Constitutional Court comes to aid of paralysed rugby player

OCTOBER 21, 2015

The Constitutional Court has ordered that Mamre Rugby player, Charles Oppelt, who was crippled in a rugby match in 2002 is to be paid compensation by the Western Cape Department of Health – bringing to an end almost 14 years of legal wrangling.

The landmark judgement, by the highest court in the land, finally brings justice to a man who has waited for it almost half of his life. Mr Oppelt was just 17 when a scrum collapsed causing a severe injury to his cervical spine. The damage to his spinal cord has left him a quadriplegic -- paralysed from below his neck. The injury tragically and irrevocably changed his life.

Mr Oppelt waited for treatment for about 15 hours and was treated at three hospitals in Cape Town. The Constitutional Court ruled that he was treated too late to reverse Ischaemia, described as “a secondary injury” by Dr Dennis Newton, an orthopaedic surgeon who was in charge of the Conradie Hospital’s Spinal Cord Injuries Unit from 1988 to 2002.

The Constitutional Court found that “the available evidence suggests that the applicant could probably have been treated at Conradie within four hours of sustaining the injury and (if he had) the sad and tragic consequences of that injury could probably have been avoided.”

In a majority judgement, Constitutional Court Judge, Mr Justice Molemela, said: “I am also satisfied that the negligence of the respondent’s employees led to the applicant’s permanent paralysis.”

The Constitutional Court noted that Section 27 of the Constitution enshrines the right to health care services for all South Africans, and cited other cases where the courts had found that the purpose of that right was to ensure that treatment be given in an emergency and should not be frustrated by bureaucratic requirements or other formalities.

 A person who suffers a sudden catastrophe which calls for immediate medical attention, should not be refused ambulance or other emergency services which are available and should not be turned away from a hospital which is able to provide the necessary treatment.  Remedial treatment that is necessary and available (should) be given immediately.

The Constitutional Court ruled: “The respondent (The Western Cape Department of Health) failed to ensure that all reasonable steps were taken to provide the medical treatment that was required to treat the applicant’s spinal cord injuries, namely urgent closed reduction, in order to decompress the ischaemia-causing dislocation.  It failed to guard against the eventuation of the harm in the form of permanent paralysis.

“The inescapable inference is that the applicant was not treated with the reasonable care and skill required of the respondent’s employees.  The conduct of the respondent’s employees coupled with their slavish adherence to transfer protocols was substantially short of the standard of practice that a member of the public is entitled to expect from a reasonably proficient hospital and reasonably proficient doctors. “

Mr Justice Molemela ordered that the Western Cape Department of Health “is declared liable to pay damages as the applicant may prove to have suffered as a result of the neck injury sustained in the rugby match on 23 March 2002.” He also ordered that it pay Mr Oppelt’s costs.

The judgement, handed down on 14 October, brings to an end an almost 14-year battle by Mr Oppelt to be compensated for the negligence in his treatment.

His attorneys, Scheibert & Associates, took the Western Cape Health Department, the South African Rugby Union, Boland Rugby, and the Mamre Rugby Club to court. The claim against the two unions and the club was dismissed, but 10 years later, in November 2012, the Cape High Court ruled that the provincial department of health should compensate Mr Oppelt.

However, the Western Cape Department of Health appealed to the Supreme Court of Appeals (SCA) in Bloemfontein and the judgement of the Cape High Court was overturned with costs being awarded against Mr Oppelt.  The SCA found that he had failed to prove that he probably would have recovered, had he been treated with the so-called “closed reduction procedure” for Ischaemia, and said: “It cannot be found that this was ‘probably a cause’ of his paralysis.”

Scheibert & Associates appealed to the Constitutional Court on behalf of Mr Oppelt – and it is this judgement that the Constitutional Court has overturned. 

Mr Oppelt said: “I am very grateful that the Constitutional Court has ruled in my favour. I would like to thank everyone who has supported me – especially my legal team who were prepared to see my case through to the bitter end. Without their help I would never have succeeded with my claim.”

Attorney Hans-Peter Scheibert was delighted. “We have struggled for years to get Charles Oppelt the compensation he so richly deserves,” he said. “He has struggled to survive for almost half of his life, living in a wheelchair and relying on charity from rugby organisations like the Chris Burger/Petro Jackson Players Fund, which has given him wheelchairs and a special mattress.

“We are exceptionally happy that South Africa’s highest court has come to his aid. Before the advent of the Constitutional Court, Charles Oppelt’s remedies would have been exhausted when his claim was dismissed by the Supreme Court of Appeal.  The Constitutional Court has once again demonstrated that it has an important role to play in ensuring that justice is done. It has issued a landmark judgement which enshrines the constitutional right of all South Africans to competent and timeous emergency medical treatment.

“It is a tragedy that Mr Oppelt, had he been treated correctly, would probably have recovered from his injuries. Instead, because of the negligence found by the Constitutional Court, he is a paraplegic. 

“The judgement gives hope to all South Africans that if you are injured and not treated correctly and timeously you have recourse.

“This Constitutional Court judgement will not open the flood gates for medical negligence cases and in particular cases against provincial and private hospitals.  This judgement required only what is reasonable from the hospital and hospital staff within the parameters of reasonable infrastructural limitations. Hospitals and their staff will not have failed to provide emergency medical treatment for as long as they act reasonably given the circumstances of a particular incident.”

He added: “It is a day that makes me proud to be an attorney. We are very grateful that we were able to help Charles Oppelt. We have fought hard for him. He has been paralysed for nearly half of his life, with no assistance from any of the people who failed to treat him correctly -- resulting in him being a paraplegic.

“He lives in modest circumstances, relying largely on charity. It has been important that we have never given up and were determined to win him redress – even if it meant us going all the way to the Constitutional Court.

“He has now won his case in the highest court in the land. There are no more appeals, although we still have to settle the amount of compensation he is due. Hopefully, once that is done, he can have some semblance of normality and dignity.”