THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 1219/2021

In the matter between:
DOCTOR SUDHIR MOHUN                                             FIRST APPELLANT

DOCTORS G SANPERSAD,
R MAHARAJ & ASSOCIATES                                    SECOND APPELLANT

and

ADVOCATE BRETT KINGSLEY PHILLIPS N O
on behalf of DAVID ROBIN SHEARER                      FIRST RESPONDENT

JUSTINE SHEARER in her personal capacity and
on behalf of DECLAN GRAHAM WILLIAM TINDALE
and KEZIAH RHEEDER                                            SECOND RESPONDENT

Neutral citation: Mohun and Another v Phillips N O obo Shearer and Another
(1219/2021) [2022] ZASCA 186 (22 December 2022)

Coram:
VAN DER MERWE, PLASKET and MABINDLA-BOQWANA JJA
and CHETTY and MASIPA AJJA

Heard:
16 November 2022

Delivered: 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
11h00 on 22 December 2022.

Summary: Delict – medical negligence – medical practice engaged specialist
doctor as locum tenens – whether doctor was negligent by failing to appropriately
monitor and treat patient in emergency unit of a hospital – patient sustaining hypoxia
and eventual brain damage – whether case made out for vicarious liability of practice
for actions of independent contractor – whether foundation laid for development of
common law to recognise non-delegable duty of care.

ORDER

On appeal from: KwaZulu-Natal Division of the High Court, Pietermaritzburg
(Mngadi J, sitting as court of first instance):
The appeal of the first appellant is dismissed with costs.
The appeal of the second appellant is upheld with costs.
The order of the high court is set aside and substituted with the following:
‘1.
The first defendant is found liable for 65% of whatever damages the
patient, Mr Shearer, represented by the first plaintiff, might prove for injuries
sustained by him as a result of the cardiac arrest and resultant brain damage
which Mr Shearer suffered in the emergency unit of Life Westville Hospital
in Durban on 27 December 2014.
2.
The first defendant is ordered to pay the first plaintiff’s costs of suit,
including costs occasioned by the employment of two counsel where so
employed. These costs shall include:
(i)
the cost of preparation for, and attendance of, all pre-trial conferences
that were held and attended by them, as well as the drafting and settling of the
pre-trial agendas and minutes; and the plaintiffs’ costs of obtaining the
medical legal reports of the plaintiffs’ experts relating to the issue of liability,
including the cost of counsel for drafting the plaintiffs’ expert summaries in
respect of the issue of liability in which formal notice was given in terms of
rule 36(9)(a) and (b);
(ii)
the cost of preparation, qualifying and reservation of the plaintiffs’
experts in respect of the liability trial of whom notice was given in terms of
rule 36(9)(a) and (b), including the costs of consultations by the plaintiffs’

legal representatives with these experts and the costs of these experts in
preparation for and holding joint meetings with their respective counterparts,
and preparing joint minutes, if any. These costs are for the following experts:
(a) Prof André Coetzee, (b) Prof Lee Wallace, (c) Prof Isabel Coetzee, and (d)
Dr Izak A J Loftus; and the fees of Prof André Coetzee for testifying at the
liability trial as an expert witness for the plaintiffs.
(iii)
the costs of having the proceedings of 28 May, 29 May, 3 June and 5
June 2019 transcribed for purposes of the court and the argument submitted
to the court.
3.
The claims of the second plaintiff in a personal capacity, and in her
representative capacity, on behalf of the minor children, Declan and Keziah,
are postponed sine die to be determined together with the quantum of the first
plaintiff’s claim for damages against the first defendant.
4.
The action against the second defendant is dismissed with costs.’

JUDGMENT

Mabindla-Boqwana JA (Van der Merwe and Plasket JJA and Chetty and
Masipa AJJA concurring):

Introduction
[1] The central issue in this appeal is whether the appellants are liable for the brain
injury sustained by Mr David Robin Shearer, who was admitted as a patient in the
emergency unit of Life Westville Hospital (the hospital) on 27 December 2014. Mr
Shearer, who was 43 years old at the time, was brought to the hospital’s emergency

unit by his wife, the second respondent, Mrs Justine Shearer, after he reportedly
consumed an unknown quantity of tablets in combination with alcohol. Shortly after
his arrival, the first appellant, Dr Sudhir Mohun, examined him. It is common cause
that during the course of that evening, Mr Shearer became hypoxic1 and suffered
from cardiac arrest, which led to permanent brain damage.

