This blog was co-authored by Candidate Attorneys, Hansica Naidu and Jeneil Peterson.

The purpose of an admission of fact is to narrow the issues which will need to be determined by a Court. In order to do so, this must be done correctly and in accordance with section 15 of the Civil Proceedings Evidence Act of 1965, as was highlighted in the case of NSS obo AS v MEC for Health, Eastern Cape Province (017/220 [2023] ZASCA 41 (31 March 2023). Experts’ opinions are not facts capable of admission in this manner.

The Plaintiff in this matter instituted a claim against the MEC for Health, Eastern Cape, in her representative capacity as the mother and natural guardian of her child, who was diagnosed with cerebral palsy due to the alleged negligence of the medical staff at St Patrick’s Hospital, Mthatha. In support of her claim, the Plaintiff filed expert reports by two specialist paediatric radiologists. According to these reports, the child sustained an acute profound hypoxic ischemic injury during birth. Strategically, the defendant informed the plaintiff through correspondence that the contents of the report were admitted (“purported admission”) and that they could be used as evidence in court. However, the plaintiff filed a supplementary report by one of her experts and this report stated that the child did not suffer an intrapartum sentinel event. The expert submitted that his initial report was concluded without knowledge of the child’s clinical background. However, it then became necessary to submit a further report once he became aware of it.

It is important to distinguish between an acute profound hypoxic ischemic injury from a partial prolonged hypoxic ischemic injury in cerebral palsy matters. The former refers to a severe asphyxia event which occurs suddenly and progresses rapidly, while that latter develops over a period of time. As submitted by experts in various matters, an acute profound hypoxic injury is often undetectable. Consequently, it is often difficult for claimants to prove causation, one of the essential elements for a delictual claim.

The defendant rejected the supplementary report based on its purported admission and brought an application in terms of section 15 of the Act. This section provides that it will not be necessary for a claimant in civil proceedings to prove or disprove any fact which has been admitted on the record of the proceedings. The High Court upheld the defendant’s application. On appeal, the Supreme Court of Appeal (“SCA”) overturned the High Court’s decision on the basis that the purported admission did not constitute an admission in terms of the Act as it was not admitted on the record of the proceedings. In terms of the judgment, an admission is a statement which is adverse to the party making it. It is generally made in pleadings or orally in court. Once made, admitted facts are presented before the Court as a means to shorten the proceedings.

The SCA stated that the expert reports were merely an expression of the experts’ opinions based on their interpretation of an MRI scan of the brain – they did not constitute a “fact” within the meaning of section 15. Arguably, the injuries shown on the scan constituted factual evidence. Accordingly, the reports consisted of facts which were admitted by the defendant. However, the Court did not fully consider this. According to the Court, there was no formal admission by the plaintiff on record which could be regarded as conclusive proof of the fact that the child suffered an acute profound hypoxic ischemic injury. Further, a party cannot bind the Court to the opinion of their opponent’s expert reports by merely conceding that the opinions are correct. In this regard, the SCA highlighted the Court’s function when evaluating expert evidence – it must be satisfied that an opinion is based on facts and that an expert has reached a defensible conclusion in the matter. A purported admission based on an expert opinion will not absolve the Court from this duty.

The appeal was therefore upheld.