Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
25 February 2015

Con Court hears case on right not to be refused emergency medical treatment on 26/02/15

CONSTITUTIONAL COURT OF SOUTH AFRICA

Charles Oppelt v The Head: Health, Department of Health, Provincial Administration: Western Cape

CCT 185/14

Date of hearing: 26 February 2015

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MEDIA SUMMARY

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The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On 26 February 2015 at 10h00, the Constitutional Court will hear an application for leave to appeal against a judgment of the Supreme Court of Appeal regarding the right not to be refused emergency medical treatment.

On 23 March 2002, the applicant, Mr Charles Oppelt, suffered a low velocity spinal cord injury during a rugby match which left him severely paralysed. A rapid closed reduction procedure was performed on Mr Oppelt about 13 hours after the injury occurred.

Mr Oppelt instituted a claim for damages in the Western Cape High Court against the Head: Department of Health, Western Cape (the department) and three organisations responsible for the administration of the game of rugby. The claim against the department was based on the medical treatment Mr Oppelt received from three hospitals under its control.

The High Court dismissed the claims instituted against the rugby organisations. It found however that the department’s employees had failed to timeously treat the spinal injuries sustained by Mr Oppelt. Evidence of an expert witness for Mr Oppelt indicated that had the rapid closed reduction procedure been performed within four hours of the injury, Mr Oppelt would probably not have become a person with quadriplegia. This was controverted by the expert witness for the department. The High Court found that the department’s employees were negligent in failing to timeously refer Mr Oppelt to a hospital specialised in spinal injuries to enable him to be treated there for his injury within four hours. The Court further found that the unreasonable delays justified the conclusion that the department refused emergency medical treatment to Mr Oppelt as provided for in section 27(3) of the Constitution. The Court concluded that the department was liable for Mr Oppelt’s proven damages.

The department appealed to the Supreme Court of Appeal. That Court found that Mr Oppelt had failed to prove the validity of his expert’s methods on a balance of probabilities and thus failed to prove that he probably would have recovered if the expert’s methods had been applied. It therefore upheld the appeal.

In this Court, Mr Oppelt submits that the Supreme Court of Appeal’s approach to the evaluation of expert medical evidence was wrong and that it denied him a fair hearing. He further submits that his constitutional right not to be refused emergency medical treatment was violated. The department opposes the application. It submits that the approach of the Supreme Court of Appeal to medical evidence was sound and it supports that Court’s finding that Mr Oppelt had not proven causation between the treatment provided and the condition of Mr Oppelt. The department further submits that the constitutional rights relied upon by Mr Oppelt find no application in this matter.

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