connective tissue
between the galea and the periosteum that adheres to the outer surface of
the skull. The galea itself is firm and connected to the epidermis and
dermis by dense connective tissue where there is little scope for blood to
accumulate. Accordingly, most bleeding occurs where the loose
connective tissue is disrupted, providing space for blood to accumulate.
The bleeding emanates from little blood vessels in that area of the head,
not from the fracture. Where there is considerable disruption of the loose
tissue – the technical term for which is degloving – there is a much bigger
space into which bleeding can occur and this results in the swelling being
fluctuant or boggy. The swelling is, in his words, very floppy and easy to
distinguish clinically. It is most usually encountered with children under
the age of two years.

[46] Professor Taylor rejected the suggestion that where there is a
subgaleal haematoma the swelling cannot feel firm when palpated. He did
so on the basis of his direct experience when operating of encountering
swellings that were firm, but with bleeding into the subgaleal space. He
explained that whether a swelling feels fluctuant depends on whether and

to what extent the loose connective tissue is disrupted. In Justin’s case it
was not possible to assess this from the clinical notes or the CT scan.

[47]  The judge found this evidence persuasive. So do I. First, it was
based on practical clinical experience from someone who is in an
operating theatre on a regular basis, as opposed to a witness who gave up
surgical practice a number of years before the trial. That clinical
experience was not challenged in cross-examination. Second, his
evidence that fluctuant swellings are most commonly encountered in
children under the age of two was not challenged. Third, he gave a
reasoned explanation for it, namely that it depended on the extent to
which the loose tissue was damaged. A significant deformation separating
the layers between the galea and the periosteum would provide a space
into which bleeding would occur without filling it, so that blood would
accumulate, without filling the space. In that event that palpation would
have the distinctive boggy feeling. If there was no significant disruption
of the loose tissue bleeding would only occur in confined spaces and
would feel firm. Fourth, Professor Taylor was not dogmatic in his
evidence and said that it was not possible on the available information to
say whether the swelling would have been fluctuant when Dr Horn
examined Justin. Finally, Professor Taylor received some support from
Dr Goosen, who said that it is difficult to assess from a scan taken the day
after Dr Horn’s examination its consistency at the time of examination,
because it would have changed in the interim.

[48]  Dr Edeling did not deal with the issue of disruption of the loose
tissues or any of the other issues raised by Professor Taylor. He based
much of his conclusions on the description of the lump as being about the
size of an egg, or the estimation that it was about four to five centimetres

across and raised by about one centimetre. These were necessarily
approximations. When the CT scan was taken the swelling was about 7
centimetres across and raised by 700 millimetres. It is not possible to
determine how much bleeding had occurred when Dr Horn examined
Justin, or how much more bleeding occurred in the sub-galeal space after
Justin was discharged.

[49] As noted earlier, Dr Horn said that if the swelling had been
fluctuant, she would have noted that fact and ordered a CT scan as she
did with another patient shortly afterwards that evening. Counsel sought
to rely on certain concessions extracted in cross-examination to show that
this evidence could not be accepted. Like the judge I do not find these
criticisms justified. From the outset of her evidence Dr Horn was very
careful to distinguish between those matters she could clearly recall of the
events nearly seven years before and those she could not. Each of the
alleged concessions arose because she said that she could not specifically
recall the particular matter on which she was being examined. However,
her concessions that she had no specific recollection of particular things,
or that she was not in a position to ‘refute’, that is, disprove a proposition,
cannot be taken as her agreeing to matters inconsistent with the overall
thrust of her evidence. In general, they were nothing more than an
acceptance by a careful witness that she could not, of her own clear
recollection, dispute certain propositions. But that is a far cry from saying
that those propositions were established on a balance of probabilities.

[50] Dr Horn’s evidence was that she conducted a proper examination
of Justin’s injury. She palpated the swelling on his head and noted it as
being simply ‘a bump’. No doubt, if she had been aware at the time that
in 2018 she would have to give evidence about these events, her note

would have been fuller and included the dimensions of the bump, its
consistency and details of how she took Justin’s history and the grounds
upon which she concluded that there had been no loss of consciousness,
no amnesia and no seizures. But that is a counsel of perfection and the
note was entirely consistent with her view that on a proper examination
this was a harmless bump on the head of a child showing no signs of
neurological deficit. The medical notes prepared by a duty doctor in a
trauma unit are not to be parsed as, or equated to, a detailed commercial
contract or statute.

[51]   Dr Horn said that she did not remember what the bump on
Justin’s head felt like. That redounds to her credit not her detriment. After
nearly seven years a precise recollection would have been unlikely.  She
consistently said that she was aware of the implications of a fluctuant
swelling and would both have noted it and referred Justin for a CT scan.
She explained that her use of the word ‘bump’ was consistent with it
feeling solid and not boggy.

[52] In the course of cross-examination an issue arose as to the nature of
the bump at the time of Dr Horn’s examination. It started with the
proposition that a haematoma would have blood in it and that this is what
causes a swelling to feel fluctuant. It continued as follows:
‘And we know in fact that this was a scalp haematoma. With the benefit of hindsight
we know that that was in fact the case. We do know that --- Yes, we …(intervention)
It is noted on the record ---- Yes, we know that at the time of the CT scan hours later
– in fact ten hours later – there was a haematoma.
The scalp haematoma, yes. --- Yes. And the extradural …
And so the scalp – so the bump was a scalp haematoma? We can accept that? --- I am
not sure that I am willing to concede that point.

Well up to now that was the – certainly not suggested to any of the plaintiff’s
witnesses who testified, that that bump wasn’t the scalp haematoma that was detected
in the CT scan --- If I may, as I said, the CT scan was performed 10 hours after his
presentation.
We are well aware of that …. --- Yes.
… and in fact the CT scan was used in cross-examination by counsel to suggest that
the very same scalp haematoma had a different appearance the following morning. ---
And it very well may have. So even – I do admit that I cannot remember the
consistency. I do believe that, if there was a fluctuant swelling, I would have noted it
and I would have responded accordingly. I think – well it will just be conjecture but
that would be my evidence.
COURT: Sorry. Could you just expand on your reasons for not being willing to – you
said I am not sure that I am willing to concede that the bump was a scalp haematoma.
Why did you say that? --- The reason in my reasoning is that if you have a force that
is sufficient to fracture a skull then that same force is imparted to the scalp is it not,
and in the same way as you would have a bump where there is no underlying fracture,
but swelling of the scalp and the structures therein, that could also cause a swelling.
And I know that – I was here yesterday and heard the experts refute that point. But if
you are asking me whether I will concede the fact that there must have been a
subgaleal haematoma at that time, according to my notes there was not.’25

[53] It is apparent from this passage that counsel and the judge were at
cross purposes with the witness. Counsel was asking her questions about
the bump and her perceptions from her examination. He then put to her
that ‘with the benefit of hindsight’ the bump was a scalp haematoma.
Dr Horn’s response was to point out that this only became apparent ten

25 This last answer is typed in the record entirely without punctuation other than a solitary dash. One
merely has to try reading it aloud to conclude that it cannot properly represent the witness’s speech.
The punctuation in the text is consistent with the spoken word. The passage could also be punctuated in
the following way without altering the meaning.
‘The reason, in my reasoning, is that if you have a force that is sufficient to fracture a skull, then that
same force is imparted to the scalp is it not? And in the same way as you would have a bump where
there is no underlying fracture, but swelling of the scalp and the structures therein, that could also cause
a swelling. And I know that – I was here yesterday and heard the experts refute that point. But, if you
are asking me whether I will concede the fact that there must have been a subgaleal haematoma, at that
time, according to my notes there was not.’

hours later when the CT scan was performed. Plainly she was contrasting
what was known to her when examining Justin and what became known
with the benefit of hindsight. She was not willing to concede that at the
earlier time she was aware that the bump was a scalp haematoma. Seen in
the context of a cross-examination directed at what she observed in her
examination of Justin, it was entirely natural for her to refuse to concede
that at the time of the examination she thought the bump was a subgaleal
haematoma. Her answer to the judge explained that a swelling could arise
from an injury without a fracture. The last line of her answer made it
clear that she was directing her answer at what she knew at the time of
her examination and saying that according to her notes there was no
subgaleal haematoma at that time.

[54]  That understanding of Dr Horn’s evidence is consistent with her
subsequent answers:
‘When you say according to your notes you are now talking about according to page 1
of the trauma unit records? --- Yes.
The note is what you are referring to? --- Yes.
You know that there was a bump? --- Yes.
But you don’t describe in that note the consistency? --- No, I don’t.
That is why you don’t want to make the concession? --- Yes, because I do believe that
if it had been a boggy or fluctuant swelling, I would have noted it.
We have heard that. I am exploring something slightly different. If the bump was
something else than a scalp haematoma would that not have been detectable in any
event on a CT scan, albeit sometime later? --- Possibly, if there was swelling of layers
of the scalp.
So, we don’t have on the record any other explanation of the bump other than that it
was a scalp haematoma at this stage. Will you concede that? --- I will concede that.
So, the likelihood is that the bump was the scalp haematoma? --- This is true.
And if you concede that then it is likely, given that it was a collection of blood, that it
would have felt boggy? It is likely? --- It is likely.’

[55]  Until counsel said that he was trying to ‘explore something
slightly different’ Dr Horn was plainly talking about her conclusions after
examining Justin. The next question posed to her was whether the scalp
haematoma would have been detectable on a CT scan ‘albeit sometime
later’. In other words, the question was not directed at what she could
have determined at the time she examined Justin, but at what could have
been determined by a CT scan at a later time. Quite rightly, knowing as
she did that the CT scan the following day had detected the scalp
haematoma, she agreed that this was possible and that it was likely that it
would have felt boggy. But that cannot be read as saying that she thought
it would have felt boggy the previous evening. A concession to that effect
would have been wholly inconsistent with the entire body of her
evidence. The submission that the context involved an unequivocal
acknowledgement that the swelling felt boggy when she examined Justin
cannot be accepted.

[56]  The distinction Dr Horn was at pains to draw between those
matters of which she had  a specific recollection and those where she was
reliant upon her notes, her usual practice and her knowledge of the
clinical signs for the presence of a possible skull fracture is evidenced by
her evidence under re-examination, when she said:
‘Well due to the fact that my memory is imperfect and the only thing I can rely on
really is my written notes and the occasional brief memory of that evening, I do not
have a recollection of what the bump felt like and I would therefore be untruthful if I
said I can definitely object – I can’t remember the word he used26 – to what the
plaintiffs’ advocate stated. So, even though I am very sure within myself that I would
have examined the bump and that I would have noted a fluctuant swelling, due to the
fact that I cannot remember I cannot state it and I did not document it.’

26 In context this can only be the word ‘refute’.

[57] This passage reflects the evidence of a painfully honest witness
trying to be as helpful as possible to the court and unwilling to reject as
untrue propositions in regard to matters of which she had no direct
recollection. Mr Duminy SC correctly said in the course of argument that
she projected ‘as someone who had great empathy’. Had she been seeking
to conceal an error on her part it would have been easy for her to assert a
specific recollection of the consistency of the bump, but she did not do
so. One other factor is relevant. She was still on duty when Justin was
admitted at the trauma unit on the morning of 24 August 2011. At the
outset of her evidence she told the court that, after Justin’s re-admission
and the emergency procedures he underwent: ‘I did reflect quite a bit and
think and mull over the initial examination and findings’. That was less
than twelve hours after she had examined him. I find it difficult to believe
that if she had made the elementary error of not palpating the bump, or
ignoring the fact that it was fluctuant, that she would not have recognised
this at the time. The submission that she had made such an error suggests
that she engaged in a protracted course of dissembling and concealment
that would be inconsistent with the judge’s assessment of her as an honest
witness and her evidence as a whole. Counsel did not contend otherwise.

