MEC for Health, Eastern Cape v Mkhitha

The first respondent, Ms Ongezwa Mkhitha, was injured as a passenger in a motor vehicle collision on 23 January 2011. She sustained multiple fractures and was initially treated at Nelson Mandela Academic Hospital before being transferred to Bedford Orthopaedic Hospital (BOH), a provincial hospital under the control of the Eastern Cape Department of Health. She underwent orthopaedic surgery at BOH. According to uncontroverted expert evidence, the hospital staff provided substandard orthopaedic care, including improper fixation of fractures and failure to take post-operative radiographs. As a result, her injuries were significantly worsened, leaving her wheelchair-bound and requiring further major reconstructive surgery. She sued both the Road Accident Fund (RAF) for damages arising from the collision and the MEC for Health for damages arising from negligent medical treatment. The RAF conceded liability for damages caused by the collision. The MEC raised a special plea contending that all damages arose from the driving of a motor vehicle and thus fell exclusively within the RAF’s statutory liability.

The appeal was dismissed with costs.

The case is significant for clarifying the limits of the Road Accident Fund’s liability under section 17(1) of the Road Accident Fund Act 56 of 1996. It confirms that the RAF is not liable for all subsequent harm merely because an initial injury arose from a motor vehicle accident, and that negligent medical treatment may constitute a novus actus interveniens. The judgment also reinforces strict standards for granting leave to appeal under the Superior Courts Act 10 of 2013.