[2] The first appellant is a specialist physician who was, on the evening in
question, engaged as a locum tenens by the second appellant, Doctors G Sanpersad,
R Maharaj & Associates, a medical practice which provided clinical care in the
emergency unit in terms of a memorandum of agreement with the hospital.

[3] The respondents instituted action against the appellants and the hospital in the
KwaZulu-Natal Division of the High Court, Pietermaritzburg (the high court), for
damages arising from alleged negligent conduct of the appellants and the hospital.
The first respondent, Advocate Brett Kingsley Phillips N O, acted as curator ad litem
on behalf of Mr Shearer, while the second respondent brought the action in her
personal capacity and on behalf of her minor children. The action against the hospital
was withdrawn before the matter went to trial, as the claim against it became settled.
The parties agreed to separate the rest of the issues in the action from the appellants’
liability in relation to the first respondent’s claim.

[4] The essence of the respondents’ pleaded case was that the first appellant acted
negligently by failing to properly assess and monitor Mr Shearer’s condition so as
to timeously render appropriate treatment to him. Had he done so, so it was alleged,
Mr Shearer would not have sustained the cardiac arrest and the ultimate brain

1 Low amount of oxygen in the blood.

damage. In respect of the second appellant, it was alleged that a doctor-patient
relationship came into existence upon Mr Shearer’s admission into the emergency
unit. It was further alleged that, acting through the first appellant and/or the nursing
and medical personnel, the second appellant owed the respondents a duty of care and
ought to have taken the necessary steps to prevent the harm that was caused to Mr
Shearer.

[5] The appellants denied that the second appellant employed any nursing or
medical personnel or that the respective personnel were under its control. They
pleaded that the second appellant, from time to time, engaged locum tenentes as
independent practitioners and that the nursing personnel were employed by and
worked under the direct control of the hospital. The appellants further alleged that
the first appellant timeously and properly examined Mr Shearer, taking into account
his history of consuming alcohol with an unknown amount of tablets. According to
the appellants, the first appellant had satisfied himself that Mr Shearer was
haemodynamically stable2 before he left him. When he was informed of Mr
Shearer’s deteriorating condition, he immediately reassessed the situation, treated
and resuscitated Mr Shearer and remained with him until his admission to the
intensive care unit (ICU).

The background
[6] At the trial, the first respondent called an expert witness, Professor André
Retief Coetzee, who is a specialist anaesthetist for cardiac and pulmonary
procedures, as well as an intensivist in general adult intensive care. Prof Coetzee
gave an opinion primarily based on the hospital records and the relevant clinical

2 Stable blood flow.

notes written by the first appellant and the nursing staff. The appellants, on the other
hand, only called the first appellant as a witness.

[7] In the hospital records and clinical notes, it was recorded that on arrival at the
emergency unit at 21h30, Mr Shearer was triaged3 as orange with a discriminator
listed as ‘overdose’. At that stage, his heart rate was 108 beats/minute; blood
pressure 146/82; temperature 36.2°C; and oxygen saturation level 93%. At 21h35,
the first appellant examined him. He was given 40% oxygen via a facemask. Upon
examination by the first appellant his chest, cardiovascular system and abdomen
were clear and normal.

[8] The next entry was made at 21h45, when Mr Shearer’s oxygen saturation level
was recorded as 82%. Apart from this lowered oxygen saturation, no other
observations of Mr Shearer’s condition were noted since 21h35, when he was seen
by the first appellant. The next noted observations were at 22h00 when Mr Shearer
was found to be unresponsive, pale and starting to desaturate.

[9] At approximately 22h05, Mr Shearer suffered a cardiac arrest. His peripheral
pulses were absent and he had no heart rate. By that time, Mr Shearer’s oxygen
saturation level had sunk to 28%, even though 40% oxygen was administered. The
first appellant and the nursing staff in the emergency unit undertook resuscitation
comprising chest compressions and administration of drugs from 22h05 until 22h30,
after which they intubated Mr Shearer with an endotracheal tube. At 22h40, he was
taken to the ICU under the care of Dr Insam.

