SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable

Case No: 20198/2014

In the matter between:

DR F KLUEVER

First Appellant
DR R H BHAWANI

Second Appellant
MINISTER OF DEFENCE                                           Third Appellant

and

MICHIEL JACOBUS DE GOEDE

Respondent

Neutral citation:   Dr F Kluever v De Goede (20198/2014) [2015]
ZASCA 105 (19 August 2015).

Coram:
Navsa ADP, Mhlantla, Leach, Mbha and Zondi JJA
Heard:
08 May 2015
Delivered: 19 August 2015
Summary: Delict – medical practitioner – professional negligence –
surgical procedure resulting in high riding patella – primary surgery
improperly performed – medical practitioner negligent – defence of
contributory negligence dismissed – third appellant vicariously liable to
compensate respondent.

___
ORDER

___

On appeal from: Gauteng Division of the High Court, Pretoria (Van
Niekerk AJ sitting as court of first instance):
The following order is made:
The appeal is dismissed with costs including the costs attendant upon the
employment of two counsel.

___
JUDGMENT

___

Mhlantla JA (Navsa ADP, Leach, Mbha and Zondi JJA concurring):

[1] Michiel de Goede (Michiel) was a young and exceptional rugby
player who had been offered and accepted a five year contract to play for
the junior team of the Sharks Rugby franchise from 2008. On 5 April
2007 he sustained what is best described as a freak injury. It was
sustained in the dying minutes of a rugby game after Michiel had been
brought on as a substitute. It occurred without contact with any other
player. Michiel was bending to receive a ball that had been passed to him
and probably because of his weight, which was considerable for his age,
his leg gave way. It is uncontested that he sustained a rupture of the
patella tendon.1 As a result he had to receive medical treatment at 1

1In Chapman and Madison: Operative Orthopaedics, 2nd edition, Volume 4, a patella tendon is
described as a ligament connecting two bones- the tibia and the patella. A rupture of the patella tendon
usually occurs at the inferior pole of the patella. It results in an inability to actively obtain and maintain
full knee extension. If the tendon does not heal properly and at the correct length and tension, knee
range of motion can be altered significantly and can prevent a return to pre-injury status. Immediate
surgical repair is recommended for optimal return of knee function and power. See also Campbell’s
Operative Orthopaedics, 10th edition, Volume 3.

Military Hospital, Pretoria, which is under the control of the South
African National Defence Force (SANDF) and the third appellant, the
Minister of Defence (the Minister). Dr Khwitshana (Khwitshana)
diagnosed a sprained knee. The error was discovered five days later after
Michiel had consulted Dr Boetie Thiart, (Thiart) an orthopaedic surgeon
at Unitas Hospital who diagnosed a patella tendon rupture.

[2] On 13 April 2007, the first appellant, Dr Felicia Kluever (Kluever),
an orthopaedic surgeon employed at the hospital, performed surgery to
repair the ruptured patella tendon. After the operation Michiel’s leg was
placed in a brace which was removed after six weeks on 25 May 2007.
Kluever thereafter referred Michiel to Mr Phillip du Plessis, (du Plessis) a
physiotherapist employed at the hospital, to commence with a
rehabilitation programme.

[3] Du Plessis struggled to restore full flexion of the knee. This led
him during September 2007, to refer and accompany Michiel for advice
to Mr Cornelius Liebel (Liebel), a biokineticist who had been assisting
Michiel with his sport conditioning prior to his injury. Liebel noticed that
the right patella was slightly higher than the left and accordingly
informed the two of them. Out of concern, du Plessis further took Michiel
to the High Performance Centre in Pretoria. The physiotherapists there
suggested that the circulage wire that had been inserted by Kluever during
the surgical procedure referred to above, be removed. At that stage, it was
thought that the wire might be hindering the flexing of the knee. Du
Plessis reported this to Kluever who then scheduled a second surgical
procedure to remove the circulage wire. This operation was performed on
1 October 2007 by the second respondent, Dr R H Bhawani (Bhawani).

