THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Not reportable

Case No: 103/2015

In the matter between:

DR S CHAPEIKIN

FIRST APPELLANT
DR J SHER

SECOND APPELLANT

and

LORETTA CHARMAINE MINI

RESPONDENT

Neutral citation:  Chapeikin v Mini (103/2015) [2016] ZASCA 105 (14 July

2016)

Coram:
Mpati P, Cachalia and Wallis JJA and Tsoka and

Kathree-Setiloane AJJA

Heard:
19 May 2016

Delivered:
14 July 2016

Summary:
Delict ─ medical malpractice ─ general practitioners ─ whether
failure to refer patient with unusual stroke to hospital for specialised treatment
constitutes negligence ─ causation ─ whether patient‟s sequelae could have
been prevented by referral to hospital ─ no causal link between the alleged
negligence and sequelae.
Practice and procedure ─ Rule 33(4) of the Uniform rules ─ trials ─ order
separating merits from quantum not desirable where issues are inextricably
linked.

______________________________________________________________

ORDER
______________________________________________________________

On appeal from Western Cape Division of the High Court, Cape Town
(Schippers J sitting as court of first instance):
1 The appeal is upheld with costs.
2 The order of the high court is set aside and replaced with the following
order:
„The plaintiff‟s claim is dismissed with costs.‟
______________________________________________________________

JUDGMENT
______________________________________________________________

Kathree-Setiloane AJA (Mpati P, Cachalia and Wallis JJA and Tsoka AJA
concurring):

[1] It is estimated that in South Africa about 360 people per day have a
stroke. Of those about 110 die and about 90 are left with a life-changing
disability. Strokes are thus the leading cause of disability and the fourth most
common cause of death.1 On 17 April 2007 at about 16h00, while she was at
work Ms Loretta Charmaine Mini (Ms Mini), the respondent, exhibited
symptoms possibly attributable to a stroke. She consulted the first appellant,
Dr Chapeikin on the same day at approximately 19h15. He diagnosed her as
having hypertension and anxiety. At approximately 12h15 the next afternoon
(18 April 2007), she consulted the second appellant, Dr Sher, who diagnosed
her as having suffered a mild stroke, which had completed. Both appellants
are general practitioners. The essence of Ms Mini‟s complaint against each of
them is that they misdiagnosed her condition and failed to refer her to hospital
for appropriate treatment. As a result, she contends that by the following day
her condition had deteriorated rapidly, until she was admitted to hospital on 20
April 2007 with complete hemiplegia (right side paralysis). Despite receiving

1 http://www.mystroke.co.za/About (accessed on 25 May 2016).

intensive rehabilitative therapy for almost two months thereafter, she
remained permanently disabled and was eventually found to be unfit to
continue her career as a legal secretary.

[2] Ms Mini instituted action against Drs Chapeikin and Sher in the
Western Cape Division of the High Court, Cape Town (the high court) for
damages in the sum of R922 638 basing her claim in contract, alternatively
delict, in respect of the sequelae which she had suffered as a result of the
stroke. The pleaded sequelae are that she experienced deteriorating
symptoms of weakness on the right side of her body; that she is unable to
walk without assistance and confined to a wheelchair; that she suffers from
hemiplegia (right side paralysis); that she suffers from attention and
concentration difficulties; and that she suffers from limitations in abstract and
complex reasoning, problem solving and information processing.

[3] At the commencement of the trial, the parties agreed to separate the
issues of liability (negligence, wrongfulness and causation) from those relating
to quantum and the trial proceeded on that basis. At the end of the trial, the
high court found that both appellants had been negligent. The finding of
negligence against Dr Chapeikin was that he should not have excluded the
diagnosis of a stroke which had resolved either partially (because of
undetected subtle signs) or totally. Instead he ought to have appreciated that
he was dealing with the possibility of a stroke developing and to have
foreseen the possibility of further deterioration of Ms Mini‟s condition. He
should therefore have referred her to hospital and not sent her home. The
finding of negligence against Dr Sher was that he should have been alive to
the fact that Ms Mini‟s condition had deteriorated since the previous day; that
it could deteriorate further; and that her blood pressure readings were
alarmingly high requiring urgent specialised management, treatment and
control, and he should therefore also have referred her to hospital.

[4] The high court found the appellants liable as joint wrongdoers „for such
damages which Ms Mini can prove‟. In relation to Dr Chapeikin, the high court
found that his failure to refer her to hospital for specialised assessment and
treatment materially contributed to her deterioration and ultimate sequelae. In
addition, it found that in as much as timely admission and treatment would
have made the effects of her stroke less severe, the evidence established a
causal connection between Dr Chapeikin‟s failure to refer her to hospital and
her sequelae.

[5] In relation to Dr Sher, the high court found that the evidence
established that had he referred Ms Mini to hospital, it was likely that she
would have received hypertensive emergency treatment and blood pressure
control including stabilisation and reduction in a controlled clinical
environment. It found that these measures would have prevented a further
elevation of her blood pressure and prevented further deterioration of her
condition. And it, accordingly, held that Dr Sher‟s failure to refer Ms Mini to
hospital probably materially contributed to her deterioration. The appellants
appeal to this court against the high court‟s order. They do so with the leave
of this court.

Factual background
[6] Ms Mini testified in the high court and relied on four witnesses in
support of her case. They were Ms Colleen Bathurst (Ms Bathurst), Dr APJ
Botha (Dr Botha), a specialist physician, Professor DA Hellenberg (Professor
Hellenberg), a general practitioner and Dr FG Hemp (Dr Hemp), a clinical
psychologist. Both Drs Chapeikin and Sher also testified in the high court and
relied on Dr SM Kesler (Dr Kesler), a neurologist, in support of their case.

[7] Ms Mini‟s testimony was broadly this. She was 53 years old when she
suffered the stroke. She was a legal secretary at a firm of attorneys in Cape
Town at the time. She had suffered from hypertension since 2004 for which
she took Adco-Retic tablet, an over the counter tablet with diuretic and

antihypertensive effect. In 2005 she was treated for hypertension at Goodcare
Medical Centre, Claremont (Goodcare) where her son, Darren Mini (Darren),
worked as a practice manager. Both her parents had suffered from
hypertension. Her mother had died in 2004 as a result of a stroke. Her father,
who was 84 years old at the time of the trial, had also suffered a stroke in
2006. He was fortunate to have survived and had fully recovered.

[8] On the morning of 17 April 2007, Ms Mini travelled to work by train from
Plumstead to Cape Town. She had not taken her Adco-Retic tablet that
morning and nor had she eaten breakfast. At about 10h00 she experienced a
feeling of light-headedness. She ate breakfast and took an Adco-Retic tablet.
A few minutes later she felt better and returned to her desk where she
continued with her typing for the day. At about 11h00 she tripped twice while
fetching documents from a printer. She continued typing until about 16h00,
when she realised that she was typing „a whole lot of nonsense‟. She became
concerned and decided to alert her friend, Ms Bathurst, the receptionist to her
condition. As she stood up at her desk she felt dizzy. She experienced
difficulty walking to the reception area and held onto the furniture. She
described her walk as „lopsided to my right; it felt as though I wanted to fall to
my right‟. On reaching the reception area, she informed Ms Bathurst that she
was unable to travel home by train as she was unwell.

[9] Ms Bathurst testified that on seeing Ms Mini she noticed that something
was „seriously wrong‟ as she seemed disorientated, walked in a lopsided
manner, slouched while standing and spoke unusually slowly. Since Ms
Bathurst‟s mother had suffered two strokes, she was able to recognise Ms
Mini‟s symptoms and informed her that she was having a stroke. She
suggested to Ms Mini that she see a doctor. She then helped Ms Mini walk
back to her desk. Ms Mini supported herself by holding onto the wall as she
walked. A short while later they returned to the reception area and Ms Mini
called her friend (Errol) to fetch her from work. Errol arrived at about 18h00.
Although Ms Bathurst assisted Ms Mini by guiding her down the stairs to the

car and into the car, Ms Mini was able to walk on her own. Errol drove Ms Mini
to her son Darren‟s home in Wynberg to tell him about her condition. Darren
was concerned and suggested that she see a doctor in Landsdowne. Errol
then drove Ms Mini to Dr Chapeikin‟s surgery in Landsdowne. At that point Ms
Mini‟s speech was slightly slurred. They arrived just before 19h00. Ms Mini
completed the details on the medical file, paid a fee of R150 and waited to
see Dr Chapeikin. The consultation with Dr Chapeikin took place at
approximately 19h15. He came into the reception area before walking back
into his consulting room. On Ms Mini‟s version, she followed him into his
consulting room by holding onto the wall for support as she felt unsteady. The
consultation lasted about half an hour.