3 A procedure of assigning degrees of urgency to illnesses to decide the order of treatment of patients.

[10] Prof Coetzee’s evidence focussed on the dangers presented by alcohol
overindulgence combined with medication. He testified that it was common
knowledge in the medical field that a person who had consumed such combination
was at risk of suffering respiratory depression and/or airway obstruction. This was
regardless of the fact that such a person might initially appear to be reasonably stable
on admission, such as Mr Shearer was. The reason for the stable impression could
be that the alcohol and the drugs were still being absorbed into the digestive system.
Mr Shearer’s condition could therefore gradually change as those were taken up by
the system.

[11] This gradual change, according to Prof Coetzee, was evidenced by the fact
that when Mr Shearer was admitted, his oxygen saturation level was at 93%
according to the clinical notes, or 98% according to the first appellant’s evidence.
Those levels gradually went down to 82% and then 28%. This, according to Prof
Coetzee, necessitated the first appellant to regularly check on Mr Shearer. From the
hospital notes evaluated by Prof Coetzee, there was no other crisis that evening in
the emergency unit that would have prevented the first appellant from doing so.

[12] Prof Coetzee further testified that an oxygen saturation level of 93%, in the
absence of chronic lung disease, should have alerted the medical personnel attending
to Mr Shearer that he was already close to the lower limit of acceptable oxygenation.
Under these circumstances, it was imperative to continuously monitor Mr Shearer
from the time he was admitted in the emergency unit at 21h30.

[13] After the first appellant examined Mr Shearer at 21h35, the first appellant
should have ensured that Mr Shearer could maintain his airway, that his respiration

was satisfactory and that he was properly oxygenated. This could be done by
intubating the trachea, and if Mr Shearer’s efforts at spontaneous breathing were
insufficient, he would then have had to be placed on a ventilator. Prof Coetzee
concluded that the ensuing cardiac arrest was probably caused by severe and
sustained hypoxia, which if prevented or reacted upon timeously would probably not
have occurred.

[14] The first appellant’s evidence largely conformed to what was in the clinical
notes. However, his evidence was that because Mr Shearer’s chest examination was
clear, he reckoned that the low oxygen saturation of 93% must have been due to a
problem with the oxygen probe. He replaced it correctly on Mr Shearer’s finger and
after doing so, the oxygen saturation level improved to 98%. This improvement
reassured him of Mr Shearer’s stability. He however did not record this alleged
changed level of oxygenation in the clinical notes.

[15] He further testified that when he last saw Mr Shearer at 21h35, his clinical
judgment was that he was drunk but stable. His blood pressure was a little bit
elevated but not adverse in that situation. A full blood count and further
investigations revealed that he had ingested high doses of aspirin. The dextrose
saline that Mr Shearer was given was to help counteract low blood sugar that could
lead to irreversible brain damage following an acute ingestion of alcohol. Once he
finished examining Mr Shearer, he had a conversation with Dr Insam who had
known Mr Shearer as a patient from previous admissions. Dr Insam agreed with the
medication that the first appellant had used to treat Mr Shearer. He also agreed with
the first appellant’s decision to admit Mr Shearer to the high care.

[16] The first appellant further testified that a professional and experienced nurse,
Sister Phillips, assisted him. He did not stay with Mr Shearer, because apart from
Mr Shearer being vitally stable, he had instructed Sister Phillips to monitor the
patient. In addition, Mr Shearer’s condition was monitored by a device which would
activate an alarm in the event of a deterioration in his condition. No one called him
concerning any change in Mr Shearer’s condition and he did not hear any alarm
going off.

[17] Sister Phillips called him while he was busy with another patient. Apparently,
a phlebotomist4 had discovered that Mr Shearer was unresponsive and raised the
alarm with Sister Phillips. When the first appellant got there, he established that Mr
Shearer was in cardiac arrest. He resuscitated Mr Shearer with the help of Sister
Phillips; they got his heart to beat on its own and his blood pressure to normalise.
They then inserted the endotracheal tube and immediately attached a bag valve
mask, which pushes the air into the lungs.