[58] My colleague is critical of Dr Horn’s reliance in certain passages of
her evidence on her normal or usual practice and the judge’s reliance on
this evidence.27 With respect I cannot agree. None of Dr Horn’s
statements in regard to her usual or normal practice were challenged in
cross-examination and they clearly conformed to sound clinical practice.
It is therefore incorrect to say that her normal practice is unknown. The
fact that she had no precise recollection of the facts is irrelevant. I may

27 Second judgment paras 127 and 128.

have no recollection or record of my preparation for an appeal heard
some years ago, but that does not mean that a statement of my usual
practice in regard to the preparation of appeals is to be disregarded as of
no value. An invariable practice, if accepted, is strong evidence that, on
the particular occasion under consideration, that practice was followed. I
agree with my colleague that the issue of negligence can only be
determined in the light of all the evidence.28 That includes Dr Horn’s
evidence in its entirety, which must be weighed against the manifest
difficulties with the plaintiffs’ expert evidence. There was no direct
evidence contradicting Dr Horn. Finally, it must be borne in mind
throughout that the onus of proving negligence rested on the plaintiffs.29

[59] Dr Horn’s evidence was direct evidence of the examination and
diagnosis of Justin’s condition on 23 August 2011. By contrast,
Dr Edeling’s evidence was a reconstruction of what he thought might
have happened, based on elements of speculation and conjecture. In those
circumstances, the trial judge’s finding that he could not reject Dr Horn’s
evidence and that the onus of proof was not discharged cannot be faulted.
The main ground of appeal must therefore fail.

Should Justin have been kept for further observation?
[60] The appellants’ heads of argument contended that, even if the
evidence as to whether the swelling was boggy or firm was evenly
balanced, Dr Horn ought on various grounds to have foreseen the
possibility that Justin’s skull was fractured. I understand the second
judgment to accept this contention. The submission was that on the
grounds set out in this section Dr Horn should at the least have suspected

28 Meyers v MEC, Department of Health, Eastern Cape [2020] ZASCA 3; 2020 (3) SA 337 (SCA) para
69.
29 Meyers, ibid para 67.

that Justin might have suffered a skull fracture and accordingly not
discharged him when she did. The suspicion on which this contention was
based was something more than the inherent risk in any head injury of an
underlying skull fracture. The heads of argument identified seven factors
that it was submitted should have led Dr Horn to foresee that
notwithstanding her clinical observations Justin might have suffered a
skull fracture. I will deal with each in turn.

[61] The first factor was that in consequence of her failure to record the
time of the incident on the trauma unit treatment record form, Dr Horn
‘had no idea’ of how much time had passed since Justin suffered his
injury.30 That is not correct. Dr Horn said that she assumed that
approximately two hours had passed since the accident and the basis of
this assumption was not explored in any detail with her. While she did not
note the time on the treatment form, the assumption was in fact correct.
The incident had occurred at about 4.00 pm that afternoon and she
examined Justin at 6.15 pm that evening. The cross-examination on this
point was directed at suggesting that the injury might have been suffered
recently and therefore it was inappropriate to discharge him without
further observation. It was not suggested that, given her clinical
observations, after a delay of over two hours since the injury it was
inappropriate to discharge Justin. As that is what occurred, any fault on
her part cannot be related to what subsequently happened.

[62] The next point was that, in her notes, Dr Horn recorded that Justin
had fallen inside the house after tripping on a step or stair. The contention
was that she did not note the type of surface, hard and unrelenting, on
which Justin had fallen. However, there is no reason to disbelieve her

30 This submission is adopted in para 10 of the second judgment.

explanation that she assumed it was a hard and unrelenting surface
because he would not have suffered an injury of the type in question form
falling on a soft surface such as a carpeted floor.

[63]  The third contention is that the notes did not record Justin’s level
of pain. In the absence of any evidence that Justin was suffering from any
unusual level of pain apart from the natural soreness that would follow
from having fallen and hit his head, this point is entirely abstract. In
agreement with Professor Taylor, Dr Goosen said that had Justin suffered
from any severe pain his pulse rate would have been elevated, but it was
not. On four occasions Mr McGregor said that Justin told him his head
was sore, not that he complained of a headache. He did not suggest that
Justin complained of any unusual pain not to be expected from his hitting
his head. Soreness and a headache are both conceptually and practically
different, soreness being external and arising from external physical
injury, while a headache is internal.

[64] Mr McGregor’s evidence was that when he returned from work
Justin was sitting on a bed with his sister. That he then burst into tears is
hardly a surprising response by a child that has hurt itself. Thereafter he
was able to tell his father what had happened. He stopped crying in the
car and was recorded as being alert and responsive in the clinical notes.
Mr McGregor said he was capable of telling the doctor what had
happened. There was no evidence that he was suffering from or
complaining of pain beyond having a sore head as was to be expected
from his having hit his head. There was no mention of a headache. Nor
did Mr McGregor say that he informed Dr Horn that Justin was
complaining of pain or a headache. Dr Horn’s evidence was that he was
not crying or holding his head or otherwise indicating that he was in pain.

[65] The fourth contention was a repetition of the previous one, this
time expressed as a failure to determine Justin’s ‘headache severity’. As
there was no evidence that Justin then, or at any stage suffered from a
headache there is no merit in it. The word ‘headache’ does not appear in
Mr McGregor’s evidence. He spoke only of Justin’s head being sore.
While a worsening headache would, as the second judgment says, have
been a sign of something possibly more serious in Justin’s condition,
there is no basis for construing the evidence that Justin said his head was
sore as showing that he had or complained of a headache.

[66] The fifth contention was that Dr Horn did not determine if Justin
had amnesia and did not test for orientation as to time, person and place.
As to the former she explained that she does not pursue this with young
children because of their possible unreliability. As to the latter she
explained that when assessing the verbal component of the Glasgow
Coma Score (the GCS) there was no indication of disorientation and
therefore no need to perform any further tests. In any event there was no
evidence that Justin was either amnesiac or disorientated. On the contrary
his father said that Justin had told him what happened and was able to tell
the doctor what happened. There is nothing to indicate that had Dr Horn
made any more enquiries in relation to these items she would have been
given information or discovered anything that would have altered her
diagnosis.

[67] The sixth point was that Dr Horn did not perform an otoscopic test
to exclude basal skull fracture. She explained why she did not think that
necessary and it was common cause that Justin did not suffer a basal skull
fracture. This was a non-issue.

[68] The final point was a submission that Dr Horn’s observation that
Justin was ‘mopey’ or ‘miserable’ or downcast’ was a pointer to the fact
that he was probably in pain. It is not surprising, as she pointed out, for a
child to be miserable when it has bumped its head, which is sore, and has
been rushed to hospital near bedtime. A little misery in those
circumstances is perfectly normal. There was no evidence that because he
felt slightly miserable Justin was in any unusual pain apart from a sore
head.

[69] Nothing in any of these points justified the contention that
Dr Horn’s treatment of Justin was in any way deficient. Nothing
supported the contention that further exploration of any of these matters
would have altered Dr Horn’s diagnosis or her decision that this was a
minor injury and Justin could safely be discharged. The impression one
gains from the way in which these matters were raised in the course of the
trial and in the submissions in the heads, was of counsel casting around
for grounds to criticise Dr Horn’s conduct in the hope that Micawber-like
‘something would turn up’.31

Further observation – the experts’ view
[70]    The joint minute of experts of Dr Goosen, Dr Edeling and
Professor Peter said that, when Dr Horn discharged Justin he probably
had no neurological deficits. In other words, his neurological function
was probably normal. That accorded with Dr Horn’s diagnosis, after
clinical examination, that he had suffered a minor injury and could be
safely discharged into his parents’ care. Lastly, contrary to the views in
their expert summaries both Dr Goosen and Dr Edeling conceded that on

31 Charles Dickens David Copperfield.

the basis of those clinical observations and the existing guidelines at Red
Cross Memorial Hospital, neither a CT scan nor a skull X-ray was
indicated.32 That those guidelines reflected the views of a respectable and
responsible body of medical opinion had to be accepted in the light of a
study referred to during the trial called the PECARN study33 and the
NICE guidelines for head injury assessment and early management.34
These two studies were directed at assessing in what circumstances CT
scanning, which itself carries risks of radiological damage, should be
ordered in respect, inter alia, of children of Justin’s age. The guidelines in
place at Red Cross Memorial Hospital were based on these guidelines,
which have been widely accepted around the world.

[71]   Dr Goosen’s evidence was that even if Justin was a low risk
patient the potentially catastrophic consequences if he was discharged
needed to be borne in mind before discharging him. The problem with
this is that it is true of every case of minor head injury in a child. The
possibility of a catastrophic event is inherent in such injuries, albeit
extremely unlikely. The adoption of this extremely cautious approach
would be that large numbers of perfectly healthy children would have to
be kept in hospital trauma units for extended periods of time without any
need to do so.

[72] Largely for the same reason Dr Edeling said that several separate
observations of the patient needed to be undertaken. Professor Taylor

32 Dr Goosen said that he would probably have scanned Justin, but that under the guidelines CT
scanning was not indicated. Dr Edeling said that he would not have called for a CT scan. He also said
that a failure to call for an X-ray would not have been a failure of reasonable practice. In both instances
this was an abandonment of the opinions expressed in their expert summaries.
33 PECARN is an acronym for the Pediatric Emergency Care Applied Research Network. The relevant
article was published in 2009.
34 NICE is an acronym for the National Institute for Health and Care Excellence in the United
Kingdom. The guidelines in the record were the 2014 version, but it was accepted that nothing material
turned on this.

disagreed, as had Professor Peter before him, and said that in
circumstances where no further investigation was indicated in accordance
with internationally accepted guidelines, as adopted in the Western Cape
Head Injury Guideline Handbook, the proper course of action was to
discharge the patient into the care of a parent or other responsible person.
They could be relied upon to monitor the patient and return to hospital if
adverse symptoms became apparent.

[73]  In the summaries and the evidence, much time was spent over the
proper interpretation of the guidelines. As this was a question of the
meaning to be attached to a document involving no technical issues that
evidence was just as inadmissible as evidence of contracting parties’
understanding of their contract. As it happened Dr Horn had been
unaware of those guidelines and had regard to the guidelines issued by
the Red Cross Memorial Hospital for the management of head injuries.
These informed hospital staff that the majority of patients are those with
minor head injuries who are brought in by concerned family members or
friends and that the first task was to identify which minor head injuries
required investigation or admission.

[74]   The appellants’ reliance on the Western Province Guidelines as
founding the contention that Justin should not have been discharged, but
kept at the Trauma Unit for further observation, implicitly recognised that
the guidelines embodied a recognised standard of care accepted by
reasonable and respected medical opinion. Only on that basis would any
departure from the guidelines provide a foundation for a contention of
negligence. However, even if there was a departure from the guidelines,
that would not necessarily establish negligence. It would still be
necessary to establish that what actually occurred departed from the

standard of care that a reasonable and respected body of medical opinion
would regard as acceptable treatment by a trauma doctor situated as was
Dr Horn. I mention this because Professor Taylor who played a
substantial role in drafting the guidelines explained how they are
implemented in practice and made reference to general practice in South
African hospitals in dealing with cases of this type. To the extent that this
may have involved a departure from the guidelines the question remained
whether that amounted to negligence.

[75]   The guidelines commence with a section on the initial assessment
of the patient. This is to be performed within 15 minutes of initial contact.
Its purpose is to determine whether the patient is at high or low risk for
brain injury. This requires the assessment of the patient’s GCS;
measurement and recording of vital signs; and a check on what happened.
The guidelines then provide that if the patient is assessed as low risk they
should be re-examined within an hour and the need for imaging
established. The appellants’ contention was that Dr Horn’s examination
of Justin was the initial assessment in the guidelines and that no further
assessment was thereafter taken before he was discharged.