[10] Ms Mini‟s version of the consultation with Dr Chapeikin was this. Dr
Chapeikin took her blood pressure and asked her to provide a urine sample
which she did. He asked her what her symptoms were and she told him about
her dizziness at 10h00 that morning, as well as how she felt at 16h00 that
afternoon when she realized that she was typing „nonsense‟. She told him that
she felt dizzy when she stood up at her desk and that she had experienced
difficulty walking to the reception area at work. Dr Chapeikin tested her eye
reflexes using his finger. She complained of a slight earache. He examined
her ears and indicated that she seemed to have an imbalance. She described
the right side of her body as feeling lopsided and asked him if she was
experiencing a stroke. Dr Chapeikin dismissed that suggestion with a hand
motion, as if to suggest that it was not a stroke. On Ms Mini‟s version, he did
not ask and she did not tell him about previous strokes in her family. He
prescribed Prexum for her high blood pressure and Mitil for her imbalance. Dr
Chapeikin booked her off work until 23 April 2007. He told her to go home for
the evening, but that if her condition deteriorated she should return on
Monday the following week.

[11] When Ms Mini left the consultation she walked at a slower pace than
before. On the way home, Errol stopped at a pharmacy where she bought

only the Mitil, because she did not have sufficient money to buy the Prexum.
Darren brought the Prexum to her the next morning. She felt very ill when she
arrived home and felt worse the next morning (18 April 2007). The entire right
side of her body from shoulder to foot felt heavier. She could not write
properly and there was a slight drag on her foot. At approximately 08h30, she
telephoned her employer, Ms Nicola Caine (Ms Caine), who arranged for her
to see Dr Sher. She consulted Dr Sher at about 12h30. She said she
supported her right arm with her left arm, as it felt heavy. Her walking was
slightly worse than the day before. She felt unsteady and held onto the wall
for support, as she followed Dr Sher into his consultation room. She related
the events of the previous day to him, including that she had consulted Dr
Chapeikin who prescribed Prexum and Mitil. She also informed Dr Sher that
her hand felt lame; that her leg did not feel quite right; that she struggled to
walk; and that the right side of her body felt heavy.

[12] Ms Mini‟s version of the consultation with Dr Sher was that he took her
blood pressure and examined her legs. He asked her to bend her right knee,
and examined both her foot and ankle. He advised her that she had suffered a
„slight stroke‟. He instructed her to continue taking the Prexum and to take half
a Disprin as well. He did not refer her to a hospital and there was no
discussion about hospitals. Instead, he asked her to return on Monday, 23
April 2007. He did not ask her about previous strokes in her family. After the
consultation Dr Sher called Ms Caine with Ms Mini‟s consent and, in her
presence, reported to Ms Caine that Ms Mini had suffered a slight stroke and
would be put off work for two to three weeks. Before leaving, she made an
appointment to see Dr Sher again on 23 April 2007, as instructed.

[13] Ms Mini‟s condition deteriorated sharply after she was sent home by Dr
Sher. According to Ms Mini, the right side of her body became totally lame by
the morning of 19 April 2007. She telephoned Ms Bathurst at work and asked
her to contact Dr Sher. On Ms Mini‟s version, she was told by Ms Bathurst
that Dr Sher had advised that she continue taking the Prexum tablets, and

that she would feel better after four days. She was dissatisfied with Dr Sher‟s
advice as she was „totally lame‟ by that stage. Ms Mini, thereafter, phoned
Darren at Goodcare. He put Ms Mini in touch with Dr Noor, who advised her
that she should have been referred to a hospital on account of the stroke that
she had suffered. Dr Noor informed Ms Mini that she would hand Darren a
note referring her to Victoria Hospital in Wynberg. She only went to Victoria
Hospital on the evening of 20 April 2007 as she had to first wait for Darren to
bring her the referral note and, thereafter, wait for Errol to finish work before
driving her to the hospital. Both Darren and Errol carried her to the car as she
was unable to walk. She was admitted to Victoria Hospital at about 20h30 that
evening and remained there until 26 April 2007. The relevant clinical notes
record that she was referred to a physician as a result of a cerebral vascular
accident (CVA) and right-sided hemiplegia (paralysis).

[14] On 14 May 2007, Ms Mini was admitted to the Western Cape
Rehabilitation Centre (the rehabilitation centre) where she received
physiotherapy, occupational therapy and counselling to treat her right sided
hemiplegia. The medical notes from the rehabilitation centre indicate that
upon admission Ms Mini had difficulty washing and dressing herself and was
unable to cook. She was able to walk but had to hold onto furniture for
support. She eventually had to use a walking frame. She was fully continent
and had good movement in her right arm. The plan on admission was to
improve her mobility (gait rehabilitation) and to monitor her blood pressure. By
22 June 2007, she showed some improvement in the functioning of her upper
limbs and, although wheelchair bound, was in the process of gait-regaining.
She was discharged on 5 July 2007. Ms Mini returned to work on 9 July 2007.
However, on her return she worked on the switchboard and not as a legal
secretary. Following an examination by Dr Hemp (the clinical psychologist) to
assess her progress, Ms Mini was boarded, in October 2012, because she
could no longer cope at work or meet the requirements of her position.

[15] When Ms Mini consulted Dr Chapeikin, on 17 April 2007, he had been
practising as a general practitioner for more than 40 years, and had treated
numerous stroke patients. Dr Chapeikin‟s version of the consultation with Ms
Mini was as follows. Ms Mini informed him about the history of her symptoms
and what happened at work that day. She was anxious that she might be
having a stroke and informed him that both her parents suffered from
hypertension; that her mother had passed away as a result of a stroke and
that her father had suffered a stroke as well.  When Ms Mini complained about
a lame feeling on her right side and slight dizziness, the first thing that came
to his mind was a stroke. He observed her as she stepped onto the two step
ladder to get onto the examining bed, which she managed „quite simply‟. He
also observed her as she walked to the toilet to produce a urine sample. Her
gait was normal. Although initially denying this, under cross-examination Ms
Mini stated that she could not recall whether she had to hold onto anything for
support while walking to the toilet.

[16] Dr Chaipeikin tested for nystagmus (dancing eyes), the presence of
which would have explained the dizziness and ear imbalance, but there was
none. There were no signs of muscle weakness or neurological abnormality,
and her reflexes and sensations were normal. Her pulse was regular and
there was no atrial fibrillation. Ms Mini‟s blood pressure (160/100) was not
alarmingly high. There were no bruits2 and her cardio-vascular system was
normal. Her chest and abdomen, and haemoglobin were normal. He
diagnosed her as having hypertension, an ear imbalance and anxiety. He
prescribed Prexum for her blood pressure and Mitil for her dizziness and
anxiety. He advised her that should the symptoms persist or get worse, she
should contact him immediately. He put her off work for hypertension. He was
satisfied that there were no signs of stroke. He said that had she come to see
him earlier that day when the signs of stroke were evident, he would have
immediately referred her to hospital, but in the absence of clear signs of a
stroke, Ms Mini‟s condition did not warrant referral to a specialist physician or
a hospital. He made his clinical notes after she had left his consultation room.

2 A sound, especially an abnormal one, heard through a stethoscope.

[17] When Ms Mini consulted with Dr Sher, on 18 April 2007, he had been
practising as a general practitioner for almost 40 years. He first practised in
Oudtshoorn for about 20 years and, since 1992, had been practising in
Claremont. He had experience treating stroke patients. Ms Mini was referred
to him by Ms Caine, a patient of his and a senior attorney at the firm at which
Ms Mini had been employed. He had treated Ms Caine‟s children as well as
her parents who were good friends of his. According to Dr Sher, Ms Mini had
walked unaided into his consultation room. He disputed that she had held
onto the wall and explained that the paintings on the wall, and the chairs
alongside it, would have prevented her from doing so. He described Ms Mini‟s
complaint, in his clinical notes, as „a residual weakness of her right hand
during the day which spread to her right leg‟, because she told him that her
right hand had improved dramatically from the previous day. He observed Ms
Mini getting onto the examination bed by stepping on a two-step ladder,
unaided. He was able to recognise that he was dealing with a stroke from her
history of weakness in the right hand that spread to the right leg, and from her
neurological symptoms.

[18] Dr Sher examined Ms Mini‟s upper limbs. The reflexes in her arms
appeared to be identical. He found no definite sign of weakness in the right
hand and there was no difference between the strength in her right and left
hands. Having regard to power, tone and reflexes, he was able to detect
neurological damage to the right leg. Her left leg was stronger than the right,
and the knee reflex in her right leg was weaker than the left. He found a
residual weakness in Ms Mini‟s right leg, which indicated to him that it had
been worse the previous day. He found signs of long-standing hypertension
by examining her eyes. He measured Ms Mini‟s blood pressure with a
baumanometer − the well-known blood pressure machine with a bulb, cuff and
a column of mercury. He took six readings with this instrument and recorded a
blood pressure reading of 185/120, which he underlined in his clinical notes
as being the average of the six readings taken. Next, he measured Ms Mini‟s
blood pressure using a digital blood pressure machine, in order to
demonstrate to Ms Mini that her blood pressure was very high and that

uncontrolled blood pressure was the underlying cause of her stroke. He
obtained readings of 199/130 and 181/127, respectively.

[19] Dr Sher concluded that Ms Mini had suffered a mild stroke that had
reached its zenith. He reached this conclusion because she was able to walk;
sit down; provide a full history of her symptoms without any speech defect;
undress herself; get onto the examination bed; and her condition had
improved to the point where there were only signs of residual weakness. Dr
Sher prescribed Prexum in conjunction with a diuretic and half a Disprin. He
could not remember whether Ms Mini had told him that she was already taking
Prexum. He booked Ms Mini off work for two to three weeks and asked her to
see him again, for a follow-up consultation, on Monday, 23 April 2007.

