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[2016] ZAWCHC 181
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AD and Another v MEC for Health and Social Development, Western Cape Provincial Government (27428/10) [2016] ZAWCHC 181 (7 September 2016)

SAFLII
Note:
A shortened version of this judgment is available
here
.
A supplementary judgment, delivered on 1 December 2016, is
available here.
THE
HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
In
the matter
between                                                                              Case

No: 27428/10
AD                                                                                                             FIRST

PLAINTIFF
IB                                                                                                         SECOND

PLAINTIFF
And
MEC
FOR HEALTH AND
SOCIAL
DEFENDANT
DEVELOPMENT,
WESTERN CAPE
PROVINCIAL
GOVERNMENT
Coram
:
ROGERS J
Heard:
16-18, 22, 24, 25 & 29 FEBRUARY 2016; 1-4, 7-10, 14-17, 22
&
23 MARCH 2016; 18-21, 25, 26 & 28 APRIL 2016; 3-5, 9-12, 16-19,
23, 24 & 31 MAY 2016; 8, 9 & 16 JUNE 2016; 8,
10, 11 &12
AUGUST 2016
Delivered:
7 SEPTEMBER
JUDGMENT
ROGERS J:
Introduction
[1]
The structure of this judgment is as follows:
Introduction [paras
1-45]
o   General
[paras 2-7]
o   Description
of IDT’s condition [paras 8-23]
o   The trust
[paras 24-25]
o   The case
manager [paras 26-27]
o   Facilitator
and caregivers [paras 28-31]
o   Actuarial
aspects [para 32]
o   Settled
claims [paras 33-37]
o   Separation
of issues [para 38]
Assessment of expert
evidence [paras 39-45]
The
trust and development of the common law [paras 46-81]
Life
expectancy [paras 82-197]
o
Introduction [paras 82-87]
o   The LEP and
CDER [paras 88-90]
o   Dr Strauss’
reports [paras 91-92]
o   Prof
Cooper’s report [para 93]
o   The joint
minute [paras 94-95]
o
Miscellaneous factors [paras 96-104]
o   Dr Strauss’
model [paras 105-111]
o   GMFCS and
low weight [paras 112-117]
o   GMFCS
defined [paras 118-121]
o   The
experts’ views on IDT’s GMFCS classification [paras
122-129]
o   Factual
evidence relevant to IDT’s GMFCS classification [paras 130-143]
o   Conclusion
on GMFCS and low weight [paras 144-145]
o   IDT’s
feeding ability [paras 146-170]
o   The secular
trend [paras 171-174]
o   Conclusion
on life expectancy ratio [para 175]
o   The
appropriate ordinary SA life table [paras 176-193]
o   Conclusion
on IDT’s life expectancy [paras 194-197]
Orthopaedics, scoliosis,
bracing and lycra garments [paras 198-288]
o
Introduction [paras 198-204]
o   Description
of DMO/SPIO and Cheneau orthoses [paras 205-208]
o   Diagnosing
scoliosis [paras 209-213]
o   Defining
scoliosis [paras 214-218]
o   Discussion
of definition [paras 219-221]
o   Does IDT
have scoliosis? [paras 222-244]
o   Future risk
of scoliosis? [paras 245-257]
o   The
proposed treatment modalities [paras 258-259]
o   DMO/SPIO
treatment [paras 260-284]
o   Cheneau
treatment [paras 285-288]
Manual
wheelchair [paras 289-312]
Powered
wheelchair and Mygo seat [paras 313-349]
o
Introduction [paras 313-331]
o   Mygo seat
[paras 332-338]
o   Powered
wheelchair [paras 339-349]
Walking
devices [paras 351-374]
Foot
orthoses and related items [paras 375-392]
o   SMO and
straps [paras 375-381]
o   Special
shoes [paras 382-388]
o   Special
socks [paras 389-392]
Car
transportation seat [paras 393-412]
Floor
seat [paras 413-420]
Bath
and shower chair [paras 421-432]
Physiotherapy [paras
433-458]
o
Introduction [paras 433-440]
o   Ms
Jackson’s recommended regime [paras 441-445]
o   Ms
Scheffler’s recommended regime [paras 446-450]
o   Discussion
[paras 450-458]
NMES
therapy [paras 459-476]
Educational psychology
[paras 477-502]
o
Introduction [paras 477-480]
o   Educational
interventions [paras 482-496]
o   Books
[paras 497-498]
o
Psychotherapy [paras 499-502]
Psychiatric claims
[paras 503-519]
Case
management [paras 520-537]
o   Hourly rate
and travel time [paras 521-534]
o   House
adaptations [paras 535-537]
Miscellaneous past
expenses [paras 538-541]
Damage
to IDT’s earning capacity [paras 542-585]
o
Introduction [paras 542-544]
o   IDT’s
uninjured attributes [paras 545-560]
o   PEC salary
surveys [paras 561-562]
o   Plaintiffs’
projected career path for IDT [para 563]
o   Defendant’s
projected career path for IDT [paras 564-568]
o   Discussion
[paras 569-576]
o   Conclusions
[paras 577-585]
Contingencies [paras
586-603]
o   Earnings
[paras 586-599]
o   Future
medical expenses [paras 600-603]
General
damages [paras 604-619]
Remaining trust issues
[paras 621-649]
o   Plaintiffs
as founders? [paras 621-622]
o   Geographic
accessibility [paras 623-625]
o
Co-residence [paras 626-628]
o   The parents
as co-trustees? [paras 629-645]
o   Costs of
administering the trust [paras 646-648]
o   IDT’s
rights in respect of trust [paras 649-650]
Conclusion and order
[paras 651-655]
General
[2]
The plaintiffs are the parents of IDT who was born at Mowbray
Maternity Hospital on 12 January 2009. After mother and child
were
discharged following an uneventful birth, IDT began to exhibit signs
of jaundice. He was readmitted to the hospital on 16
January 2009. By
the time he was discharged on 22 January 2009 he had suffered
irreversible brain damage, resulting in athetoid
cerebral palsy
(‘CP’).
[3]
In December 2010 his parents issued summons against the defendant
alleging negligent failure to diagnose and treat the jaundice

timeously. They claimed damages for themselves and on behalf of IDT.
In July 2012 the defendant conceded the merits. The present
judgment
is concerned with quantum only.
[4]
The trial ran for 45 days from mid-February to mid-June 2016. I heard
argument over four days in the second week of August 2016.
In regard
to issues other than the trust to be mentioned hereunder and related
constitutional matters, Mr Irish SC leading Ms Munro
appeared for the
plaintiffs and Ms Bawa SC leading Ms O’Sullivan for the
defendant. In argument on the trust issues the teams
were
supplemented by Ms Pillay for the plaintiffs and by Mr Budlender SC
for the defendant. The Centre for Child Law (‘CCL’),

which was admitted as an amicus curiae in respect of the trust
issues, was represented during argument by Mr Dutton leading Ms

Campbell.
[5]
The transcript of oral
evidence covers 4880 pages; the plaintiffs’ expert reports 947
pages; the defendant’s expert
reports 388 pages; joint minutes
of experts 72 pages; the pleadings, further particulars, pre-trial
minutes, amendment application
and other court documents 775 pages
and the documentary exhibits over 1100 pages.
[1]
The plaintiffs served expert reports from 22 experts of whom 13
testified. The defendant served expert reports from 15 experts
of
whom six testified. In most instances the experts filed two and
sometimes three reports.
[6]
In regard to argument, I directed that counsel file concise heads not
exceeding 50 pages in length so that I could obtain a
clear view of
their final positions on the main issues. I indicated that they were
at liberty to file supplementary long heads
or appendices. The
plaintiffs’ long heads ran to 150 pages together with about 100
pages of appendices. The defendants’
appendices covered 341
pages. The amicus’ heads were 24 pages. I was given four files
of legal authorities. An already lengthy
judgment would be further
extended if I were to identify and respond to all the arguments. I
have, however, read all the submissions
and endeavoured to ensure
that my judgment addresses the main contentions.
[7]
By the time the trial started the claims were R2 010 354
for the plaintiffs personally, R32 932 148 for
IDT and
R3 293 215 for the cost of protecting and administering
IDT’s award. Certain items of the claims were agreed
before and
during the trial. Some were agreed in a specified amount, others on
the basis of formulas with the determination of
the final amounts to
await my finding of IDT’s life expectancy. Many items remain
fully in dispute.
Description
of IDT’s condition and the claims
[8]
Athetoid CP is far less common than spastic CP. Athetoid CP is
characterised by low muscle tone and uncoordinated movements.
The
sufferer is unable to isolate the muscles required for a desired
activity. Fine motor movement is problematic.
[9]
IDT, now a boy of seven, can sit unaided but with less stability than
an unimpaired child. He can get from the floor or a chair
to a
standing position. He can walk short distances unaided, using walls
and furniture for stability. His gait is uneven with a
wide base. He
can propel himself on a toy scooter and pedal a tricycle. He has a
manual wheelchair which in the home is used as
a chair rather than
for mobility.
[10]
There is an international
standard called the Gross Motor Function Classification System
(‘GMFCS’) for classifying the
gross motor function of CP
children.
[2]
It comprises five
levels (I-V), Level V being the most severe impairment. The
plaintiffs contend that IDT is a Level II. The defendant’s

experts classify him at Level III. The level of IDT’s gross
motor function influences the quantification of damages in two

opposing ways. The more severe the impairment, the greater might be
the need and cost of interventions. On the other hand, a more
severe
impairment might reduce IDT’s life expectancy, thus reducing
the period over which future interventions will be necessary.
[11]
Another international
standard is the Manual Ability Classification System (‘MACS’)
which measures the functional ability
of a person’s manual
abilities.
[3]
This is also a
five-level system. There is some question as to whether IDT should be
classified as a MACS III or IV, which depends
on whether one
considers that he can handle most, or only selected, objects in his
ordinary environment.
[12]
Among the disputed items arising from IDT’s muscular problems
are (i) the extent and cost of physiotherapy; (ii) the

extent and cost of mobility devices such as wheelchairs, walking
devices, car seats and the like; (iii) orthotic devices. The
plaintiffs also claim the cost of adapting an ordinary home to
accommodate IDT’s challenges. Agreement has been reached on
the
amount to be paid by the defendant in this latter respect.
[13]
IDT can eat finger-foods on his own. He can use a spoon and fork but
the process is slow and messy. The ability to self-feed
is relevant
to life expectancy. The defendant considers that IDT is for all
practical purposes fed by others and should not be
considered a
self-feeder. This tends to reduce his life expectancy. The plaintiffs
hold a contrary position.
[14]
IDT was initially doubly incontinent. He still wears diapers.
Although he defecates and urinates in his diapers, he has been
taught
to go to a particular part of the house when he wishes to defecate.
It is intended that he should undergo toilet training
and that there
may be improvement. The claims relating to the cost of diapers and
the increased risk of medical conditions associated
with incontinence
have been settled.
[15]
The brain damage has left IDT with permanent hearing loss. The most
recent audiological tests of which I have evidence put
his hearing
loss bilaterally as ‘moderately severe’. The form of
hearing loss is auditory neuropathy. In this condition
the outer
hairs of the cochlear have normal function but the transmission of
electrical signals to the brain via the auditory nerve
is not
synchronised. This affects the volume and coherence of perceived
sound, which may fluctuate from moment to moment.
[16]
The plaintiffs initially claimed the cost of cochlear implants, with
lifelong hearing aids in the alternative. By the start
of the trial
they confined the claim to hearing aids. IDT was fitted with hearing
aids in May 2010 on the recommendation of Red
Cross Hospital but
showed resistance to wearing them. There was a dispute as to whether
IDT would benefit from hearing aids and
to what extent he would
tolerate them. The extent and cost of future audiological assessments
were also in issue. All the claims
relating to audiology have,
however, now been settled
[17]
Communication is a major challenge in IDT’s life. Because of
his severe hearing impairment he will probably not develop
expressive
speech. He can make sounds but cannot verbalise. The precise extent
to which he can hear and understand speech unaided
is unclear.
Because of the nature of auditory neuropathy, it may vary from day to
day. There is some evidence that he can hear
and understand simple
instructions, even when unaccompanied by visual or gestural cues. It
is very unlikely, however, that he will
ever be able to rely wholly
on verbal input.
[18]
He began private speech and communication therapy at the Speak-to-Me
Clinic (‘STM’) in April 2015. The therapy
which someone
like IDT needs is referred to as Alternative and Augmentative
Communication (‘AAC’), a collective term
for a variety of
communication methods to supplement, enhance or replace existing
speech and writing. IDT’s uncoordinated
movements and lack of
fine motor control make conventional sign language difficult. STM is
teaching IDT keyword signing. Unlike
sign language, which is a
language with its own syntax, keyword signing is designed to enable
the user to sign one or two key words
from a conventional sentence.
Keyword signing is one aspect of AAC. Another is the use of symbol
cards.
[19]
Electronic devices are also used in AAC. During June 2015 IDT was
supplied with a Sony touchscreen laptop with specialised
software,
The Grid2. IDT can select appropriate icons on the screen. The device
is used to enhance his education and enable him
to communicate by the
selections he makes. Portable electronic devices can also be used to
generate voice output.
[20]
There were many disputed claims relating to audiology, speech therapy
and AAC. All the claims under these headings were subsequently

settled.
[21]
IDT’s difficulties with communication and movement mean that
his cognitive abilities cannot be tested psychometrically.
Athetoid
CP is not necessarily accompanied by cognitive impairment. IDT is
able to derive pleasure from things he enjoys, including
watching
television, playing with toys and splashing in water. He shows
unhappiness or anger with things he dislikes. He is able
to recognise
two-dimensional symbols. He has an understanding of cause and effect.
He is able to understand short sentences when
accompanied with
keyword signs and pictures. His expressive communication is limited
to making requests about basic wants and needs.
The paediatric
neurologists concurred that the clinical impression was of mild
mental retardation but that view is not shared by
other witnesses
called by the plaintiff, in particular Ms Bubb, a clinical and
educational psychologist.
[22]
CP increases the risk of psychiatric disorders. These may be linked
directly to brain damage or may be indirectly associated
with CP, for
example a heightened risk of depression or anxiety where the sufferer
has sufficient insight into his plight. There
are disputed claims for
future psychiatric care.
[23]
It is common cause that IDT is unemployable and that he is entitled
to compensation for damage to his earning capacity. The
parties
differ as to his likely career path and the remuneration he would
probably have earned from the various positions in that
path.
The
trust
[24]
The parties agree that IDT’s award should be paid to a trust to
be administered for his benefit. The parties also agree
that the
amount in respect of future medical expenses should be ring-fenced
(‘the medical fund’) and that in certain
circumstances
the defendant should be obliged to supplement the medical fund and
that in certain circumstances the defendant should
be entitled to a
refund from the medical fund (I refer to these as the top-up and
claw-back provisions). The terms of these provisions
and certain
other aspects of the trust deed are in dispute.
[25]
The trust issues were formally introduced by way of a conditional
counterclaim by the defendant to which the plaintiffs replicated.