[76] Professor Taylor disagreed. He said that the initial assessment was
that undertaken by the Trauma Unit nurse when Justin arrived at the unit.
While Mr McGregor only referred to Dr Horn and did not mention a
nurse as playing any part in examining Justin, one of the documents in the
Trauma Unit records was a triage form completed on Justin’s admission.
Dr Horn’s unchallenged evidence was that this was completed by a nurse
in the unit. She obtained the details of Justin’s vital signs that were
incorporated in her notes from this form. This was not disputed. What
was challenged was whether this was the initial assessment referred to in

the guidelines, so that Dr Horn’s examination was the re-examination
contemplated by the guidelines.

[77] There is undoubtedly a measure of ambiguity about the wording of
the guidelines, which Professor Taylor, as one of its authors,
acknowledged. On the one hand the description of the initial assessment
includes a number of things undertaken by the Trauma Unit nurses, such
as the taking of the patient’s vital signs and determining whether the
patient is high or low risk. On the other the diagrammatic representation
includes a number of elements that formed part of Dr Horn’s
examination, such as excluding any focal neurological deficit and
examining the swelling. In practice it appears that the triage assessment is
treated as the initial assessment and the registrar’s examination as the re-
examination within an hour. It emerges clearly from Professor Taylor’s
evidence that what occurred on 23 August 2011 was consistent with the
way in which the guidelines were implemented in practice.

[78] It seems to me to be a sterile debate to try and impose a particular
interpretation on the guidelines and then to use that to determine whether
Justin’s treatment accorded with sound clinical practice. A more
profitable approach is to examine the evidence as a whole to determine
whether what happened was in accordance with the standards of
acceptable treatment of a reasonable and respected body of medical
opinion. We know from the evidence of Professor Taylor that it was and
is the approach adopted at Red Cross Memorial Hospital and there is
nothing to suggest that it has had any adverse consequences. It is also,
according to him, consistent with the practice adopted at emergency units
throughout South Africa. This evidence was not challenged. It was
consistent with the Red Cross Memorial Hospital protocol which dealt

with the discharge of patients who are fit for discharge immediately after
the section on determining whether a CT scan was necessary.

[79] On a wider front the guidelines were adapted from the NICE
guidelines referred to in para 65. They require an initial assessment
within 15 minutes of arrival at an emergency department to determine
whether the patient is high or low risk for clinically important brain
injury. Thereafter they require re-examination within one hour by an
emergency department clinician. The latter assessment is particularly
directed at determining the need for imaging using a CT scan.  A scan is
indicated in any situation where certain identified risk factors, largely
common to those identified in the PECARN study, are present. It is
unnecessary to detail these as Justin displayed none of these signs. Nor
did he display any of the signs for admission and observation.

[80] The most relevant provision of the NICE guidelines is the one
dealing with discharge and follow-up of patients. It reads:
‘If CT not indicated on the basis of history and examination the clinician may
conclude that the risk of clinically important brain injury to the patient is low enough
to warrant transfer to the community, as long as no other factors that would warrant a
hospital admission are present … and there are appropriate support structures for safe
transfer to the community and for subsequent care (for example, competent
supervision at home).
In other words, if the doctor thinks the injury is minor and does not
warrant a CT scan or admission for observation, the patient can be
discharged and sent home, in the case of a child to be cared for by its
parent, or parents, or other caregiver.

[81] The standing of the NICE guidelines as a standard of acceptable
clinical care was not disputed. They were consistent with the PECARN

study. They were also consistent with the approach to the management of
minor brain injuries in the Advanced Trauma Life Support for Doctors
(ATLS®) manual relied on by Dr Goosen.35 It described the process of
management for patients with a GCS of 13-15 as follows. First there
should be a general examination to exclude systemic injuries followed by
a limited neurological examination. If no CT scan was indicated and the
patient did not meet any of the criteria for admission discharge from
hospital should follow.

[82] The process of assessment and examination followed generally at
Red Cross Memorial Hospital and followed in this case by Dr Horn
complied with accepted clinical practice here and internationally. She
cannot be faulted for doing so. There is no merit in this argument. It is
accordingly unnecessary to deal with the separate question whether, if he
had been kept at the Trauma Unit for another hour as suggested, Justin’s
condition would have deteriorated and given rise to concern resulting in
further investigation. We cannot tell whether he would then have
remained awake, or whether his falling asleep would have sounded any
alarm bells. It is equally possible that it would have been regarded as
normal. His father said that he was sleeping normally in the car and when
they returned home.

The adequacy of the discharge instructions
[83]   It was accepted that a reasonable medical practitioner ought to
have made sure that the patient’s carer understood the discharge
instruction sheet before departing from the hospital. It was submitted that
Mr McGregor ought to have been informed to look out for drowsiness.

35 This is a manual issued by the American College of Surgeons Committee on Trauma and its
procedures are taught to doctors, nurses and emergency services personnel internationally.

There was a dispute of fact whether he was. There was no dispute that he
was not advised to wake Justin at regular two hourly intervals during the
night in order to check for drowsiness. It was disputed that this
represented sound clinical advice or that a failure to do so was negligent.

Was Mr McGregor warned about drowsiness?
[84] Mr McGregor was handed the hospital’s standard head injury
discharge form. This said:
‘Bring your child back to hospital immediately at any time of the day or night if
he/she should complain of:
-
a severe headache
-
become increasingly difficult to wake
-
loose (sic) consciousness
-
start vomiting excessively
-
have fits or develop paralysis
-
or in any way behave peculiar (sic).’
He said that he took the form home and read it around 8.00 pm that
evening after dinner. He did not suggest that he found it obscure or
difficult to understand.

[85] Mr McGregor could not remember what Dr Horn said to him other
than that, if he had any concerns, he should phone the hospital. Under
cross-examination he accepted, because those were the instructions
recorded by Dr Goosen in his expert summary, that Dr Horn said that he
should ‘monitor’ Justin ‘or something like that’. He explained that he
understood that to mean that he and his wife should keep an eye on him
as a parent normally does when a child is sick.

[86] Dr Horn’s evidence was that she could not recall what she said to
Mr McGregor. She remembered a discussion with him and said that her

usual practice was to explain her decision not to send a child for a scan
and reassure the parent. She would as a matter of practice briefly mention
the salient risk factors and tell parents to look out for drowsiness,
sleepiness, vomiting and seizures or fitting, as those could be signs of a
developing brain injury. The factual dispute arose because Mr McGregor
did not accept this. He claimed that if he had been warned about
drowsiness as a risk he would have returned to the hospital much earlier
when Justin fell asleep in the car on the way home.

[87] Dr Horn was cross-examined about her advice. The relevant
passage reads as follows:
‘… [W]ell Justin’s father says you asked him to monitor him, to monitor Justin, to
watch him. That is how – he remembers the word ‘monitor’ but he interpreted that to
mean watch. --- That could be the correct interpretation.
And he specifically said when he was asked in cross-examination that you did not say
to him that he must bring Justin back in the event that he got drowsy or – specifically
with reference to drowsy, let me leave the or part. So Justin’s father is adamant in his
evidence that you did not say that to him. Can you contest that as you stand here now?
--- Because I do not have word by word recollection of the conversation we had, I
cannot contest it no.
I understand. You cannot contest it. That is – can we just proceed on the assumption
that you did say that to him? --- Yes please.
If you did say that you didn’t give any further explanation as to how to look out for
drowsiness did you? --- No I think it is self-explanatory.’

[88] Even if one assumes in favour of counsel that the penultimate
question is mistyped and should read ‘… you did not say that to him’, one
cannot ignore the careful qualification Dr Horn gave to the previous
answer, namely that because she did not have a word by word
recollection of the conversation she could not contest what Mr McGregor
said. That was of a piece with the entire body of her evidence that, if she

did not specifically recall something, she was not prepared to deny
unequivocally whatever counsel was putting to her. That was a mark of
her fairness and honesty as a witness. It is a far cry from that to contend,
as was done in the heads of argument, that she conceded that she did not
warn Mr McGregor about drowsiness.

[89] The judge accepted that both Mr McGregor and Dr Horn were
doing their best nearly seven years after the event to describe what
occurred. There was nothing in the inherent probabilities that pointed in
favour of one version rather than the other. That is no doubt why counsel
sought to contend that it was disposed of by a concession.

[90] The Afrikaans version of the discharge form was the same as the
English, save that it added in the second item ‘becomes drowsy’ (‘meet
lomerig word’). Considerable play was made of this to argue that because
of the omission the McGregors were not alerted to the problem of
drowsiness. The form may have been deficient, but it could not affect
whether Dr Horn told Mr McGregor to be on the alert for drowsiness.

[91]  On this limited evidence it was not reasonably open to the trial
court to make a definitive finding that Dr Horn did not highlight
drowsiness as a risk that the McGregors should have been alert to in
keeping an eye on Justin. Nor could it be found that she did not explain
the very simple hospital form adequately. The form was not elegantly
phrased, but it said clearly that they should bring him back to the hospital
immediately if they observed anything peculiar about Justin’s behaviour.
The obvious reason for the form was to make it clear to the parent that
although no significant problem had been detected by the doctor, there

was a risk that something might have been missed and so they should be
alert to any peculiarities in their child’s behaviour.

Should Mr McGregor have been advised to wake Justin during the
night?
[92] On another tack, because the form referred to difficulty in waking
the patient, it was contended that it required that Justin be woken at
regular intervals. Dr Horn did not advise this and Mr McGregor was not
asked how he understood this item. It does not appear that he gave it that
construction. That would not, however, dispose of the issue of whether
sound clinical practice required that Justin be woken at regular intervals
to check on his state of drowsiness and alertness.

[93]  Dr Horn was cross-examined on the suggestion that she should
have warned Mr McGregor to wake Justin regularly to check for
drowsiness. Her response was that, if she thought such a step necessary,
she would have admitted Justin. It was submitted that this was the
incorrect approach and that Mr McGregor should have been told to wake
Justin at least every two hours during the night to check on his condition
and see that there was no difficulty waking him. Both Dr Goosen and
Dr Edeling advocated this.36 Professor Taylor said that at most waking a
child once in the night was sufficient.

[94] The medical literature did not support Drs Goosen and Edeling.
Their evidence was based on the 2008 edition of the ATLS manual,
which recommended waking the patient every two hours. However, the
persuasive authority of that recommendation as an indication of proper
clinical practice was removed by its withdrawal in the 2014 edition. The

36 Goosen, Vol 3, p 490, line 13- 491, line 23; Edeling p 946, lines 14-20.

NICE guidelines did not suggest that this was a requirement when a child
was discharged after a head injury. The most direct reference to this issue
was an article by Schutzman and others.37 The second judgment is critical
of reliance on this article because it does not include details of the
evaluation preceding a decision to discharge. But that is beside the point,
because it is not cited in support of the decision to discharge Justin, but in
regard to the approach to be adopted to waking a child after discharge. It
said that a child should be discharged if there was no suspicion of
inflicted injury; they had a GCS of 15/15; had returned to a baseline level
of function, that is, his vital signs and physical functioning were normal;
and there were no extracranial injuries warranting admission, provided
there were capable caretakers who could reliably observe the child and
return it for care if indicated. In regard to discharge instructions the
authors said:
‘It is not necessary to awaken most children. Whether it is important to awaken some
children to identify the very few who may be experiencing a change in neurological
condition is uncertain, since no evidence addresses this question. …
Those patients who had a concerning mechanism or prolonged symptoms who do not
undergo neuroimaging may be awakened from sleep every four or more hours,
particularly if being discharged during evening or night time hours.’
Justin did not fall in the latter category. On balance therefore it was not
shown that waking a child at regular intervals constituted general clinical
practice, much less that a failure to instruct parents and other carers that
they should do so involved a departure from proper practice. The medical
literature placed before the court did not suggest that Dr Horn’s approach
that, if a child needed to be woken at intervals during the night, they
should be admitted to hospital for that to be done by medical
professionals was inconsistent with a body of reasonable and respected

37 Sara Schutzman MD, Richard G Bachur MD, James F Willey II MD, MPH ‘Minor head trauma in
infants and children: management’ (2017).

medical opinion. Interestingly no evidence was led to show that in the
case of patients kept in hospital for observation the practice was to wake
them at regular intervals during the night.