[18] The high court found the appellants to be jointly and severally liable. It held
that the first appellant was an independent contractor appointed by the second
appellant, that the nursing staff at the emergency unit were employed by and worked
under the control of the hospital, and that no evidence which established negligence
on the part of the second appellant had been adduced. It, however, went on to hold
the second appellant liable based on a contractual relationship it found had been
entered into with Mr Shearer, upon his admission to the emergency unit.

4 A technician who collects blood from patients and prepare the samples for testing.

[19] The high court determined the degree of fault attributed to the appellants as
65% of whatever damages might be proved by the first respondent. It subsequently
refused the appellants leave to appeal, which leave was granted by this Court on
petition.

Issues on appeal
[20] On appeal the appellants contended, firstly, that on the medical evidence
presented, the first appellant acted reasonably by leaving a stable patient in the care
of an experienced and duly qualified, medically trained nursing sister employed by
the hospital. Further, Mr Shearer suffered a cardiac arrest and resultant brain damage
in spite of the exercise of reasonable care by the first appellant.

[21] Secondly, it was impossible on the probabilities to find that, had the first
appellant regularly checked on Mr Shearer, the cardiac arrest and the resultant brain
damage, which he suffered, could have been prevented. The evidence, so it was
contended, overwhelmingly supported the appellants’ version that Mr Shearer’s
deterioration was not gradual but sudden.

[22] Thirdly, the first respondent should have called Mrs Shearer as a witness, who
would have provided facts regarding the ingestion of drugs as well as Mr Shearer’s
deteriorating condition. An adverse inference should have been drawn as a result of
the first respondent’s failure to call her as a witness.

[23] As to the second appellant, the argument was that, in the absence of a duty of
care or vicarious liability, it should not have been found liable. Additionally, no

doctor/patient relationship existed between Mr Shearer and the second appellant, and
consequently no legal duty existed to give rise to any negligence claim.

Negligence and causation in relation to the first appellant
[24] Prof Coetzee’s evidence was cogent, clear and founded on logical reasoning.
Most importantly, it was undisputed in material respects. The first appellant agreed
with a number of statements and conclusions made by Prof Coetzee. He did not
dispute Prof Coetzee’s testimony that the detrimental effects of the intake of
quantities of alcohol and pharmaceutical drugs on the brain and airways were
common knowledge in the medical field. He also agreed with Prof Coetzee’s opinion
that the probabilities were high that the cardiac arrest that Mr Shearer had suffered
was caused by severe and sustained hypoxia.

[25] The first appellant further conceded that if the hypoxia was reacted upon
timeously, even up to two minutes before the arrest, the arrest would probably not
have occurred and Mr Shearer would not have suffered brain damage. He agreed
with the proposition put to him in cross-examination that if he had gone to check on
Mr Shearer after 21h35 and up until 22h00, he would have been able to save him
from suffering brain damage.

[26] It was clear from Prof Coetzee’s evidence that because of the history of the
intake of alcohol and drugs, Mr Shearer could not have been stable, as presumed by
the first appellant. He explained that Mr Shearer’s condition would gradually change
as the drugs and alcohol were absorbed into the system.

[27] The first appellant’s evidence that he was assured by the improvement in the
saturation level that went to 98% after he corrected the oxygen probe on Mr
Shearer’s finger, does not absolve him. Apart from this not being recorded in the
clinical notes, the history of overdose of alcohol with drugs should have caused a
reasonable medical practitioner in the first appellant’s position to expect a gradual
change in Mr Shearer’s breathing and oxygenation.

[28] Prof Coetzee testified that it was not sufficient to leave Mr Shearer with the
nursing staff, because they would not be able to pick up the subtle changes which
could occur. They would (most likely) not appreciate the fact that the oxygen
administered to Mr Shearer would not resolve the underlying threat of his breathing
deteriorating due to the delayed absorption of the intoxicants into his system. In this
regard, the small matters such as the maintenance of the airway, a change in
breathing rate and the method of breathing and whether it was deep enough, would
be lost on the nursing staff, but not on a medical practitioner. The nursing staff would
wait until the saturation went below 90% and the alarm went off. They would also
probably not take note of the significance of the fact that Mr Shearer, who was
aggressive on admission, was becoming sleepy.