They annexed to their respective pleadings the trust deeds they
proposed.
The
case manager
[26]
The parties agree that a suitably qualified person should be
appointed as IDT’s case manager for life. The function of
the
case manager is to coordinate and monitor therapies and other
interventions, to assist in identifying and engaging therapists,

doctors and other service providers, to help in sourcing equipment,
to provide reports to the trust, to motivate and obtain approval
for
trust expenditure and so forth. Although the case manager would
typically be a health professional, she is not part of the
treating
team.
[27]
In March 2015 the plaintiffs engaged Ms Elsabet Bester, an
occupational therapist, as the case manager. To date her fees have

been funded from an interim payment of R1,5 million which the
defendant made on 31 March 2014. The plaintiffs intend that Ms Bester

should continue as the case manager. The defendant does not question
her expertise or experience. There is a limited residual dispute

regarding the hourly demands of case management and a more general
dispute as to the rate of remuneration.
Facilitator
and caregivers
[28]
The facilitator is a person to be present with IDT during ordinary
working hours, accompanying him to school and private therapy
and
helping him with his home program. She requires more than basic
caring skills. Among other things, she needs to have a driving

licence, be computer literate and have an ability and willingness to
be trained in the care of special-needs children.
[29]
The plaintiffs appointed Ms Jessica Lundy as IDT’s facilitator
as from 1 June 2015. Again this has been funded from the
interim
payment.
[30]
The parties agree that IDT needs a facilitator until completion of
his school years. During the course of the trial they reached
full
agreement regarding the hours and rate of remuneration.
[31]
The plaintiffs also claim the cost of additional caregivers to
provide more basic care outside ordinary working hours and during
the
facilitator’s annual leave and once IDT leaves school. The
extent and cost of this additional care were initially in
dispute but
were settled during the course of the trial.
Actuarial
aspects
[32]
Pursuant to the findings made in this judgment, actuarial
calculations will need to be performed to quantify the awards in

respect of future expenses and loss of earnings. The parties have
agreed that a net discount rate of 2,5% will be used for medical
and
salary inflation.
Settled
claims
[33]
The plaintiffs’ claims in their personal capacities were
resolved before the trial began. These included claims for
psychological counselling and remuneration for caregiving provided by
IB.
[34]
The claimed past medical expenses for IDT (throughout this judgment I
use this expression in the widest sense to include all
interventions
reasonably required by his condition) are set out in annexure “POC2”
to the particulars of claim. Many
of these have been settled. There
are a few remaining items which I will deal with after addressing
future medical expenses.
[35]
The future medical expenses for IDT are set out in annexure “POC1”
to the particulars of claim. They are grouped
under headings
identifying the principal expert on whose recommendations the items
in question are claimed. The annexure underwent
considerable
amendment as the trial progressed.
[36]
Certain items in “POC1” were settled before the trial
began. These relate to paediatric neurology, dentistry and
oral
hygiene and adaptations to IDT’s home. Accordingly, and
although expert reports were filed in respect of these claims,
there
was no oral evidence relating to them. Among the settled neurological
items are treatment for epilepsy at an agreed 20% chance
and for
Attention Deficit Hyperactivity Disorder at a 50% chance.
[37]
Certain other items were settled only after the plaintiff’s’
evidence was led. The groups of items settled in full
(either in
specified amounts or in accordance with formulas subject to life
expectancy) relate to urology, occupational therapy,
audiology,
speech therapy and AAC. Accordingly, although the court heard
extensive evidence from Dr Choonara (a urologist), Ms
Crosbie (an
occupational therapist), Ms van der Merwe (an audiologist) and Ms
Higham and Ms De Freitas (speech therapists from
STM), their evidence
is now largely irrelevant. The settlement of these items meant that
the defendant did not call its corresponding
experts Dr Lazarus (a
urologist), Ms Coetzer (an occupational therapist) and Ms Müller
(an audiologist).
Separation
of issues
[38]
In order to place this first phase of proceedings on a proper
procedural footing, I raised with counsel (somewhat belatedly,
in
argument) whether it was not desirable to make a rule 33(4) order.
Agreement on such an order was subsequently reached, the
essence of
which is that by way of the present judgment I will determine all
issues arising on the pleadings other than (i) the
actuarial
calculation of the present values of claims for future losses and
(ii) costs.
Assessment
of expert evidence
[39]
When faced with conflicting expert opinions, the court must determine
which, if any, of the opinions to accept, based on the
reasoning and
reliability of the expert witnesses. The court must determine whether
and to what extent an opinion is founded on
logical reasoning. An
expert’s function is to assist the court, not to be partisan.
Objectivity is the central prerequisite
(see
Michael & Another
v Linksfield Park Clinic (Pty) Ltd & Another
2001 (3) SA 1188
(SCA) paras 37-39;
Jacobs & Another v Transnet Ltd t/a
Metrorail & Another
2015 (1) SCA) 139 paras 14-15). The
expert must not assume the role of advocate. If the expert’s
evidence is to assist the
court he or she must be neutral. The expert
should state the facts or assumptions from which his or her reasoning
proceeds (
PriceWaterhouseCoopers Inc & Others v National
Potato Co-Operative Ltd & Another
[2015 2 All SA 403
(SCA)
paras 97-99.)
[40]
In
Coopers (South Africa) (Pty) Ltd v Deutsche
Gesellschaft
für Schädlingsbekämpfung mbH
1976
(3) SA 352
Wessels JA said the
following (at 371):
‘
[A]n expert’s
opinion represents his reasoned conclusion based on certain facts or
data, which are either common cause, or
established by his own
evidence or that of some other competent witness. Except possibly
where it is not controverted, an expert’s
bald statement of his
opinion is not of any real assistance. A proper evaluation of the
opinion can only be undertaken if the process
of reasoning which led
to the conclusion, including the premises from which the reasoning
proceeds, is disclosed by the expert.’
[41]
This passage was quoted with approval by the United Kingdom Supreme
Court in
Kennedy v Cordia (Services) LLP
[2016] UK SC 6
, which
contains a full review of the principles relating to expert evidence.
In their joint judgment Lords Reed and Hodge, with
whom the other
members of the court concurred, observed (para 34) that there was a
degree of commonality of approach between jurisdictions.
They
endorsed the warning sounded in an earlier case that ‘care must
be taken that simple, and not necessarily balanced,
anecdotal
evidence is not permitted to assume
the robe of
expertise’
(para 42).
[42]
They said that an expert may draw on the works of others, such as the
findings of published research or the pooled knowledge
of a team with
whom the expert works (para 41). The expert must demonstrate to the
court that he or she has relevant knowledge
and experience to offer
opinion evidence. If such knowledge and experience is shown, the
expert can draw on the general body of
knowledge and understanding of
the relevant expertise (para 50).
[43]
The
Kennedy
judgment distinguishes between questions of
admissibility and weight in relation to expert evidence. In the
present case, and save
in respect of Prof Cooper, neither side
objected to the admissibility of the other side’s expert
evidence. I shall thus assess
such evidence on the basis that it is
admissible though there may be instances where my reasons for
rejecting part of an expert’s
view might have justified
treating the evidence as inadmissible rather than as merely lacking
weight.
[44]
In varying degrees the expert reports failed to provide adequate
reasons for conclusions and recommendations and omitted to
identify
literature on which the experts would rely. This was particularly so
in relation to Mr Hakopian and Dr Grinker. However
neither side
objected to amplification in oral evidence, which included reference
to and the handing in of published literature.
I thus simply record
that these failings, apart from amounting to non-compliance with rule
36(9), result in the inefficient use
of court time and hamper a
judge’s ability to prepare for and properly understand the oral
testimony. In the present case
about 40% of court time in hearing
expert witnesses (and this was the bulk of the trial) constituted
evidence in chief. This should
not be necessary where proper expert
reports are filed. The cross-examination too would have been shorter
and more focused if fully
reasoned reports had been filed.
[45]
I make one other preliminary observation. It is disconcerting to a
judge to be faced with opposing phalanxes of experts, on
the one side
supporting higher claims and on the other side supporting lower
claims, with the gaps between them often very great.
Is it mere
coincidence that each side’s experts, all supposedly trying
independently and impartially to assist the court,
reached
conclusions favourable to the side that engaged them? This discomfort
does not relieve me of the duty to assess each question
of expert
evidence on its individual merits but there are some instances, which
I will identify when appropriate, where there seems
to me to have
been at least subconscious pro-client bias.
The
trust and development of the common law
[46]
Before addressing the disputed claims for medical costs I need to
deal with the case relating to the trust and allied arguments

concerning the development of the common law.
[47]
The most contentious
aspects concern the top-up and clawback provisions. In summary the
plaintiffs’ proposal is the following:
[4]
· The ring-fenced
‘medical fund’ will be the actuarially calculated present
value of my award in respect of future
medical expenses after
deducting a pro rata proportion of total permissible legal fees and
disbursements less any taxed costs recovered
from the defendant. (For
convenience I shall refer to these as the ‘gross medical fund’
and ‘net medical fund’
respectively. The plaintiffs’
attorneys are acting on contingency. The total legal costs, for
purposes of determining the
net medical fund, will be allocated pro
rata across the various heads of damages. The deduction will be
reduced by taxed costs
recovered from the defendant. The deduction
will thus be at least a pro rata share of the attorney/client
component and the attorneys’
contingency allowance. The
deduction may be more if there is a without-prejudice offer
negatively affecting the usual costs order.)
· The top-up
provisions will only apply if IDT survives beyond his expected death
age (‘EDA’) as determined by
my finding on his life
expectancy (‘LE’) and if by that stage the net medical
fund (including investment returns thereon)
has been depleted. Only
medical expenses attributable to IDT’s CP will be
deducted from the medical fund. (Unrelated
medical expenditure would
be funded from the award for loss of earnings and general damages.)
· If the corporate
trustee considers that a top-up payment is needed, it will issue a
certificate of depletion. In anticipation
of depletion at IDT’s
EDA the trustee may make application for a top-up not earlier than 18
months prior to the EDA but no
payment need be made until the EDA
arrives. Provision is made for mediation or arbitration if the
defendant disputes the need for
the top-up.
· The clawback
provision will become operative when the trust terminates, which is
upon IDT’s death and settlement
of all the trust’s
liabilities or on such other date as the court may direct. Upon such
termination any residue of the medical
fund, together with any
equipment acquired from the medical fund, will be transferred to the
defendant.
[48]
The defendant’s
proposal as pleaded at the time of argument differed from the
plaintiffs’ in the following respects:
[5]
· The ring-fenced
‘medical fund’ will be the gross medical fund without
deduction for legal costs. (This means
that depletion will take
longer.)
· Conversely,
though, the top-up provisions will apply immediately and not only in
respect of the period for which IDT may
survive beyond his EDA.
· Although there
is not much difference in the formulation of the clawback provisions,
the preceding two bullet points could
substantially affect the amount
available for clawback on IDT’s death.
[49]
In oral argument Mr Budlender explained the defendant’s
proposal somewhat differently. He said that the defendant had

intended to convey the following:
· The ring-fenced
medical fund will be the net rather than the gross amount.
· Once the net
medical fund is exhausted, the top-up provisions will become
operative subject to one further condition, namely
that an amount
equal to the gross medical fund has actually been expended on medical
costs. This actual expenditure would be the
nominal rand expenditure
as and when incurred without adjustment for changes in the time-value
of money. (If, for example, in ten
years’ time there is an item
of medical expenditure costing R200 000, the full R200 000
will constitute expenditure
towards the threshold even though the
present value of that amount (ie at the date of my judgment) is only,
say, R60 000.)
[50]
Since Mr Budlender’s exposition did not accord with the
defendant’s proposed trust deed, I asked the defendant’s

team to submit a revised draft, which has been done.
[51]
There is no doubt in my mind that the defendant’s latest
proposal is significantly better for IDT than the plaintiffs’

proposal. Indeed I think this was also true of the defendant’s
previous proposal. I find it difficult to understand why the

plaintiffs have persisted with their version. During argument I
understood Mr Irish to concede that the defendant’s latest

proposal is very favourable to IDT:
· The date of
actual depletion of the net medical fund will be the same on both
versions.
· On the
defendant’s version its obligation to begin top-up payments
might be deferred beyond the depletion date if
by that date an amount
equal to the gross medical fund has not yet been expended. However
that would only be worse for IDT than
the plaintiff’s version
if IDT were to reach his EDA without there having yet been
expenditure exceeding the amount of the
gross medical fund. Since the
defendant accepts rand nominalism as the basis for determining the
latter question, it is just about
certain that a nominal amount equal
to the gross medical fund will have been spent before IDT’s
EDA. For two reasons, the
investment growth in the medical fund will
fall well short of neutralising increasing medical prices:
(i) Investment returns
will only be earned on the net medical
fund. (ii) The net medical fund itself will reduce as medical
expenses are incurred,
so there will returns on a diminishing amount.
· IDT will thus
benefit from the topping-up sooner on the defendant’s version
than on the plaintiffs’ version.
(And, curiously, the worse the
plaintiffs fare on costs, eg if it transpires that the defendant has
made a without-prejudice tender
exceeding my award, the smaller the
starting value of the net medical fund will be, thus potentially
triggering a top-up obligation
even sooner.)
[52]
In its counterclaim the defendant pleaded that the common law should
be developed to allow the clawback provisions. The alleged
need to
develop the common law was pleaded in recognition that the current
position at common law is (i) that a person suing
for damages
must claim, by way of single proceedings, all damages to which he may
be entitled, both past and prospective (ii) that
the court is
obliged to award these damages as a lump sum – the plaintiff is
not entitled to claim and is not obliged to
accept future damages by
way of periodic payments. (I shall refer to these as the one-action
rule and the lump-sum rule.)
[53]
The pleaded development of the common law was said to apply to
(i) delictual claims (ii) for very substantial amounts

(iii) arising from medical negligence (iv) where such
damages depend in large measure on the injured person’s LE