[95] Those conclusions mean that the third ground of appeal cannot
succeed. It is appropriate, however, to go further, because even if it could
be said that Dr Horn failed to warn Mr McGregor in regard to drowsiness,
or if sound clinical practice indicated that Justin should have been woken
during the night, in my view the appellants failed to establish on a
balance of probabilities that the outcome would have been any different.

Would the outcome have been any different?
[96]  In order for the tragic outcome of this case to have been different
Justin would have had to return to the hospital displaying symptoms that
would lead to further and timeous investigation by way of a CT scan and
surgery to relieve the extradural haematoma. The first difficulty in the
path of reaching that conclusion is that it cannot be concluded on a
balance of probabilities on the evidence that Justin’s condition was at any
stage, until the early hours of 24 August, such that his parents would have
decided to return to hospital with him. The second, which is related to it,
is that it is not possible to determine at what stage on the evening of
23 August his condition would have deteriorated to an extent that it
would have triggered an alarm. This meant that it could not be said on a
balance of probabilities that it would have been apparent in sufficient
time for him to have been taken back to hospital, the problem diagnosed
and emergency surgery performed.

[97] During Dr Horn’s examination Justin was alert and responsive.
There was no suggestion that he was drowsy at any earlier stage before

arriving at the hospital. Mr McGregor said that he was awake sitting on
the bed when he got home and he then burst into tears. However, he was
sufficiently alert to be able to convey to his father what had happened. He
stopped crying before they reached the hospital. There was no hint of
drowsiness during his examination by the triage nurse and Dr Horn. The
conclusion is that when he left to return home he was not drowsy,
although he was slightly miserable.

[98] While they were driving to collect his mother from work after
leaving the hospital, Justin lay down and fell asleep in the car. It is not
clear how soon that happened, but it was sometime between leaving the
hospital shortly after 6.30 pm and reaching Mrs McGregor’s place of
work at about 7.00 pm to collect her. We don’t know whether she was
already aware that Justin had hurt himself, but she got in the back seat of
the car and cradled his head in her lap. That afforded an opportunity to
soothe him and examine the swelling on his head. There is no indication
that this caused anything other than natural maternal concern. When they
arrived home Mr McGregor carried Justin in from the car and put him to
bed in the bed he shared with his parents. According to Mr McGregor, he
was sleeping normally and not in a deep sleep. He could not recall
whether, as would usually be the case, he took Justin to the toilet before
putting him to bed. Like Dr Horn, after the elapse of nearly seven years
he could not recall what he did, although that would have been what he
would ordinarily have done.

[99]    It should be borne in mind that Justin had bathed earlier in the
afternoon at his aunt’s house before being dropped off at his parents’
home into the care of his older brother. He was already in his pyjamas
and Dr Horn recalled that he was wearing pyjamas at the hospital.

Ordinarily he had supper at about 7.00 pm and went to bed at about 8.00
pm. It was therefore a little earlier than usual for him to go to sleep, but
his sleep was normal. He had been given Panado, a mild analgesic, at the
hospital and his parents thought, from past experience with their two
older children, that this helped children to sleep. They joined him in the
family bed at about 9.30 pm. One infers from the fact that nothing
untoward was reported that they too slept, until Mr McGregor woke in his
customary fashion at about 3.30 am and had difficulty waking Justin to
take him to the toilet.

[100] Clearly neither Mr nor Mrs McGregor saw anything untoward in
Justin that evening. Even without the administration of Panado, it was
hardly surprising that he fell asleep in the car on the way home. His
experience that afternoon had been unpleasant and he was upset. His head
was sore and he had been rushed to the unfamiliar environment of a
hospital trauma unit. That is a worrying experience for any six year old,
and his anxiety would have been aggravated by his father’s anxiety. He
would have sensed something might be seriously wrong. This was all
reflected in Dr Horn’s assessment that he was a little bit ‘mopey’. He was
already dressed for bed and bedtime was approaching. Few parents would
have been surprised at his falling asleep in the car and clearly his parents
were not surprised. Mrs McGregor manifestly did not think that there was
anything peculiar about his behaviour when she was sitting with his head
on her lap in the car. She did not give evidence so we can accept that this
was so. Indeed, had it been otherwise I have little doubt that she would
have told her husband to take Justin back to the hospital immediately.

[101]  Apart from not knowing whether Justin was taken to the toilet, we
have no evidence of any discussion about providing supper for him in

accordance with the family’s usual practice. Nothing was said about his
parents’ observations when they put him to bed; or how frequently they
went to check on him; what they saw when they did; any change in the
condition of the swelling on his head; and what they observed when they
themselves went to bed. They had been told to keep an eye on him and I
am sure that they did. The only reason nothing was said about these
matters can be because there was nothing to say. Anything untoward
would have led them to contact the hospital, as Mr McGregor did at 3.30
am the following morning. While they were in bed with him they
experienced nothing to indicate that Justin’s sleep was disturbed or in any
way unusual.

[102] In other words, there was no evidence of anything about Justin
being asleep that would have raised a concern or indicated to them that
they should return to the hospital. It was not suggested that they should
not have permitted Justin to go to sleep in the ordinary way. They did not
need to guard against ordinary tiredness, but to look for signs of
something unusual or abnormal. There was no evidence that there was
anything unusual or abnormal in Justin sleeping. In those circumstances
the absence of a specific mention of drowsiness as potentially a sign that
something was wrong cannot justify a conclusion, on a balance of
probabilities, that mentioning it would have meant that Justin would have
returned to the hospital that evening and been successfully diagnosed and
treated.

[103] The problem is compounded by the fact that it is not possible on
the evidence – and no-one tried to do so – to identify at what stage there
would have been a change in Justin’s condition that would have provoked
alarm. This is also a major difficulty with the contention that waking

Justin at regular intervals would have made a difference. It flows from the
development mechanism of an extradural haematoma from which it is
impossible to tell at what stage prior to 3.30 am Justin started to display
symptoms that would have caused alarm to his parents and resulted in
them taking him back to the hospital. Dr Goosen explained that the
haemorrhage progresses slowly over time. Because the durable hard
membrane protecting the brain does not give way easily the haematoma
develops slowly. But there comes a stage where the pressure on the brain
shoots up and what has been a slow progression becomes a disaster.
Dr Goosen said it is known as ‘talk and die’.

[104] This phenomenon is known as the Monroe-Kellie doctrine. It is
described in the ATLS® manual in the following terms:
‘The doctrine states that the total volume of the intracranial contents must remain
constant, because the cranium is a rigid nonexpansible container. Venous blood and
cerebrospinal fluid [CSF] may be compressed out of the container providing a degree
of pressure buffering… Thus very early after injury a mass such as a clot may enlarge
while the ICP [intercranial pressure] remains normal. However, once the limit of
displacement of CSF and intravascular blood has been reached, ICP rapidly
increases.’
The effect appears from the graph accompanying that description
reproduced below. It illustrates the period of compensation for the effect
of the haemorrhage followed by a rapid increase in pressure at the point
of decompensation, rapidly reaching herniation. Dr Edeling suggested
that the point of decompensation occurred at about midnight in Justin’s
case, but it could have been earlier or later.

[105] The suddenness of a patient’s decline means that it is difficult to
tell at any stage that they are suffering from an extradural haematoma.
Even had he been awakened once or twice during the night there was no
basis to determine when Justin would have manifested symptoms causing
alarm and resulting in his urgent return to hospital.

[106]  For those reasons, the appellants failed to prove that a warning
about drowsiness or an instruction to wake him at intervals would on a
balance of probabilities have meant that Justin would have been taken
back to hospital, diagnosed with an extradural haematoma and undergone
remedial surgery before suffering the injuries that he did. The factual
position is that his parents did not detect anything untoward in him during
the evening, when they went to bed or during the night. Had they been
instructed to wake him there is nothing to indicate when this would have

been done or what it would have disclosed given the way in which the
haematoma developed.
Result
[107] In the result the appeal must fail. What happened to Justin was a
tragedy and his parents deserve every sympathy for what they have
suffered as a result. However, medical science has not advanced to the
stage of diagnostic infallibility and there will be cases where,
notwithstanding the best efforts of the medical profession, a tragedy like
this occurs. Sympathy is not a ground for imposing legal liability in this
or any case.38

[108] The MEC did not seek a costs order. There was no separate appeal
in relation to the costs order in the High Court, but given the concession
in regard to the cost of the appeal, we trust that a similar approach will be
taken to those costs. In the result the order is simply that the appeal is
dismissed.

___________________________
M J D WALLIS
JUDGE OF APPEAL

38 Buthelezi v Ndaba [2013] ZASCA 72; 2013 (5) SA 437 (SCA) para 15.

Molemela JA (Dissenting judgment)

[109] I have read the judgment penned by my colleague, Wallis JA (the
first judgment). I disagree with its reasoning and conclusion. I am of the
view that Dr Horn’s negligence is plain from her own evidence, viewed
against the backdrop of the provisions of the applicable guidelines.
Extracts of her evidence will be liberally quoted in the succeeding
paragraphs of this judgment. In my opinion, the evaluation of evidence
and the reasoning of the court a quo are flawed and its judgment ought
not to be supported. For the reasons set out hereunder, I would uphold the
appeal with costs.

[110] The elements of a delictual claim39 and the approach to expert
evidence have already been canvassed in the first judgment and in the
judgment of the court a quo. In the interests of not burdening this part of
the judgment, I will not re-state the applicable legal principles.

[111]  As a point of departure, it is necessary to allude to what
Dr Edeling referred to as the cornerstone of head injury management. He
said:
‘The whole purpose of neurological management of head injured patients is to
prevent, detect and manage secondary complications. So whatever condition you get
the patient, you assess the patient. Then there is always, in all patients with a head
injury, a certain risk, and the risk differs in different contexts. There’s always a risk
that the patient will deteriorate. And it is because of that risk that a cornerstone of the
management is a period of several observations, which is necessary to determine if the
patient [is] remaining stable, or getting better, or getting worse.’

39 See Oppelt v Head, Department of Health Provincial Administration, Western Cape [2015] ZACC
33; 2016 (1) SA 325 (CC).

[112] It is common cause that Justin had, as a result of his fall, sustained
a large swelling above and behind his left ear. The location of the
swelling was described as temporo-parietal. Mr McGregor estimated the
diameter and height of the swelling to be half the size of a tennis ball. He
stated that it was the enormity of that swelling that made him to take
Justin directly to Red Cross Children’s hospital, instead of his family
general practitioner. It is common cause that Justin had sustained a linear
fracture in the left temporo-parietal area.

[113] Dr Horn testified that the ‘closed tissue’ injury she had recorded in
her notes referred to a bruise where there was no damage to the skin. In
their article, Greenes and Schutzman40 observed that most linear fractures
have an overlying haematoma or soft-tissue swelling. According to them,
larger haematomas in the temporal or parietal regions are more likely to
indicate a fracture. They also mentioned that treating physicians rated
scalp hematomas as small (barely noticeable), moderate or large
(‘obvious swelling and/or boggy consistency’). Dr Goosen testified that it
was generally agreed that scalp haematomas in the temporal/parietal or
occipital regions confer the greatest risk for intracranial injury. He
emphasised that even a low risk of complications relating to a head injury
had to be weighed against the catastrophic consequences that could
eventuate, hence the need for the attending doctor to be ‘very, very
cautious’.