[4] From October 2007 until December 2007, Liebel worked with du
Plessis to rehabilitate Michiel’s knee. No significant progress was made
as they still could not achieve a complete range of movement of the knee.
Early in 2008 Michiel joined the Sharks Academy in terms of the contract
referred to above. Mr Jimmy Wright (Wright), a biokineticist employed at
the Academy, attended to his rehabilitation. Despite Wright’s efforts after
rehabilitation, Michiel could not regain the full knee function he had prior
to the injury. Wright therefore referred him to Dr de Vlieg (de Vlieg), an
orthopaedic surgeon, who identified a ‘high riding patella’2. On 16
September 2008, he performed a remedial operation known as the ‘VY
quadriceps plasty’3 and brought down the patella. The damage found in
the knee was irreversible and it became clear that Michiel’s knee would
never be fully functional for him to play rugby. Sadly, his career as a
rugby player for the Sharks Rugby franchise came to an end.

[5] Consequently, Michiel instituted action against the appellants in
which he claimed damages arising from injuries sustained during the
surgical procedure performed on 13 April 2007. In his particulars of
claim, he alleged that Kluever and Bhawani had been negligent when
they performed the two surgical procedures referred to above. The
Minister was sought to be held vicariously liable for the doctors’ actions
as they were in the employ of the SANDF and were executing their duties
as such when performing these operations. This latter aspect is
uncontentious.

2 According to Dr de Vlieg, a patella runs in a groove on the femur and functions when the knee is fully
extended. The patella will sit above the groove and as the knee bends, the patella will move downwards
and be captured by the groove. A high riding patella or patella alta occurs when the patella is situated
or sitting well above the groove and its point of engagement is delayed during the bending of the knee.
3 Dr de Vlieg testified that a VY quadriceps plasty operation is a technique of lengthening the muscle.
The term “VY’ refers to the shape as the surgeon will cut a V during surgery and when he or she pulls
it down and suture it back up, it becomes a Y shape because it has been elongated.

[6] In their plea, the appellants denied negligence and pleaded that the
medical services they provided to Michiel were performed with care and
skill reasonably expected of medical personnel in their position. In the
alternative, the appellants pleaded contributory negligence and averred
that Michiel had failed to attend scheduled appointments with the medical
practitioners and, contrary to the advice of Kluever, had undergone an
extensive exercise programme that had impaired the healing process.

[7] The matter came to trial in the Gauteng Division of the High Court,
Pretoria before Van Niekerk AJ. At the commencement of the trial, the
learned judge, at the request of the parties, issued an order in terms of
Uniform rule 33(4) separating the merits from quantum. The judge was
therefore essentially called upon to determine the question of negligence.
Both parties adduced evidence and called various witnesses including
expert witnesses. At the conclusion of the trial, Van Niekerk AJ was
unpersuaded by the appellants’ defences. He concluded that Kluever had
been negligent in that she had failed to place the patella in its correct
position on 13 April 2007; further that she and Bhawani had failed to
identify the issue after the primary surgery; and that this was the cause of
the high riding patella and the condition of Michiel’s knee as discovered
by de Vlieg in September 2008. Moreover, the learned judge rejected the
Minister’s contention in relation to contributory negligence. He therefore
declared the Minister liable to compensate Michiel for any damages
suffered by him, arising out of injuries sustained by him, during the
operation of 13 April 2007. The appellants appeal against these
conclusions with special leave of this court.

[8] This appeal turns on whether the findings referred to at the end of
the preceding paragraph are correct. Simply put, the question is: was there

negligence on the part of the medical practitioners at 1 Military Hospital
which led to Michiel’s present admitted disability?