(v) with the resultant substantial risk that the awarded damages
will not be used for their intended purposes (vi) and
where the
claim is made against the Western Cape Department of Health,
alternatively against an organ of state which has the constitutional

duty to provide access to health care services, alternatively against
any defendant.
[54]
For reasons which I shall presently explain, I do not think it
necessary in this case to express a final view on whether and
to what
extent the common law should be developed in the manner pleaded by
the defendant. However, since the defendant views the
present matter
as a test case and has engaged senior counsel with special expertise
in constitutional matters to argue this part
of the case, I shall
deal briefly with the main points. This may also be of assistance if
the case were to go further and another
court were to find that the
issues relating to the development of the common law should be
decided.
[55]
Precisely what the state of the common law would be if it were
developed as pleaded by the defendant is not altogether clear.
The
defendant has alleged that the existing rule which needs to be
changed is that an award of damages may not be made ‘in
such a
manner that the amount ultimately to be paid is dependent on when
future events take place, or whether they take place’.
There
are various ways in which the one-action rule and/or the lump-sum
rule might be varied. One possibility is to permit multiple
actions.
Another is to direct a defendant to make periodic payments in fixed
annual amounts, or as and when future expenses are
incurred, until
the victim’s death. In the present case the defendant does not
in terms plead that any of these solutions
should be adopted. Mr
Budlender submitted that all I need recognise for present purposes is
a flexible jurisdiction to fashion
solutions which are fair and
reasonable in the particular circumstances of the case. In this
particular case, he submitted, the
defendant’s proposal was a
fair and reasonable solution. The development of the law in this
field would occur incrementally.
Mr Budlender said I need not concern
myself with what solutions might be thought fair and reasonable in
other cases.
[56]
That our common law of
delictual damages incorporates the one-action and lump-sum rules is
clear (
Mouton
v Die Mynwerkersunie
1977
(1) SA 119
(A) at 147B-D;
Marine
& Trade Insurance Co Ltd v Katz NO
1979
(4) SA 961
(A) at 970C-H;
Evins
v Shield Insurance Co Ltd
1980
(2) SA 814
(A) at 835B-836A;
Coetzee
v Guardian National Insurance Co Ltd
1993
(3) SA 384
(W) at 392E-J; Boberg
The
Law of Delict
at
486; Van der Walt & Midgley
Principle
of Delict
3
rd
Ed para152). In relation
to road accident injuries, the legislature has intervened to allow
future medical expenses to be covered
by an undertaking (now
s 17(4)(b)
of the
Road Accident Fund Act 56 of 1996
, the first
version of which was
s 21(1C)
inserted in 1978 into the
Compulsory Motor Vehicle Insurance Act 56 of 1972).
[6]
[57]
When applying a provision of the Bill of Rights the court must, in
order to give effect to that right, apply or if necessary
develop the
common law and may also develop rules of the common law to limit the
right in question (s 8(2) of the Constitution).
When developing
the common law the court must promote the spirit, purport and objects
of the Bill of Rights (s 39(2)). Because
the Constitution is our
supreme law, any law (including the common law) which is inconsistent
with it is invalid (s 2).
[58]
The provisions of the Bill of Rights which are said by the defendant
to give rise to the need to develop the common law are
(i) everyone’s
right to have access to health care services, with the corresponding
obligation on the state to take
reasonable legislative and other
measures, within available resources, to achieve the progressive
realisation of this right (s 27
read with s 7(2)); (ii) the
right which every child has to basic health care services
(s 28(1)(c)) and to have his
or her best interests treated as of
paramount importance (s 28(2)).
[59]
The pleaded development of the common law is not confined to damages
suffered by children. In response to a question from the
court, Mr
Budlender confirmed that it was not the defendant’s case that
the common law needed to be developed in order to
safeguard the
interests of children harmed by medical negligence. The proposed
development would apply to adult victims as well,
because their
claims might also relate to a lengthy future period. In
Singh &
Another v Ebrahim
[2010] ZASCA 145
the court rejected an argument
that s 28 justified differential treatment of children in the
assessment of damages (paras
123-130).
[60]
The defendant’s case is thus concerned with the financial
burden which lump-sum awards place on public hospitals, a burden

which (so the argument goes) can hamper organs of state in
progressively realising everyone’s right to have access to
health
care services and in fulfilling their obligation to provide
basic health care services to all children. In short, awards in
favour
of the few are said to harm the rights of the many.
[61]
In the present case the lump-sum rule is engaged in somewhat
attenuated fashion. The defendant does not say that it should
only
have to pay for IDT’s future medical expenses as and when they
are incurred or that future actions should be instituted
as future
expenses are incurred. Both sides have proceeded on the basis that I
must quantify and make a lump-sum award in the usual
manner. In a
general sense the top-up and clawback provisions are only intended to
be operative if future events reveal that the
damages as
conventionally assessed are more or less than IDT requires.
[62]
Whatever the pros and cons might be of more radical departures from
the one-action rule or lump-sum rule, the proposed departure
in the
present case is not justified by its constitutional premise. The
defendant accepts that it would not be fair or reasonable
to have a
clawback provision without a top-up provision. Furthermore the
defendant does not say that its proposed solution relieves
the court
of the duty to assess damages conventionally. The defendant accepts
that damages as conventionally assessed must be paid
as a lump sum to
the trust. No evidence was led to show that this type of solution
would promote the constitutional rights and
duties on which the
defendant relies nor is such a conclusion self-evident, indeed it is
counter-intuitive:
· Private and
public resources would still have to be expended on a full quantum
trial, despite the fact that the top-up
and clawback provisions might
render the exercise largely academic
· The defendant
and similarly placed organs of state would still have to pay damages,
as conventionally assessed, in a lump
sum. The money in question
would thus not be available to meet state organs’ obligations
to the population at large.
· Although there
would be some prospect of eventual clawback, in most cases that would
lie many years in the future.
· In any given
case there would be an even likelihood of the top-up and clawback
provisions becoming operative. On average
one would expect the
financial benefit from clawback rights to be neutralised by the
financial burden from top-up provisions.
[63]
The first and second of these observations would not apply if one
adopted a more radical departure from the lump-sum rule,
namely
substituting for a lump-sum award an obligation to meet future
medical expenses as they arise. Such a regime might allow
public
funds to be better matched to current public needs and in a general
sense this might enhance the constitutional rights and
duties which
the defendant invokes. The parties and the court would also be saved
the time and expense of determining future medical
costs.
[64]
In my view, however, a radical departure of that kind should be left
to the legislature. The decision is one of policy. There
are
arguments for and against the lump-sum rule. While the lump-sum rule
may sometimes result in over-compensation or under-compensation,
it
has the advantage of finality. An order for periodic payments
inevitably involves risk of ongoing disputes as to whether particular

medical expenditure is reasonable and whether it arises from the
injury for which the defendant is liable. An order against an
organ
of state to make indeterminate payments over an indeterminate period
may present significant budgetary and fiscal challenges.
In order
properly to assess its annual requirements under such an order, an
organ of state would have to obtain annual updates
on the claimant’s
condition and likely medical requirements. Even if this information
were readily obtainable, its assessment
could be time-consuming and
expensive. If the lump-sum rule were varied, there would be many
aspects of definition and detail which
would more appropriately be
regulated by a statutory scheme.
[65]
In our constitutional democracy it is the legislature and not the
courts which has the major responsibility for law reform.
The
judiciary must exercise caution, confining itself ‘to those
incremental changes which are necessary to keep the common
law in
step with the dynamic and evolving fabric of our society’
(
Carmichele v Minister of Safety and Security & Another
(Centre for Applied Legal Studies intervening)
[2001] ZACC 22
;
2001 (4) SA 938
(CC) para 36;
Mighty Solutions t/a Orlando Service Station v Engen
Petroleum Ltd & Another
2016 (1) SA 621
(CC) paras 37-40). It
has also been observed that a constitutional principle that tends to
be overlooked when generalised resort
is made to constitutional
values is the principle of legality: ‘Making rules of law
discretionary or subject to value judgments
may be destructive of the
rule of law’ (
Bredenkamp & Others v Standard Bank of
South Africa Ltd
2010 (4) SA 468
(SCA) para 39).
[66]
I am not attracted by the argument that the court should have a wide
flexible jurisdiction to fashioning orders to address
the perceived
shortcomings of the lump-sum rule. The rule of law is a foundational
principle of our democracy and equality before
the law is a
guaranteed right. Law needs to have a measure of predictability (see
Mighty Solutions
para 38) and to operate similarly in relation
to similarly placed litigants. If the court had the power, without
the present defendant’s
consent, to compel it to make provision
for indeterminate payments over an indeterminate period (and this is
what Mr Budlender
argued), I do not see how such an order could be
granted in this case but not in a host of broadly similar cases which
may arise
against organs of state.
[67]
The common law in England and Scotland adopted the lump-sum rule (see
Simon v
Helmot
[2012] UKPC 5
paras 25-26). By way of s 2(1) of the Damages Act 1996 the
English courts were given the power to make orders for periodic

payment if both parties agreed. In
Wells v Wells
[1998] UKHL 27
;
[1998] 3 All
ER 481
(HL) Lord Steyn identified various shortcomings in the common
law lump-sum rule which applied in cases where one or both parties

objected to periodic payments (as apparently they routinely did) but
he said that judges could not make the change; only Parliament
could
‘solve the problem’ (at 502e-h). The English lawmaker
intervened by way of ss 100-101 of the Courts Act
2003, which
substituted the relevant provisions of the Damages Act.
[68]
The English regime
reflects the sophistication of a legislative scheme (see a discussion
in
Thompstone
v Tameside and Glossup
Acute
Services NHS Trust
[2006]
EWHC 2904; [2007] LS Law Med 71).
[7]
The English regime does not leave anything over for later decision
and potential dispute. After a full enquiry into damages the
trial
court makes an order for periodic payments which are annually
adjusted in accordance with the retail prices index unless
the court
orders some other index to apply. The court is required to be
satisfied that the periodic payments are reasonably secure.
There are
provisions relating to the tax treatment of payments, the
beneficiary’s bankruptcy and the like. The regime is
of
potential application to all future pecuniary loss, including loss of
earnings.
[69]
The common law lump-sum rule obtains in Australia (
Todorovic
v Walter
[1981] HCA 72
para 6;
Gray
v Richards
[2014] HCA 40
para 1) and in
Canada (
Watkins v Olafson
1989
CanLII 36
(SCC),
[1989 2 SCR 750
;
Krangle
v Brisco
2002
CanLII 9
(SCC),
[2002] 1 SCR 205
para 21). In
Watkins
the Supreme Court of
Canada rejected an invitation to alter the lump-sum rule on the basis
that such a significant change should
be left to the lawmaker. The
case contains an instructive discussion of the relevant
considerations and of legislative interventions
in the United States
and elsewhere.
[70]
Mr Irish argued, with reference to s 66 of the Public Finance
Management Act 1 of 1999 (‘PFMA’), that an organ
of state
is precluded from borrowing money or issuing a guarantee, indemnity
or security or entering into any other transaction
that binds the
institution to a future financial commitment unless it is authorised
by the PFMA (s 66(1)) and has been
approved, in the case of
a Provincial Revenue Fund, by the provincial MEC for Finance
(s 66(2)). Mr Budlender objected to
this argument on the basis
that it was not pleaded. Mr Irish’s riposte was that the
plaintiffs had pleaded that it was not
‘competent’ for
the court to develop the common law in the manner envisaged by the
defendant’s trust deed, that
‘competent’ meant
competent in law, that the PFMA was a law, and that the plaintiffs
were not obliged to plead the
law. I confess to finding this
submission contrived. If the plaintiffs’ legal representatives
had had s 66 of the PFMA
in mind when pleading, I think they
would have made express reference to it.
[71]
Nonetheless, in considering a development of the common law I cannot
ignore statutory provisions which may be inconsistent
with such
development. Section 66(1) would not apply to a court order save
perhaps for a settlement which is made an order of court.
However if
the common law were developed as the defendant proposes one would
expect claimants and organs of state to avoid litigation
by seeking
and offering undertakings in respect of future expenses, if necessary
accompanied by a reasonable provisional sum. The
ability to resolve
claims in this way would be one of the significant policy
considerations in favour of a relaxation of the lump-sum
rule.
[72]
It is here that s 66(1) may present difficulty. The undertaking
would bind the institution to a future financial commitment.
My
attention was not directed to any provision of the PFMA which in
terms authorises such a transaction. It may be that entering
into
future financial commitments is part of the general executive
authority of national and provincial departments. This would
be
subject inter alia to s 63(1) of the PFMA which stipulates that
executive authorities of departments must perform their
statutory
functions within the limits of the funds authorised ‘for the
relevant vote’ (presumably a reference to money
allocated to
the department in terms of an
Appropriation Act). There
would also
need to be compliance with the Treasury Regulations promulgated under
the PFMA. In terms of para 8.2.1 of the Treasury
Regulations an
official of an institution may not spend or commit public money
without the approval of the accounting officer or
a properly
delegated or authorised officer. In the present case that would be a
reference to the accounting officer of the WC Department
for Health
and Social Development. If a transaction binds or may bind the
Provincial Revenue Fund the transaction must also be
authorised by
the MEC for Finance (s 66(2)) though it is not clear to me that
a departmental undertaking would purport to
bind the Provincial
Revenue Fund.
[73]
These provisions may not be an absolute bar to voluntary undertakings
by a national or provincial department but they provide
further
reason for judicial caution when intruding into the field of public
finance.
[74]
In summary, the departure from the common law which the defendant
contends for in this particular case (ie a solution following
the
form of its proposed trust deed) has not been shown to be a
development which will promote or enhance any rights or duties
in the
Bill Of Rights. A more radical departure, in which the obligation to
pay a lump sum is replaced by an obligation to make
periodic
payments, might promote or enhance certain rights and duties in the
Bill Of Rights but is a development which should be
left to the
legislature.
[75]
However it is unnecessary in this particular case to express a final
view on these questions. This is because the defendant
has
volunteered terms (insofar as top-up and clawback provisions are
concerned) which are more beneficial for IDT than those the

plaintiffs were willing to accept. I thus need not decide whether a
court could in law impose such terms on an unwilling defendant.
[76]
A court awarding damages in respect of injuries suffered by a child
has the power to order that such damages be paid to a trustee
to be
administered for the child’s benefit (
Van
Rij
NO v Employers’ Liability Assurance Corporation Limited
1964
(4) SA 737
(W);
Woji v Santam Insurance Co Ltd
1981 (1) SA
1031
(A) at 1030H-1031H;
Dube NO v Road Accident Fund
2014 (1)
SA 577
(GSJ)). In
Ex Parte Oppel & Another
2002 (5) SA 125
(C) Ngwenya AJ said that where the child has a guardian the court
will not appoint a curator (or presumably a trustee) save in

exceptional circumstances He refused the application even though the
applicants were the parents and felt they lacked the skills
to manage
the award and even though the RAF would be meeting the costs of
curatorship. I do not think the court’s discretion
to act in
the child’s best interests is fettered by a test of
‘exceptional circumstances’, and the learned judge’s

contrary view does not seem to be borne out by the authorities he
cited. The attitude of the guardian will, of course, always deserve