40 S A Schutzman and D S. Greenes, ‘Pediatric Minor Head Trauma’ (2001) Annals of Emergency
Medicine.

[114] It bears emphasis that one of the studies relied upon by Dr Goosen,
was the one mentioned in the article authored by Burns.41 The study’s
primary objective was to investigate whether scalp haematoma presence,
location and size were associated with intracranial injury in children
presenting to the emergency department of a hospital following minor
head trauma and to determine whether this relationship differed with
patient age. The Burns article observed that 51% of children with a scalp
haematoma and intracranial injury had an underlying linear skull fracture
on CT. The conclusion was couched as follows:
‘In this large cohort of children aged 0 through 16 years presenting to the [Emergency
Department] following mild head injury, we found that the presence of a scalp
hematoma, particularly in non-frontal regions and of large and boggy size, was
associated with an increased odds of intracranial injury. Our findings also indicate
that clinical concern is not only warranted in children younger than 24 months, but
also in older children and adolescents . . . Although children 0 to 6 months of age
were at highest odds, the presence of a scalp hematoma also independently increased
the odds of [intracranial injury] in older children and adolescents. An underlying
linear skull fracture may contribute to the increased odds of intracranial injury in
children with a scalp haematoma following minor head injury but cannot solely be
relied upon when determining the need for additional neuroimaging . . . .’ (Own
emphasis.)

[115] It is common cause that Dr Horn did not record the consistency of
Justin’s bump in her notes. It bears mentioning that the definition of the
word ‘bump’ in the Oxford dictionary is ‘a swelling on the body, often
caused by a blow’. There is no suggestion that it bears any relation to the
consistency of that swelling or lump. Dr Horn’s explanation that her
recordal of the swelling as a ‘bump’, must have been because it was firm

41 E. C.M. Burns and Others ‘Scalp Hematoma Characteristics Associated with Intracranial Injury in
Pediatric Minor Head Injury’ Society Academic Emergency Medicine (2016).

and not boggy,42 is implausible, in my view. Although Prof Taylor sought
to rely on Dr Horn’s description of the swelling as a ‘bump’ as an
indication of its consistency, he did not refer to any literature that
supported that view. Prof Taylor conceded that without the swelling’s
consistency as to firmness or bogginess having been recorded by
Dr Horn, he could not say ‘with certainty’ that it was or was not fluctuant.
The court a quo’s conclusion that Justin would have been excluded from
the findings of the Burns articles on account of his age was clearly
incorrect. For reasons I will mention presently, its finding that Justin
would have been excluded from the findings mentioned in the Burns
article on account of not having shown the symptoms mentioned in the
cohort study is misplaced.

[116] It is axiomatic that good medical records are a vital component of
providing good quality health care. The obligation to record in the clinical
notes every action taken by the attending doctor in respect of a patient, is
a basic requirement that is generally known in the medical field.43 As
correctly stated in the first judgment, Dr Goosen testified that it is
something that is taught at undergraduate level and Dr Horn said she was
aware of it.44 According to Dr Goosen, the undergraduates are taught that
‘if it is not there it was not done’ – in other words, what was not
mentioned in the attending doctor’s notes was not done by the doctor
during the medical examination. The exchange between the counsel for
the appellant (Mr van der Merwe) and Dr Horn on this aspect was as
follows:

42 See para 30 of the first judgment. She said: ‘I do believe that in order for me to have written “bump”
it may have been solid.’
43 Compare K v MEC for the Department of Health, Eastern Cape [2018] ZAECGHC 21 para 54.
44 This puts paid to the speculation expressed in para 50 of the first judgment, that if Dr Horn had been
aware at the time that in 2018 she would have to give evidence about these events, her note would have
been fuller and included the dimensions of the bump, its consistency and details.

‘. . . In the light of what we have examined and the absence of some significant
findings in the notes would you not agree that the notes are scanty and in fact less
than scanty, that they are deficient in some respects? -- I cannot contest that fact.
Court:

I beg your pardon, what was the answer?
Mr van der Merwe:  Cannot contest.
Dr Horn: I said yes I agree that they are deficient in some aspects.’

[117] What is of crucial importance, is that it is the duty of the attending
doctor to elicit information from the patient. What Dr Horn did and did
not do, remains of crucial importance. In Topham v MEC for the
Department of Health, Mpumalanga (Topham),45 this Court held that a
patient is entitled to a thorough and careful medical examination, such as
his or her conditions and attending circumstances permit, with such
diligence and methods as are usually practiced under similar
circumstances, by members of the branch of the profession to which the
attending doctor belongs.46 This Court did not accept the evidence of the
attending doctor relating to his ‘usual practice’ as proof of how he
examined the patient where important clinical observations made during
the examination were not recorded. A reliance on a medical practitioner’s
‘usual practice’ should not come to the aid of a medical practitioner who
has failed to record important observations. ‘Usual practice’ should not
be regarded as a substitute for what was not recorded, or a supplement to
an inadequate medical record.

[118] On Dr Horn’s own account of events, the recording of Justin’s
history was inadequate. The short duration of the examination of Justin
by Dr Horn and the scanty notes she made speak volumes. Her note

45 Topham v MEC for the Department of Health, Mpumalanga [2013] ZASCA 65 para 23.
46 Topham v MEC for the Department of Health, Mpumalanga [2013] ZASCA 65 para 20; Oppelt v
Head, Department of Health Provincial Administration, Western Cape [2015] ZACC 33; 2016 (1) SA
325 (CC).

taking fell short in various respects. She failed to record the time of the
incident despite the fact that the pro-forma trauma unit record form has a
block in which the time that has elapsed since the fall must be recorded.
The Guidelines for Integrated Management of Head Injury at Red Cross
Children’s Hospital, which Dr Horn was familiar with, also identified the
‘time elapsed since injury’ as a factor to be considered during the
examination of the child patient.47 Because Dr Horn did not record this
important factor, she had no idea how much time had elapsed between the
time of the incident and her examination of Justin. She admitted that she
made an assumption on that aspect. The court a quo’s remark that this
omission was unsatisfactory is justified by the following exchange
between the counsel for the appellant and Dr Horn:
‘Let me explore that, if I may. You didn’t note the time of the incident? -- No I did
not.
And you didn’t know how long prior to you observing Justin the incident had
occurred? -- I did not note it.
But you didn’t know it either?
Court: Sorry. So you did not note it? -- I did not note it but I made an assumption.
Mr van der Merwe: What was that assumption? -- The assumption was that
approximately two hours have passed since the incident, and that would be based on
the fact that the incident occurred, then a period of time elapsed until the parent got
back. In that time Justin was bathed and then brought to hospital. So . . .
Where do you get those facts?
Well I know that there was some time – ja so that is a little bit difficult because it does
get . . . (intervention)
Dr Horn, you didn’t note any of that on your record? -- I did not.
Where do you get . . . (intervention)
Court: No but you haven’t given the witness the opportunity to say – to answer your
earlier question was how did you know that? -- No I did answer it . . .

47 Page 3 of the Guidelines for Integrated Management of Head Injury at Red Cross Children’s
Hospital.

Court: Well just – Mr van der Merwe might have heard something I did not hear. On
what basis did you make this assumption about two hours? -- It is definitely rough – a
rough assumption but it was based on the fact that the incident occurred, some time
elapsed before the parent brought the child to the hospital and – but no it is a very
rough assumption and I cannot scientifically found it but there was an assumption that
this was not an incident, immediately get into the care, come to the hospital then
minutes later case. But I did not document that.
Mr van der Merwe: No. Dr Horn, I know sometimes it is difficult that when you stand
– and you have obviously consulted for purpose of this trial – when you stand here to
try and distil what you gathered along the way from what you knew then is a difficult
process and I accept that but there is nothing in your notes indicating that you had any
idea of the time of the incident. --- I agree
And there is nothing in your notes that you had any idea of a delay even between the
time of the incident and Justin arriving at the hospital. --- I agree.
For all intents and purposes the incident could have happened 15 minutes earlier or
prior to the time that you saw him. According to the notes. -- Yes’

[120]  As regards Justin’s bump, it is clear that the nature, location and
characteristics thereof were important signs and symptoms that ought to
have been assessed and recorded. The following exchange between
counsel for the appellant and Dr Horn pertaining to the consistency of
Justin’s bump is of importance:
‘You had fairly conceded yesterday, and I think this morning in your evidence, that
you did not in fact or you cannot remember feeling the consistency of the bump? -- I
cannot remember what the bump felt like, no.
. . .
I am suggesting to you, Dr Horn, that you probably missed it, you did not feel it. You
did not feel for consistency and therefore did not note it. Do you accept that? -- I
cannot refute it.
Court:
Sorry your question was I put it to you that it is?
Mr van der Merwe:
What I suggest is that it is likely that you in fact did not feel the
bump for consistency and therefore did not record it. -- It is possible but that would
not have been my normal practice.’

[121] Considering the foregoing concessions and the evidence of
Dr Goosen and Dr Edeling pertaining to the purpose of a full clinical
examination and a comprehensive medical history, I am inclined to agree
that, on probabilities, the reason why Dr Horn did not record the
consistency of Justin’s bump is because she did not palpate it, which
amounted to negligence.

[122] With regard to Dr Horn’s history taking during Justin’s
examination, it is common cause that she failed to record the nature of the
consistency of the large bump, which according to her notes was ‘above
and behind [Justin’s] ear’. Dr Horn used three words to describe Justin’s
mood during the medical examination: ‘tearful’, followed by ‘mopey’ and
then ‘miserable’. It can hardly be denied that any of these words is
compatible with a description of someone who was in pain.
Mr McGregor’s evidence that Justin complained of a headache just before
he took him to the hospital and that he informed Dr Horn about it was not
disputed.48 Here, I accept that a reference to a “sore head” by a six year
old child who had fallen and sustained a large swelling above and behind
the ear area could only have meant a headache (pain in the head). It was
for Dr Horn to establish the exact nature and extent of the soreness and to
investigate the extent of the trauma. The fact remains that Dr Horn
neither recorded a headache nor a sore head in her notes. On probabilities,
it can safely be accepted that Dr Horn was indeed informed about this
symptom, otherwise there would have been no reason for her to prescribe

48 Under cross-examination, Mr McGregor was asked whether he had told Dr Horn about any
symptoms that Justin had complained about. His response was as follows: ‘No, I told – all I told her
was, I took him in because his head was sore, I took him in, and told her that – what happened, what
had happened, and he knocked his head against the ground with the fall. And, ja, that was about it.’ In
her evidence Dr Horn stated that pain was not mentioned as a complaint but said she ‘could be wrong
in her memory’.

or administer Panado syrup to Justin and to book him off for two days.
Moreover, Dr Horn stated that the presence of any injury to the head,
which causes a swelling, involves pain. She conceded that, where there
was a skull fracture as well as a swelling, the pain would be more
compounded. In the light of that concession, the attempt to distinguish a
sore head from a headache appears to be a distinction without a
difference, in my respectful view.

[123] Despite the fact that a worsening headache is one of the symptoms
to watch out for, in the context of the management of paediatric patients
who present at hospital with head trauma, Dr Horn failed to record the
headache as one of the symptoms. She also failed to assess whether the
headache was abating or deteriorating. Although Dr Horn conceded that
this is a feature that needs to be explored, she did not do so. The
exchange between the appellant’s counsel and Dr Horn relating to the
importance of observing and recording a change in a patient’s condition
was as follows:
‘Mr van der Merwe: Now, Doctor, tragically we know the outcome in this case and
it stands to reason that if an extradural haematoma develops the outcome can be
catastrophic. Again, I say there is a risk, it doesn’t have to be but it can? ---- Yes it
can.
And in this case the steps that might have prevented it are actually simple. Would you
agree with that? ---- I do agree with that.
Now I know it is complex in a situation where you are confronted with a presentation
as you were, but the steps that – there are essentially in plaintiff’s estimation three
steps that could have been taken or ought to have been taken that would have
prevented the outcome - and the first of course is [to] send [the patient] for some kind
of examination, albeit it X-ray or CAT scan, but some kind of examination if you are
unsure whether there is an underlying facture or not. --- Yes.