[20] Dr Botha and Professor Hellenberg, on whose testimony Ms Mini
relied, were of the opinion that the assessment of Ms Mini as recorded in the
clinical notes of Dr Chapeikin was inadequate as he recorded no diagnoses,
and his failure to refer her to hospital for further assessment and thrombolytic
therapy deviated from the standard of care expected from a general
practitioner. Dr Botha explained the difference between a transcient ischaemic
attack (TIA) and an ischaemic or thrombotic stroke. He explained that a TIA is
technically not a stroke but may be viewed as „a threatening stroke‟ where
there is an insufficient supply of blood to the brain and the symptoms last for a
short period of time (no longer than 24 hours). He said that an ischaemic or
thrombotic stroke occurs from impaired circulation in one or more blood
vessels of the brain due to thrombosis or embolism causing a cerebral infarct
(stroke). He said that in some cases, the blood vessel ruptures and the blood
flows into the brain causing the blood to clot (haemorrhagic infarct). He said
that intravenous thrombolytic treatment was indicated for ischaemic or
thrombotic strokes as it helped dissolve the clot quickly. Administering
thrombolytic therapy within three to four and a half hours of the onset of stroke
could help limit stroke damage and disability. Dr Botha, however, conceded
that although he had treated hundreds of stroke patients, he had relatively

little experience in administering thrombolytic therapy to them. He also
conceded that the stroke which Ms Mini had suffered was not a „regular‟
ischaemic stroke but rather a „stroke in evolution‟, which has a „stuttering‟
progression. He said that a „stroke in evolution‟ is „a less well-defined concept‟
because there are no clear statistics. He acknowledged that thrombolytic
treatment in the context of a „stroke in evolution‟ was questionable, because
of the difficulty in defining the „time window‟. In addition, he accepted that
although physicians were involved in the treatment and management of
stroke, this fell within the area of specialty of neurologists.

[21] Dr Kesler, on whose testimony the appellants relied, was of the opinion
that Dr Chapeikin‟s failure to diagnose the stroke was reasonable on the basis
that Ms Mini had suffered a „stroke in evolution‟ as opposed to a „regular‟
stroke and, in the circumstances, had taken the best possible action. He said
that even if Ms Mini had been referred to hospital by Dr Chapeikin on the night
of 17 April 2007, she would have not qualified for thrombolytic therapy
because the onset of her stroke occurred outside of the three hour window
period. He said that since thrombolytic therapy had to be preceded by a
computerised tomography (a CT scan), it was unlikely that Ms Mini would
have made the cut-off time of three hours to qualify for it, and would likely
have been turned away and not admitted to hospital.

[22] In relation to Dr Sher, Dr Botha maintained that although he had
diagnosed Ms Mini as having suffered a stroke, he was negligent in: (a)
overlooking Ms Mini‟s elevated high blood pressure readings coupled with her
neurological symptoms, and (b) failing to refer her to hospital where she
would have, in all probability, received hypertensive emergency treatment and
blood pressure control, stabilisation and reduction in a controlled clinical
environment. Dr Kesler, on the other hand, was of the opinion that because
Ms Mini had suffered a „stroke in evolution‟ and not a „regular‟ stroke, it was
not unreasonable for Dr Sher to have misdiagnosed her condition as a stroke
that had reached its zenith and completed. He said that in view of the history

that Ms Mini had given to Dr Sher relating to her condition, on the day, it was
not unreasonable for Dr Sher to have concluded that the stroke had
completed. He was of the opinion that it is impossible for a doctor to detect
that a stroke has not completed and would proceed to become worse
because there are no indicators to that effect. He maintained that even if Dr
Sher had referred Ms Mini to hospital, her blood pressure would not have
been reduced aggressively because, in the case of an acute stroke, this is
contraindicated as it could cause renal or heart failure or increase the size of
a stroke (infarct). While Dr Kesler was prepared to defer to a physician on the
question of reducing a patient‟s high blood pressure aggressively where it was
not accompanied by a stroke, he was not prepared to do so in relation to an
acute stroke. He said that one of the consequences of an acute stroke is that
elevated levels of blood pressure eventually come down to treatable levels.

Issues in the appeal
[23]  As stated, the claim was brought in both contract and delict, however in
argument before us, it was only pursued in delict. Thus, the issues that arise
for determination are whether the failure of the appellants to correctly
diagnose, treat and refer Ms Mini to hospital for further specialised
assessment and treatment deviated from the standard of care expected of a
general practitioner and, if so, whether this failure caused or contributed to the
sequelae that she ultimately suffered. Whether the appellants are delictually
liable requires a consideration of whether the elements of wrongfulness,
negligence and causation have been established.

Wrongfulness
[24] Although the appellants deny wrongfulness in their plea, wrongfulness
was not in issue before the high court or in this court. This, in my view, was a
judicious concession because assuming the appellants could have prevented
further deterioration (in the form of the pleaded sequelae setting in) of Ms
Mini‟s condition by referring her to hospital but negligently failed to do so, then

as matter of public or legal policy, the appellants should be held liable for the
damages arising from their omission.3

Negligence
[25] In Kruger v Coetzee4 this court articulated the proper approach for
establishing the existence of negligence as follows:
„For the purposes of liability culpa arises if -
(a)
a diligens paterfamilias in the position of the defendant -
(i)
would foresee the reasonable possibility of his conduct injuring another in his
person or property and causing him patrimonial loss; and
(ii)
would take reasonable steps to guard against such occurrence; and
(b)
the defendant failed to take such steps.‟

[26] In a recent re-statement of the test in Oppelt v Department of Health5
Cameron J explained what it involves:
„In our law Kruger embodies the classic test. There are two steps. The first is
foreseeability ─ would a reasonable person in the position of the defendant foresee
the reasonable possibility of injuring another and causing loss? The second is
preventability ─ would that person take reasonable steps to guard against the injury
happening?
The key point is that negligence must be evaluated in light of all the circumstances.
And, because the test is defendant - specific (“in the position of the defendant”), the
standard is upgraded for medical professionals. The question, for them, is whether a
reasonable medical professional would have foreseen the damage and taken steps

3 Hawekwa Youth Camp & another v Byrne [2009] ZASCA 156; 2010 (6) SA 83 (SCA) para
22; Country Cloud Trading CC v MEC, Department of Infrastructure Development [2014]
ZACC 28; 2015 (1) SA 1 (CC) paras 20-22; ZA v Smith & another [2015] ZASCA 75; 2015 (4)
SA 574 (SCA) paras 14-20.
4 Kruger  v Coetzee 1966 (2) SA 428 (A) at 430E-H.
5 Oppelt v Department of Health, Western Cape [2015] ZACC 33; 2016 (1) SA 325 (CC)
paras 106-108. Dissenting judgment of Cameron J and Jappie AJ. The test for negligence
was not in issue in the dissent. At paragraph 60 of the majority judgment, the Constitutional
Courts endorsed the test formulated in Kruger as „[t]he proper approach for establishing the
existence or otherwise of negligence‟.

to avoid it. In Mitchell v Dixon the then Appellate Division noted that this standard
does not expect the impossible of medical personnel:
“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.”
This means that we must not ask: what would exceptionally competent and
exceptionally knowledgeable doctors have done? We must ask: “what can be
expected of the ordinary or average doctor in view of the general level of knowledge,
ability, experience, skill and diligence possessed and exercised by the profession,
bearing in mind that a doctor is a human being and not a machine and that no human
being is infallible”. Practically, we must also ask: was the medical professional‟s
approach consonant with a reasonable and responsible body of medical opinion?
This test always depends on the facts. With a medical specialist, the standard is that
of the reasonable specialist.‟ (Footnotes omitted.)

[27] A medical practitioner diagnosing and treating a patient is expected to
adhere to the level of skill, care and diligence possessed and exercised at the
time by the members of the branch of the profession to which he or she
belongs.6 Since the appellants were both general practitioners when they
treated Ms Mini in April 2007, their conduct must be assessed against the
standard of the reasonable general practitioner.

[28] As alluded to above, the nub of the dispute concerning the appellants‟
liability relates to their failure to make a correct diagnosis and to refer Ms Mini
to hospital for specialised observation, assessment and treatment.  In Mitchell
v Dixon,7 Innes ACJ said as follows in relation to the liability of a practitioner
for making a wrong diagnosis:
„A practitioner can only be held liable . . . if his diagnosis is so palpably wrong as to
prove negligence, that is to say, if his mistake is of such a nature as to imply absence
of reasonable skill and care on his part, regard being had to the ordinary level of skill
in the profession . . . . ‟

6 Topham v Member of the Executive Committee for the Department of Health, Mpumalanga
[2013] ZASCA 65; 2013 JDR 1059 (SCA) para 6.
7 Mitchell v Dixon 1914 AD 519 at 526.