careful consideration. In the present case the plaintiffs, duly
advised by an experienced legal team, are in favour of a trust.
In
Singh
the award was made to a trust. Although the terms of the
trust were not in issue on appeal, the course followed was not
questioned.
[77]
A court might be reluctant to appoint a trustee if it were necessary
for the court to engage in extensive drafting of trust
terms. In the
present case, however, the parties are in essential agreement on most
of the terms. They concur that I have jurisdiction
to determine the
remaining points of difference on the basis of what I consider
reasonable, bearing in mind IDT’s best interests.
Counsel
agreed that the legal teams could settle the wording once I ruled on
the substantive issues.
[78]
The question may arise as to whether an award should be paid to a
trust or to a curator bonis. I referred the parties in that
regard to
the judgment of Bertelsmann J in
Modiba NO: In
re Ruca v Road Accident Fund
2014 ZAGPPHC 1071. All
counsel, including counsel for the amicus, submitted that IDT’s
best interests would be served by
the more sophisticated mechanism of
a trust. That is also my prima facie view. I note that the
plaintiffs’ proposed trust
deed requires the trustee to furnish
the same information and documentation to the Master as a curator
bonis would have to do.
The defendant’s version obliges the
trustee to furnish information and documentation to the Master on
request. However counsel
agreed that the Master should be invited to
comment on the question before I take a final decision. The present
judgment will make
provision for that to happen.
[79]
In regard to the top-up and clawback provisions of the trust deed, I
have explained why the terms offered by the defendant
are favourable
to IDT. Mr Irish said in argument that because of s 66 of the
PFMA the plaintiffs believed and still believe
that the undertakings
offered by the defendant are of questionable validity and they thus
do not attach much weight to them. He
said that the plaintiffs’
primary goal was to ensure that the trust received upfront the full
amount of damages conventionally
assessed. They have always been
willing to agree to the defendant’s reversionary interest,
whether or not accompanied by
top-up undertakings. If the top-up
undertakings are honoured or prove to be enforceable, so much the
better. IDT’s interest
in the net medical fund will cease with
his death. The persons affected by the reversionary interest would be
his heirs. His parents,
who are his current heirs, do not seek any
benefit for themselves from the residue of the medical fund.
[80]
This being the plaintiff’s’ attitude, I think I can allow
the top-up and reversionary provisions to be included
in the trust
deed without making a legal determination that the top-up
undertakings are valid (though naturally the defendant will
be bound
unless the undertakings suffer from a statutory defect). And because
the defendant is willing to offer the top-up provisions
and the
plaintiffs are willing to offer the clawback provisions, I need not
and do not decide whether (assuming a development of
the common law)
they are the sorts of provisions which it would be reasonable and
fair to impose on a defendant or plaintiff in
the absence of
agreement.
[81]
There are some minor points of detail on the trust deed which it is
more convenient to address at the end of this judgment.
I thought it
important, though, to explain the controversy regarding the top-up
and clawback provisions before proceeding further
since otherwise the
curious reader might have wondered why it was necessary for me to
hear 45 days of evidence and four days of
argument largely devoted to
assessing future medical costs.
Life
expectancy
Introduction
[82]
IDT’s life expectancy (‘LE’) has an important
bearing on future medical expenses, the cost of administering
the
award and loss of earnings. Medical expenses and administration costs
will be incurred for as long as IDT is alive. In regard
to loss of
earnings, our law is that if a claimant post-morbidly has a shortened
LE his earning capacity must be computed with
reference to the
earnings he would have earned pre-morbidly up to his post-morbid
expected death age (‘EDA’). There
is no claim for the
so-called ‘lost years’, ie for money the claimant could
have earned in the additional years for
which he would have survived
but for the injury (
Lockhat’s Estate v North British &
Mercantile Insurance Co Ltd
1959 (3) SA 296
(A) at 304G-306G;
Singh & Another v Ebrahim
[2010] ZASCA 145
paras 7-11 and
143-147).
[83]
The plaintiffs called Dr
Strauss as their principal LE witness.
[8]
The defendant’s principal witness on this issue was Prof
Cooper.
[84]
The expertise of Dr
Strauss, who is based in California, is not in question. He is a
mathematician and statistician who has worked
for many years as a
medical researcher in the sphere of LE and epidemiological studies in
developmental disabilities and traumatic
injury, including CP. His
eminence and expertise in this field was acknowledged in
Singh
.
[9]
[85]
Prof Cooper is a paediatrician specialising in neonatology. He is
Professor and Head of Paediatrics at Charlotte Maxele Hospital.

Before his evidence began Mr Irish foreshadowed an objection to his
expertise on LE. Mr Irish asked me to hear evidence from Prof
Cooper
on his qualifications and to rule whether he should be permitted to
testify on the merits. I declined this proposal. The
objection was
raised at the last minute (Prof Cooper had travelled from
Johannesburg to testify). Prof Cooper’s evidence
was expected
to finish within a day (as in fact occurred). It appeared to me, in
the larger scheme of the trial, that greater injustice
might flow
from an incorrect refusal to hear evidence on the merits than from
allowing evidence from a witness whose expertise
I might later find
was insufficient.
[86]
In the event I do not consider Prof Cooper’s evidence to be
inadmissible for want of expertise. He explained that since
there are
no South African experts equivalent to Dr Strauss, ie statisticians
who have focused on the effects of conditions such
as cerebral palsy
on LE, he (Prof Cooper) has taken an interest in the matter by
studying the literature, including the work of
Dr Strauss. Prof
Cooper’s expertise in paediatrics enables him to understand the
clinical picture presented by such patients.
He had some
understanding of statistics, which he applied in his doctoral thesis.
[87]
To clarify terminology,
LE refers to the additional years which a person (X) is expected to
live as from X’s age at the calculation
date. By adding the
additional years to the current age one arrives at X’s EDA.
[10]
In order to determine LE along scientific lines one needs data on
actual mortality rates from a statistically significant population.

At birth X’s LE and EDA are the same. Although LE decreases
with age, the EDA increases. This is because the deaths occurring

from birth to X’s current age no longer negatively affect X’s
LE.
The
LEP and CDER
[88]
There is no mortality
data on South African CP sufferers. The most extensive foreign data
is from the Life Expectancy Project (‘LEP’)
in
California, spearheaded by Dr Strauss and his colleagues. The LEP has
been tracking a large cohort of CP children in California
since 1983.
The data currently includes CP children up to age 29. The LEP
receives annual information on each participant by way
of a Client
Development Evaluation Report (‘CDER’) submitted by the
relevant caregiver or social worker.
[11]
[89]
The CDER contains patient information on a wide range of symptoms and
conditions and their severity. The data has enabled the
LEP to
determine the relative impacts of various CP symptoms and conditions
on LE. In order to determine the LE of a specific CP
boy (X), Dr
Strauss selects from the LEP database a subset of male CP
participants with more or less the same symptoms and conditions
as X.
The creation of the subset involves experience, expertise and
judgment of a kind which Dr Strauss is pre-eminently qualified
to
bring to bear.
[90]
If X were a Californian
boy, it would not be necessary to travel beyond the Californian data
to determine X’s LE. More particularly
one would not need to
concern oneself with the ordinary male LE of Californian boys.
However because ordinary LE differs from country
to country the LE of
CP children may also differ from country to country. One thus cannot
apply the Californian data to a child
in another country without
adjustment. Since ordinary LE in South Africa is lower than in the
United States, an adjustment is needed.
The approach adopted by Dr
Strauss, which is reasonable and has not been challenged, is to
assume that CP LE in California and
South Africa will differ in the
same ratio as ordinary LE does.
[12]
Dr
Strauss’ reports
[91]
Dr Strauss’ first
report dated 16 July 2014 contained his calculation of IDT’s LE
at age 5,5.
[13]
He determined
that a similarly-placed Californian CP boy would have a LE of 56,6
years as against an ordinary American LE of 70,8
years. The reduced
LE being 80% of the ordinary figure, he arrived at a LE of 52,5 years
for IDT  by applying the same percentage
to the ordinary
LE of a South African boy, which he took to be 66 years in accordance
with Life Table 1 in the 2011 edition of
Robert Koch’s
well-known Quantum Yearbook. On this basis IDT’s EDA would be
58 as against 71,5.
[92]
Dr Strauss’s second report dated 5 November 2015 contains his
calculation of IDT’s LE as a 6,8-year-old boy. Using
the same
methodology as before, he recalculated IDT’s LE as 51,4 years,
yielding an EDA of 58,2.
Prof
Cooper’s report
[93]
Professor Cooper’s report is dated 11 November 2015.
Inexplicably, though by no fault of his own, he was not given Dr

Strauss’ reports. He used tables furnished in a paper published
by Dr Strauss and others in 2014. This paper was not adduced
in
evidence but from it Prof Cooper identified the LE of CP boys at ages
4 and 15. After making certain adjustments for IDT’s
age (6,8
years) and physical condition, he concluded that as a Californian boy
IDT would have LE of 35,6 years which was 58% of
ordinary American
LE. He applied this percentage to Koch’s Life Table 4 in order
to arrive at IDT’s LE, which he thus
put at 28,7 years (an EDA
of 35,6).
The
joint minute
[94]
Prof Cooper did not have the benefit of access to the full
Californian data or the statistical expertise to deploy it in a
way
best suited to IDT’s condition and age. Dr Strauss and Prof
Cooper produced a joint minute dated 23 December 2015 following
email
communication. It is apparent from this minute and from the oral
testimony that Prof Cooper did not dispute Dr Strauss’

methodology or his identification of the main factors affecting IDT’s
LE. The main points of difference were (i) the
degree of IDT’s
impairment in the areas of mobility and feeding; (ii) the
appropriate life table for determining the
ordinary South African LE.
[95]
In the joint minute Dr Strauss updated his model to 23 December 2015,
ie to account for the fact that IDT was now (just about)
7 years old.
Dr Strauss reduced the LE ratio to 79% for reasons I shall presently
explain. He also recorded that it would be reasonable
to apply this
ratio to Koch’s Life Table 2 (he had previously used Table 1
which would have yielded a greater LE). This resulted
in a LE for IDT
of 49,3 years and an EDA of 56,3.
Miscellaneous
factors
[96]
Before dealing more fully with Dr Strauss’ model, I should
mention various factors, apart from mobility and feeding,
which may
affect LE.
[97]
The first is low weight. The point at which this has a negative
effect on LE has been found by the LEP to differ depending
on the
child’s GMFCS classification. The better the classification,
the more pronounced the low weight must be in order to
become
relevant to LE. The LEP has produced gender-specific weight-for-age
percentile graphs for each GMFCS classification. The
shaded red area
at the base of each graph indicates the zone where low weight may
negatively affect LE (I refer to this as the
‘red zone’).
In the case of a boy classified as GMFCS II (relatively good
mobility) low weight only becomes an issue
if his weight-for-age is
below the  5
th
percentile. In the case of a boy
classified as GMFCS III and IV (ie poorer mobility) low weight may be
negative factor up to the
20
th
percentile.
[98]
At certain times IDT’s weight has put him on or just beneath
the beginning of the red zone, depending on whether one
classifies
him as a GMFCS II or III. Dr Strauss considered that there was no
basis for a downward adjustment of IDT’s LE.
Prof Cooper, while
accepting that the risk cannot be precisely quantified, considered
that there should be a qualitative adjustment
downwards.
[99]
Continence is not regarded by Dr Strauss as a specific driver of LE.
Based on the medico-legal reports, he regarded IDT as
doubly
incontinent. He said that if IDT were not doubly incontinent he would
not be in the subset created by Dr Strauss. I take
this to mean that
in Dr Strauss’ opinion CP children with the criteria he used
would generally also be doubly incontinent.
IDT was in fact doubly
incontinent at the ages for which Dr Strauss has done LE assessments
though there is a reasonable possibility
of his becoming partially or
fully continent.
[100]
Dr Strauss testified that the Californian data has shown that hearing
loss does not affect LE, something which
is true not only in the CP
population but in the ordinary population.
[101]
Dr Strauss said that scoliosis, if severe, is a significant negative
factor for LE. In the light of my findings
on scoliosis in a later
section of this judgment, this need not be discussed further.
[102]
Severe epilepsy would be a significant negative factor. Dr Strauss
assumed that IDT did not have and would not
suffer from epilepsy.
According to the defendant’s developmental paediatrician, Dr
Springer, she would have expected IDT
by now to have had seizures if
he were going to develop epilepsy. Based on the medical evidence,
therefore, I would discount the
risk of epilepsy. In relation to
neurological claims, one of the items on which the parties reached a
settlement was epilepsy,
which they resolved on the basis of a 20%
risk. On the assumption that I should take this into account in
assessing IDT’s
clinical picture for purposes of LE, Dr Strauss
testified that his general approach was not to make ‘super-fine
distinctions’.
He mentioned epilepsy as an example – if
it were severe he would make an downward adjustment, if it were mild
and occasional,
he would not. Accordingly, and even allowing for 20%
risk, I think epilepsy may be left out of account.
[103]
Severe respiratory problems would also affect LE. There is nothing to
suggest that this represents a danger for
IDT.
[104]
Dr Strauss was asked
about the distinction between spastic and athetoid CP. He accepted
that the incidence of these two forms of
CP was about 80/20. He did
not distinguish between them in compiling a dataset for IDT. To judge
by the CDER form, the Californian
data would have enabled the
distinction to be made
[14]
though
whether
it would have yielded a statistically relevant (ie sufficiently
large) group was not explored in evidence. Dr Strauss explained
that
he did not make the distinction because the Californian data has
shown that once one has properly controlled for the primary

functional drivers (in IDT’s case, mobility and feeding
abilities), the type of CP does not affect LE.
Dr
Strauss’ model
[105]
For purposes of his 2014 report Dr Strauss’ main assumptions
regarding IDT were (i) that he was not tube-fed;
(ii) that he
fed himself with a spoon, though messily; (iii) that he lifted
his head in prone, rolled over, sat and crawled
independently;
(iv) that he did not stand or walk without support; (v) that
he was doubly incontinent; (vi) that
he needed help to brush his
teeth, shower and dress; (vii) that he did not use words,
instead communicating with hand signs,
gestures and eye-gaze;
(viii) that he understood simple instructions. He noted that
IDT’s inability to walk was the
major adverse factor for his
LE. Given this inability, his mobility through rolling and crawling
and his limited ability to feed
himself were strongly positive
factors.
[106]
He extracted from the Californian data those boys who had attained
the age of 5½ years and who were not
tube-fed. This dataset
comprised 15 259 boys. The first key variable (V1) in the
logistic regression model he applied to this
dataset was compliance
or non-compliance with both of the following criteria: (i) at
best walks with support and (ii) does
not self-feed (compliance
with both having a value of 1, non-compliance with either resulting
in a value of 0). The next variable
(V2) was compliance or
non-compliance with the following two criteria (i) at best walks
with support and (ii) has at
least some ability to self-feed
(compliance with both having a value of 1, non-compliance with either
resulting in a value of 0).
The other two variables were of a
technical nature (linear age terms related to V1 and V2). IDT’s
value for V1 was 0 (because
although he could at best walk with
support he also had some self-feeding ability) and his value for V2
was 1.
[107]
The conditions
which Dr Strauss attributed to IDT in 2014 and which were explicitly
modelled were  thus (i) that IDT at
best walked with
support; (ii) that he had at least some ability to self-feed.
The Californian data for the boys in the dataset
included more
precise information about their varying conditions. Dr Strauss
reported that the dataset appeared to capture IDT’s
pattern of
abilities and disabilities well. By way of example, the data on
crawling and standing
[15]
showed that 39% of the children were similar to IDT, 47% had better
skills and 16% had worse skills. In relation to receptive language,