[9] In order to arrive at a determination in relation to negligence, it is
necessary to deal with the background facts in some detail. Michiel
testified and relied on six other witnesses in support of his case, namely
du Plessis, Liebel, Wright, Mr David Jacobus du Plessis, who is the
deputy headmaster and head rugby coach of Eldoraigne High School, de
Vlieg and Dr Anthony Birrel (Birrel), an orthopaedic surgeon. Kluever
and Professor Kulule Lukhele (Lukhele), a chief orthopaedic specialist at
Charlotte Maxeke Hospital, Johannesburg testified on behalf of the
appellants. At the outset, it is necessary to record that there had been a
misdiagnosis by Khwitshana which delayed the ruptured patella tendon
from being attended to timeously. It was also agreed by all experts who
testified that in order to obtain optimal rehabilitation of the knee, it was
best that a diagnosis of a ruptured patella tendon be done timeously and
preferably within a few days of the injury and the repair thereof
immediately. The background facts are set out hereafter.

[10]  After Michiel’s injury, he was immediately taken to the hospital.
An x-ray image of the injured leg was taken and as already stated
Khwitshana told him his knee was sprained. He was given medication for
pain and swelling and was instructed to return after two weeks for a
check–up. The pain in his knee did not subside.

[11] On 10 April 2007, Liebel assessed Michiel. He suspected a serious
injury and referred him to Thiart. The latter examined Michiel and
diagnosed a patella tendon rupture. He sent Michiel for ultra sound
imaging (the scan). The results of the scan confirmed his diagnosis.

Michiel had to be treated at 1 Military Hospital because his father is
employed by the SANDF. Thiart therefore called Dr Van der Spuy, an
orthopaedic surgeon employed at the hospital, who advised him of
Michiel’s condition and his diagnosis. He referred Michiel to Dr Van der
Spuy and provided the hospital with the results of the scan. Armed with
these results, Michiel and his father returned to the hospital and presented
the scan to Dr Van der Spuy. Michiel was informed that an operation on
his knee would be performed on 13 April 2007. It is common cause that
Thiart’s diagnosis was never explored nor was Michiel’s knee examined
by Kluever before she performed the primary surgery nor had she seen
the scan taken at Unitas Hospital. Kluever relied on a hearsay diagnosis
by another doctor.

[12] On 13 April 2007, the primary surgery was performed by Kleuver.
She qualified as an orthopaedic surgeon the year before she performed the
operation. She met Michiel at the theatre. He related to her how he had
sustained the injury and pleaded with her to repair his knee as he wanted
to carry on playing rugby. It is common cause that the exchange with
Michiel took place immediately before surgery and lasted no more than a
few minutes. Kluever proceeded to perform the operation in order to
repair the ruptured patella tendon. She followed what she termed ‘the
standard procedure’ during surgery which was: She determined the height
of the patella by feeling the left knee with her hand. She used an anterial
incision over the knee joint. She identified the infra patella tendon which
was severely frayed and used circulage wire to approximate the ends of
the tendon. She repaired the tendon in layers with a non-absorbable suture
material known as Ethibond 2 and also repaired the paratendon, which is
the top layer that surrounds the tendon. Upon completion, she applied a
bandage and a brace which she fixed in full extension. She instructed

Michiel to wear the brace for six weeks.

[13] After the operation, Michiel was monitored by Dr Alberts, who
was also in attendance at 1 Military. He was discharged on 15 April 2007.
Thereafter Kluever saw Michiel again as an out-patient on 24 April 2007
and removed the suture clips. She recorded in the hospital file that the
brace would be removed after six weeks. On 25 May 2007, she removed
the brace and referred Michiel to du Plessis for rehabilitation. On his next
visit, on 20 July 2007, Kluever recorded that Michiel did not have any
complaints and was attending physiotherapy. His range of movement was
at a level of 70 degrees. She told Michiel that he should continue with
physiotherapy sessions and that she would allow him to attend biokinetics
once his range of movement had reached 90 degrees. It does not appear
that she had any concerns during these visits about the height of the
patella. It also does not appear that she scrutinised the height of the
patella.

