Kitching and Another v Premier of the Eastern Cape Province (343/07) [2011] ZAECBHC 5 (17 February 2011)

Kitching and Another v Premier of the Eastern Cape Province (343/07) [2011] ZAECBHC 5 (17 February 2011)

The court found that the appellants failed to discharge the onus of proving that William Kitching retained neurological function on admission to Livingstone Hospital and that any negligent act or omission by the respondent's servants caused the paraplegia. The evidence of movement of William's legs after admission was found to be a fabrication, and the credibility of the appellants' witnesses, particularly Nico Kitching, was seriously undermined by inconsistencies and abandonment of earlier versions. The expert and factual evidence did not support the appellants' case, and the probabilities favoured the respondent's version that the spinal cord damage occurred prior to admission. The...

Citation
[2011] ZAECBHC 5
Parties
Appellant: Nico Kitching; Appellant: William Joseph Kitching; Respondent: Premier of the Eastern Cape Province
Court
Eastern Cape High Court, Bhisho
Jurisdiction
South Africa
Judgment Date
17 February 2011
Case Number
343/07
Procedural Posture
Civil Appeal / Appeal From Dismissal of Action for Damages in the Court a Quo
Outcome
Appeal dismissed. Costs awarded against appellants jointly and severally, including costs of two counsel for respondent's heads of argument.
Judges
J.M. Roberson, Y. Ebrahim, N. Dambuza
Legal Topics
Medical Negligence, Onus of Proof, Assessment of Evidence, Expert Testimony
Delict Civil Procedure Medical Negligence Onus of Proof Assessment of Evidence Expert Testimony

Case Brief

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Parties

Nico Kitching

Appellant

William Joseph Kitching

Appellant

Premier of the Eastern Cape Province

Respondent

Procedural Posture

Civil Appeal / Appeal From Dismissal of Action for Damages in the Court a Quo

Legal Issues

  1. 1 Did the medical staff at Livingstone Hospital negligently fail to diagnose and prevent spinal cord damage resulting in William Kitching's paraplegia?
  2. 2 Did William Kitching retain neurological function on admission to hospital, and was the paraplegia caused by subsequent negligent acts or omissions?
  3. 3 Did the appellants discharge the onus of proof regarding movement of William's legs after admission?

Ratio Decidendi

The court found that the appellants failed to discharge the onus of proving that William Kitching retained neurological function on admission to Livingstone Hospital and that any negligent act or omission by the respondent's servants caused the paraplegia. The evidence of movement of William's legs after admission was found to be a fabrication, and the credibility of the appellants' witnesses, particularly Nico Kitching, was seriously undermined by inconsistencies and abandonment of earlier versions. The expert and factual evidence did not support the appellants' case, and the probabilities favoured the respondent's version that the spinal cord damage occurred prior to admission. The...

Court Disposition

Appeal dismissed. Costs awarded against appellants jointly and severally, including costs of two counsel for respondent's heads of argument.

Orders

  • The appeal is dismissed.
  • The appellants are ordered to pay the respondent's costs, jointly and severally, the one paying the other to be absolved.