[29] Because of these subtleties, a medical practitioner would have had to write
down clear instructions as to what had to be monitored by the nursing staff. In this
case, there were no clinical notes which Prof Coetzee could find instructing the
nursing staff on these matters. The first appellant conceded that he should have given
clear instructions to the nursing staff, in particular Sister Phillips, to constantly
remain with Mr Shearer, as well as to what precisely to monitor him for, given that

the ingestion of drugs and alcohol could affect his respiratory rate and lead to
possible airway obstruction.

[30] According to Prof Coetzee, had all of these processes occurred, the changes
would have been noted and timeous ventilation and oxygenation, which could well
have included trachea intubation, would have prevented Mr Shearer from
desaturating to the point where he became hypoxic and eventually suffered a heart
arrest.

[31] With the first appellant having made material concessions, the only issue in
dispute was whether the first appellant discharged his duty of care by relying on the
nurses. Prof Coetzee’s evidence was clearly based on logical reasoning on this issue,
as demonstrated above. The high court was correct in accepting it. Prof Coetzee gave
his opinion primarily based on the hospital records and the emergency unit’s clinical
notes, calling Mrs Shearer as a witness would not have taken the case any further.
On his own evidence, the first appellant was negligent by leaving the patient in the
care of the nursing staff without adequately instructing them.

[32] I am of the view, therefore, that the evidence of negligence and causation is
overwhelmingly against the first appellant. There is, accordingly, no reason to
interfere with the high court’s decision in relation to him.

Liability of the second appellant
[33] The position as regards the second appellant is different. In this Court, the
only question in relation to the liability of the second appellant was whether in law
it was liable for the negligence of the first appellant. The high court found that the

first appellant was an independent contractor in relation to the second appellant. This
finding was not challenged before us.

[34] Our law is clear that the principal is not liable for the civil wrongs of an
independent contractor, except where the principal was personally at fault.5 Counsel
for the first respondent submitted that, whilst the first appellant was not an employee
of the second appellant, the facts of this case nevertheless call for the application of
general principles of vicarious liability. Alternatively, given the facts of this case, it
is appropriate to recognise a stricter obligation on the part of the second appellant,
described as a non-delegable duty.

[35] In respect of vicarious liability, counsel for the first respondent submitted that
the second appellant’s appeal should fail on the law as it currently is. However,
insofar as a non-delegable duty of care is concerned, he invited this Court to develop
the common law, should the first argument fail.

[36] The submission made on behalf of the first respondent was that vicarious
liability is not limited to employer and employee relationships. It can attach to
situations where the person committing the delict is undertaking an activity which
serves the other party’s interests. To illustrate this, an owner of a motor vehicle can
be held vicariously liable for the delicts committed by the driver thereof in the
absence of an employment relationship. In this regard, it is sufficient that the vehicle
was driven on behalf of the owner, even if only partly for the purposes of the owner.

5 Chartaprops 16 (Pty) Ltd and Another v Silberman [2008] ZASCA 115; 2009 (1) SA 265 (SCA); [2009] 1 All SA
197 (SCA) paras 6 and 42; Langley Fox Building Partnership (Pty) Ltd v De Valence 1991 (1) SA 1 (A); [1991] 3 All
SA 736 (A).

This is all good and well, but for the reasons that follow, does not avail the first
respondent.

[37] The matter must be determined on the basis that as a fact, the first appellant
was an independent contractor. In this regard, Nugent JA clearly stated in
Chartaprops 16 (Pty) Ltd and Another v Silberman6 that it is well established that
the relationships to which vicarious liability applies do not include the relationship
of a principal and an independent contractor. The party who appointed the
independent contractor could only be liable in delict for its own failure to take
reasonable steps to guard against foreseeable harm. The same was said in the
majority judgment of Ponnan JA.7 The first respondent disavowed any intention to
attempt to persuade us to develop the law of vicarious liability. It follows that there
was simply no legal basis upon which the second appellant could attract vicarious
liability for the conduct of the first appellant. Thus, on the evidence before us, no
case has been made out for a finding that the second appellant was vicariously liable
for the delicts of the first appellant.

