NSS obo AS v MEC for Health, Eastern Cape Province

The appellant, acting on behalf of her minor son, instituted a medical negligence claim against the MEC for Health, Eastern Cape. The child suffered perinatal asphyxia during labour in 2006, resulting in cerebral palsy quadriplegia. The plaintiff alleged breach of contract and/or negligence by hospital staff. During preparation for trial, the plaintiff disclosed expert reports by two paediatric radiologists (Prof Lotz and Dr Alheit) interpreting MRI scans as showing an acute profound hypoxic ischaemic injury. The defendant, in correspondence, purported to ‘admit’ these expert opinions and asserted that they constituted facts admitted under s 15 of the Civil Proceedings Evidence Act. When the plaintiff later sought to lead further expert evidence suggesting that such an injury could occur without a sudden sentinel event and over a prolonged period, the defendant objected. The High Court upheld the objection and barred the plaintiff from leading evidence contradicting the expert reports, prompting this appeal.

The appeal was upheld with costs, including the costs of two counsel. The High Court order was set aside and replaced with an order dismissing the defendant’s application to bar the plaintiff from adducing evidence to disprove the contents of the expert reports.

The judgment clarifies the scope of s 15 of the Civil Proceedings Evidence Act and confirms that expert opinions do not constitute ‘facts admitted’ capable of binding parties or the court. It reinforces the court’s constitutional and common-law duty to independently evaluate expert evidence and prevents litigants—particularly in medical negligence cases—from strategically using purported admissions to shut out relevant expert testimony. The case is especially important in safeguarding fairness and the best interests of children in complex medico-legal litigation.