And you probably will concede that in the interest of patients’ safety if you are unsure
then good practice or reasonable practice would be to rather get the scan or get the X-
ray and exclude. --- If you are unsure, yes.
Are you suggesting then that in the circumstances you were not unsure? --- That is
what I am suggesting, yes.
Now the second aspect even if you do not send the patient for an X-ray or CAT scan
is to wait for a while to re-examine. --- Yes.
Now I have heard your evidence this morning that that is not the practice at Red Cross
but I am going to test whether that practice is frankly reasonable or not. When you are
dealing with a head-injured patient the big problem leading to potentially catastrophic
outcomes is the development of a condition that would affect the neurological
functioning of the individual. --- That is correct.
And so it is the change that is important isn’t it? --- That is correct.
And we see in the literature, and I am not going to take you to any of it in any detail. I
think it is common cause, that change in neurological status is one of the things that
the clinician should look out for. --- Yes.
To decide on management. On further management of the patient. Now there seems to
be a dispute between the plaintiffs and defendant in this case of precisely what that
means and how that should be evaluated. I want to put it to you in these terms. Dr
Edeling says, and so does Dr Goosen for that matter, that if you – you can only detect
a change in neurological condition – you the clinician, the doctor – if you do at least
two examinations, not one. --- Yes I agree.
You agree with that. And there must at least be the passing of a little bit of time for
you to be able to detect that. --- That is true.
Precisely how much time is open to debate but without doing a re-examination you
cannot detect whether there is a change in condition. --- No.
. . .
Now again my instructions are that it is not only the pain and degree or level of pain
but also whether the pain is getting any worse is a feature that needs to be explored? --
Yes I agree with you.’

[124] Prof Taylor’s testimony that ‘there’s no evidence that any
particular frequency of observation is of benefit’ is at variance with

Dr Horn’s own evidence, as set out in the last paragraph of the passage
above. That assertion is also not borne out by various provisions of the
Western Cape Head Injury Guidelines Handbook,49 as they stipulate that
a re-examination should be performed within one hour of the first
assessment, an aspect I will revert to presently. At a logical level, it is
mindboggling how else one can possibly observe a change or
deterioration in a patient’s condition without doing a re-examination. This
brings to mind the warning sounded by the court in Bolitho v City and
Hackney Health Authority.50 Lord Browne-Wilkinson aptly stated that a
court is not bound to absolve a defendant from liability for allegedly
negligent medical treatment or diagnosis just because evidence of expert
opinion is that the treatment or diagnosis in issue accorded with sound
medical practice. He emphasised that the court must be satisfied that such
opinion has a logical basis, in other words, that the expert has considered
comparative risks and benefits and has reached a defensible conclusion.
He cautioned that if a body of professional opinion overlooks an obvious
risk which could have been guarded against it will not be reasonable,
even if almost universally held. I am in full agreement with those
remarks.

[125] In an article authored by Osmond and Others,51 the authors refer to
a cohort study (referred to as the CATCH study) of 3866 patients with a
mean age of 9.2 years. They identified four high risk factors which were
pointers for a CT scan in children. The finding was that a CT scan of the
head was ‘required’ for children falling in the ‘high risk’ category.
Children falling in the ‘high risk’ category included those who had a

49 Western Cape Head Injury Guidelines Handbook Tab 9 at 26.
50 Bolitho v City and Hackney Health Authority [1997] UKHL 46; [1998] AC 232 at 241-242H.
51 M H. Osmond and Others ‘CATCH: a clinical decision rule for the use of computed tomography in
children with minor head injury’ (2010) Canadian Medical Association Journal.

history of a ‘worsening headache’. There is much to be made of the
undisputed evidence that Justin complained of a headache before being
taken to the hospital, an aspect Dr Horn was informed about. Despite
having taken an analgesic, he was still complaining about the headache
soon after leaving the hospital, which was slightly more than two and a
half hours after the fall. Clearly, the headache was persistent. It is evident
that Dr Horn failed to assess the extent and severity of the headache. She
also inexplicably failed to allow herself an opportunity to assess whether
there would be any deterioration in Justin’s condition.

[126] Both Dr Goosen and Dr Edeling are specialists in their own right
and were entitled to base their professional opinion on medical literature.
Their evidence regarding the current state of knowledge and generally
accepted practice in the medical field in relation to head injuries in
children was relevant and helpful. I disagree with the view that ‘medical
literature was used selectively to bolster arguments and not for the
purpose of informing the court of the current approach to the clinical
assessment of head injuries in children and the accepted medical views’.
On the basis of Dr Goosen and Dr Edeling’s evidence, as well as the
medical views expressed in the Burns article, I am inclined to agree with
the contention that on Prof Taylor’s theory, there is no reason in logic
why the bogginess of the swelling containing less blood would be a
significant marker for an underlying skull fracture, but a swelling
containing more blood would not be a significant marker.

[127] I am unable to agree with the court a quo’s finding that Dr Horn’s
evidence was cogent. The difficulty for Dr Horn was that she could not
remember what she did not note down, but expected the court to accept
what she would have done ‘in her normal practice’, which is unknown.

That she could not remember what she knew back then, or came to know
in the course of her preparation of the trial, is clear from her own
admission, under cross-examination; she remarkably described her
difficulty as follows: ‘I might be mixing up current thoughts with
thoughts back then’.

[128] This Court in Meyers v MEC, Department of Health, Eastern
Cape,52 made the following observation:
'A court is not called upon to decide the issue of negligence until all of the evidence is
concluded. When an inference of negligence would be justified, and to what extent
expert evidence is necessary, no doubt depends on the facts of the particular case. Any
explanation as may be advanced by or on behalf of a defendant forms part of the
evidential material to be considered in deciding whether a plaintiff has proved the
allegation that the damage was caused by the negligence of the defendant. . . .'53

[129] The paragraphs that follow will show that the court a quo’s
evaluation of evidence was at odds with the approach set out in the
preceding paragraph. In my view, the court a quo failed to pay due regard
to the fact that Dr Horn had conceded that, when she testified about her
‘usual practice’, she had no recollection of the events that she was
testifying about.

[130] The provisions of the Western Cape Head Injury Guidelines
Handbook, which applied to all hospitals in the Western Cape, including
the Red Cross Children’s Hospital at the time, warrant consideration.54
Although Dr Horn testified that she had not seen them before, she later

52 Meyers v MEC, Department of Health, Eastern Cape [2020] ZASCA 3; 2020 (3) SA 337 (SCA) para
69.
53Meyers v MEC, Department of Health, Eastern Cape [2020] ZASCA 3; 2020 (3) SA 337 (SCA) at
para 69.
54 Dr Goosen’s uncontested evidence was that the Western Cape Guidelines Handbook took precedence
over the Red Cross Children’s Hospital Guidelines and that in the event of a contradiction, the Western
Cape Guidelines Handbook applied.

confirmed that, having read them subsequently (in preparation for the
trial), she realised that they were not dissimilar to the guidelines
applicable at the Red Cross Children’s Hospital.

[131] It is prudent to first consider a few provisions of the NICE
guidelines, as Prof Taylor stated that the Western Cape Guidelines are
based thereon. At the outset, the NICE Guidelines, which are
undoubtedly based on best practices in the medical field, stipulate that all
emergency department clinicians involved in the assessment of patients
with a head injury should be capable of assessing the presence or absence
of the risk factors for CT imaging listed in the recommendations, which
include the determination of a GCS score. In this matter, the GCS score
was determined by Dr Horn. This means that Dr Horn’s examination fell
within the stipulations of clause 1.3.6. Accordingly, a further examination
had to be done within an hour of the first assessment, as contemplated in
clause 1.3.8. That this is indeed what was intended is evident from the
Guidelines Summary, which stipulates that ‘patients who, on initial
assessment, are considered to be at low risk . . . should be re-examined
within a further hour by an emergency department clinician.’55

[132] Even if it were to be accepted that Justin’s interaction with the
triage nurse constituted the first examination contemplated in the
guidelines, the fact remains that the examination performed by Dr Horn
did not meet the requirements of clause 1.3.8 which stipulates that ‘part
of this assessment should fully establish the need to request CT imaging
of the head . . .’. In terms of those guidelines, the presence of amnesia
alone would have necessitated that Justin be observed for a minimum of 4
hours. Insofar as Dr Horn did not assess amnesia, she cannot be regarded

55 Para 29 of the Guideline Summary – Head Injury – NCBI Bookshelf.

as having fully established the need to request CT imaging as
contemplated in clause 1.3.8. Her standard clearly fell below the NICE
guidelines.

[133] The Western Cape Guidelines Handbook stipulates that all patients
presenting themselves at a secondary/tertiary level facility (Red Cross
Children’s Hospital fell under this category) had to be assessed within 15
minutes of their arrival at that facility. The next step was to ‘assess and
stabilise ABC’s before attending to other injuries’ and to establish the
GCS’. Those with a GCS score of 15/15 (like Justin) were to be assessed
within 15 minutes and an assessment of the risk of brain injury had to be
done. If the patient was considered a high risk, a full clinical examination
had to be done with a view of establishing the need for imaging. If the
patient was considered a low risk (Dr Horn said she considered Justin to
be one), the patient had to be re-examined within an hour and a need for
imaging had to be established. It is common cause that Dr Horn examined
Justin only once.

[134] The court a quo disregarded56 the plain stipulations of the Western
Cape Head Injury Guidelines Handbook despite the fact that the

56 The court a quo stated as follows:
‘The Western Cape Head Injury Guidelines Handbook indicates that “low risk” patients presenting in
the emergency centre with a GCS score of 15/15 should be re-examined within an hour to establish the
need for imaging. Professor Taylor, as one of the authors of the handbook, explained that this
provision, which he conceded might perhaps have been better worded, was intended to replicate the
content of paras 1.4.1.6 – 8 of the 2003 NICE Head Injury guidelines. Those paragraphs provided that
head injury patients found on initial triage to be at low risk for clinically important brain injury should
be re-assessed “within a further hour by an A&E clinician”. At the Red Cross Children’s Hospital
patients arriving in the trauma unit are assessed for triage purposes by experienced nursing staff. It
follows, as Prof Taylor confirmed, that Justin’s subsequent assessment by the duty registrar would have
been the reassessment by an A&E clinician within a further hour contemplated in terms of para 1.4.1.8
of the NICE guidelines. In any event, on a purely linguistic construction, the mention of the period
“within a further hour” does not imply that a further examination should take place after an interval of
an hour, it connotes that an examination by a clinician should happen within no more than one hour
after the triage assessment. . . .’

requirement to assess and re-assess is stipulated twice in the guidelines.57
The court a quo’s interpretation, which was based on Prof Taylor’s
evidence, is not in line with the plain meaning of the provisions of the
Western Cape Guidelines, nor is it consonant with the NICE guidelines
on which reliance was purportedly placed. Clearly, the recommended
treatment in the Western Cape Injury Guidelines Handbook does not say
what Prof Taylor intended it to mean.

[135] It is clear from the discussion in the foregoing paragraphs that
Dr Horn’s assessment of Justin was glaringly not in conformity with the
provisions of the Western Cape and NICE guidelines. I am therefore
unable to agree with the first judgment’s conclusion that the process of
assessment and examination followed by Dr Horn complied with
accepted clinical practice here and internationally.58 Notably, the court a
quo accepted that Dr Horn ‘had extensive exposure to head injury cases
in earlier stages of her career while working in Mthatha and at Victoria
hospital in Wynberg. Dr Goosen’s uncontested evidence was that a
Registrar (Dr Horn held the position of a Registrar) was ‘a doctor in
training to be a specialist, it is usually a minimum of four years
postgraduate training, usually after completing an entrance exam called a
primary examination’. Dr Horn was aware that the presence of a
subgaleal haemorrhage or haematoma is a recognised warning sign of the
possible presence of a fracture.59 These are relevant factors in the
consideration of how a reasonable medical practitioner in the position of
Dr Horn would have acted in the particular circumstances.

57 Tab 9 p 21 and Tab 9 p 32.
58 Para 82 of the first judgment.
59 See para 27 of the first judgment.

[136] It is abundantly clear from the applicable guidelines and the
evidence of Dr Edeling and Dr Goosen that Dr Horn’s assessment of
Justin departed from the standard of care that a reasonable and respected
body of medical opinion would regard as acceptable treatment by a
Registrar in her position. The entire medical examination relating to
Justin lasted 15 minutes, which is clearly an insufficient time to detect
neurological changes in a head injured patient who was still in the
compensation phase of the injury. It is difficult to conceive of a
Children’s Hospital anywhere in the world discharging a six year old
patient presenting with a large temporo-parietal swelling and a headache
pursuant to a fall, within 15 minutes of his or her arrival at a trauma unit.