[38] This takes me to the alternative argument that we should develop the common
law by reconsidering the principle of non-delegable duty of care in circumstances
where the victim was especially vulnerable, particularly in places like hospitals and
schools. In this regard, a higher standard of care in the sense described by Nugent
JA in the minority judgment of Chartaprops8 and English authority to this effect is
argued for.9

6 Chartaprops 16 (Pty) Ltd and Another v Silberman [2008] ZASCA 115; 2009 (1) SA 265 (SCA); [2009] 1 All SA
197 (SCA) para 6.
7 Ibid para 28.
8 Ibid paras 7-26.
9 Woodland v Essex County Council [2013] UKSC 66; Hughes v Rattan [2021] EWHC 2032 (QB).

[39] Acceptance of this proposition would entail overturning the majority view in
Chartaprops. Writing for the majority, Ponnan JA criticised the application of the
non-delegable duty of care as being inconsonant with the principles of negligence
existing in our law. He said, inter alia, the following when applying the facts of that
case to the law:
‘. . . [I]t is difficult to see why the general policy of the law that the economic cost of the wrong
should be borne by the legal entity immediately responsible for it, should not be enforced in this
case. Furthermore, to shift the economic cost of negligent acts and omissions from Advanced
Cleaning, the independent contractor with primary responsibility, to Chartaprops, because of the
legal fiction of non-delegability, appears to me to be undesirable.’10

[40] It is established that when circumstances are compelling courts must develop
the common law. In doing so, courts are obliged to ‘promote the spirit, purport and
objects of the Bill of Rights’.11 As stated in Dendy v University of the Witwatersrand
and Others:12
‘. . . This ensures that the common law will evolve, within the framework of the Constitution,
consistently with the basic norms of the legal order that it establishes (Pharmaceutical
Manufacturers Association of SA: In re Ex parte President of the Republic of South Africa 2000
(2) SA 674 (CC) at para 49). The Constitutional Court has already cautioned against overzealous
judicial reform. Thus, if the common law is to be developed, it must occur not only in a way that
meets the section 39(2) objectives, but also in a way most appropriate for the development of the
common law within its own paradigm (Carmichele v Minister of Safety and Security
2001 (4) SA 938 (CC) at para 55). (See also City of Tshwane Metropolitan Municipality v RPM
Bricks (Pty) Ltd [2007] SCA 28 (RSA) para 20.)

10 Chartaprops fn 6 para 44.
11 Section 39(2) of the Constitution.
12 Dendy v University of the Witwatersrand and Others [2007] ZASCA 30; [2007] 3 All SA 1 (SCA); 2007 (8) BCLR
910 (SCA) paras 22-23.

A court, faced with such a task, is obliged to undertake a two-stage enquiry. First, it should ask
itself whether, given the objectives of s 39(2), the existing common law should be developed beyond
existing precedent. If the answer to that question is a negative one, that should be the end of the
enquiry. If not, the next enquiry should be how the development should occur and which court
should embark on that exercise. (See S v Thebus at para 26.)’ (My emphasis.)

[41] In Mighty Solutions CC t/a Orlando Service Station v Engen Petroleum Ltd
and Another,13 the Constitutional Court laid out what factors a court should consider
before developing the common law:
‘Before a court proceeds to develop the common law, it must (a) determine exactly what the
common law position is; (b) then consider the underlying reasons for it; and (c) enquire whether
the rule offends the spirit, purport and object of the Bill of Rights and thus requires development.
Furthermore, it must (d) consider precisely how the common law could be amended; and (e) take
into account the wider consequences of the proposed change on that area of law.
In Carmichele Ackermann J and Goldstone J stated that “where the common law deviates from
the spirit, purport and objects of the Bill of Rights the courts have an obligation to develop it by
removing that deviation”. The Court reminded us though that, when exercising their authority to
develop the common law, “[j]udges should be mindful of the fact that the major engine for law
reform should be the Legislature and not the Judiciary”. The principle of separation of powers
should thus be respected.’14

[42] Therefore, a duty rests upon a litigant to present these considerations before
this Court. It is not sufficient to simply submit that the common law must be
developed in a particular way. There must be an assessment of the existing legal
position, its underlying reasons and deficiencies, how it deviates from the
constitutional values, and how that should be rectified. That should be done taking

13 Mighty Solutions CC t/a Orlando Service Station v Engen Petroleum Ltd and Another [2015] ZACC 34; 2016 (1)
SA 621 (CC); 2016 (1) BCLR 28 (CC).
14 Ibid paras 38-39. See also Carmichele v Minister of Safety and Security and Another [2001] ZACC 22; 2001 (4) SA
938 (CC) paras 40-41.

into account the wider consequences of bringing change to the area of the law
concerned. The first respondent has presented none of this.