Similarly, a practitioner‟s error in making the wrong choice or following the
wrong course is not necessarily negligent. The test is always whether the
practitioner exercised reasonable skill and care or, put differently, whether or
not his or her conduct fell below the standard of a reasonably competent
practitioner in the field. If the „error‟ is one that a reasonably competent
practitioner might have made, it will not constitute negligence.8

[29] Central to the determination of whether the appellants met the required
standard of care in failing to correctly diagnose, treat and refer Ms Mini to a
hospital, is the nature of the stroke which she suffered. Although little attention
was given to this question by the high court, the evidence reveals that the
condition that Ms Mini suffered was not a „regular‟ or „normal‟ stroke, but
rather a „stroke in evolution‟ which started on 17 April 2007 (sometime prior to
her having seen Dr Chapeikin) and took several days to complete. Dr Kesler
dealt comprehensively, in his testimony, with the manifestation of a stroke in
general and, in particular, a „stroke in evolution‟ which he also described as
„stroke in progress‟, „evolving stroke‟ or „stuttering stroke‟. He provided a
logical basis for concluding that Ms Mini had suffered the latter type of stroke.
In differentiating „a stroke in evolution‟ from a „normal‟ stroke, he explained
that a stroke in evolution:
(a)
is a rare and unusual phenomenon which is difficult to evaluate whilst
happening and can only be diagnosed with hindsight;
(b)
differs from other forms of strokes (such as embolic or ischaemic),
where a rapid onset of stroke is found, and a patient is expected to reach
maximum disability literally within a minute or two or an hour or two at the
most;
(c)
normally demonstrates maximum disability (retrospectively evaluated)
within a day or two at most ─ many patients will show a fluctuating clinical
course within the first hours of the onset of the event, present with a mild
deficit, thereafter improve slightly and then, despite standard basic treatment,
demonstrate much more severe stroke syndrome within a day or two.

8 Mitchell v Dixon at 526; Castell v De Greef 1993 (3) SA 501 (C) at 512A.

[30] Dr Kesler furthermore explained that in Ms Mini‟s case, the „stroke in
evolution‟ presented in an atypical fashion since it appeared to have a
stuttering course over a period of at least three days. He described the stroke
that afflicted Ms Mini as „one long unusual stroke in evolution‟. Dr Botha, on
whose testimony Ms Mini relied, struggled to offer a different explanation for
the manner in which her stroke presented itself. After some vacillation, he
provided the following explanation for Ms Mini‟s clinical course, which was
consistent with the opinion expressed by Dr Kesler:
„The only rational explanation that I have, [is] that there must have been a step-wise
stroke progression, or a stuttering stroke. I know that we wanted to move away from
the terminology, and Dr Kesler, we took it up with him as well, he was not happy with
it, because its concept is very vaguely described in the literature, and most people
want to move away from it. So that is our problem with that . . .. But that would make
perfect sense for me, because I don‟t have any other explanation why she
progressed in that way.‟

[31] The high court assessed the conduct of each of the appellants and, in
particular, their failure to refer Ms Mini to hospital against the South African
National Guidelines on Stroke and Transient Ischaemic Attack (TIA)
Management (the National Guidelines),9 which applied to the management of
strokes by medical practitioners in South Africa at the time of Ms Mini‟s stroke.
Its primary purpose was to facilitate optimum care of patients suffering from
stroke by early diagnosis and appropriate therapy with the aim of preventing
any secondary complications. The National Guidelines emphasised that:10
(a)
Any cerebrovascular event lasting less than 24 hours with full recovery
should be treated as a minor stroke (TIA).
(b)
The objectives of TIA treatment are to treat the condition as an
emergency (since TIA is the occurrence of an impending stroke) and to
prevent progression of the condition to an established cerebro-ischaemic
event by way of initiating early therapy.

9 The National Guidelines were published by the National Department of Health in 2001. They
were prepared in collaboration with the Provincial Departments of Health, universities, other
tertiary institutions and the Stroke Foundation of South Africa.
10 The National Guidelines at 6-8.

(c)
All health professionals including general practitioners should be
capable of identifying signs and symptoms of strokes including minor strokes.
(d)
A minor stroke is a powerful predictor of a more serious stroke.
(e)
A minor (TIA) should not be ignored. Patients with TIA must not be sent
home.
(f)
A minor or major stroke is a medical emergency. If possible, initial
contact with the patient should be in hospital. Home management should be
avoided as the first port of entry.
(g)
Every stroke patient (irrespective of where first seen) requires basic
urgent emergency treatment to improve cerebral performance.
(h)
It is essential to treat TIA or minor stroke in order to prevent a second
stroke or consequent permanent disability.

[32] The standard of treatment advocated by the National Guidelines was
that patients be referred to hospital for specialised treatment and preventative
treatment with a view to preventing a secondary stroke or consequent
permanent disability. Dr Botha and Professor Hellenberg endorsed the
National Guidelines as representing the standard of practice expected of a
general practitioner. Although Dr Kesler was critical of the National Guidelines
in certain respects, he acknowledged that they were operative and constituted
a clinical protocol and standardised care regime.

[33] Having found that Ms Mini suffered a further or consecutive stroke, the
high court concluded that the appellants were remiss in not administering
treatment aimed at preventing a further or secondary stroke. This finding was
premised on the central purpose of the National Guidelines, which was the
prevention of further or secondary strokes. In respect to Dr Chapeikin in
particular, the high court found:
„Chapeikin‟s conduct is inconsistent with the standards set out in the National
Guidelines on Stroke – a reasonable competent general practitioner would have

regarded the plaintiff‟s symptoms as a medical emergency and referred her to
hospital, to prevent further deterioration or a secondary stroke‟.
However, on the basis of the evidence of Drs Kesler and Botha that Ms Mini
suffered a „stroke in evolution‟, there was simply no basis for a finding by the
high court that further or consecutive strokes were involved. In my view, the
conduct of treating medical practitioners cannot be critically examined for
negligence without reference to the causal sequence or aetiology of the
disease or medical condition from which a patient actually suffered at the time
of presentation and treatment. For that reason, it was essential for the high
court to make a firm finding in relation to the precise nature of Ms Mini‟s
condition.

[34] However, it appears that in spite of what the evidence established, the
high court steered away from making a finding on whether Ms Mini suffered
various separate strokes with the passage of time (with the onset of the first
one being prior to her visit to Dr Chapeikin and the others sometime
thereafter), or whether she suffered a „stroke in evolution‟ which started at
approximately 16h00 on 17 April 2007 and ran its course over the next three
days. Rather ambivalently, it made allowance for the eventuality that Ms Mini
suffered a secondary stroke after consulting with the appellants, or a further
stroke that was in the process of developing by the time she consulted with Dr
Chapeikin. In so doing, it indicated that Dr Chapeikin appreciated that he was
dealing with the possibility of „a stroke developing‟ and conceded that the
problem with sending a patient with stroke home, was that the practitioner
might not be able to take steps to prevent a secondary event such as a
subsequent stroke. In addition, it emphasised the need for the administration
of treatment designed to prevent a second stroke or secondary event and
criticised Dr Sher for saying that Ms Mini did not suffer „another stroke‟ and,
for ascribing her deteriorating condition to the pattern of her stroke. The high
court concluded that had Dr Chapeikin referred Ms Mini to hospital (for
monitoring) her further deterioration „or the onset of a further stroke‟ would
have been detected early. This aspect was again touched upon in the
judgment in the application for leave to appeal. There, the high court not only

appeared to favour the onset of a „later serious stroke‟, but it also declared
that there was „nothing unusual‟ about the stroke which Ms Mini had suffered.
Moreover, it found that the deterioration of her condition „in the form of a more
serious stroke ─ was an entirely predictable event‟.

[35] These findings are, to my mind, inconsistent with the expert evidence.
Except for a minor difference of opinion concerning the exact label that should
be given to the nature of the stroke in question, the two experts were in
agreement that Ms Mini suffered a single stroke that evolved or progressed
over time in a „stuttering‟ fashion. The finding that there was nothing unusual
about the stroke that Ms Mini suffered is also inconsistent with their evidence.
It seems to me that what the high court failed to acknowledge, is that both
appellants were at different junctures confronted with a patient suffering from
a highly abnormal condition and that liability, especially liability based merely
on a wrong diagnosis, could not ensue unless it was clear that the diagnoses
were palpably wrong.11 Its‟ failure to appreciate that the appellants were
confronted with a „stroke in evolution‟ led the high court to express views and
make findings premised on measures designed to prevent a secondary or
subsequent stroke − which plainly did not eventuate.

[36] Furthermore, the high court‟s failure to recognise that Ms Mini was all
along in the throes of one continuing stroke in progress, led it to disregard the
testimony of Dr Kesler that in respect of a „stroke in evolution‟ the prevention
of a secondary stroke does not come into play (at least not during the acute
stage, which was when the appellants were involved). Essentially, what the
high court was required to determine was not what steps the appellants ought
to have taken in order to prevent a secondary event, but rather what steps
they reasonably should or could have taken in an effort to arrest or reverse
the progress of the evolving stroke. On this aspect, the high court ignored the
testimony of Dr Kesler that Ms Mini was out of time for thrombolytic treatment,

11 Mitchell v Dixon at 526, referred to in Louwrens v Oldwage [2005] ZASCA 81; 2006 (2) SA
161 (SCA) at 171A-B. A diagnosis is „palpably wrong‟ if it is one that could not be arrived at by
a reasonably competent general practitioner.

the administration of which (on Dr Botha‟s version) is in any event
questionable in a patient who is in the throes of a „stroke in evolution‟. As Dr
Kesler explained, even if Dr Chapeikin had referred Ms Mini to hospital it
would have made no difference to her outcome as nothing special could be
done for her ─ other than to give her Prexum (and angiotensin-converting-
enzyme inhibitor (ACE inhibitor)) which was in any event also what Dr
Chapeikin had prescribed.