39% were able, like IDT, to follow simple instructions, 29% had
better skills (being able to follow a series of instructions) and
32%
had poorer skills (being at best able to understand simple
words).
[16]
Dr Strauss listed
various other positive and negative factors, including low weight
which as at March 2013 placed IDT near the
red zone, but he
considered that there was no balance of positive or negative factors
calling for an adjustment to the LE yielded
by the model.
[108]
Dr Strauss’ model took into account a favourable trend (the
so-called secular trend) of improved mortality
in CP children up to
the age of 15. Prof Cooper considered that there was insufficient
basis to transpose this trend to South Africa.
[109]
In updating his LE determination in November 2015, Dr Strauss
considered that his 2014 dataset remained appropriate.
Based on
further medico-legal reports, he noted certain improvements in IDT’s
condition, the main one being that IDT had
become able to stand and
had acquired a limited ability to walk. His walking was, however,
unsteady and he could not move up and
down stairs.
[110]
Although I do not recall Dr Strauss specifically so saying, it seems
to me that IDT’s values for variables
V1 and V2 were unchanged
as at November 2015 – IDT still met the criteria of at best
walking with support and having at least
some ability to self-feed.
It thus appears that the only change which directly affected the
model’s output for IDT in November
2015 was that he was now 6,8
years old rather than 5,5. (The same is true for the December 2015
update in the joint minute.) Dr
Strauss did not say in his second
report that the new information resulted in a balance of positive or
negative factors justifying
an adjustment to the model’s
output. This seems to be what he intended to convey in his concluding
paragraph, namely that
he had revisited his analysis and found that
the new material did not indicate any change in his estimate except
for ‘simple
updating’.
[111]
In the joint minute Dr Strauss noted that he had looked into the
question whether IDT’s weight of 15 kg
as at November 2015
called for a low-weight adjustment. He recorded that the issue was
not completely clear because there were
limitations related to the
amount of data available but that he would now estimate a LE ratio of
79%.
GMFCS
and low weight
[112]
Despite the time devoted to IDT’s GMFCS classification during
the trial, Dr Strauss’ model does not
call for a decision on
whether IDT is a GMFCS II or a GMFCS III. The question is whether at
best he walks with support. It is not
the defendant’s case that
IDT does not fit this general description. Dr Strauss testified that
the CDER does not call for
a GMFCS classification of the patient
though the CDER information would usually enable one to estimate the
classification. In the
joint minute Dr Strauss was willing to treat
it as common ground that IDT, having previously been classified as a
GMFCS IV, was
now a GMFCS III. Dr Strauss testified that his own view
was that IDT was either a poor GMFCS II or a good GMFCS III but that
this
was not worth pressing because it did not affect the LE
assessment.
[113]
Prof Cooper testified that in the joint minute discussions he
expressed the view that IDT was either a poor GMFCS
III or a good
GMFCS IV and that they agreed to record him as a GMFCS III. To the
best of his recollection Dr Strauss had not raised
the possibility
that IDT might be a GMFCS II. I did not understand Dr Strauss to say
that he had raised it – he seemed unsure.
[114]
Be that as it may, Prof Cooper did not assert that classifying IDT as
a GMFCS III rather than a GMFCS II would
affect the output of Dr
Strauss’ model. He also did not say that this distinction would
result in a balance of negative factors
calling for a qualitative
adjustment to the LE yielded by the model.
[115]
Where the precise
classification may be relevant is in regard to low weight. The LEP
weight-for-age charts are based on GMFCS classification.
During oral
evidence Dr Strauss and Dr Springer were asked to plot IDT’s
age-for-weight positions on GMFCS II and III graphs.
The most recent
recorded weights for IDT are 15,5 kg on 15 July 2015,
[17]
15 kg on 3 November 2015,
[18]
,
15,7 kg on 26 January 2016 and 16,4 kg on an unspecified date in
February 2016.
[19]
If IDT were
classified as a GMFCS II, his weight on these various dates would put
him near but not in the red zone. If he were
classified as a GMFCS
III, his most recent weight (February 2016) would put him on the
dividing line while his weights as at November
2015 and January 2016
would put him marginally in the red zone.
[20]
[116]
I do not think it is strictly necessary to decide IDT’s GMFCS
classification. Dr Strauss testified that
if IDT were within the red
zone it was so marginal as not to justify an adverse adjustment. This
seems particularly apposite in
view of the fact that IDT’s
GMFCS classification is marginal and a matter on which experts might
differ. He testified that
the dividing line was not a ‘sharp
distinction’ but indicated ‘roughly where the low weight
starts being an increased
risk factor’. Prof Cooper did not
testify that there was any way of quantifying the adjustment though
he believed the LEP
could not have produced their graphs unless there
was a statistical basis for determining where the red zone began.
Whatever force
there may be in that observation, I am satisfied that
Dr Strauss was giving me his honest opinion and that he would not
have expressed
the view he did if he believed there was a statistical
foundation for a downward adjustment. Furthermore in the joint minute
he
in fact made a downward adjustment of one percentage point, which
I take to be his  qualitative adjustment for the possibility
of
negative low-weight.
[117]
There is evidence that athetoid CP patients, because of their
constant movements, are often lean with a low BMI
compared to spastic
CP patients. There appear to be no current clinical concerns about
IDT’s weight.
GMFCS
defined
[118]
However, in case IDT’s
GMFCS classification should be thought important on this or any other
part of the case I need to make
a factual finding. The following
summary of the GMFCS is taken from the 2007 revision though reference
was also made during evidence
to what I take to be the 1997
version.
[21]
The GMFCS is
based on self-initiated movement, with emphasis on sitting, transfers
and mobility. In defining the five-level classification,
the primary
criterion is that the distinctions between the levels must be
meaningful in daily life. In classifying a child one
must determine
which level best represents the child’s present abilities and
limitations in gross motor function, the emphasis
being on usual
performance in typical settings rather than what the child is known
to be able to do at his or her best. The classification
is concerned
with current performance rather than judgement about the quality of
movement or prognosis for improvement. The descriptions
of functional
abilities and limitations for each age band are broad and are not
intended to describe all aspects of function. The
scale is ordinal,
with no intent that the distances between levels be considered equal
or that CP children are equally distributed
across the five levels.
[119]
IDT’s age was 6,8 as at November 2015, the relevant date for
the LE assessment. His relevant GMFCS age band
is thus 6-12. I do not
intend to dwell on the GMFCS assessments made during 2012-2014 when
his relevant age band was 4-6. The five
levels for the age band 6-12,
according to the 2007 revision, are as follows (I have inserted at
the end of each description the
‘general heading’ for the
level as indicated earlier in the document):
‘
Level
I:
Children
walk at home, school, outdoors, and in the community. Children are
able to walk up and down curbs without physical assistance
and stairs
without the use of a railing. Children perform gross motor skills
such as running and jumping but speed, balance, and
coordination are
limited. Children may participate in physical activities and sports
depending on personal choices and environmental
factors. (“Walks
without Limitations”)
Level
II:
Children walk in most settings. Children may experience
difficulty walking long distances and balancing on uneven terrain,
inclines,
in crowded areas, confined spaces or when carrying objects.
Children walk up and down stairs holding onto a railing or with
physical
assistance if there is no railing. Outdoors and in the
community, children may walk with physical assistance, a hand-held
mobility
device, or use wheeled mobility when travelling long
distances. Children have at best only minimal ability to perform
gross motor
skills such as running and jumping. Limitations in
performance of gross motor skills may necessitate adaptations to
enable participation
in physical activities and sports. (“Walks
with Limitations”)
Level
III:
Children walk using a hand-held mobility device in most
indoor settings. When seated, children may require a seatbelt for
pelvic
alignment and balance. Sit-to-stand and floor-to-stand
transfers require physical assistance of a person or support surface.
When
travelling long distances, children use some form of wheeled
mobility. Children may walk up and down stairs holding onto a railing

with supervision or physical assistance. Limitations in walking may
necessitate adaptations to enable participation in physical

activities and sports including self-propelling a manual wheelchair
or powered mobility. (“Walks Using a Hand-Held Mobility