[14] Du Plessis struggled to get full flexion of the knee and decided to
seek advice. During September 2007, he took Michiel to Liebel who
noticed that the right patella was slightly higher than the left one. Du
Plessis took him to the High Performance Centre for assessment. The
therapists at the centre suspected that the circulage wire in the knee
prevented Michiel from flexing the knee beyond 90 degrees. They
suggested that the wire be removed. Du Plessis reported this to Kluever
who scheduled an operation for the removal of circulage wire. On 1
October 2007, Dr Bhawani removed this wire.

[15] Liebel corroborated du Plessis’s testimony regarding the visit
during September 2007 as well as his observation and advice. He noticed

that Michiel’s knee and quadriceps were quite wasted. His sessions with
Michiel commenced during October 2007 after the circulage wire had
been removed. They focused on light exercises. No significant progress
was made. He submitted a report to Wright shortly before Michiel moved
to Durban.

[16] At the beginning of 2008, Michiel joined the Sharks Academy.
Wright continued with his rehabilitation programme. However, Michiel
could not regain the full knee function he had prior to the injury. As there
was no improvement, he referred Michiel to de Vlieg who identified the
high riding patella.

[17] On 16 September 2008, almost 18 months after Kluever had
performed the primary surgery, de Vlieg performed remedial surgery on
Michiel’s right knee. He found a high riding patella and fibrous scar
tissue below the patella. He found the repair mechanism performed by
Kluever to be still intact. She had used suturing material known as
Ethibond 2 to suture the tendon. He regarded this as being suturing
material of the wrong strength and was adamant that she should have
used Ethibond 5.0. He regarded her technique as inappropriate
considering Michiel’s specific physical attributes. In his view, Kluever
did not give adequate consideration to the fact that Michiel was
physically large and was a rugby player. He concluded that the reason
why the patella was found to be situated too high was due to the fact that
the tendons were proximated by Kluever without taking into account the
correct height of the patella, the elongated nature of the torn tendon and
without performing augmentation4. In his view, the core problem was that

4 According to Dr De Vlieg augmentation is a technique that is used to improve the grip of the suture
material within the tendon. This is done to reinforce the repair.

at the time that Kluever performed primary surgery to repair the ruptured
patella tendon, she did not take care to ensure that the patella was placed
properly. This was due not only to the fact that she did not place it back
in the groove precisely but also because she had not resorted to
augmentation, which would have facilitated the proper placing of the
patella within the groove. De Vlieg said he would have physically
measured the patella height using a ruler as well as compared it to the
right knee to ensure that it was similarly placed. He stated that the
damage he found in the knee was caused by the wrong height of the
patella and that it had started an osteoporotic process within the knee. He
further stated that it was irreversible and that it would not have happened
had the primary procedure by Kluever been performed using the
appropriate technique and that this was foreseeable.

[18] Dr Birrel’s views were that the procedure performed by Kluever
was inappropriate. According to him, she inter alia, failed to take a proper
history of Michiel’s injury and failed to properly prepare for the surgery.
She did not perform augmentation. She should have confirmed the correct
height of the patella either during the operation or thereafter by requesting
x-rays to be taken and that had she done so, she would have been able to
rectify the situation by repairing the high riding patella.

[19] Prof Lukhele was called by the appellants to negate causality. In
his testimony, he made very important concessions, namely: he would
have debrided the torn edges of the ruptured patella then approximated
the edges and augmented the suture had he performed the surgery. If
Michiel’s knee was left with a high riding patella since the primary
surgery, then the damage would ensue and such damage would be
irreversible and it would be foreseeable. He confirmed that if the tendon

was left elongated during the primary surgery, the patella would
resultantly be too high. He accepted that a ruptured tendon would lead to
that tendon to be already attenuated. He reserved what he termed the
‘guestimate’ of the patella height to experienced surgeons who have at
least five years’ experience and that have acquired that particular skill.

[20]  The expert witnesses de Vlieg, Birrel and Lukhele prepared a joint
minute. They agreed on two points, namely: (a) that a successful patella
tendon repair required a treating surgeon to perform the procedure in the
appropriate manner; (b) the removal of the circulage wire could not have
had any effect on the patella and could not have caused the high riding
patella, especially since that wire was removed six months after the repair
when the tendon was expected to have healed. Lukhele further stated that
the only possibility for the patella to have become high riding would be if
the suturing and/or repair of the tendon had failed.