[137] The first judgment alluded to the fact that Mr McGregor did not
mention the triage nurse in his evidence. This, in my view, is of no
consequence. It must be borne in mind that Mr McGregor’s uncontested
evidence was that upon arrival at the trauma unit, he carried Justin
directly to a bed as there were no other patients in the trauma unit at that
stage. Dr Horn immediately started attending to him. At that very stage, a
nurse who was in the company of Dr Horn told him to fetch Justin’s file
from the records department. On his return, 15 minutes later, Dr Horn had
already finished examining Justin and decided to discharge Justin.
Mr McGregor would therefore not have known that a triage nurse
attended to Justin at some stage.

[138] It is clear from Table 9 of the Western Cape Head Injury
Guidelines Handbook that the first examination includes the assessment
of the GCS score. The undisputed evidence is that Dr Horn is the one that
assessed Justin’s GCS score. Undoubtedly, there ought to have been
another examination after the noting of the GCS score. This did not

happen. Instead, what transpired is that Justin was discharged, apparently
on the basis of the 15/15 GCS score, despite the fact that some of the vital
symptoms had not been investigated or recorded. A proper examination
would probably have alerted Dr Horn to the possibility of a linear skull
fracture and this in turn would have prompted her to do further
investigations.

[139] The court a quo criticised Mr McGregor’s evidence and stated that
he had a hazy recollection of his exchanges with Dr Horn, particularly
whether she had asked him questions about loss of consciousness,
vomiting, seizures or amnesia. It failed to take into account that
Mr McGregor explained that the reason why he did not try to establish
the symptoms exhibited by Justin after the fall from those who had
witnessed it, was that his priority was to get Justin to the hospital
expeditiously. That evidence was not disputed.

[140] On Dr Horn’s own version, she did not assess Justin for the
presence of amnesia despite the fact that the presence thereof would, in
terms of the Western Cape Guidelines, have been one of the indicators for
a CT scan. Dr Horn conceded that because Mr McGregor did not witness
the fall, he would not have had any first-hand knowledge of the
circumstances and would have been unreliable as a source of information
pertaining to Justin’s symptoms. It is in any event clear from
Mr McGregor’s account of what Justin told him that he did not gain much
information from him regarding the symptoms he had experienced, save
for the complaint about the headache. Since Mr McGregor bore no first-
hand knowledge about the symptoms exhibited by Justin after the fall, it
would have served no purpose to ask him about loss of consciousness,

seizures, amnesia or vomiting. This, too, was conceded by Dr Horn. The
following exchange is apposite:
'. . . When you receive a history from the parent it may be unreliable? -- It can be, yes.
You might not know whether the parent or the person bringing the child observed
everything that would make you satisfied about the child’s condition? -- This is true.
Well I am putting it to you as a proposition in this case – that is in fact what the
problem was in this case too insofar as Mr McGregor did not observe the incident
himself. Are you aware of that? -- Yes I am aware of that.
Did you only become aware of that during the course of this trial or . . .? -- Yes I only
became aware of that during the course of this trial.
So you didn’t elicit that information from Mr McGregor either in your questioning did
you? -- No I did not.
And is that not an important part of the information that you should elicit from – to as
part of your history-taking? -- I was satisfied with the information that was given to
me.'

[141] It is common cause that Dr Horn did not assess Justin for amnesia,
which is one of the variables that form part of the equation when it comes
to predictors that can point to an intracranial injury. Since amnesia was
not assessed, it is not open to the respondent to contend that there was no
complaint of amnesia. By Dr Horn’s own admission, her usual practice
did not include exploring60 amnesia, despite the fact that (1) the Western
Cape Head Injury Guidelines Handbook specifically stipulated that the
attending doctor should ‘ask about and record’ amnesia for events as part
of the initial assessment and (2) that she had admitted that Justin’s age
was not a bar to a reliable assessment of amnesia. Dr Horn also admitted
that she did not assess for a deterioration in Justin’s headache because it
was not her usual practice to do so. Dr Horn’s evidence under cross-
examination is quite telling. I can do no better than to quote her verbatim:

60 See para 61 of the first judgment.

‘Another aspect that I understand is relevant in the examination of a head – a potential
head-injured patient because Justin was a head-injured patient, is the question of
amnesia. – Yes.
You did not enquire about amnesia? -- I did not enquire about amnesia.
And if I can just test this proposition the Glasgow Coma Scale test is done to evaluate
the patient’s condition at the time you examine him? -- That is correct.
But the history taking of course is also important because you [are] meant to know
whether there was any prior loss of consciousness or aspects of amnesia relating to the
incident? -- Yes. I did establish the presence of loss of consciousness. However, I did
not – and usually don’t – pursue the possibility of amnesia. Reasons for that are
potentially the lack of reliability of such a young child’s recollection and then also –
and this is going to probably just add fuel to your fire but generally when patients
present with loss of consciousness or something that is the first thing they tell you. So
if this is not elicited in the history I do admit that . . .
You don’t ask. -- . . . particularly seeking out amnesia is not something I ask for.
. . .
But amnesia is relatively simple to establish, I understand, by a few simple questions?
It could be yes.
And Justin – the suggestion isn’t that Justin was not a child who could at least give an
account of himself. -- No.’

[142] In my view, it seems incongruous to suggest that what was not
assessed did not exist. It seems obvious that one can only conclusively
decide that the criteria have been met or not if a comprehensive medical
history of the patient has been taken and a full clinical examination has
been performed. It is for that reason that I am unable to agree with the
first judgment’s conclusion that Justin displayed none of the signs
identified as risk factors in the PECARN study.61 The court a quo’s
conclusion that Justin’s traumatic brain injury was not defined by a

61 See para 74 of the first judgment.

history of amnesia, despite this not having been assessed, was clearly
wrong.

[143] I consider next the circumstances relating to Justin’s discharge.
The court a quo erred in approaching the question regarding the evidence
concerning the instructions that were given to Mr McGregor upon
discharge as constituting two mutually destructive factual versions.62 It
failed to take into account that Mr McGregor put up a positive version
that Dr Horn did not warn him to regard drowsiness as a concerning
factor. Dr Horn, on the other hand, was unable to recall the instructions
that she gave. There was therefore only one positive factual version of
what was said before the court a quo. Moreover, Dr Horn admitted that
reading the whole head injury form to the parents was not in her usual
practice and that she would, instead, ‘highlight the things that are most
common and most concerning and then ask them to read the form’. There
is therefore no room for assuming that Dr Horn read out the contents of
the form to Mr McGregor.

[144] Prof Taylor stated that emergency units in South Africa do not
consider it good practice to keep a child patient with symptoms similar to
those of Justin for observation at a hospital. This assertion sounds
inherently improbable. If that were the case, observation and re-
examination of patients presenting with a head injury would not have
been included in the Western Cape Guidelines. It seems to me that Prof
Taylor conflated keeping a patient for observation at a trauma unit with
admission.

62 Meyers v MEC, Department of Health, Eastern Cape footnote 52 above.

[145] A factor which bears consideration is that there were beds available
in the trauma unit and Dr Horn admitted that keeping Justin at the unit for
another hour for re-examination purposes would not have inconvenienced
any other patient. Resources were therefore not a concern.63 The court a
quo, however, chose to prefer Prof Taylor’s evidence that ‘practical
considerations militate against keeping patients with a low risk of
complications in for observation’ over Dr Goosen’s unchallenged
evidence that keeping Justin for observations would not have had an
adverse impact on resources. Despite the clear provisions of the Western
Cape Guidelines on re-examination, Dr Horn stated that keeping a patient
for re-examination was not the practice.

[146] Dr Horn conceded that it would have been reasonable for her to
give more detailed and specific instructions to Mr McGregor of what to
look out for. This concession was properly made, given that the
Red Cross Children’s Hospital Guidelines stipulate that ‘parents of
children who are fit for discharge home should understand the contents
and importance of the head injury form’. In any event, on any of the
experts’ versions of reasonable practice, Dr Horn’s instructions to
Mr McGregor fell short of that standard. Despite this, the court a quo
found that Dr Horn was not negligent when she decided that it was not
necessary to keep Justin in the emergency ward for further observations.

[147] There is also much to be said about the inadequacies of the
Red Cross Children’s Hospital Head Injury form especially relating to the
English version, which differed from the Afrikaans version, insofar as it
did not specifically mention drowsiness as one of the alarm symptoms to
look out for. This inconsistency with the Afrikaans version is a

63 The trauma unit was not at full capacity and Justin could be kept there for observation.

disconcerting aspect that was unfortunately not sufficiently taken into
account by the court a quo.64

[148] Mr McGregor testified that although he was bilingual, English was
his home language. Upon arrival at home, he read the English version of
the form. It is common cause that the English version of the head injury
form does not include drowsiness among the symptoms that should cause
alarm and instead only alerts the reader to the patient becoming
‘increasingly difficult to wake’. Considering all these circumstances, I am
of the view that there was no basis for the court a quo’s conclusion that
Justin’s drowsiness in the car should have alerted his parents to return
him to hospital without delay. That finding evidences a failure to pay
regard to Mr Mc Gregor’s testimony that if Dr Horn had warned him
about drowsiness, he would have returned to the hospital as soon as Justin
fell asleep in the car, which happened within 10 minutes of his departure
from the hospital.

[149] Mr McGregor explained that the reason why he was not alarmed by
Justin’s drowsiness is because he attributed it to the fact that Dr Horn had
given him Panado syrup.65 The experts in this case agreed that Panado
can have a sedative effect in a small percentage of users.66 In this regard,
it is worth mentioning that the NICE guidelines stipulate that patients
with a head injury ‘should not receive systemic analgesia until fully
assessed so that an accurate measure of consciousness and other
neurological signs can be made’. On this same aspect, the Guidelines of

64 Para 54 of the judgment of the court a quo concludes as follows:
‘. . . These were signs that in my view should have concerned the plaintiffs had they been advised to
look out for drowsiness, or when they read the head injury form.’ (Own emphasis.)
65 Under the heading ‘treatment’ the trauma register reflects an entry confirming that Panado was
prescribed for Justin. Dr Horn’s signature appears at the end of that entry.
66 Para 23 of the judgment of the court a quo.

the Red Cross Children’s Hospital warn that ‘sedation can contribute to
secondary injury and should be avoided if at all possible’.

[150] I am of the view that a reliance on Schutzman’s article67 in relation
to the conclusion that Justin’s discharge was not negligent, is misplaced,
as the evaluation that precedes a discharge, and on which the decision to
discharge depends, was not included in the article.68 Moreover, given the
size and location of Justin’s closed head injury, his mood two hours after
his fall (described as ‘tearful’ ‘mopey’ and ‘miserable’) and the headache
that he complained about, a reasonable medical practitioner in Dr Horn’s
position would have referred Justin for a CT scan so as to exclude the
possibility of a skull fracture. Furthermore, to my mind, a ‘return to
baseline functioning’ implicitly entails a comparison of analyses, in other
words, the functioning ‘before and after’69 Dr Horn could not have done
any comparison because she had insufficient history pertaining to Justin
and had assessed him only once. A reasonable medical practitioner in
Dr Horn’s position would not have discharged Justin before a further
observation of his condition and a re-assessment.