Device”)
Level
IV:
Children may use methods of mobility that require physical
assistance or powered mobility in most settings. Children require
adaptive
seating for trunk and pelvic control and physical assistance
for most transfers. At home, children use floor mobility (roll,
creep,
or crawl), walk short distances with physical assistance, or
use powered mobility. When positioned, children may use a body
support
walker at home or school. At school, outdoors, and in the
community, children are transported in a manual wheelchair or use
powered
mobility. Limitations in mobility necessitate adaptations to
enable participation in physical activities and sports, including
physical assistance and/or powered mobility. (“Self-Mobility
with Limitations; May Use Powered Mobility”)
Level
V:
Children are transported in a manual wheelchair in all
settings. Children are limited in their ability to maintain
antigravity head
and trunk postures and control arm and leg
movements. Assistive technology is used to improve head alignment,
seating, standing,
and/or mobility but limitations are not fully
compensated by equipment. Transfers require complete physical
assistance of an adult.
At home, children may move short distances on
the floor or may be carried by an adult. Children may achieve
self-mobility using
powered mobility with extensive adaptations for
seating and control access. Limitations in mobility necessitate
adaptations to
enable participation in physical activities and sports
including physical assistance and using powered mobility.’
(“Transported
in a Manual Wheelchair”)
[120]
For purposes of these descriptions the following terms are defined as
indicated: (i) ‘Hand-held mobility
device – Canes,
crutches, and anterior and posterior walkers that do not support the
trunk during walking’; (ii) ‘Physical
assistance –
Another person manually assists the child/youth to move’;
(iii) ‘Walks – Unless otherwise
specified indicates
no physical assistance from another person or any use of a hand-held
mobility device. An orthosis (ie brace
or splint) may be worn’.
[121]
The 2007 revision provides the following guidance in distinguishing
between the second and third levels:
‘
Children and
youth in Level II are capable of walking without a hand-held mobility
device after age 4 (although they may choose
to use one at times).
Children and youth at Level III need a hand-held mobility device to
walk indoors and use wheeled mobility
outdoors and in the community.’
The
experts’ views on IDT’s GMFCS classification
[122]
None of the plaintiff’s’ experts dealt with IDT’s
GMFCS level in their reports but it was traversed
in oral evidence
with Ms Jackson (a physiotherapist), Ms Crosbie (an occupational
therapist) and Dr Strauss. On the defendant’s
side, Dr Springer
(a developmental paediatrician), Ms Scheffler (a physiotherapist) and
Prof Cooper dealt with GMFCS levels in
their reports and in oral
evidence.
[123]
Ms Jackson testified that she does not use the GMFCS in her practice
because it does not add anything to how she
manages the patient.
However, and because it was raised by her counterpart Ms Scheffler,
they discussed it for purposes of their
joint minute dated 4 December
2015. They agreed that IDT had  elements of Levels II and III.
On balance Ms Jackson regarded
him as being at Level II whereas
Scheffler put him at Level III.
[124]
Ms Crosbie, like Ms Jackson, did not do a GMFCS assessment. She also
did not offer a GMFCS classification in oral
evidence. The views of
Dr Springer and Ms Scheffler on IDT’s improved GMFCS level from
2013 to 2015 were taken up with her
in cross-examination solely for
the purpose of challenging her assessment that IDT’s
performance in certain functions had
worsened.
[125]
Dr Strauss is not a medical specialist. He did not examine IDT though
by the time he gave evidence he had viewed
some of the video
material. Based on that material and what he had read in the most
recent medico-legal reports he thought IDT
might be a GMFCS II but,
as previously mentioned, the distinction between Levels II and III
was not of great importance to him
and he was willing to accept, for
purposes of his joint minute with Prof Cooper, that IDT was at Level
III. The defendant’s
counsel submitted that Dr Strauss adapted
his evidence regarding IDT’s classification when it became
apparent that as a Level
III his low weight would put him in the red
zone. That was not my impression.
[126]
Dr Springer examined IDT in September 2013. He was then in the 4-6
age band. She classified him at GMFCS IV. When
she saw him in
September 2014, when he was still in the 4-6 age band, she thought he
had improved to GMFCS III. She examined him
for a third time in July
2015. She assessed him as remaining at GMFCS III.
[127]
She testified that IDT’s GMFCS classification in July 2015 gave
her some difficulty. She was not sure whether
to place him at Level
III or Level II but on balance she opted for the former. She
explained that the GMFCS does not permit one
to assign a blended
classification (eg ‘low II/high III’). It would be
unusual, in her opinion, for a patient to improve
by two levels, ie
from Level IV to Level II. She also said that she wanted to be
‘conservative’ so that IDT would not
be deprived of
appropriate treatment. This last observation is not a sound basis for
a GMFCS classification though Dr Springer
impressed me as a sincere,
candid and caring expert. I may add that there would have been no
subconscious pro-defendant incentive
for Dr Springer, in July 2015,
to give IDT an unjustifiably low GMFCS score. The possible impact of
low weight on LE only emerged
as an issue in December 2015. Dr
Springer probably thought that classifying IDT at Level III instead
of Level II would increase
rather than decrease the claim.
[128]
Unlike Dr Springer but like Ms Jackson and Ms Crosbie, Ms Scheffler
is something of a veteran witness. She examined
IDT in April 2013,
September 2014 and November 2015. On the first occasion she assessed
him as a GMFCS IV. On the second and third
occasions she assessed him
as a GMFCS III. Mr Irish cross-examined her on several topics with a
view to establishing that she was
biased in the defendant’s
favour. On some aspects she and other witnesses may have shown some
subconscious pro-client bias
I do not think that this taints her
GMFCS assessment. Dr Springer’s evidence shows that Ms
Scheffler’s assessment is
reasonably plausible. As with Dr
Springer, there is nothing to indicate that Ms Scheffler thought, at
the time she wrote her reports,
that classifying IDT at Level III
instead of Level II would decrease rather than increase the claim. I
should note, however, that
Ms Scheffler regarded IDT as a ‘strong’
Level III (in the 70
th
percentile – she scored him
at 72,4 as against a mean of 65,1).
[129]
Prof Cooper did not examine IDT. His medical expertise may give him a
superior understanding of the medico-legal
reports so that his view
that IDT was at Level III is perhaps entitled to some weight. On the
other hand, and if it were relevant
to establish whether IDT were
closer to Level II or Level IV, I would attach greater weight to Dr
Springer’s views, given
that she examined IDT on three
occasions. In any event, the weight-for-age charts do not distinguish
between degrees of functionality
within specific GMFCS Levels.
Factual
evidence relevant to IDT’s GMFCS classification
[130]
I must now summarise the main features of the factual evidence
bearing on IDT’s GMFCS classification. His
wheelchair is not
taken to school. He moves around the classroom on his own although he
falls quite a lot. When he walks longer
distances at the school, eg
when going to individual therapy, Ms Lundy holds his hand. They might
use the wheelchair when visiting
the mall or hospital.
[131]
When Ms Scheffler observed IDT at the school in late November 2015 he
walked from the classroom to the playground
and spent the whole break
period pushing himself round on a scooter. He walked back to the
classroom on his own, balancing himself
against the corridor wall.
She saw him stop to pick up a toy. He lost his balance, sat down, and
stood up again. He also fell on
another occasion.
[132]
In the home IDT generally walks around on his own, holding onto walls
and furniture for stability. His wheelchair
is used as a chair rather
than for mobility.
[133]
There appears to be general consensus that IDT can walk unsupported
for about 10 metres.
[134]
IDT enjoys playing. Apart from hearing general descriptions from his
mother and others, I saw three video clips
of him at play. In one he
is riding a tricycle. He can start pedalling from a stationary
position. In another clip he is seen sitting
and then lying on his
side while pushing a toy car. He stands up, walks up a patio step to
fetch a towel, takes it back to the
grass and cleans his toy. He is
able to pick up the car from a standing position. He walks back to
the patio and pushes the toy
up and down a pillar. In the third clip,
shown during Ms Scheffler’s testimony, he is shown stepping
down the single step
of the patio onto the grass by holding onto a
pillar.
[135]
Although there is a difference of opinion regarding the best walking
device for IDT, the experts generally agree
that he will benefit from
some such device (see fuller discussion below). The purpose of the
walking device would not be to bear
weight but to enhance his
stability and balance. His limbs and core muscles are sufficiently
developed for walking but his athetoid
movements throw him out of
kilter.
[136]
IDT cannot walk up and down stairs, not even with the assistance of a
handrail. He can crawl upstairs on his knees
and manoeuvre himself
downstairs on his rear. (He can, though, walk up and down a single
step by holding onto a pillar, as shown
in the video clips.)
[137]
The guidance in the GMFCS for distinguishing between Levels II and
III states that children and youth in Level
II are capable of walking
without a hand-held mobility device after age 4. I do not understand
this to mean that if a child reaches
his 4
th
birthday
without yet being able to walk without a hand-held mobility device he
can never thereafter be classified at Level II even
if he later
becomes able to walk without such a device. The question is whether,
by the latter part of 2015, IDT was able to walk
without a hand-held
mobility device.
[138]
Dr Springer’s first report (September 2013) said that IDT was
not walking at all at that stage. This may
not be correct because in
Ms Scheffler’s first report she said that IDT had just started
walking with a rollator (she assessed
him in April 2013). Be that as
it may, IDT was no longer using the rollator when Dr Springer saw him
in September 2014. His improvement
from September 2013 to September
2014, coupled with his desire for independence, caused him to abandon
the rollator. The current
position is that he moves around the home
and the school, which are his most frequent settings, without a
hand-held mobility device.
Ms Scheffler said that his basic balancing
reflexes when he stumbles are quite good. She pointed this out in a
video clip.
[139]
Ms Scheffler considered that the walls and furniture which he uses
for stability serve the same function as a
hand-held mobility device.
However, the GMFCS defines a ‘hand-held mobility device’.
By no stretch of the imagination
can furniture and walls qualify as
such.
[140]
Level II allows for the possibility that the child may experience
difficulty in walking long distances and in
balancing on uneven
terrain. This level also allows for the possibility that outdoors and
in the community the child may walk with
physical assistance or with
a hand-held mobility device and that wheeled mobility may be used
when travelling long distances. This
would cover the case where Ms
Lundy holds his hand as they walk to therapy or where the wheelchair
is used for moving around a
mall. It is in these situations that IDT
is most likely to make use of a walking device once it has been
obtained for him. I doubt
that he will start using a walking device
in situations where he currently walks on his own.
[141]
The ability to run and jump, which IDT lacks, is not a characteristic
of Level II.
[142]
The ability to walk up and down stairs by holding onto a railing, or
with physical assistance, is ostensibly a
characteristic both of
Level II and Level III. IDT does not currently have the ability to
navigate stairs even with the use of
a railing. However, and since
there is consensus that he is at one or other of these levels, the
absence of this ability is no
more a reason to place him at Level III
than at Level II. A complete inability to navigate stairs is not
stated to be a feature
of Level IV. The main purpose of the reference
to assisted stair navigation in Levels II and III seems to be to
highlight unassisted
stair navigation as the domain of Level I rather
than to impose assisted stair navigation as a requirement of Levels
II and III.
[143]
Apart from the fact that IDT does not use a hand-held mobility device
in most indoor settings, the evidence does
not establish that for
ordinary sitting he requires a seat belt for pelvic alignment and
balance.
Conclusion
on GMFCS and low weight
[144]
I have thus come to the conclusion that IDT’s correct GMFCS
classification as at November/December 2015
was GMFCS II. This is the
level which best represents his abilities and limitations at that
time.
[145]
It follows that Dr Strauss’ downward adjustment from 80% to 79%
in the joint minute was if anything a conservative
adjustment which
favoured the defendant.
IDT’s
feeding ability
[146]
It is agreed that IDT is not tube-fed. Dr Strauss treated IDT as a
messy self-feeder. Prof Cooper considered that
for practical purposes
IDT is fed by others. In the joint minute they recorded their
difference of opinion, correctly noting that
this was a factual
question which was not for them to resolve. Dr Strauss noted that if
the court were to find that IDT is not
a self-feeder the LE ratio
would drop by about eight percentage points.
[147]
Item 14 of the CDER calls for a child who is not tube-fed to be
assigned an ‘Eating’ score ranging
from 1 to 6, the
descriptors being: 1 = Does not feed self, must be fed completely; 2
= Attempts to finger feed but needs assistance;
3 = Finger feeds self
without assistance; 4 = Feeds
self using
spoon, with spillage; 5 = Feeds
self using
fork and spoon, with spillage; 6 = Uses eating utensils with no
spillage.
[148]
Dr Strauss testified that
the important distinction for non-tube-fed children was between a
score of 1 and a score of 2-6. The absence
of any self-feeding
ability significantly prejudiced LE whereas the distinctions between
scores 2 to 6 did not.
[22]
Dr
Strauss could not give a precise answer to the question how much
self-feeding ability is needed to take a child above category
1. In
general, the CDER is aimed at obtaining functional skill levels ‘that
are performed on a consistent basis in typical
settings’ rather
than ‘the best level that has or may be achieved in specialised
settings’.
[23]
He
regarded 50/50 self-feeding as sufficient. Self-feeding with a spoon,
even though messy, would definitely qualify as self-feeding.
However
if the child was capable of feeding himself but in practice was most
often fed by others because self-feeding was too laborious,

time-consuming and messy, the child would not be regarded as a
self-feeder.
[149]
Based on what he had read and the video clips, Dr Strauss regarded
IDT as a messy self-feeder but said that this
was a factual question
for the court. Prof Cooper based his contrary view on Ms Crosbie’s
second report.
[150]
The witnesses best placed to give evidence about the way IDT
consistently eats are his mother and the facilitator,
both of whom
made a favourable impression. The video material and the observations
of experts constitute secondary material against
which one can assess
the plausibility of the primary evidence. This approach is consistent
with the nature of the Californian data
which derives from scores
given in the CDER by primary caregivers rather than clinicians. It is
thus legitimate to ask how IB or
Ms Lundy would honestly have scored
IDT in item 14 of the CDER. It is the aggregation of honest views of
this kind which drives
the Californian data.
[151]
IB testified that at breakfast time on school days IDT usually eats
with assistance because of time constraints.
He takes a packed lunch
to school and usually has fruit and yoghurt as a teatime snack. He
has a fork in his lunchbox. During supper
time he mostly feeds
himself. His eating needs to be supervised in case his mouth gets too
full or his attention is distracted.
He can cut food with a knife but
does not often do so. A lot of his food is finger-food which he can
eat without cutlery. Hand-eating
is part of Muslim culture. As a
family they often use their hands to eat.
[152]
IB said that IDT always drinks when eating. He generally handles the
sippy cup himself.
[153]
Ms Lundy testified that at school IDT opens his own lunchbox. She
sets out the food for him. Generally he has
finger-foods such as
sausages, chicken strips and fruit. He uses a fork. He can use a
knife. Normally the food does not require
cutting but he likes to
experiment with it.
[154]
Several video clips of IDT eating food were shown in court. The first
three clips discussed below, which were
shown during the course of
IB’s testimony, were handed in as exhibits. Two further video
clips were shown during the course
of Ms Scheffler’s evidence
but the video material was not handed in.
[155]
In the ‘Eating yoghurt’ clip, he is shown seated at a
table eating rather clumsily with a spoon from
a yoghurt tub. He can
put the spoon into the tub and take the spoon to his mouth but with
some spillage. He tries to lick the spilled
yoghurt from his arm and
from the table.
[156]
In the ‘Eating sandwich’ clip he is again seated at a
table with some cut sandwiches on a plate. He
is distracted by a
plastic figurine. He is encouraged to eat and takes bites rather
clumsily from the sandwiches. He also picks
up his sippy-cup with
both hands and drinks. In the ‘Eating chicken nuggets’
clip he is eating chicken nuggets from
a yellow bowl, using his
fingers. He feeds himself a piece. He then takes a little fork which
is removed from him. He is fed a
piece by hand. He then takes a cup
and drinks. He is fed a second piece. With some cajoling he takes
another piece himself. He
spends quite a lot of time in swaying
movements over the table. He is fed several further pieces by his
mother. He starts playing
with the place mat. His mother feeds him
another piece. He then takes and eats several pieces himself. He gets
irritable. There
is a long break and his mother asks him please to
eat his food. He takes several further pieces and licks his fingers.
His mother
asks whether she must feed him, gauges his response and
says, ‘No, you don’t like it’. During
cross-examination
IB said that during this episode IDT was distracted
by the television. It was put to her that the video suggested that
she fed
him about 50% to 60% of the chicken nuggets which she said
was fair.
[157]
In the ‘Eating pasta’ video, Ms Lundy is supervising
IDT’s lunch at home. She twirls some pasta
onto a plastic fork
and he takes it. He becomes distracted and then takes the fork
himself and succeeds in scooping pasta into
his mouth. When he tries
again, though, he really battles and Ms Lundy takes over the fork.
[158]
In the first video clip played during the Scheffler’s evidence
IDT is seated at a table eating yoghurt.
(Ms Scheffler observed that
the table was too high so that his elbows had to come up above 90°.
This resulted in instability.)
He has to use a very basic grip to
hold onto a thin slippery spoon. His left hand can hold the yoghurt
tub upright. In the next
clip IDT is again eating yoghurt but this
time he is on the floor with his legs splayed out, watching
television. (Ms Scheffler
said that this gave him more stability.) He
is able to maintain an upright posture. He holds the yoghurt tub in
his left hand but
really battles with the spoon in his right hand,
trying various grips.
[159]
Ms De Freitas, the SMT speech therapist, testified that IDT often ate
during their speech therapy sessions. There
was no food residue in
his mouth after swallowing.
[160]
In her September 2015
assessment Ms Crosbie reported the following information as conveyed
to her by IB.
[24]
In regard to
special food preparation, his food needed to be cut up. Chicken
needed to be deboned. Meat had to be tender and off
the bone. In
response to the question, ‘Is the child fed by someone?’,
the response was, ‘Most of the time, yes’.
In response to
the further question whether IDT was fed only when the family was in
a hurry or when they wanted to make sure that
the child ate enough,
the recorded reply (not entirely responsive) was, ‘Want to make
sure he eats enough’. The question,
‘If child eats on
own, how do they eat?’, attracted the answer, ‘Depends on
what he eats’. As to whether
he used a spoon, fork or knife,
the response was that he used a spoon and fork but only for certain
types of food. There was a
lot of messing, though it depended on what
he was eating. When he was feeding himself, a meal might take 30 –
40 minutes,
as opposed to 15 – 25 minutes when fed by someone
else. He could drink on his own, using a sippy cup. When eating
finger
foods or yoghurt he sat at a small plastic table and chair in
front of the television.
[161]
In the same report Ms Crosbie recorded her own observations on 11 and
12 September 2015. On the first occasion
his lunch was a hamburger
cut into quarters with chips and a juice container with a straw. IDT
ate the chips first. He was able,
while watching television, to pick
up the chips, dip them in tomato sauce and put them in his mouth
without significant squashing.
This demonstrated adequate
proprioception, though the physical effort of controlling his right
arm led to certain postures which
Ms Crosbie described as ‘fixing’.
He was able to pick up the juice container and drink through the
straw. He ate hardly
any of the hamburger. The sequence lasted 15
minutes. In response to a question from his mother he indicated that
he had had enough.
[162]
On the following day Ms Crosbie observed him eating yoghurt. He was
unable to remove the foil covering. Once the
tub had been opened he
fed himself with a metal dessert spoon but he constantly had to
re-grip it and at times it fell to the floor.
He was able to retrieve
the spoon. He used various grips to hold the spoon, dip it in the tub
and bring the spoon into his mouth
with a manageable amount of
yoghurt. There was no significant messing or spilling. He also
managed to hold the tub in his left
hand when it was almost empty,
using his right index finger to scoop out the rest of the yoghurt.
The process took about 12 minutes,
which Ms Crosbie regarded as very
slow for a child of his age.
[163]
Her oral evidence did not add much to her report on this aspect. She
agreed in cross-examination that whereas
in 2012 IDT had been unable
to feed himself even with a spoon, in 2015 he could manage a spoon
with yoghurt and even cut food with
a knife, showing an improvement
in his fine motor skills.
[164]
In the joint report by Ms
Hattingh and Ms van der Merwe of September 2015 they said that
according to the mother IDT was able to
feed himself finger-foods but
with much spillage due to involuntary movements. The mother still
assisted him with other food.
[25]
He loved chicken nuggets and soft foods. He had four different
drinking bottles/cups, all of which he could drink from independently

