Itokolle-Clinix Private Hospital (Pty) Ltd v M N T obo D O R M

The respondent's daughter (D) was born on 30 January 2007 at the appellant hospital in Mahikeng suffering from cerebral palsy as a result of hypoxic ischaemic brain injury during birth. The respondent was admitted to the hospital on 29 January 2007 in labour. Labour was augmented with prostaglandins (prostin) administered at 08h00 and again at 14h00 on 30 January 2007. Dr Ofori, the attending obstetrician, was called when the cervix was 8cm dilated, arriving at approximately 20h30-20h45. He prescribed syntocinon at 20h45. D was delivered at 21h10 using a ventouse, with an Apgar score of zero, requiring resuscitation for approximately 20 minutes. D was born with elevated nucleated red blood cells (NRBC of 34/100), an indicator of hypoxic events. The hospital's midwifery staff failed to properly monitor the foetal heart rate (FHR) and contractions during labour, particularly between 17h00 and 20h30, with no cardiotocography (CTG) monitoring during critical periods. The respondent sued both the hospital and Dr Ofori for damages. Before trial, the respondent made a Calderbank offer to settle at 85% liability, which both defendants rejected.

• Whether the hospital's admitted negligence in monitoring by midwifery staff was a factual cause of the foetal brain injury
• Whether the hospital was vicariously liable for the negligence of its midwifery staff
• Whether Dr Ofori's conduct after 20h45 was the sole cause of the brain injury, thereby absolving the hospital of liability
• Application of the 'but-for' test for factual causation in medical negligence cases involving omissions
• Whether the hospital acted unreasonably in rejecting the respondent's Calderbank offer
• Whether the high court properly exercised its discretion in awarding attorney and own client costs following rejection of the Calderbank offer

The appeal was dismissed with costs on the ordinary party and party scale. The hospital remained jointly and severally liable with Dr Ofori for 100% of the respondent's proven or agreed damages. The costs order made by the high court awarding attorney and own client costs from the date of the Calderbank offer (12 March 2020) was upheld.

The binding legal principles established are: (1) In medical negligence cases involving omissions, factual causation is established by applying the 'but-for' test as a matter of common sense based on the practical way ordinary minds work against everyday experience, not as a matter of pure science or philosophy. The plaintiff must prove on a balance of probabilities that the harm would not have occurred but for the defendant's negligent omission. (2) Where multiple parties' negligent conduct contributes to a single indivisible injury occurring over time, all parties whose negligence was a factual cause of the injury can be held jointly and severally liable, even if some negligence occurred earlier and some later in the causal chain. The presence and control of one negligent party does not automatically break the causal chain for earlier negligent omissions by another party. (3) Midwifery staff have an independent and continuing duty to properly monitor the foetal heart rate and maternal contractions during labour, particularly where labour has been augmented with prostaglandins. This duty continues even when a specialist obstetrician is present and in control of management decisions. (4) Under the Calderbank principle, a defendant who unreasonably rejects a plaintiff's settlement offer and is subsequently held liable on terms less favorable than the offer may be ordered to pay attorney and own client costs from the date of the offer. Reasonableness is assessed objectively considering all circumstances, including expert evidence available at the time of the offer and the strength of the defendant's case.

The Court made several non-binding observations: (1) The adequacy of the spatium deliberandi (time for consideration) of a Calderbank offer only becomes relevant if the offeree attempts to accept after expiry; where an offer is simply rejected, the reasonableness of the time period is irrelevant. (2) In assessing the reasonableness of rejecting a settlement offer, factors to consider include: the nature of the action, the level of proof required, the state of expert evidence (particularly joint minutes showing agreement on key issues), the financial positions of the parties, whether co-defendants are attributing fault to each other, and the risk that damages awarded may be eroded by costs if not fully indemnified. (3) The absence of cardiotocography (CTG) monitoring during critical periods of augmented labour is particularly problematic as it prevents assessment of variability in foetal heart rate before, during and after contractions, which is essential to detect foetal distress. (4) Elevated nucleated red blood cell (NRBC) counts taken shortly after birth are significant markers indicating acute and chronic hypoxia from earlier in the birth process, not merely acute sentinel events. (5) The failure to call key witnesses (such as Sr Ojeng) without adequate justification (mere relocation abroad being insufficient) leaves the case against them effectively unanswered and weakens the defendant's position.

This case is significant in South African medical negligence law for several reasons: (1) It clarifies the application of factual causation principles in cases involving medical omissions, emphasizing that the 'but-for' test is based on common sense and practical reasoning rather than scientific certainty; (2) It confirms that multiple parties can be held jointly liable where their negligent conduct contributes to a single indivisible injury, even where one party's negligence occurs later in the sequence of events; (3) It reinforces that midwifery staff retain ongoing responsibility to monitor and inform attending physicians throughout the birthing process, and that a doctor's presence does not absolve nursing staff of their independent duties; (4) It demonstrates the importance of proper monitoring and record-keeping in obstetric cases, particularly where labour is augmented with oxytocic agents; (5) It affirms the application of the Calderbank principle in South African law, providing guidance on when rejection of settlement offers will be considered unreasonable and warrant punitive costs orders; (6) It emphasizes that conservation of judicial resources through reasonable settlement is in the public interest and defendants bear risk in unreasonably rejecting favorable settlement offers.