[21] They disagreed on the other issues. In this regard, de Vlieg and
Birrel were of the view that the standard procedure followed by Kluever
was inappropriate. Furthermore they stated that Michiel would have had a
better prognosis had the surgery been performed in the manner they
considered correct and lastly, that had the primary surgery been properly
performed, strenuous exercise by Michiel would not have caused the
patella to move upwards.

[22] On the other hand, Lukhele felt that the procedure performed by
Kluever was proper. He considered her method to be the standard
method. However, during his testimony, he did concede that it was
necessary to individualise the patient and apply the applicable methods
depending on the patient. He contended that a better prognosis after

surgery depended on biological factors. He did not contest the view that
strenuous exercise would not have caused the patella to move upwards.

[23] Therefore, the first issue to be determined is whether Kluever and
Bhawani were negligent. The applicable legal test for determining
medical negligence was set out a century ago by Innes ACJ in Mitchell v
Dixon,5 as follows:
‘A medical practitioner is not expected to bring to bear upon the case entrusted to him
the highest possible degree of professional skill, but he is bound to employ reasonable
skill and care; and he is liable for the consequences if he does not.’

[24] Innes CJ restated this principle in Van Wyk v Lewis,6 and went on
to say:
‘And in deciding what is reasonable the court will have regard 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 the practitioner belongs.’

[25] In Whitehouse v Jordan and another,7 the House of Lords
concluded that the statement that ‘a mere error of judgment’ on the part of
a medical practitioner does not constitute negligence was an inaccurate
statement of the law. Lord Fraser said:
‘….[T]he statement as it stands is not an accurate statement of the law. Merely to
describe something as an error of judgment tells us nothing about whether it is
negligent or not. The true position is that an error of judgment may, or may not, be
negligent; it depends on the nature of the error. If it is one that would not have been
made by a reasonably competent professional man professing to have the standard and
type of skill that the defendant held himself out as having, and acting with ordinary
care, then it is negligent. If, on the other hand, it is an error that a man acting with

5  Mitchell v Dixon 1914 AD 519 at 525.
6  Van Wyk v Lewis 1924 AD 438 at 444.
7  Whitehouse v Jordan and another [1981] 1 All ER 267 (HL) at 281.

ordinary care, might have made, then it is not negligence.’

[26] Regarding the manner in which the evidence of an expert should be
evaluated, Mthiyane JA in Louwrens v Oldwage,8 held:
‘What was required of the trial Judge was to determine to what extent the opinions
advanced by the experts were founded on logical reasoning and how the competing
sets of evidence stood in relation to one another, viewed in the light of the
probabilities.’

[27] In Medi-Clinic v Vermeulen,9 Zondi JA, when considering the
manner in which the expert evidence should be evaluated, referred to the
decision of Michael & another v Linksfield Park Clinic (Pty) Ltd &
another 2001 (3) SA 1188 (SCA) paras 36 to 39 and said:
‘. . . what is required in the evaluation of the experts’ evidence is to determine
whether and to what extent their opinions are founded on logical reasoning. It is only
on that basis that a court is able to determine whether one of two conflicting opinions
should be preferred. An opinion expressed without logical foundation can be rejected.
But it must be borne in mind that in the medical field it may not be possible to be
definitive. Experts may legitimately hold diametrically opposed views and be able to
support them by logical reasoning. In that event it is not open to a court to simply
express a preference for the one rather than the other and on that basis to hold the
medical practitioner to have been negligent. Provided a medical practitioner acts in
accordance with a reasonable and respectable body of medical opinion, his conduct
cannot be condemned as negligent merely because another equally reasonable and
respectable body of medical opinion would have acted differently.’
[28] Before us, counsel for the appellants, submitted that Kluever and
Bhawani exercised care and skill when they performed the operations on
Michiel and that the methods and/or procedure adopted by Kleuver
during the first operation were within the standard required of the medical

8  Louwrens v Oldwage 2006 (2) SA 161 (SCA) para 27.
9 Medi-Clinic v Vermeulen (504/13) [2004] ZASCA 150 (26 September 2014) at para 5; 2015 (1) SA
241 (SCA).

profession. He further contended that the patella was brought down to the
correct height during the primary surgery.