with occasional spillage. Their observation was that his
finger-feeding ability had improved with less spillage evident but
that
he still required help with other foods.
[26]
They made recommendations for adapted feeding utensils.
[27]
In the context of their previous recommendation of a blender, they
said that IDT currently required all his food (except finger-foods

and sandwiches) to be mashed/cut up into very small pieces. His
parents assisted with this and he was ‘able to eat the food
as
presented’. He was ‘still being fed at least part of most
meals, as self-feeding is very time-consuming and accompanied
by much
spillage’.
[28]
(Ms van
der Merwe did not expand upon these remarks in oral evidence.)
[165]
Dr Springer also obtained information from IB. In her September 2014
assessment she recorded that IDT preferred
to eat with his fingers at
school. Dr Springer noted that this might well be attributable to
cultural background. Although he could
use a spoon there was still
significant spillage. He was able to chew solid food and there was
less drooling than before. There
were no swallowing difficulties.
[166]
In her September 2015
assessment she found that IDT’s fine motor control had
improved. He was able to feed himself with a
spoon or fork although
this could be messy. She classified him as a MACS III, indicating
that he could ‘handle objects with
difficulty’ and
‘required help in preparing and/or modifying activities’.
[29]
(The MACS score is not specifically directed at feeding.)
[167]
In her third report dated 20 November 2015 Ms Scheffler noted that
IDT demonstrated improved manual skills in
both hands. He was able to
use press studs, undo the velcro on his shoes and undress himself. He
was able to feed himself finger-foods
and could use a spoon and fork
though this was still quite messy. She observed him eating a sandwich
and drinking from a juice
bottle.
[168]
The evidence I have reviewed, and the more general evidence
concerning IDT’s personality, justifies the
following findings:
(i) IDT consistently feeds himself fluids. Provided the fluid is
in an appropriate container, he does
not need, and does not in
practice receive, help to drink. (ii) IDT consistently feeds
himself solid and semi-solid food with
his fingers and spoon. By
‘consistently’ I mean that self-feeding in this way
probably occurs every day to an extent
which is not trivial even
though some of his food during that meal or at other meal-times might
be fed to him by others. (iii) Because
he can generally
finger-feed without assistance, his mother probably gives preference
to finger-foods for his school lunches. (iv) For
the same reason
and also because finger-feeding is culturally normal in the family,
finger-foods would not be uncommon in the home.
(v) His mother and
facilitator probably encourage self-feeding because they know it is
in IDT’s best interests. (vi) IDT
more often than not
wants to feed himself and not be treated like a baby. (vii) There are
occasions, probably frequent, where time
constraints or impatience on
the part of caregivers or frustration on IDT’s side lead to
food being fed to him. (vii) Because
self-feeding is a
consistent feature of IDT’s life and because it is more
cumbersome than assisted feeding, self-feeding
probably predominates
over assisted feeding on a time basis. (viii) It is not possible
to say whether more than half of his
food and liquid intake is
self-fed.
[169]
It is clear that IDT’s consistent feeding abilities place him
higher than a level 1 in item 14 of the CDER.
To be at level 1 one
would have to say of IDT that he ‘Does not feed self, must be
fed completely’. That is simply
not the case. Conversely IDT
would certainly not score a 6. Although in oral evidence Dr Strauss
was pressed to say how much self-feeding
there had to be to qualify
the child as a self-feeder, it is not self-evident from item 14 that
such a judgement is called for
or that it was even a question to
which Dr Strauss had really given careful attention. Item 14
essentially distinguishes between
being fed by others, self-feeding
with fingers and self-feeding with utensils. It is very unlikely that
a child who can finger-feed
(with or without assistance) but who
cannot use utensils at all would take all his food by finger-feeding
rather than assisted
feeding. A child who can and does consistently
finger-feed may nevertheless take more of his nutrition by assisted
feeding. The
caregiver of such a child would, I think, give a score
representing the highest level which the child consistently attains.
If
the child consistently self-feeds without assistance but cannot
use any utensils, the carer would give a score of 3 even though
the
child’s inability to use utensils means that more of his food
is fed to him by others than self-fed.
[170]
Overall, I think IDT would probably score a 3 or 4 on item 14. At any
rate he is not as low as level 1. I am thus
satisfied that Dr
Strauss’ model on this aspect is correct.
The
secular trend
[171]
The evidence does not establish what factors have given rise to
improved mortality of CP children up to the age
of 15. It is thus not
possible to say whether the same factors could be expected to be
operative in South Africa.
[172]
It does not follow that the secular trend (which affects the LE ratio
by about 1%) should be disregarded. There
are a host of unidentified
factors which have caused the CP mortality rate in California to be
what it is. Nobody has suggested
that it is possible to identify each
factor with a view to assessing its applicability in South Africa.
Instead the reasonable
approach, accepted by both sides, is to
determine the Californian CP LE ratio and apply it to an appropriate
ordinary South African
LE, the assumption being that all factors
which serve to make ordinary South African LE lower than ordinary
American LE will operate
in the same way to make CP South African LE
lower than American CP LE.
[173]
Accordingly, and unless there is some special case for treating the
secular trend differently, the trend should
not be disregarded. It is
simply part of the exercise of determining the Californian CP LE. On
the assumption that the ultimate
onus in that respect remains with
the plaintiffs, the defendant would at least need to discharge an
evidential burden by putting
up some evidence to show that the trend
is unlikely to apply in South Africa. That has not been done.
[174]
The defendant’s
counsel referred in argument to a Swedish paper on the secular trend,
which was handed up during Prof Cooper’s
evidence.
[30]
I do not recall this having been traversed with Dr Strauss. The
authors noted the absence of a secular trend of improved mortality
in
the total CP group and in those with severe motor impairment (this
was over 50 years) but observed that this might be because
the
composition of the group had changed over time. They did notice an
increase in survival for those who could walk with or without
aids. I
do not understand this paper to have dealt with the specific age
group identified in the Californian data.
Conclusion
on LE ratio
[175]
The LE ratio to be applied to the ordinary South African LE is thus
79%.
The appropriate
ordinary South African life table
[176]
Pursuant to a national census in 1985 the Central Statistical
Services of the then South African government produced
life tables
for so-called Whites (W), Coloureds (C) and Asiatics (A). The W LE
was better than the C LE.
[177]
Koch’s six life
tables (which for convenience I shall refer to as K1 to K6) are based
on the 1985 tables. He has attempted
to ‘
de-racialise’
the
1985 tables by recasting them according to assumed income brackets.
To achieve this he has blended the data in ways he regards
as
reasonable. K1 is based on, but better than, the W Table. K2 is the
same as the W Table. K3 and K4 are differing blends of the
W and C
Tables. K5 is the same as the C Table. K6 is worse than the C
Table.
[31]
[178]
The 1985 Tables and Koch’s reworked Tables are true life
tables, ie they give a LE for every age from 1
to 99, not merely a LE
at birth.
[179]
There was a census in 2001. The resultant life tables were materially
affected by the HIV/AIDS pandemic and did
not distinguish between
persons who were and were not at risk of HIV/AIDS. Both sides accept
that the 2001 life tables should not
be used.
[180]
A further census was conducted in 2010. Based on that census,
Statistics South Africa (‘SSA’) in 2015
produced male and
female life expectancies at birth for persons not at risk of
HIV/AIDS. (I have no evidence as to how SSA went
about this
exercise.) In the case of boys the birth LE is 65,2 years.
[181]
Because the SSA figure of 65,2 years is a birth LE, some adjustment
is needed to derive the LE for a 7-year-old
boy. The difficulty is to
know how many deaths to assume from birth to age 7. The greater the
number of assumed deaths prior to
age 7, the greater will be the
boy’s EDA.
[182]
By the time of the joint minute Dr Strauss had given consideration to
using an adjusted SSA figure rather than
K2. SSA has data on male
deaths at each age up to age 5. There are 34 deaths per 1000 children
in the first year of life and 10
deaths per 1000 children between the
first and fifth birthdays. This gives a total of 44 deaths per 1000
children in the first
five years. Using basic statistical methods, Dr
Strauss computed that if this rate of death were applied to the SSA
birth LE it
would translate into a LE of 63,2 years at age 5. It
appears that there is no data permitting Dr Strauss to extend this
exercise
to age 7.
[183]
Dr Strauss observed that the adjusted SSA LE at age five (63,2 years)
was closer to K2 for the same age (64,3
years) than any of Koch’s
other tables (66,5 years in K1, 61,6 years in K3, 59,1 years in K4).
[184]
Dr Strauss acknowledged that his derived SSA LE at age five treats
all deaths in the first five years as unrelated
to HIV/AIDS. It is
reasonable to suppose that some of those deaths are HIV/AIDS-related.
If the HIV/AIDS deaths were excluded,
the assumed deaths between
birth and age five would be lower, from which it would follow that
the EDA of a boy aged five would
also be lower. It is common ground
that there is no data to enable one to say how many of the 44 deaths
per 1000 boys in the first
five years of life are HIV/AIDS-related.
According to Prof Cooper, if 30 of the 44 deaths were assumed to be
unrelated to HIV/AIDS
(ie if 14 deaths, being 32% of the 44, were
treated as HIV/AIDS-related), the derived LE at age five would be
62,2 – closer
to K3 than K2. Dr Strauss agreed with the
calculation.
[185]
In oral evidence Prof Cooper gave an overview of the development of
the HIV/AIDS pandemic and the rollout of AVR
treatment. By the turn
of the millennium the maternity infection rate was about 30%. Prior
to AVR treatment, mother-to-child infection
rates rose from 50% to
75%, with most infected children dying before the age of 5. This
caused infant mortality rates to rise to
80 per 1000 children in
about 2004/2005. Although the subsequent rollout of AVR treatment has
not yet significantly reduced maternal
infection, it has greatly
reduced infant mortality. However, apart from being a direct cause of
death among children (which it
still is, though to a lesser extent),
HIV/AIDS negatively affects a child’s LE indirectly because of
its socio-economic impacts.
Although I did not understand him to say
that there was data which permitted him to give a precise figure, he
thought it plausible
to say that one-third of the 44 per 1000
mortalities reported by SSA would be HIV/AIDS-related.
[186]
I asked him whether there was data about the incidence of HIV/AIDS in
Muslim men in South Africa. He said that
the incidence in the Western
Cape was considerably lower than in other provinces, which he assumed
was related to differing demographics.
This was not merely because
AVR treatment had been rolled out earlier in the Western Cape than
elsewhere. Even in the early 2000s
the incidence was significantly
lower here than in the rest of the country.
[187]
Prof Cooper did not say that an adjusted SSA figure should be used.
He dealt with it because Dr Strauss was supporting
the use of K2 on
the basis that its age-five LE was closest to the SSA age-five LE as
derived by Dr Strauss, his only point being
that if one wished to use
the SSA birth LE figure for boys not at risk of HIV/AIDS it was not
logically consistent to include HIV/AIDS
deaths in deriving an
age-five LE. Dr Strauss acknowledged the force of this observation.
[188]
Prof Cooper’s own view was that one should use K4, based on
IDT’s family’s socio-economic circumstances.
Prof Cooper
did not fare well under cross-examination in supporting this
contention. He apparently based his view of the family’s

earnings on Ms Crosbie’s reports. He seems to have attributed
no income to IB on the basis that she had to stay at home to
look
after IDT. He did not really seem to know the circumstances which, on
Koch’s overall model, would place a person in
any particular
Koch table.
[189]
If one were to jettison the SSA figure as one’s starting point,
the Supreme Court of Appeal’s decision
in
Singh
would
justify Dr Strauss’ reliance on K2 (though not for the reasons
he gave). In para 65 Conradie JA for the majority agreed
with the
following passage from Snyders JA’s judgment (para 199):
‘
As with most
things in this matter, the appropriate life tables to be applied to
the assessment of Nico’s life expectancy
were also in issue.
The high court applied the SA white male tables. The appellant
contends for the application of the Koch life
tables
[32]
which adds between 2 to 4 years to the various scenarios calculated
by Strauss. Koch’s attempt to remove race from the SA
life
tables is obviously attractive, but the evidence of the assumptions
made to compile his life tables does not, in this case,
succeed to
illustrate their reliability. Although the 1984/1986 SA life tables
are out of date, they are still the best available.
In
the circumstances it seems eminently reasonable to have used the
white male tables to exclude any racial component from the
calculation.
Consequently
the dispute about whether the appellant agreed to the application of
the SA life tables only to the actuarial calculation
or also to the
assessment of life expectancy is irrelevant.’
[190]
This passage embodies a decision of legal policy by which I am bound
in the absence of new data. The conclusion,
based on this policy,
would be that although IDT is a coloured child I should, to exclude
any racial component, use the 1985 life
table for white males (ie K2,
not K3 – K6). Apart from the reason given by Snyders JA, this
may be justified on the basis
that at least the legal impediments to
equality which existed in 1985 were removed with our transition to a
democratic country,
more than 15 years before IDT was born.
[191]
However the 2010 census and the SSA birth LE figures constitute new
data which does not suffer from the racial
bias implicit in the use
of K3 – K6. Since HIV/AIDS is recognised as an abnormal
distorting factor in South African LE and
since SSA has published a
birth LE which eliminates this distortion for persons not at risk of
HIV/AIDS, it is appropriate to deploy
this data, if reasonably
possible, when assessing the LE of a person not at material risk of
HIV/AIDS. I am satisfied that pre-
and post-morbidly IDT is not and
would not have been at material risk, directly or indirectly, of
HIV/AIDS.
[192]
The SSA birth LE is 65,2 as against K2’s birth LE of 68,3.
Although there is the need to make assumptions
in order to derive an
SSA age-five LE, there is consensus that if one attributes no
intervening deaths to HIV/AIDS the age-five
LE would be 63,2 and that
if one excludes one-third of the intervening deaths on the basis of
being attributable to HIV/AIDS the
age-five LE would be 62,2. This
compares to K2’s 64,3. This indicates that current non-racial
ordinary LE is lower than the
K2 data, even for males not at risk of
HIV/AIDS.
[193]
Although Dr Cooper and Prof Strauss did not offer an SSA age-seven
LE, K2 and K3 reflect that a boy who lives
two additional years would
have an age-seven LE which is 1,9 years shorter than at age five
(from which it would follow that the
EDA at age seven would be 0,1
year higher than at age five). The very slightly reduced LE at age
seven would in both cases be 97%
of the age-five LE. Since the 1985
data pre-dates HIV/AIDS, it is not unreasonable to apply the same
ratio to the SSA age-five
LE, which would yield an SSA age-seven LE
of 61,3 or 60,3 depending on the assumptions about intervening
deaths. This can be compared
with K2’s age-seven LE of 62,4.
Conclusion
on IDT’s LE
[194]
Although Dr Strauss performed his most recent updated calculation as
at 23 December 2015, he treated IDT as a
seven-year-old boy. For the
sake of convenience, IDT’s LE should be reckoned from his
seventh birthday, ie 12 January 2016.
The 79% ratio as applied to
K2’s age-seven LE yields for IDT a LE on that date of 49,3 and
an EDA of 56,3.
[195]
Based on the SSA data, this is likely to overstate IDT’s LE. If
one accepts Prof Cooper’s estimate
of treating one-third of
intervening deaths to age five as attributable to HIV/AIDS (this
appears reasonable) and my adjustment
to age seven, the 79% ratio as
applied to the SSA figure would yield a LE for IDT of 47,6.
[196]
Taking account of current limitations in the SSA data, I
propose to round up the figure of 47,6 to 48 which
I thus determine
to be IDT’s LE as at 12 January 2016. His EDA is thus his 55
th
birthday. A different way of reaching this result is to use the
K2-based LE of 49,3 and make a downward qualitative adjustment
based
on the indications that K2 overstates current ordinary LE. On either
approach I regard 48 years as the fair and reasonable
figure. (Yet
another approach would be to use 49,3 years for computation purposes
and make some allowance within general contingencies
but I think that
is less satisfactory and too blunt.)
[197]
I do not consider that IDT’s particular symptoms and condition
call for a positive or negative qualitative
adjustment to the figure
of 48 years. IDT’s mobility skills have improved and he does
not appear to be worse than his peer
group. He is generally in good
health. His feeding skills seem to be middling. He has no
difficulties with swallowing and respiration.
Orthopaedics,
scoliosis, bracing and lycra suits [items 43, 55(a) & 55(b) of
“POC1”]
Introduction
[198]
The orthopaedic claims in respect of future fractures and
post-operative physiotherapy have been settled. What
remains in
dispute is whether IDT requires treatment for scoliosis. The
plaintiffs’ orthopaedic surgeon, Dr Versfeld, considers
that
IDT has scoliosis. He recommends a DMO or SPIO/TLSO brace until IDT
reaches the age of 10 and a Cheneau brace from 10 to 19½,
in
each case with annual replacement cycles. He also recommends
orthopaedic consultations and x-rays every four months until IDT