[37] In relation to the use of aspirin (one of the „other management
therapies‟ generally prescribed to address the progression of stroke) which
was purportedly withheld from Ms Mini due to Dr Chapeikin‟s failure to refer
her to a hospital, Dr Kesler explained that although it is standard treatment for
secondary prevention of stroke, its administration in the context of an acute
stroke is controversial. Dr Kesler‟s opinion on this aspect was consistent with
the American Heart Association‟s Guidelines for the Early Management of
Adults with Ischaemic Stroke (the AHA Guidelines) which state that (a) the
primary effect of aspirin seems to be the prevention of recurrent events and
(b) it is not clear whether that agent limited the neurological consequences of
the acute ischaemic stroke itself.12 Notably, the American Academy of
Neurology affirmed the value of the AHA Guidelines as an education tool for
neurologists. The AHA Guidelines were canvassed in the evidence of Dr
Kessler, but not challenged.

[38] Dr Kesler testified that even in the case of a „normal‟ stroke there is
little that can be done to halt its progression other than thrombolytic therapy
which must be administered within three hours of the onset of a stroke.
Principally for this reason, he maintained that the National Guidelines were
overly generous in suggesting that patients with stroke should be urgently

12 H Adams MD et al „Guidelines for the Early Management of Adults with Ischemic Stroke: A
Guideline From the American Heart Association/American Stroke Association Stroke Council,
Clinical Cardiology Council, Cardiovascular Radiology and Intervention Council, and the
Atherosclerotic Peripheral Vascular Disease and Quality of Care Outcomes in Research
Interdisciplinary Working Groups: The American Academy of Neurology affirms the value of
this guideline as an education tool for neurologists‟ (2007) at 1681.

sent to hospital after TIA or minor stroke (in the absence of other
complications such as, for instance, an inability to swallow, incontinence,
immobility or the danger of aspiration). Significantly, in this regard, Dr Kesler
explained:
„I might say that I‟ve had patients in hospital who presented with a stroke and despite
being in hospital under let‟s say near optimum circumstances have continued to
deteriorate in front of one‟s eyes and although many of the recommendations [in the
National Guidelines] are part fact and generalist in recommending that patients . . .
go to hospital if they show signs, there‟s not terribly much that can be done even in
hospital where the patient is lying there before your eyes.‟

[39] The high court‟s finding that Dr Chapeikin‟s conduct was inconsistent
with the standards set out in the National Guidelines as a basis for concluding
that a reasonably competent general practitioner would have regarded her
condition as a medical emergency and referred her to hospital is, therefore,
not supported by the evidence.  Crucially, the high court failed to consider the
evidence of Drs Kesler and Botha who agreed that the diagnosis of the „stroke
in evolution‟ can only be made ex post facto, with the wisdom of hindsight
once the stuttering stroke has come to an end. The high court also failed to
have due regard to Dr Kesler‟s testimony that because Ms Mini was alert, able
to walk and communicate with no demonstrable signs of weakness at the time
she saw Dr Chapeikin, she would probably not have been admitted had he
referred her to Groote Schuur or Victoria hospitals.

[40] The high court found that Dr Chapeikin‟s testimony that he was
satisfied that there were no signs of stroke even if subtle, was unsupportable
because he knew that Ms Mini‟s symptoms were indicators of a developing
stroke and he foresaw a deterioration of her condition. There is no basis for
this finding on the evidence as Dr Chapeikin was alive to the serious risk that
Ms Mini‟s symptoms might be indicative of a stroke. Not only was this his own
assessment of the possibility, but Ms Mini had directly raised this with him and
referred him to her family history. The high court acknowledged as much
when it found:

„In the circumstances, and despite the fact that Chapeikin‟s clinical notes are
deficient, I do not think it can be said that his (or Dr Sher‟s) failure to follow the three-
stage assessment constitutes non-compliance with the required standard of care, or
negligence.
For these reasons, it is unnecessary to decide the question whether Chapeikin failed
to elicit a proper history from [Ms Mini]. Moreover, nothing turns on this as
Chapeikin‟s evidence is that he was aware of the fact that both [Ms Mini‟s] parents
had suffered a stroke. It is also not disputed that [Ms Mini] was anxious because she
thought that she was having a stroke and that she conveyed this to Chapeikin.‟
Dr Chapekin testified that after Ms Mini had expressed anxiety about having
had a stroke and related her family history to him, he tested for all the relevant
signs of a stroke and found none present. He was concerned about the level
of Ms Mini‟s blood pressure and in light of her complaint of dizziness,
concluded that medication for high blood pressure and anxiety should be
prescribed. That is what he did, and he rightly and properly indicated to her
that if her condition worsened she should call him immediately. However,
when her condition did deteriorate, she failed to call him. He said that if she
had done so, he would have immediately referred her to hospital. He likewise
said that had she come to see him three hours earlier when the signs of
stroke were evident, he would have referred her to hospital.

[41] The high court rejected the evidence of Dr Chapeikin on the further
basis that to accept that he had not found signs of stroke on examination of
Ms Mini, would suggest that she was either mistaken or was lying about the
symptoms she was experiencing or that they must have resolved. In arriving
at these conclusions, the high court disregarded the evidence of Dr Botha
that, at the time when Ms Mini was seen by Dr Chapeikin, the neurological
deficit might have been such that it was too early for the physical weakness to
have developed. Notably, it was common cause that at the time of her
consultation with Dr Chapeikin, Ms Mini was very anxious and that Dr
Chapeikin was of the view that her presenting symptoms could have been
caused by anxiety, which is a common explanation for symptoms such as
dizziness and lameness of which she complained. He, therefore, prescribed

Mitil (an agent used to alleviate dizziness, especially if there is anxiety) and
advised her that if this reduced her anxiety, then her symptomology would
improve. The high court furthermore disregarded the evidence of Dr Kesler
that the symptoms which Ms Mini complained of, namely dizziness and a focal
lameness or a feeling of numbness affecting only one side ─ the arm, are
known to be common symptoms of anxiety which mimic stroke symptoms.

[42] Turning then to Dr Sher‟s conduct, he diagnosed Ms Mini as suffering
from hypertension with a mild stroke. He testified that he was aware that he
was dealing with a stroke because of Ms Mini‟s history (which she related to
him) of weakness in her right hand which had spread to her right leg. He said
that on examining Ms Mini, he focussed on her neurological symptoms but it
was difficult to find any definite sign of weakness in her right hand; the
strength in her right hand was no different from her left. He, however, went on
to say that having tested the strength, tone and reflexes in her legs, he found
neurological damage to the right leg. Although Ms Mini had described her
right leg as being worse the previous day, on examination Dr Sher found that
the weakness had improved and that only a residual weakness remained.
Hence, in his clinical note he wrote:
„C/o weakness (R) hand yest am –> (R) leg. O/E Residual weakness (R) leg ± R
hand‟.
Dr Sher explained the note to mean that Mini told him:
„(T)hat since the previous morning she had experienced a weakness in the right hand
and during the day and I haven‟t put a timeframe on this in my notes this spread to
her right leg.‟ He also explained that on examination (O/E) it was difficult to find
any sign of weakness in the right hand „and hence in my notes you will see a
plus or minus right hand‟.
From a description of Ms Mini‟s history coupled with the results of his
extensive examination of her, Dr Sher concluded that she had suffered a
stroke the previous morning which had gone through various phases and had
improved to the point where there were only residual signs, thus indicating

that it had reached its zenith. He did not consider that it would worsen
because the signs indicated improvement.

[43] The high court found that Ms Mini was subjected to a detailed cross-
examination on her version of her consultation with Dr Sher but did not
deviate from her account. It accordingly rejected the history of Ms Mini‟s
medical course, as recorded in Dr Sher‟s clinical notes, in favour of Ms Mini‟s
version. It found that Dr Sher was remiss in the management of Ms Mini as he
had no reason to consider that her condition had stabilised and that her stroke
had reached its zenith when he examined her. I consider these findings to be
clearly wrong as there was no evidentiary basis for the high court to disbelieve
Dr Sher on this aspect. What the high court failed to take into account were
the decisive concessions made by Dr Botha that at the time of consulting with
Ms Mini: (a) Dr Sher could not have foreseen that her stroke would progress
into a serious one and; (b) clinically, there was no way for him to establish the
further progression of her stroke (into the future); and (c) Dr Sher was,
factually, in a position to diagnose the stroke as having completed. The high
court also failed to have regard to Dr Kesler‟s testimony that it is clinically
impossible for a medical practitioner to detect that a stroke has not completed
as there are no indicators to that effect.