[29] This submission is against the weight of the evidence. There is an
incremental accumulation of mishaps. First, on 5 April 2007 the medical
staff misdiagnosed the injury as a sprained knee and told Michiel to
return after two weeks. Secondly, the conduct of Kluever before the
operation leaves much to be desired. She testified that she had qualified
as an orthopaedic surgeon in 2006 and conceded that she was not a knee
specialist, yet she did not adopt any measures to combat her relative
inexperience. On her own testimony, she confirmed that she saw Michiel
for the first time in theatre shortly before the surgery. She was aware that
Michiel was a rugby player. This factor was not given adequate
consideration. He was physically large and greater attention should have
been paid to the force that would be exerted on his knee. The strength of
the sutures ought to have been considered. She did not regard it necessary
to take x-ray images of the injured knee prior to or after the surgery. She
failed to take a proper history of Michiel’s injury nor did she examine
him. The consultation with him was superficial. She never considered the
x-ray image that had been taken on 5 April nor did she see the scan sent
by Thiart. She relied on the hearsay diagnosis of the injury by Thiart. She
obtained this information from a colleague of hers who had been briefed
by Thiart. She never consulted a senior colleague or Thiart to discuss his
diagnosis or precautionary steps. Eight days had elapsed before the
surgery was performed. This too had a negative impact on Michiel’s
treatment. The need to perform surgery to repair this type of injury
immediately is highlighted in the literature provided by the parties. In this
case the misdiagnosis and the delay had a negative impact on a better
prognosis.

[30] During the operation phase, Kluever determined the height of the
patella by feeling the left knee with her hand and thereby determined
what the correct height of the patella of the injured knee should be. All
the orthopaedic surgeons were ad idem that her method in that regard was
incorrect. Lukhele called it a ‘guestimate’ but reserved it for surgeons
with at least five years’ experience who must have acquired that
particular skill. Birrel and de Vlieg were adamant that she should have
used either a measuring device, such as a ruler or employed x-rays. She
performed surgery on a man that weighed 125 kilograms and who was a
rugby player, yet she used suturing material of an inferior strength when
she should have used Ethibond 5 and performed augmentation. She did
not take into account the correct height of the patella after the operation.

[31] When she was asked to comment about an allegation that she failed
to place the patella back in its proper place after the surgery, her response
was:
‘Well, I don’t think I left the patella high. Because of the principles that I used when I
performed the surgery which is not always documented if its normal principles that
you are using. So my normal principles when suturing the intra patella tendon  is to be
able to feel the quadrilateral side which in this case was the left knee, so once you’ve
pulled it down with your stitches you feel the patella on the one side and then
compare it to the left’.

[32] In my view, this was a serious allegation that should have been met
with an unequivocal and confident response refuting the allegations.
Instead, she left one in the dark.

[33] Lukhele when confronted with the undisputed fact that when de

Vlieg opened the knee, the repair of Kluever was still intact, but the
patella was sitting high, responded that there could only be two reasons
for the high riding patella: Either the initial placement of the patella was
incorrect and was left too high when the operation was done by Kluever;
or there was attenuation in the period between the operation and the time
that de Vlieg operated in the patient. In my view, since the original repair
was still intact when the corrective surgery was done, the most probable
cause is that the patella was not left in the correct position during the
operation performed by Kluever. Thereafter, Liebel identified the high
riding patella during September 2007. Wright noticed it early in 2008 and
it was eventually restored by de Vlieg in September 2008.

