Leeuw v J.A.V.D.B.B (653/2002) [2010] ZAGPPHC 582 (1 February 2010)

Leeuw v J.A.V.D.B.B (653/2002) [2010] ZAGPPHC 582 (1 February 2010)

The court found, on a balance of probabilities, that the laceration of the respondent's cervix was caused by the appellant during his attempted abortion on 22 January 1999. The evidence established that no other medical practitioner attended to the respondent between the appellant's intervention and the discovery of the injury. The appellant's own notes suggested two attempts were made, and his explanations were evasive and unconvincing. Medical expert testimony supported the inference that the injury was not fresh and was consistent with the timing of the appellant's procedure. The court rejected speculative arguments about a 'crush procedure' by another practitioner, finding them...

Citation
[2010] ZAGPPHC 582
Parties
Appellant: DR YGMM Leeuw; Respondent: J[...] A[...] V[...] D[...] B[....] (B[...])
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
1 February 2010
Case Number
653/2002
Procedural Posture
Civil Appeal / Appeal Against Liability Finding; Quantum Reserved
Outcome
Appeal dismissed with costs; appellant to pay costs of reinstatement and condonation applications.
Judges
R D Claassen, J N Poswa, M Ismail
Legal Topics
Medical Negligence, Termination of Pregnancy, Causation, Onus of Proof
Delict Civil Procedure Medical Negligence Termination of Pregnancy Causation Onus of Proof

Case Brief

Summary, issues, holding and outcome

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Parties

DR YGMM Leeuw

Appellant

J[...] A[...] V[...] D[...] B[....] (B[...])

Respondent

Procedural Posture

Civil Appeal / Appeal Against Liability Finding; Quantum Reserved

Legal Issues

  1. 1 Whether the laceration of the respondent's cervix was caused by the appellant during the attempted abortion.
  2. 2 Whether the appellant made a second attempt to perform the abortion on 22 January 1999.
  3. 3 Whether any other medical intervention, including a 'crush procedure', could have caused the injury.

Ratio Decidendi

The court found, on a balance of probabilities, that the laceration of the respondent's cervix was caused by the appellant during his attempted abortion on 22 January 1999. The evidence established that no other medical practitioner attended to the respondent between the appellant's intervention and the discovery of the injury. The appellant's own notes suggested two attempts were made, and his explanations were evasive and unconvincing. Medical expert testimony supported the inference that the injury was not fresh and was consistent with the timing of the appellant's procedure. The court rejected speculative arguments about a 'crush procedure' by another practitioner, finding them...

Court Disposition

Appeal dismissed with costs; appellant to pay costs of reinstatement and condonation applications.

Orders

  • The appeal is dismissed with costs.
  • The appellant is to pay the costs occasioned by the application for reinstatement and condonation.