[44] Moreover, the high court failed to take into account that Ms Mini‟s
version of the events was contradicted by her response to the appellants‟
request for further particulars, where she unequivocally stated that the
manner in which her symptoms had manifested were as „noted by Dr Sher in
his consultation and examination note‟ − the very document which the high
court rejected as containing an untruth. The high court made no mention of
this pivotal concession in its judgment. It, furthermore, failed to take into
account the note written by Dr A Khan (Dr Khan), an independent practitioner
who had treated Ms Mini at the rehabilitation centre and had no relationship
with Dr Sher. Dr Khan wrote in the note, which he drafted a few months after
Ms Mini‟s stroke, that although Ms Mini felt some weakness in her right hand

on the day in question (17 April 2007) she nevertheless continued to work.
The contents of the note undermine Ms Mini‟s denial that her symptoms
manifested as a feeling of weakness in her right hand on the morning of 17
April 2007. Ms Mini conceded in cross-examination that Dr Khan wrote the
note at her request and that she proofread it, and corrected certain typing
errors, before obtaining the final version from him. This, the high court simply
ignored.

[45] It must be borne in mind that Dr Sher was called upon by Ms Caine
(Ms Mini‟s employer at the time) to give a second opinion. She was a
longstanding patient of his and an attorney who specialised in medical
negligence matters. As such, the probabilities dictate that he would have been
thorough in his examination of Ms Mini, and would have taken detailed clinical
notes in order to be able to give Ms Caine proper feedback, which he duly did.
Aside from Dr Sher‟s own testimony of his telephonic discussion with Ms
Caine on 18 April 2007 concerning Ms Mini‟s condition, there is no evidence
on record in relation to what Ms Caine had said to him in this regard.
Accordingly, the high court‟s finding that it is improbable that Ms Caine would
not have told Dr Sher what had happened to Ms Mini at work the previous day
is, in my view, based on mere conjecture as Ms Caine did not testify at the
trial. In any event, Ms Caine could never have told Dr Sher what Ms Mini‟s
symptoms were the previous day, as it is clear from Ms Bathurst‟s testimony
that she did not tell Ms Caine what Ms Mini‟s symptoms were on 17 April 2007
or at what time, on that day, she first experienced them.

[46] The high court also erred in rejecting Dr Sher‟s explanation: (a) for why
the two blood pressure readings recorded in his clinical notes („199/130‟ and
„181/127‟ respectively) were not to be trusted, and (b) that he based his
decision, in relation to the management of Ms Mini‟s high blood pressure, on
the first recorded reading (185/120) he obtained by using a baumanometer
and not on the last two readings, from the digital instrument. The latter finding
was inconsistent with Dr Sher‟s unchallenged evidence that he took about six

readings using a baumanometer and recorded a blood pressure of 185/120,
which he underlined in his notes as being the average of the six readings that
he took. And it was on this reading that he based the management of Ms
Mini‟s blood pressure. The former finding was also inconsistent with Dr Sher‟s
unchallenged evidence of the reason for taking the last two readings with the
cheap and unreliable digital device which had been given to him by a
pharmaceutical company. He explained that he used the digital device
because, unlike the baumanometer, it had a screen that displayed the blood
pressure readings which he could show to Ms Mini in order for her to see the
readings for herself. He said that when he took these readings he was not
concerned with their accuracy, but:
„My main and only purpose was to show Ms Mini the nature of her underlying cause
of her stroke which was her uncontrolled blood pressure.‟
He said that the inaccuracy of the readings was illustrated by the difference in
the two systolic readings where one was 199 and the other 181. He explained
further that:
„There is a difference between the two [readings] and I think that 18 millimetres is not
an accurate result and this is an example of why I say the [digital] machine is not very
reliable.‟
When asked which of the readings he would use in the future management of
Ms Mini‟s condition, he responded:
„I would totally ignore the digital readings, I would use my own mean (average)
reading that I took great trouble in establishing.‟
In cross-examination he said:
„The readings confirmed she had high blood pressure, in fact the readings were
higher than the readings that I had obtained taking them correctly [with a
baumanometer] but it‟s a way of me cross-checking myself that I‟m not making a
mistake in my assumption. So it‟s just a bit of backup on my part, it‟s not something
that I would solely use to treat hypertension. I do not give it enough weight to be that
reliable.‟
It is clear from this that Dr Sher did not use the readings taken with the digital
device in the management of Ms Mini‟s high blood pressure. I, therefore, see

nothing implausible in his explanation for taking the additional readings with
the digital device. His explanation is consistent with the expert testimony of Dr
Kessler that the inexpensive digital device used by Dr Sher (for the last two
readings) was at times not very accurate and should not be relied upon. Thus,
having regard to Dr Sher‟s unchallenged evidence on this aspect, I consider
the high court to have erred in characterising Dr Sher‟s explanation for taking
the last two readings as an afterthought to justify his failure to send Ms Mini to
the hospital on the basis of the high blood pressure readings.

[47] For these reasons, I consider the high court to have erred in finding
that the appellants were negligent for failing to correctly diagnose Ms Mini‟s
condition and for failing to refer her to hospital for specialised observation,
assessment and treatment.

Causation
[48] In the ordinary course a finding that the appellants are not negligent
would conclude the enquiry into their delictual liability, but here I find it
necessary to consider the element of causation simply to illustrate that even if
it were found that the appellants were negligent, Ms Mini would still not have
succeeded in proving that they were liable, as she had failed to establish a
causal link between their failure to refer her to hospital and her pleaded
sequelae. That said, it is common cause that Ms Mini‟s stroke was not caused
by any act or omission on the part of the appellants, but that it was the result
of long-standing hypertensive disease or poorly controlled hypertension.

[49] The test to be applied to the question of causation is the well-known
„but-for test‟ as formulated in International Shipping Co (Pty) v Bentley.13 In ZA
v Smith14 this court reiterated what the enquiry entails by stating as follows:

13 International Shipping Co v Bentley (Pty) Ltd [1989] ZASCA 138; 1990 (1) SA 680 (A) at
700E-J.
14 ZA v Smith & another [2015] ZASCA 75; 2015 (4) SA 574 (SCA) para 30.

„What [the but-for test] essentially lays down is the enquiry – in the case of an
omission – as to whether, but for the defendant‟s wrongful and negligent failure to
take reasonable steps, the plaintiff‟s loss would not have ensued. In this regard this
court has said on more than one occasion that the application of the “but-for test” is
not based on mathematics, pure science or philosophy. It is a matter of common
sense, based on the practical way in which the minds of ordinary people work,
against the background of everyday-life experiences. In applying this common sense,
practical test, a plaintiff therefore has to establish that it is more likely than not that,
but for the defendant‟s wrongful and negligent conduct, his or her harm would not
have ensued. The plaintiff is not required to establish the causal link with certainty
(see eg Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA)
([2002] 3 All SA 741; [2002] ZASCA 79) para 25; Minister of Finance & others v Gore
NO 2007 (1) SA 111 (SCA) ([2007] 1 All SA 309; [2006] ZASCA 98) para 33. See
also Lee v Minister of Correctional Services 2013 (2) SA 144 (CC) (2013 (2) BCLR
129; [2012] ZACC 30) para 41.)‟
The Constitutional Court has recently reaffirmed the continued relevance of
this approach to causation.15 In accordance with the „but-for test‟, the high
court prefaced it‟s enquiry into causation by asking whether it could be said
that it was more probable than not, that but for the negligence of the
appellants, Ms Mini‟s sequelae would have been reduced had she been
referred to hospital for specialised assessment, observation and treatment.
Then on the basis of certain concessions made by Dr Chapeikin, it found that
it was likely on the evidence, and a sensible retrospective analysis of the
situation, that early intervention in Ms Mini‟s condition by referral to hospital
would materially have affected the outcome of her stroke, as it was likely that
she would have received care and management, including the immediate
administration of anticoagulant agents such as aspirin, prevention of
dehydration and her blood pressure would have been controlled and
monitored.

[50] With respect to Dr Sher, the high court found that the evidence
established that had he referred Ms Mini to hospital, it was likely that she

15 Mashongwa v Passenger Rail Agency of South Africa [2015] ZACC 36; 2016 (3) SA 528
(CC) para 65.

would have received hypertensive emergency treatment and blood pressure
control; stabilisation and reduction in a controlled clinical environment, and
thus further elevation of her blood pressure would have been prevented.
These findings, in my view, are not borne out by the evidence. The finding
concerning the need to have Ms Mini submitted to hypertensive emergency
treatment (which only impacts on the liability of Dr Sher) fails to take into
account the evidence of Dr Kesler that the administration of aggressive
hypertension therapy on a stroke patient (in the absence of other life-
threatening complications such as aortic dissection, pulmonary oedema,
acute heart failure or renal failure) is highly contentious. The high court also
failed to have regard to the caution sounded in the National Guidelines16
which state:
‘Do not lower blood pressure
…
Only lower blood pressure in situations of emergency hypertensive complications e.g.
aortic dissection or pulmonary oedema. A blood pressure drop of more than 15% in
24 hours is likely to extend the infarct‟.
Similarly, the South African Hypertension Guideline, 2006,17 which were also
relied on by Ms Mini and canvassed with Dr Kesler, in cross-examination,
state that:
„Severe hypertension is common in the setting of acute stroke. There is a debate
about whether or not this should be treated, and if so, to what immediate goal BP. . . .
Do not lower BP in acute stroke or use antihypertensive medication unless the BP is
SBP>220mmHg or DBP>120mm Hg, as a rapid fall may aggravate cerebral ischemia
and worsen the stroke.‟

[51] Dr Kesler emphasised, in his testimony, the dangers inherent in
lowering the blood pressure of a patient with acute stroke as it might extend
the stroke (infarct) and worsen the outcome. He gave compelling reasons why
it is acceptable practice that blood pressure of patients in acute stroke should

16 The National Guidelines at 8.
17 Y K Seedat et al „South African Hypertension Guideline 2006‟ (2006) 96 No 4 (Part 2)
South African Medical Journal 335 at 353-354.

only be lowered in situations of life threatening emergency, which was not the
case with Ms Mini. He furthermore explained that he would in general not treat
stroke patients‟ blood pressure before expiry of a week following acute stroke.
Dr Sher, who subscribed to this view, explained how he had, with the passage
of time through personal experience and on the basis of trial and error, found
that stroke patients deteriorated when their blood pressures were lowered. He
had come to the conclusion that rapid lowering of blood pressure was
deleterious to the patient.  It follows from this that the high court‟s finding that
had Ms Mini been referred to hospital she would have been managed as a
case of „hypertensive emergency‟ is not supported by the evidence.