[43] Apart from alleging a case for the vulnerable, the underlying reasons for the
current common law rule and the reasons for its existence have not been canvassed.
Neither has the first respondent set out in what way the common law principle is in
conflict with the values of the Constitution and the Bill of Rights or offends the
spirit, purport and objects of the Bill of Rights, requiring it to be developed. This
Court cannot develop the law in a vacuum.

[44] In addition, a case for the development of the common law must be brought
at the earliest opportunity. Ideally, this would mean that the first respondent ought
to have raised this issue in the high court ‘in order to ensure that our jurisprudence
under the Constitution develops as reliably and harmoniously as possible’.15 It would
have been beneficial for this Court to have the views of the high court on this matter.
It is so that in appropriate cases, courts will allow these points to be raised on appeal
or do so even mero motu. This is, however, not a case falling into the category of
those compelling or exceptional cases and such argument has not been advanced.
Chartaprops is a recent precedent. Any reconsideration of the position set out
therein, required a clearly set out basis.

[45] Consequentially, both arguments in relation to the liability of the second
appellant must fail. This means that the high court’s order concerning the second
appellant cannot stand.

15 Ibid.

Conclusion
[46]  As indicated earlier, the high court found the appellants to be jointly and
severally liable, the one paying the other to be absolved, for 65% of damages that
may be proved by the first respondent. It is not clear how the high court determined
that apportioned percentage. That issue, however, is not before this Court. The
apportionment order in relation to the first appellant will remain undisturbed.

[47] The appeal of the first appellant concerned an uncomplicated factual issue,
which did not reasonably warrant the employment of two counsel. I will accordingly
not allow such a costs order.

[48] In the result, I make the following order:
1        The appeal of the first appellant is dismissed with costs.
2        The appeal of the second appellant is upheld with costs.
3        The order of the high court is set aside and substituted with the following:
‘1.
The first defendant is found liable for 65% of whatever damages the
patient, Mr Shearer, represented by the first plaintiff, might prove for injuries
sustained by him as a result of the cardiac arrest and resultant brain damage
which Mr Shearer suffered in the emergency unit of Life Westville Hospital
in Durban on 27 December 2014.
2.
The first defendant is ordered to pay the first plaintiff’s costs of suit,
including costs occasioned by the employment of two counsel where so
employed. These costs shall include:
(i)
the cost of preparation for, and attendance of, all pre-trial conferences
that were held and attended by them, as well as the drafting and settling of the
pre-trial agendas and minutes; and the plaintiffs’ costs of obtaining the

medical legal reports of the plaintiffs’ experts relating to the issue of liability,
including the cost of counsel for drafting the plaintiffs’ expert summaries in
respect of the issue of liability in which formal notice was given in terms of
rule 36(9)(a) and (b);
(ii)
the cost of preparation, qualifying and reservation of the plaintiffs’
experts in respect of the liability trial of whom notice was given in terms of
rule 36(9)(a) and (b), including the costs of consultations by the plaintiffs’
legal representatives with these experts and the costs of these experts in
preparation for and holding joint meetings with their respective counterparts,
and preparing joint minutes, if any. These costs are for the following experts:
(a) Prof André Coetzee, (b) Prof Lee Wallace, (c) Prof Isabel Coetzee, and (d)
Dr Izak A J Loftus; and the fees of Prof André Coetzee for testifying at the
liability trial as an expert witness for the plaintiffs.
(iii)
the costs of having the proceedings of 28 May, 29 May, 3 June and 5
June 2019 transcribed for purposes of the court and the argument submitted
to the court.
3.
The claims of the second plaintiff in a personal capacity, and in her
representative capacity, on behalf of the minor children, Declan and Keziah,
are postponed sine die to be determined together with the quantum of the first
plaintiff’s claim for damages against the first defendant.
4.
The action against the second defendant is dismissed with costs.’