[34] Lastly, Kluever had an opportunity to identify the high riding
patella when she received a report from du Plessis after his visits to
Liebel and the High Performance Centre. However, she failed to do so.
She, again, did not examine Michiel’s knee but merely scheduled an
operation which was conducted by Bhawani on 1 October 2007.
Bhawani, too did not bother to examine the knee and determine why it
could not flex beyond 90 degrees. All he did was remove the circulage
wire.

[35] Cumulatively, and having regard to the effect of the misdiagnosis,
the improper procedure, the failure thereafter to detect and identify the
high riding patella, and the evidence of all the orthopaedic surgeons
including Prof Lukhele, it is quite clear that Michiel’s present disability
was due to Kluever’s negligence referred to above. The failure by
Kluever to place the patella properly during the primary surgery and the
subsequent failure by her and Bhawani to recognise and/or identify and/or
repair the high riding patella subsequent to that operation caused Michiel

to continue to suffer pain in his knee. Furthermore, this is the cause of the
irreversible damage to his knee as found by de Vlieg. The repair of
Michiel’s patella tendon could have been successful had the operation
been performed with the necessary skill and care and/or the high riding
patella had been timeously identified especially since du Plessis
continuously reported to and raised his concerns with Kluever.

[36] Regarding the plea of contributory negligence, counsel for the
appellants submitted that the patella had migrated upwards because the
original repair of the patella tendon failed to heal properly due to
strenuous exercise. Furthermore, he submitted that Michiel’s patella
tendon became attenuated during the period between the operation by the
Kleuver and the one performed by de Vlieg.

[37] I disagree. Michiel was, upon his discharge, immobile for six
weeks. Therefore, there can be no basis to suggest that he caused the high
riding patella at that stage. Once the brace was removed, he was in the
care of du Plessis. Similarly, any argument that the patella was damaged
during this stage will not assist the appellants because the physiotherapist
was in the employ of the Minister. Be that as it may, the evidence of the
physiotherapist and the biokineticists, that they did not perform strenuous
exercises but concentrated on the upper body, remained unchallenged. By
September 2007, five months after the operation, the high riding patella
was identified.

[38] Kluever speculated as to why the patella was high riding five
months after the operation and stated that the circulage wire might have
stretched under strenuous exercise albeit there was no evidence of a
compromised wire. She further surmised that it could have been due to

strenuous exercise. Her evidence in this regard is unsupported by any
evidence. Furthermore, de Vlieg found her repair still intact 18 months
after the operation. In my view, the repair would not have been in that
condition if Michiel, the physiotherapists and biokineticists had done
strenuous exercises as alleged by Kluever. In any event, this was mere
speculation on her part.

[39] Therefore, I am satisfied that any exercises performed during the
sessions could not have caused the patella to become elongated. This is
dispositive of the plea of contributory negligence.

[40] In the result, the court a quo correctly upheld Michiel’s claim. The
appeal therefore fails.

[41] Consequently I make the following order:
The appeal is dismissed with costs including the costs attendant upon the
employment of two counsel.

__________________
NZ MHLANTLA

JUDGE OF APPEAL

APPEARANCES:

For Appellant:
A T Ncongwane SC (with him I P Ngobese)
Instructed by:
The State Attorney

Pretoria

c/o The State Attorney

Bloemfontein

For Respondent:
J du Plessis SC (with him H A Percival)
Instructed by:
Elmarié De Vos Incorporated
Pretoria
Webber Wentzel Attorneys
c/o Honey Attorneys,
Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE
19 August 2015

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.

Dr F Kluever v De Goede (20198/2014) [2015] ZASCA 105 (19 August 2015).

The Supreme Court of Appeal (SCA) today dismissed an appeal against a finding of the court below
that two medical practitioners were negligent when they performed surgical procedures on the
respondent.

On 5 April 2007, the respondent, whilst playing rugby during a school tournament, sustained a rapture
of the patella tendon of his right knee. At that stage, he had been offered a five year contract to play
for the Sharks Rugby Franchise from 2008. As a result, the respondent received medical treatment at
1 Military Hospital, Pretoria, where he was initially diagnosed with a sprained knee, but five days later
was re-diagnosed to have sustained a rupture of the patella tendon.