[52] In Medi-Clinic Ltd v Vermeulen18 this court, citing its earlier decision in
Michael & another v Linksfield Park Clinic (Pty) Ltd & another,19 stated that:
„…[W]hat 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 or 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 simply to
express a preference for 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.‟
The evidence established that Dr Kesler had practised as a neurologist since
1988. His expertise was in general aspects of neurology, which included
management and treatment of stroke patients. As conceded by Dr Botha, the
management and treatment of strokes is the specialist field of practice of
neurologists and not physicians like himself. The testimony of Dr Botha
concerning the aggressive lowering of blood pressure, through the

18 Medi-Clinic Ltd v Vermeulen [2014] ZASCA 150; 2015 (1) SA 241 (SCA) para 5.
19 Michael & another v Linksfield Park Clinic (Pty) Ltd & another [2001] ZASCA 12; 2001 (3)
SA 1188 (SCA) paras 37-39.

administration of intravenous anti-hypertension agents, in a patient with an
acute stroke was contradictory and at odds with protocols presented to the
high court. Dr Botha approached the matter on the basis that Ms Mini was a
hypertensive patient as opposed to one who was in the throes of a stuttering
or evolving stroke. Dr Botha furthermore paid no attention to the risks involved
in aggressively lowering the blood pressure of a patient in the throes of a
stroke. Dr Kesler, on the other hand, in accordance with hypertension
protocols and best practice, stated that it was extremely dangerous and
negligent to administer intravenous hypertensive therapy to a patient in the
throes of a stroke.

[53] Dr Kesler, in my view, provided a credible and logical basis for
concluding why aggressively reducing the high blood pressure in a stroke
setting is contraindicated. Not only had the high court erred in preferring the
evidence of Dr Botha over Dr Kesler on this aspect, but it also erred in failing
to take into account the evidence of Dr Kesler that he, in any event, agreed
with the acute pharmacological/drug management that had been prescribed
by the two appellants − in the case of Dr Chapeikin, an ACE inhibitor Prexum
and, in the case of Dr Sher, the addition of half a Disprin in view of the level of
the blood pressure which Ms Mini presented with at the time. More
importantly, the high court simply disregarded Dr Kesler‟s testimony that this
was the line of treatment that Ms Mini would have received had she been
referred to hospital as in fact occurred after she was admitted to hospital on
20 April 2007. Accordingly, the high court ought to have rejected the evidence
of Dr Botha on this aspect as not being a credible and logical basis for the
administration of hypertensive therapy to Ms Mini.

[54] The high court‟s finding on causality is also contradicted by the
evidence concerning the effect of available and acceptable treatment options
for acute stroke. It bears repetition that Ms Mini‟s primary cause of complaint
against Dr Chapeikin was that he ought to have referred her to hospital for
thrombolytic treatment. The question as to whether Ms Mini was a candidate

for such therapy was the main focus of the evidence presented by Dr Botha,
to the extent that Dr Chapeikin was concerned. It became abundantly clear
from the established evidence that Ms Mini was not a candidate for such
therapy, firstly, due to the mildness of her condition and secondly, due to the
fact that she arrived at Dr Chapeikin‟s practice at a time when the window of
opportunity had already expired. The high court, however, dismissed this
issue by recording that in the light of its other findings it was not necessary to
determine whether or not Ms Mini would have been a candidate for
thrombolytic therapy.

[55] The high court, in my view, erred in so doing as the question of the
role that thrombolytic therapy plays in the treatment and cure of acute stroke
(in the sense of arresting or reversing the effects of stroke as opposed to
prophylactic treatment which is aimed at reducing the risk of a secondary
event), is central to the issue of causation. The evidence clearly shows that
even if Ms Mini had received thrombolytic treatment, which according to the
expert testimony was the only remedy of note available to address the
consequences of stroke, it would not have made any measurable difference
since on Ms Mini‟s own version, she had only arrived at Dr Chapeikin‟s
practice some three hours and a quarter after the onset of the stroke. It must
be borne in mind, in this regard, that thrombolytic treatment can only be
administered by specialists in the environment of an intensive care unit after
radiological studies have been performed, which would have logically taken
time to procure and arrange. In the scenario most favourable to Ms Mini,
taking into account factors such as travelling time, and assuming that she
would have been attended to and accepted as a patient by a hospital facility
forthwith and that scanning facilities would have been readily available, the
intravenous administration of thrombolytic agents would probably only have
been commenced with in the region of four and a half hours after the onset of
her stroke. That means that Ms Mini would, at a stretch, have fallen into what
was described in the evidence as the three to four and a half hour window of
opportunity.

[56] Dr Kessler testified that thrombolytic therapy is:
„a very, very useful treatment and it‟s incredibly gratifying to see patients who were,
you know, a few minutes ago lying there with a severe complete paralysis of an arm,
unable to speak and come back half an hour later and see them enormously better.
So it‟s really the first thing that we‟ve ever had in the treatment of stroke that has
been useful. However, in fact, the gains are overall fairly modest. Although
statistically significant, they are not – it‟s not as if everybody who receives it will do
well and return to normal function.‟
Dr Botha, who endeavoured to convince the trial court that Dr Chapeikin was
remiss in not referring Ms Mini for thrombolytic treatment was forced to
concede that the results of published clinical trials proved that thrombolytic
therapy, although being the only effective cure for stroke available in medical
science, is anything but a „miracle cure‟. That the results are extremely
modest, is borne out by his evidence, where he confirmed the results of a
well-known and comprehensive trial (ECASS 3  –  where 821 patients were
randomised to thrombolytic treatment or placebo) which had been performed
to test the benefit of intravenous thrombolytic therapy in the three to four and
a half hour window:
„The number needed to treat for one more patient to have a normal or near normal
outcome was 14 and the number needed to treat 1 more patient to have an improved
outcome was 8. Overall for every 100 patients treated within the 3 to 4.5 hour
window, 16 had a better outcome as a result and 3 had a worse outcome.‟20
Dr Botha was driven to concede that the results of the ECASS 3 trial showed
that the proportion of patients with minimal or no disability increased from 45
per cent with placebo to 52 per cent with thrombolytic therapy − a mere 7 per
cent absolute improvement.21The finding that specialised assessment and
supervised care in itself would have made a material difference to the
outcome of Ms Mini, to the extent that she, in all likelihood, would not have
suffered the sequelae as pleaded (or even, on the test that the high court
applied, that she would have been materially better off) is thus untenable.

20 J L Saver MD, FAHA, FAAN et al „Thrombolytic Therapy in Stroke, Ischemic Stroke and
Neurologic Deficits‟ (2012) Medscape.
21 Above at 2.

[57] It is a matter of common sense that if the best available treatment
would have rendered the low success rate as illustrated above, the chances
are overwhelmingly stacked against the assumption that assessment and
supervised care (and even controlled lowering of blood pressure) would have
made any appreciable difference (taking into account that 45 per cent of the
patients on placebo ended up with minimal or no disability in any event).

[58] In concluding that upon referral to hospital by Dr Sher, hypertensive
emergency treatment and blood pressure control would probably have
prevented further deterioration of Ms Mini‟s condition, the high court failed to
have due regard to the evidence of Dr Botha regarding the probable outcome
of hypertensive treatment on patients with acute stroke. Even though Dr
Botha‟s opinion was premised on the assumption that, after seeing Dr Sher,
there was a „further deterioration‟ because of Ms Mini‟s blood pressure, his
evidence failed to demonstrate that there was a likelihood of a better
outcome. In this regard, he was pertinently asked by the court how the
outcome for Ms Mini would have been affected if Dr Sher had referred her to a
hospital with high care or an intensive care unit. He replied by saying that he
had no simple response other than to say it was desirable that blood
pressures at that level should be treated in a regulated environment. When
the court asked: „What is that better outcome?‟ He responded:
„Also difficult. It‟s a dilemma . . . because I think . . . if we assume that there was a
further deterioration because of the blood pressure, some of the literature says that
strokes can extend or further progress with about 20 to 40%. So it‟s a wide range. So
my understanding would be, there would be about a 20 to 40% better outcome, if we
can tie up or link up the secondary deterioration to the very high blood pressure. That
would have been the outcome according to my interpretation.‟
That there was no evidence linking Ms Mini‟s secondary deterioration to her
high blood pressure and that Dr Botha was „basically speculating‟ is plain from
the following concession which he made, when again asked to clarify whether
her deterioration would have been avoided had she been referred to hospital:
„… I cannot say it in a guaranteed manner, because I don‟t think there are studies in
a similar population of patients ever done. All I was saying from the beginning, is that

it is standard practice for a doctor . . . when faced with blood pressure readings of
that magnitude, not to send the patient home, to get that patient in an environment
where they can be monitored and safely treated by whichever means. But I cannot
give you a figure, or a guarantee that nothing could have happened. She may have
been lucky, and she was to a certain extent lucky, in the sense that nothing much
was done, virtually nothing was done and her blood pressure did come down.‟
The testimony of Dr Botha, on which Ms Mini‟s case rested, cannot serve as a
basis for finding that there was a likelihood of a perfect (or even a better)
outcome. Accordingly, even had there been evidence justifying a finding that
either Dr Chapeikin or Dr Sher had been negligent, there was no evidence
that this had any causative effect on Ms Mini‟s condition. On that ground also
the appeal had to succeed.