[151] The court a quo downplayed a number of significant concessions
made by Dr Horn, and therefore failed to consider the totality of
evidence. This is evident from the following findings:
‘Nothing that [Dr Horn] said by way of apparent concessions under cross-examination
detracted from the essence of her evidence, which was “I am unable to remember

67 Footnote 37 above.
68 In the Schutzman article, under the heading ‘Low risk’, reference is made to children with minor
head trauma ‘who have undergone a complete evaluation and are found to be low risk’. At the end of
the paragraph the reader is referred to the ‘Evaluation’ section before being referred to ‘Discharge’
criteria. On the next page, under the heading ‘Evaluation’, it is stated that ‘the evaluation of patients
and children with minor head trauma and an approach to neuroimaging in these patients is provided
separately and the reader is referred to the ‘Evaluation Section’. However, the evaluation section was
not attached to the article.
69 The head injury glossary defines ‘baseline’ as ‘the initial set of measurements at the beginning . . .
with which subsequent results are compared’.

what I said, but I believe that it would have been along the lines of what I habitually
say in circumstances, which is to tell the caregiver to watch out for the tell-tale
warning signs: drowsiness, loss of consciousness, vomiting or fitting . . . .”’70

[152] Despite Dr Horn’s concession that she did not remember the
consistency of the swelling, the court a quo accepted that it was firm and
stated as follows in the judgment:
‘I accept, however – and [Dr Horn] professed to have been astute to this at the time –
that the consistency and location of a swelling were something to which a treating
doctor should have had regard at the relevant time in the making of the required
clinical judgment in respect of the diagnosis and treatment of a head injury patient
because it could be indicative of an underlying skull fracture. In [Dr Horn’s] judgment
nothing about the size or consistency of the lump on Justin’s head gave her cause for
concern. On the documented learning, she cannot be held negligent in those
circumstances for not having regarded the presence of a firm feeling haematoma as
sufficient reason – in the absence of other symptoms such as loss of consciousness,
amnesia, vomiting or fitting, and subject to what I shall deal with presently in respect
of “mechanism of injury” – to have referred Justin for a CT scan.’71

[153] Although the court a quo accepted, correctly in my view, that
location and consistency were important indicators of a skull fracture,72 it
glossed over Dr Horn’s failure to record the consistency of Justin’s large
bump and his complaint about a headache. Similarly, her admitted
departure from the standard practice of eliciting information pertaining to
possible amnesia was downplayed. Despite Dr Horn’s speculative
reconstruction of what she would have done, her evidence was described
as cogent.

70 Para 49 of the judgment of the court a quo.
71 Para 88 of the judgment of the court a quo.
72 See para 78 of the judgment of the court a quo.

[154] The court a quo regarded Dr Goosen’s responses as concessions in
favour of Dr Horn. It failed to take into account that under cross-
examination, Dr Goosen was asked to assume that the records were an
accurate reflection of what had transpired during Justin’s medical
examination.73 Furthermore, the court a quo failed to pay sufficient regard
to the fact that vital symptoms were not recorded in Dr Horn’s notes,
namely the consistency of the large bump, his headache and that Justin
was mopey during the examination. Furthermore, it failed to take into
account Dr Horn’s concession that as a matter of practice, she did not test
patients to rule out amnesia.

[155] The court a quo hypothetically asked what would have happened if
Justin had been kept at the hospital longer. The answer lies in the
provisions of the guidelines alluded to, above, which specifically stipulate
that patients who are considered to be a ‘low risk’ should be assessed
within 15 minutes of attaining a GSC score of 15 and be re-examined
within one hour. Furthermore, the Western Cape Head Injury Guidelines
Handbook stipulate that a patient be admitted under the care of a
specialist if they have a severe headache.

73 The cross-examination of Dr Goosen by counsel for the respondent on this aspect went like this:
‘Ms Gassner: If we accept that he did not have amnesia, just make that assumption at the moment, I
would like you to make that assumption that he did not have amnesia . . . (intervention) . . .
Dr Goosen: Yes, for the sake of argument.
Ms Gassner: For the sake of argument, then in terms of the ATLS he would not have been observed for
several hours, is that correct?
Dr Goosen: Exactly, but we have to assume, we have to assume that he did not but we have to assume,
we may assume that he did. I don’t know, it is not documented.
. . .
Ms Gassner:
And Justin would not have fallen in the [PECARN] sample, is that correct, if we
accept that – if we accept that – assume that he did not have amnesia, he did [not] have a loss of
consciousness, he did not have disorientation. If we assume that – and I would like you to make that
assumption – it’s for the court to find whether that was so or not – then he would have not fallen within
that sample?
Dr Goosen:
M’Lord, if we assume – and I previously stated that I differ from that.’

[156] As stated before, the undisputed evidence is that Justin still had a
headache when he left the hospital and fell asleep soon thereafter. Based
on the conspectus of all the evidence, the ineluctable conclusion is that if
Justin had been re-assessed within an hour of Dr Horn’s examination, his
drowsiness or his persistent headache would have set off alarm bells and
this, in turn, would have triggered a referral for a CT scan.

[157]  It is thus evident from the Red Cross Children’s Hospital
Guidelines and the Western Cape Guidelines that the course of events
that would have followed would have been different from the one
followed by Dr Horn. Had Dr Horn followed the guidelines, she would
have referred Justin for a CT scan much earlier. The CT scan would
undoubtedly have revealed the extent of the injury at a time when there
was still a scope for successful intervention, as correctly pointed out by
Dr Goosen.74 That Justin’s prognosis would have been substantially
different had the scan been performed earlier, is an aspect that was
confirmed by all the experts.

[158] Mr McGregor’s uncontested evidence and Dr Horn’s concessions,
viewed against the backdrop of expert evidence, the guidelines for the
Red Cross War Memorial Children’s Hospital and the Western Cape
Head Injury Guidelines Handbook, were sufficient to support the
appellant’s delictual claim. In conclusion, the evidence adduced by the
appellant showed on a balance of probabilities that Dr Horn failed to
apply the degree of professional skill and diligence expected of members
of her profession when examining a child patient presenting at the
emergency unit of a Children’s Hospital with a head injury. As stated in

74 See para 92 of the judgment of the court a quo.

Van Wyk v Lewis75 many decades ago, ‘the failure of a professional
person to adhere to the general level of skill and diligence possessed and
exercised at the time by the members of the branch of the profession to
which he or she belongs constitutes negligence’. Had Dr Horn properly
assessed Justin and elicited and recorded the symptoms, she would
probably have changed the management of Justin.

[159] A reasonable medical practitioner in Dr Horn’s position would
have been alerted to the risk. It is clear from the entire discussion in this
part of the judgment, that the factual findings made by the court a quo
against the appellant are not supported by an objective analysis of all the
evidence. In Minister of Safety and Security and others v Craig and
others NNO,76 this Court held that even though courts of appeal are slow
to disturb findings of credibility made by trial courts, courts of appeal
generally have greater liberty to do so where a finding of fact does not
essentially depend on the personal impression made by a witness’
demeanour, but predominantly upon inferences and other facts and upon
probabilities. Insofar as the factual findings made by the court a quo
depended predominantly on inferences and probabilities, this Court, on
appeal, has the benefit of the full record and is in as good a position to
draw inferences.77 This court is therefore at large to interfere on appeal.78

75 Van Wyk v Lewis 1924 AD 438 at 444.
76 Minister of Safety and Security and others v Craig and others NNO [2009] ZASCA 97; 2011 (1)
SACR 469 (SCA).
77 Minister of Safety and Security and others v Craig and others NNO [2009] ZASCA 97; 2011 (1)
SACR 469 (SCA).
78 R v Dhlumayo 1948 (2) SA 677 (A); Union Spinning Mills (Pty) Ltd v Paltex Dye House (Pty) Ltd &
another 2002 (4) SA 408 (SCA) para 24; Louwrens v Oldwage 2006 (2) SA 161 (SCA); [2006] 1 All
SA 197 (SCA) para 14; Minister of Safety and Security and others v Craig and others NNO [2009]
ZASCA 97; 2011 (1) SACR 469 (SCA) para 58. Compare Topham v MEC for the Department of
Health, Mpumalanga [2013] ZASCA 65 para 23.

[160] As an aside, I agree that during the trial, Dr Horn showed empathy
for Justin’s situation and therefore commend her for her honesty. While
she obviously did not intend for this unfortunate eventuality to
materialise, it was her negligence in the treatment of Justin that led to the
harm that ultimately befell him. But for that negligence79, the linear skull
fracture would have been detected by a CT scan and timeous intervention
would most probably have prevented the harm that eventuated, namely
cerebral palsy and quadriplegia. I am therefore satisfied that the evidence
adduced by and on behalf of the appellant satisfied all the elements of a
delictual claim.

[161]  As I conclude, I echo the sentiments expressed previously
expressed by this court in Topham: ‘it could hardly be contended that
considerations of reasonableness, justice and fairness dictate that the
respondent should not be held liable’ for the harm suffered by Justin. The
respondent, as Dr Horn’s employer, must be held vicariously liable for
the harm suffered by Justin because of Dr Horn’s negligence. I would
therefore uphold the appeal with costs.

________________

for M B MOLEMELA

JUDGE OF APPEAL

79 See Michael and Another v Linksfield Park Clinic (Pty) Ltd and Another [2001] ZASCA 12; 2001
(3) SA 188 (SCA); Premier of the Western Cape and Another v Loots NO [2011] ZASCA 32; 2011 (2)
SA (SCA) para 16-17; Minister of Finance and Others v Gore NO [2006] ZASCA 98; 2007 (1) SA 111
(SCA) at para 33.

Appearances

For appellant:
W Duminy SC (with him J A van der Merwe SC)
Instructed by:
Malcolm Lyons & Brivik, Cape Town,
Matsepes, Bloemfontein

For respondent:
B D J Gassner SC
Instructed by:
State Attorney, Cape Town and Bloemfontein.

SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY –  JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

31 July 2020

STATUS

Immediate

Please note that the media summary is intended for the benefit of the media and does not form
part of the judgment of the Supreme Court of Appeal.

McGregor and another v MEC Health Western Cape [2020] ZASCA 89

The SCA today dismissed an appeal against the judgment of the Western Cape Division of the High Court
dismissing a claim for damages brought by Mr and Mrs McGregor against the MEC Health for the Western
Cape. Their six year old son fell in the street outside their home and hit his head. He was taken to Red
Cross Children's Hospital some two hours later shortly after 6.00 pm and after examination discharged into
his parents' care because the doctor concluded that the injury was a minor one not requiring further
investigation or admission to the hospital. Tragically he had sustained a linear fracture in the left tempero-
parietal area of the head, which was undetectable on a physical examination. This ruptured the little
meningeal artery causing a subdural haemorrhage that manifested itself at about 3.30 pm when he was
difficult to wake and vomited. He was rushed back to hospital and an emergency craniectomy performed
but the brain injury left him with cerebral palsy and spastic quadriplegia.

The risk of such a fracture occurring in those circumstances is extremely small and not detectable on
physical examination, but would have been detected by a CT scan. However, such scans are not performed
routinely because they pose other risks to the patient. The issue in the case was whether in this case a CT
scan was indicated. The expert witnesses all agreed that on the attending doctor's examination showing all
vital signs to be normal and the focal eye tests not manifesting any abnormality or neurological defect, a
CT scan was not required unless the bump on the head felt fluctuant or boggy on palpation. The doctor's
evidence was that she would have noted that in the patient's records and ordered a CT scan to be
undertaken had it felt fluctuant. The high court held that it could not reject this evidence and the majority in

the SCA in a judgment by Wallis JA upheld this finding. In doing so it pointed out that the reference to the
bump feeling fluctuant or boggy on palpation was only introduced at a late stage without proper notice. The
court criticised the manner in which the expert evidence had been tendered.

The SCA also rejected, as had the high court, arguments that the doctor should have kept the child at the
hospital for further observation and that her discharge advice to the parents was deficient. It also held that
in any event there was no evidence to show that further observation for an hour or more detailed instructions
would have altered the outcome. There had been nothing to suggest that there was anything abnormal
occurring until the following morning.

The minority judgment of Molemela JA held that the examining doctor's examination of the child was
deficient in the light of the absence of any reference in her notes to certain matters and would have upheld
the appeal.

This judgment was handed down electronically by circulation to the parties’ legal representatives by email,
publication on the Supreme Court of Appeal website and release to SAFLII. The date and time for hand-
down is deemed to be 9:45 on 31 July 2020.