On 13 April 2007, Dr F Kluever, an orthopaedic surgeon employed by the Minister of Defence at the
aforementioned hospital, performed the surgery to repair the respondent’s raptured patella tendon.
After the surgical operation, his leg was placed in a brace, which was removed after six weeks on 25
May 2007. Dr Kluever thereafter referred the respondent to a physiotherapist to restore full flexion of
the knee. The physiotherapist struggled to achieve this and this led him during September 2007 to
refer the respondent to a biokineticist. The latter noticed that the right patella was slightly higher than
the left. The respondent was also taken to the High Performance Centre in Pretoria where it was
suggested that the circulage wire inserted by Dr Kluever during the primary surgery be removed as it
might be hindering the flexing of the knee. The physiotherapist reported this to Dr Kluever, who
scheduled a second surgery.

On 1 October 2007 Dr R Bhawani performed the second procedure and removed the circulage wire.
The physiotherapist and the biokineticist continued with the rehabilitation programme of the
respondent’s knee but could not achieve a complete range of movement. During 2008, the
respondent joined the Sharks Academy and a biokineticist employed at the Academy attended to his
rehabilitation. No significant progress was made. As a result, he referred the respondent to Dr de
Vlieg, an orthopaedic surgeon who identified a ‘high riding patella’.

On 16 September 2008, Dr de Vlieg performed a remedial surgery known as the ‘VY quadriceps
plasty’ to correct the high riding patella. He found that the damage to respondent’s knee was
irreversible and that his knee would never be fully functional to enable him to play rugby again.

Consequently, the respondent instituted action against Dr Kluever, Dr Bhawani and the Minister of
Defence and claimed damages arising from injuries sustained during the surgical procedures. He
alleged that the medical practitioners had been negligent when they performed the two surgical
procedures. In their plea, the appellants denied negligence and stated that the doctors had performed
the surgeries with due care and skill reasonably expected of medical personnel in their position. In the
alternative, they pleaded that the respondent had failed to attend scheduled appointments with
medical practitioners and that he had undergone an extensive exercise programme contrary to Dr
Kluever’s advice. The Gauteng Division of the High Court, Pretoria, found that Dr Kluever had been
negligent in that she had failed to place the respondent’s patella in its correct position on 13 April
2007; and that Dr Bhawani had failed to identify the problem after the primary surgery and that this
was the cause of the high riding patella and the condition of the respondent’s knee as discovered by
Dr de Vlieg in September 2008.

In this court the issue on appeal was whether there had been negligence on the part of the medical
practitioners which led to the respondent’s present admitted disability.

The SCA restated the applicable legal test for determining medical negligence that a medical
practitioner is not expected to exercise the highest possible degree of professional skill, but is bound
to employ reasonable skill and care and the medical practitioner would be liable for the consequences
if he or she did not take reasonable skill and care. What is reasonable, the court will have regard 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 the practitioner belongs.

The SCA having regard to the evidence, held that there was an incremental accumulation of mishaps:
the misdiagnosis of the respondent’s injury; the improper conduct of Dr Kluever before and during the
primary procedure; the failure thereafter to detect and identify the high riding patella and that it was
clear that the respondent’s present disability was due to Dr Kluever’s negligence. The SCA found that
the failure by Dr Kluever to place the patella properly during the primary surgery and the subsequent
failure by her and Dr Bhawani to recognise and to identify and thereafter to repair the high riding
patella, caused the respondent to continue to suffer pain in his knee. The SCA furthermore,
concluded that this was the cause of the irreversible damage to his knee as found by Dr de Vlieg. The
SCA further concluded that the repair of respondent’s patella tendon could have been successful had
the operation been performed with the necessary skill and care and had the high riding patella been
timeously identified.

Accordingly, the SCA dismissed the appeal with costs and stated that the court a quo had correctly
upheld the respondent’s claim against the appellants.

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