Separation of Issues
[59] Ms Mini was required to show on a balance of probabilities that the
outcome for her would have been different had either of the two appellants
referred her to hospital. That she had not done so, is due in part to the
separation of the quantum from the merits that was agreed between the
parties and made an order of court. Since the record of the proceedings in the
high court does not contain an order, it remains unclear on what terms the
separation of issues was ordered. All we have is the pre-trial minute which
records that the trial would proceed in respect of issues relating to the liability
of the appellants for damages allegedly suffered by Ms Mini „ie on issues
relating to wrongfulness, negligence and causation‟ and that issues relating to
calculation of damages must stand over.

[60] This type of separation has been criticised by this court in Denel
(Edms) Bpk v Vorster22 where it stated as follows:
„. . . . Rule 33(4) of the Uniform Rules − which entitles a Court to try issues separately
in appropriate circumstances − is aimed at facilitating the convenient and expeditious
disposal of litigation. It should not be assumed that that result is always achieved by

22 Denel (Edms) Bpk v Vorster [2004] ZASCA 4; 2004 (4) SA 481 (SCA) para 3.

separating the issues. In many cases, once properly considered, the issues will be
found to be inextricably linked, even though, at first sight, they might appear to be
discrete. And even where the issues are discrete, the expeditious disposal of the
litigation is often best served by ventilating all the issues at one hearing, particularly
where there is more than one issue that might be readily dispositive of the matter. It
is only after careful thought has been given to the anticipated course of the litigation
as a whole that it will be possible properly to determine whether it is convenient to try
an issue separately. But, where the trial Court is satisfied that it is proper to make
such an order - and, in all cases, it must be so satisfied before it does so - it is the
duty of that Court to ensure that the issues to be tried are clearly circumscribed in its
order so as to avoid confusion. The ambit of terms like the “merits” and the
“quantum” is often thought by all the parties to be self-evident at the outset of a trial,
but, in my experience, it is only in the simplest of cases that the initial consensus
survives. Both when making rulings in terms of Rule 33(4) and when issuing its
orders, a trial Court should ensure that the issues are circumscribed with clarity and
precision . . . .‟

[61] This criticism is well founded and applies equally to the approach
adopted by the high court in this matter. This is illustrated by the terms of the
order made by the high court where it finds the appellants liable, but fails to
identify the consequences for which they are each liable. Differently put, the
court failed to deal with the extent to which the alleged negligent conduct of
each of the appellants contributed to Ms Mini‟s pleaded sequelae or
deterioration. As indicated, Ms Mini‟s complaint is not that the appellants
caused her stroke, but rather that they failed to diagnose and treat her
condition correctly and refer her to hospital for specialist observation,
assessment and treatment.  In view of the complaint, it was not sufficient for
Ms Mini to merely prove that her condition deteriorated as a result of their
failure on the grounds alleged, but it was incumbent upon her to demonstrate
that diagnosing and treating the disease differently would have prevented the
pleaded sequelae from setting in. Ms Mini alleges in her particulars of claim
that had she been referred to hospital, the treatment that would have been
administered would have included providing support and care; contacting a
specialist; diagnosing the nature of her stroke; performing an angiogram;

embolising the blood vessel if a leak is identified and administering
appropriate medication. The sequelae resulting from the purported negligence
of the appellants is listed in paragraph 15 of her particulars of claim. To
reiterate, the critical allegations are that she suffered from deteriorating
symptoms of weakness on the right side of her body; that she is unable to
walk without assistance and confined to a wheelchair; that she suffers from
hemiplegia; that she suffers from attention and concentration difficulties; and
that she suffers from limitations in abstract and complex reasoning, problem
solving and information processing. Whilst most of these sequelae appear to
be substantiated by the evidence of Dr Hemp, the clinical psychologist who
testified in support of Ms Mini‟s case, no attempt was made to link those
sequelae to any absence of treatment that she suffered. Ms Mini, furthermore,
failed to lead evidence to prove that the consequences of the appellants‟
alleged negligence were the pleaded sequelae. Nor was there any evidence
concerning the extent to which, if any, her sequelae would have improved if
she was given the appropriate treatment.

[62] Ms Mini has led no evidence which vaguely suggests that because of
the appellants‟ failure to refer her to hospital she was denied treatment, which
if made available to her, would have prevented those sequelae. Ms Mini
furthermore led no evidence to demonstrate that but for the negligence of the
appellants, she would have suffered no impairment at all. Although touched
upon by Dr Botha in his expert summary, none of this was substantiated in his
expert testimony. There was accordingly no evidential basis for the high court
to hold the appellants liable for Ms Mini‟s impairment.

[63] However, in the application for leave to appeal, the high court
maintained that that question relates to quantum and falls to be determined in
that phase of the proceedings. The effect of that finding is that the damages
recoverable would be proportional to the cogency of proof of causation. This
approach is wrong. Supposing the appellants are unsuccessful on appeal and
that the matter proceeds on the question of quantum, then Ms Mini would

have to present evidence establishing the extent to which she would have
been less impaired had the appellants not acted negligently. Quite apart from
the fact that that evidence will not relate to calculation of damages but rather
go to the root of causation, this would mean that the parties would have to
revisit the very matters on which they have already led evidence, despite the
fact that Ms Mini presented no evidence, in the first place, to discharge the
onus relating to how different her outcome would have been had she been
referred to hospital by one or both of the appellants. This is precisely the kind
of „confusion‟ on separation that this court sought to caution against in
Denel.23

[64] In a last attempt at overcoming this evidential impediment, Ms Mini
sought support in the finding of the Constitutional Court in Lee v Minister of
Correctional Services,24 that even if the substitution approach was found to be
suited to the enquiry into factual causation in a particular case, a plaintiff
would not be required to provide evidence to prove what the non-negligent
lawful conduct of the defendant should have been, but rather „what is required
is postulating hypothetical lawful, non-negligent conduct, not actual proof of
that conduct‟.25

[65] Ms Mini‟s reliance on Lee is misplaced, since as recently stated by the
Constitutional Court in Mashongwa v Passenger Rail Agency of South
Africa:26
„Lee never sought to replace the pre-existing approach to factual causation. It
adopted an approach to causation premised on the flexibility that has always been
recognised in the traditional approach. It is particularly apt where the harm ensued is
closely connected to an omission of a defendant that carries the duty to prevent the
harm. Regard being had to all the facts, the question is whether the harm would
nevertheless have ensued, even if the omission had not occurred. However, where

23 Denel, para 3.
24 Lee v Minister of Correctional Services [2012] ZASCA 30; 2013 (2) SA 144 (CC).
25 Lee, para 56.
26 Mashongwa v Passenger Rail Agency of South Africa [2015] ZACC 36; 2016 (3) SA 528
(CC) para 65.

the traditional but-for test is adequate to establish a causal link it may not be
necessary, as in the present, to resort to the Lee test.‟
This is precisely the difficulty which Ms Mini faces in this appeal, because
even if the omission (the appellants‟ failure to refer her to hospital) had not
occurred, there is simply no way of saying that she would have been admitted
to hospital, that she would have received treatment that was any different
from what Drs Sher and Chapeikin administered, and that she would have
been administered with emergency hypertensive therapy or thrombolytic
therapy. Even, on the most benevolent reading of Lee this is an intractable
case in insofar as causation is concerned because there is a complete
absence of evidence which demonstrates that referring Ms Mini to hospital
would in fact have had any beneficial effects whatsoever. For these reasons
the appeal must succeed.

[66] I make the following order:
1 The appeal is upheld with costs.
2 The order of the high court is set aside and replaced with the following
order:
„The plaintiff‟s claim is dismissed with costs.‟

__________________
F Kathree-Setiloane
Acting Judge of Appeal

APPEARANCES:
For Appellants:

A de V La Grange SC
Instructed by:
Bowman Gilfillan Inc, Cape Town
Matsepes Inc, Bloemfontein

For Respondent:

J van der Merwe SC (with him A D Branford)
Instructed by:
Malcolm, Lyons & Brivik, Cape Town
Lovius Block, Bloemfontein