_____________________________
N P MABINDLA-BOQWANA

JUDGE OF APPEAL

APPEARANCES

For the appellants:
N A Janse van Rensburg

MacRobert Attorneys, Durban
Webbers Attorneys, Bloemfontein

For the first respondent:
S R Mullins SC and J A Ploos van Amstel
Instructed by:

N Kelly Incorporated Attorneys, Illovo
Green 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:
22 December 2022
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does
not form part of the judgments of the Supreme Court of Appeal
Mohun and Another v Phillips N O obo Shearer and Another (1219/2021) [2022] ZASCA 186
(22 December 2022)
The Supreme Court of Appeal (SCA) dismissed, with costs, an appeal of the first appellant, Dr
Sudhir Mohun, and upheld, with costs, an appeal of the second appellant, Doctors G Sanpersad,
R Maharaj & Associates, against the judgment of the KwaZulu-Natal Division of the High
Court, Pietermaritzburg (the high court).

The central issue in the appeal was whether the appellants were liable for the brain injury
sustained by Mr David Robin Shearer, who was admitted as a patient in the emergency unit of
Life Westville Hospital (the hospital) on 27 December 2014.

Mr Shearer, who was 43 years old at the time, was brought to the hospital’s emergency unit by
his wife, the second respondent, Mrs Justine Shearer, after he reportedly consumed an unknown
quantity of tablets in combination with alcohol. Shortly after his arrival, the first appellant
examined him. It was common cause that during the course of that evening, Mr Shearer became
hypoxic and suffered from cardiac arrest, which led to permanent brain damage. The first
appellant was a specialist physician who was, on the evening in question, engaged as a locum
tenens by the second appellant, a medical practice which provided clinical care in the
emergency unit in terms of a memorandum of agreement with the hospital.

In regard to the liability of the first appellant, the SCA found the following. The evidence of
Professor André Retief Coetzee, the first respondent’s expert witness, was cogent, clear and
founded on logical reasoning. Most importantly, it was undisputed in material respects. The
first appellant agreed with a number of statements and conclusions made by Prof Coetzee.
Notably, the first appellant, inter alia, conceded that if the hypoxia was reacted upon timeously,
the arrest would probably not have occurred and Mr Shearer would not have suffered brain
damage. He agreed with the proposition put to him in cross-examination that if he had gone to
check on Mr Shearer after 21h35 and up until 22h00, he would have been able to save him
from suffering brain damage.

The SCA found further that Mr Shearer’s history of overdose of alcohol with drugs should have
caused a reasonable medical practitioner in the first appellant’s position to expect a gradual
change in Mr Shearer’s breathing and oxygenation. In this regard, the SCA found that, on his
own evidence, the first appellant was negligent by leaving the patient in the care of the nursing
staff without adequately instructing them. The first appellant conceded that he should have
given clear instructions to the nursing staff, in particular Sister Phillips, to constantly remain
with Mr Shearer, as well as to what precisely to monitor him for, given that the ingestion of
drugs and alcohol could affect his respiratory rate and lead to possible airway obstruction.

The SCA, therefore, held that the evidence of negligence and causation was overwhelmingly
against the first appellant. There was, accordingly, no reason to interfere with the high court’s
decision in relation to him.

In regard to the liability of the second appellant, the SCA found as follows. The only question
in relation to the liability of the second appellant before the SCA was whether in law it was
liable for the negligence of the first appellant. The high court had found that the first appellant
was an independent contractor in relation to the second appellant. That finding was not
challenged before the SCA. Our law is clear that the principal is not liable for the civil wrongs
of an independent contractor, except where the principal was personally at fault.

The SCA found further that the first respondent disavowed any intention to attempt to persuade
the SCA to develop the law of vicarious liability. It followed that there was simply no legal
basis upon which the second appellant could attract vicarious liability for the conduct of the
first appellant. Thus, the SCA held that, on the evidence before it, no case had been made out
for a finding that the second appellant was vicariously liable for the delicts of the first appellant.

Turning to the alternative argument that the SCA should develop the common law by
reconsidering the principle of non-delegable duty of care in circumstances where the victim
was especially vulnerable, particularly in places like hospitals and schools – whereby a higher
standard of care was argued for – the SCA found that the first respondent presented before the
Court none of the factors necessary for a court to consider before developing the common law.

Consequentially, the SCA held that both arguments in relation to the liability of the second
appellant failed. This meant that the high court’s order concerning the second appellant could
not stand.

~~~~ends~~~~