Mr Oppelt, was playing club rugby in the position of hooker on the afternoon of 23 March 2002. He was then 17 years old. A contested scrum collapsed causing a severe injury to his cervical spine, medically described as a bilateral cervical facet dislocation of the vertebra. Mr Oppelt was left paralyzed below the neck

Mr Oppelt brought a claim against the Western Cape Department of Health (“the Department“) as well as the South African Rugby Union, the Western Cape Rugby Union, the Boland Rugby Union and the Mamre Rugby Union. The claims against the rugby unions were dismissed in the High Court and Mr Oppelt did not appeal against those findings.

Mr Oppelt was treated at the Atlantis Wesfleur Hospital and then transferred Groote Schuur Hospital. Mr Oppelt was transferred to a specialized spinal cord injury unit at Conradie Hospital approximately 11 hours after his injury, and a procedure, referred to as a closed reduction procedure was carried out approximately 14 hours after his injury. These hospitals are under the control of the Department. The claim was that the failure to transfer Mr Oppelt to the specialized spinal cord injury unit at Conradie Hospital timeously had caused his paralysis. The High Court in essence agreed with this claim, finding that the Department had wrongfully and negligently failed to treat Mr Oppelt’s spinal injury by way of a closed reduction procedure, within four hours of its occurrence.

The finding was based on evidence of Dr Dennis Newton, the specialist in charge of the Conradie Hospital Spinal Cord Injuries Unit from 1988 to 2002. Dr Newton testified that Mr Oppelt would have had a 64 per cent chance of a full recovery if he had been treated by his closed reduction method of treatment within four hours of the injury occurring. The High Court concluded that the Department acted unreasonably in not taking Mr Oppelt to Conradie Hospital within the four hour period and that the inference that the department had ‘acted unlawfully and negligently’ was unavoidable.

Dr Newton’s method of treatment was to subject the patient’s injured spine to traction by the application of heavy weights attached to a pulley system, connected via callipers to the patient’s skull. The patient’s body was kept immobile by straps attached to the bed. The movement of the bones in the spine under traction was monitored by x-rays and manipulated so that the dislocated vertebra could be re-aligned in the spinal column. In layman’s terms the patient’s neck was stretched so that the vertebra which had been forced out of position could be pulled back into alignment. The object was to relieve the pressure on the spinal cord by re-aligning the vertebra and thereby restore the blood supply to the nerve cells in the spinal cord. Deprivation of the blood supply eventually causes the death of these nerve cells which results in paralysis. The period within which the blood supply must be restored to the nerve cells in the spinal cord to ensure their recovery is the critical factor in Dr Newton’s method of treatment.

The Supreme Court of Appeal considered the evidence about the success of this method. The evidence that Dr Newton gave as to the results of his treatment was that of 32 paralysed patients, eight were subjected to this treatment within four hours of which five made a full recovery. The remaining 24 patients who were not treated within four hours did not recover. This is the only evidence upon which his theory is based. Dr Newton conceded that the reliability of his evidence would be classified as the lowest form of scientific data namely that which is described as ‘opinion’.

As a result, the Supreme Court found that there was insufficient evidence to show that the failure to treat Mr Oppelt with the closed reduction procedure within 4 hours had caused the paralysis. Further that as the efficacy of the procedure was not accepted, the a Doctor could not be found to be negligent for failing to administer it within a four hour period, and similarly there would be no legal duty on the Department’s staff to administer the procedure within that time period.

As a result the claim was dismissed, which dismissal has been appealed to the Constitutional Court.