reaches 19½.
[199]
The defendant’s expert, Prof Dunn, considers that IDT does not
have scoliosis and has no significant risk
of developing it. He also
disagrees with the proposed treatment. He has never encountered the
use of DMO or SPIO/TSLO braces in
the treatment of scoliosis.
[200]
The plaintiffs’ orthotist, Mr Hakopian, the plaintiffs’
occupational therapist, Ms Crosbie, and the
plaintiffs’
physiotherapist, Ms Jackson, consider that IDT shows signs of
scoliosis but have deferred to orthopaedic surgeons
for the
diagnosis. Mr Hakopian has recommended that IDT have (i) a SPIO
vest with TLSO brace for life, to be used primarily
when he is
sitting, and (ii) a SPIO compression suit for life, to be used
primarily when he is walking. In each case the replacement
cycle
would be annual. He considers that the vest/brace and compression
suit would assist not only in combating IDT’s scoliosis
but
also in enhancing his dynamic stability by providing trunk support
and stability to his hips and back.
[201]
Ms Crosbie supported Dr Versfeld’s recommendation for a DMO.
However, and because she understood DMOs to
be no longer available in
South Africa, she proposed a SPIO suit with TLSO brace until IDT
reached the age of 20. The replacement
cycle would be annual and he
would need two SPIOs at any given time.
[202]
Ms Jackson made no recommendations regarding compression garments.
She has not hitherto prescribed DMO or SPIO
suits for her patients.
[203]
The defendant’s physiotherapist, Ms Scheffler, likewise
deferred to orthopaedic surgeons regarding the diagnosis
of scoliosis
but said that she herself did not detect it. She considered that
there was no satisfactory scientific foundation for
using DMO or SPIO
suits in the treatment of persons suffering from athetoid CP.
[204]
The defendant’s orthotist, Mr Brand, in a report responding to
Ms Crosbie’s recommendation, expressed
the view that a
SPIO/TLSO would negatively affect IDT’s stability.
Subsequently, in a joint minute with Mr Hakopian, he went
along with
the latter’s recommendation of a SPIO/TLSO and SPIO compression
suit for life, a position which he recanted in
oral evidence.
DMO/SPIO
and Cheneau orthoses described
[205]
‘DMO’ is an acronym for ‘dynamic movement
orthotic’. It is the brand name of a compression
garment made
from elasticised lycra. It is a single-piece garment. Mr Hakopian
thought this might make it inappropriate for IDT
because it would be
difficult to remove when IDT went to the toilet.  Dr Versfeld
said that DMOs were imported from the United
Kingdom. Ms Crosbie’s
understanding was that they are longer readily available in South
Africa. They are in any event more
expensive than SPIO suits.
[206]
SPIO is the manufacturer of various orthoses. Mr Hakopian recommended
two of SPIO’s products. The one product
is a vest made from a
lycra material to the back of which can be fitted a semi-rigid panel
called a TLSO. The vest has straps between
the legs to anchor it. The
other product is a SPIO compression suit, also made from lycra,
consisting of a vest and tightfitting
pants going down to the knees.
[207]
The Cheneau brace, which Dr Versfeld recommends for IDT once he
reaches the age of 10, is a rigid brace which
runs from the crest of
the hips to the neck. Rigid bracing is sometimes an appropriate
treatment to arrest the progression of scoliosis.
It would typically
be used from the time major growth starts in early adolescence until
skeletal maturity. Conventional wisdom
is that for rigid bracing to
be effective it must be worn for most of the day and night (Dr
Versfeld said 23½ hours p/d,
Prof Dunn said 20 hours or more).
Essentially the brace is only removed when the user baths or showers.
[208]
The plaintiffs acknowledge that the recommendations by their experts
are in conflict. If IDT were in a Cheneau
brace from the age of 10 to
19½, he would not be able to use the SPIO orthoses during
those years. From the age of 20 onwards,
the appropriateness of the
SPIO orthoses depends on whether they are reasonably required to
improve IDT’s muscular stability;
they would have no further
role to play in the treatment of scoliosis.
Diagnosing
scoliosis
[209]
The spine comprises 12 thoracic (or dorsal) vertebrae (T1-T12 from
top to bottom) and five lumbar vertebrae (L1-L5
from top to bottom).
Scoliosis is a deformity in which the spine develops one or two
lateral curves (either a ‘C’ or
an ‘S’
curve). The curve may be to the left or the right side of the
patient. It may be idiopathic (no known cause),
congenital or
neuromuscular. If IDT has scoliosis, it is neuromuscular, ie caused
by the muscular abnormalities brought about by
his athetoid CP.
[210]
Diagnosis of scoliosis
generally requires a frontal x-ray of the spine in a vertical
position, with the patient standing (preferably)
or seated upright on
an examination table. Lateral curvature of the spine is described
with reference to the patient’s left
or right side. Because the
x-ray image is frontal, a lateral curve to the patient’s left
will appear on the right-hand side
of the image and vice versa. The
degree of a scoliotic curve is expressed by the so-called Cobb angle.
Using the x-ray, the doctor
draws lines from the outer surfaces of
the two vertebrae at the curve’s extremities. The Cobb angle is
the angle at which
these lines intersect.
[33]
The apex of the curve is the vertebra furthest to the left or right
from a notionally vertical spine. The Cobb angle depends on
the angle
at which the doctor draws the lines. Two doctors might draw the lines
slightly differently; the same doctor doing the
exercise twice might
do likewise. There is thus an acceptable inter- and intra-observer
margin for error of 5°.
[211]
X-rays of the pelvis are an additional diagnostic aid. The pelvic
x-ray is taken from above with the patient lying
on his back.
[212]
IDT’s back and
pelvis were x-rayed on three occasions: (i) on 14 November 2012
by Sunninghill Radiology (this was for
purposes of Dr Versfeld’s
first report);
[34]
(ii) on
11 March 2016 by Morton & Partners (this was for purposes of Dr
Versfeld’s addendum report and oral testimony);
[35]
(iii) on 31 March 2016 by Groote Schuur Hospital (‘GSH’
– this was for purposes of Prof Dunn’s report).
[36]
None of the radiologists testified.
[213]
It is not in dispute that these x-rays show IDT’s spine in
curved positions. The question is whether the
curves are scoliotic.
The writhing or involuntary movements of an athetoid CP patient may
produce transient lateral spinal curves.
It is difficult to keep IDT
still for purposes of taking x-rays. He also has a general tendency
to lean to the left. He was seated
when the vertical x-rays were
taken.
Defining
scoliosis
[214]
Dr Versfeld and Prof Dunn differ in their definition of scoliosis. I
mean no disrespect to Dr Versfeld when I
say that Prof Dunn’s
view is the conventional one.
[215]
Prof Dunn says that
scoliosis is a three-dimensional structural deformity. The
development of the curve is associated with the lateral
rotation of
the implicated vertebrae. (This accords with the definition contained
on the website of the South African Paediatric
Orthopaedic
Society.
[37]
) As scoliosis
progresses there may also be wedging of vertebrae because uneven
load-bearing on the surface of a vertebra causes
one side of the
vertebra to grow more than the other. One can detect rotation by
examining, on a vertical x-ray, the relationship
of the ribs to each
other and by the position of the pedicles, which are small oval
structures on the left and right hand side
of each vertebra. In a
person with a normal spine the pedicles will appear symmetrically on
the outer edges of the vertebrae. Where
a vertebra has rotated, the
one pedicle will be wholly or partially obscured from view while the
other pedicle will have moved
towards the midline. Where the spine
suffers from this rotational deformity, the examining doctor would
not be able to straighten
the curve by relaxing and manipulating the
patient. The curve is fixed. Treatment will generally be aimed at
preventing further
rotation and increase of the curve.
[216]
Specialists would not generally make a diagnosis of scoliosis for
curves with Cobb angles of under 10°. Intervening
at too low a
threshold results in unnecessary treatment and an inefficient
allocation of resources. For curves above the 10°
threshold, one
would look for signs of rotation. A series of x-rays over time may
indicate that the same curve is increasing. Not
all scoliotic curves
progress. One would consider rigid bracing for curves between 15°
and 30°. The advantages and disadvantages
need to be discussed
with the parents. The brace can be uncomfortable. Likely compliance
with the requirement to wear the brace
for more than 20 hours p/d day
for some years would need to be assessed. One would not generally
brace a curve which has progressed
beyond 30°. Surgery has to be
considered at about 50°.
[217]
The main purpose of rigid bracing is to prevent the curve from
progressing to the point where surgery is necessary.
Bracing cannot
guarantee that the curve will not progress to this point. Conversely
one cannot be sure that in the absence of bracing
the curve would
have progressed to a point requiring surgery. A recent study in the
United States, which compared outcomes in braced
and non-braced
groups, concluded that in the non-braced group the curves of 48% of
the patients did not progress by more than 5°
whereas in the
braced group the curves of 72% of the patients did not progress by
more than 5° (limiting a curve’s progression
to 5° or
less would be regarded as successful). This suggested that only one
in three patients who were treated by bracing
actually benefited from
it. This is not in itself a reason not to brace, since medical
science cannot yet isolate those patients
who will benefit from
bracing, but it would be a factor to take into account in weighing
the advantages and disadvantages.
[218]
I did not understand Dr Versfeld to dispute Prof Dunn’s
description of the conventional thresholds for the
definition and
various treatments of scoliosis. But Dr Versfeld distinguishes
between structural scoliosis and other scoliosis.
Prof Dunn’s
definition, he says, applies to structural scoliosis. Dr Versfeld
considers that one can have scoliosis without
the structural element
of rotation. He regards this as important in the early treatment of
scoliosis. If one waits until a structural
element is evident, one
may be ‘missing the boat’. Dr Versfeld advocates early
conservative treatment, inter alia with
physiotherapy and soft and
rigid bracing. My impression was that in Dr Versfeld’s opinion
most orthopaedic surgeons, including
Prof Dunn, have a conscious or
subconscious bias in favour of surgery and are not committed to
earlier interventions.
Discussion
of definition
[219]
I have no doubt that Dr Versfeld’s views on the definition and
early treatment of scoliosis are sincerely,
even passionately, held.
However I do not think they accord with mainstream medical opinion.
Prof Dunn is a man of vast experience
in orthopaedics generally and
spinal deformities in particular. Following his registration as an
orthopaedic specialist in 1999,
he spent 18 months in the United
Kingdom training at centres of excellence in the field of spinal
surgery. He returned to South
Africa in 2001 and has been in active
practice since then. He has performed more than 3000 spinal
procedures. In 2015 alone he
performed 60 scoliosis operations. He
holds the chair in orthopaedic surgery at the University of Cape Town
and is the head of
orthopaedic surgery in the Western Cape Department
of Health.  Apart from extensive public and part-time private
practice,
he is involved in the teaching of orthopaedic surgery, has
published widely and frequently attends and presents papers at local

and international conferences. He was an impressive witness.
[220]
Dr Versfeld is Prof Dunn’s senior by more than 20 years. He was
the professor of orthopaedic surgery at
the University of the
Witwatersrand for two years in the late 1980s (where he did not do
spinal work) before going into private
practice. He does routine
spinal surgery. While continuing with surgery, he has over the last
seven years focused on the early
non-surgical treatment of scoliosis.
He does this in a team which includes a physiotherapist and
orthotist. He identified a ‘gap’
in the treatment of
scoliosis arising from the fact that in his view surgeons were not
interested in bracing. Dr Versfeld has lost
his full CV containing a
complete list of his publications. What he was able to reconstruct
was relatively modest. None of the
listed publications deal with
scoliosis.
[221]
I thus proceed on the basis that Prof Dunn’s views are to be
preferred to those of Dr Versfeld in regard
to the definition and
thresholds for treatment of scoliosis.
Does
IDT have scoliosis?
[222]
The Sunninghill radiologist identified a ‘mild curve’
of the thoracolumbar spine convex to the
left with an apex at T11.
The radiologist measured a Cobb angle of 3,9°, using T9 and L2 as
the extremities of the curve. The
pelvic x-ray showed IDT’s
hips to be slightly tilted (elevated on the left). The radiologist
considered that the left hip
socket was shallow (a condition called
subluxation), rendering that hip vulnerable to dislocation.
[223]
In his first report Dr Versfeld concluded that IDT had mild scoliosis
convex to the left. He did not say that
he detected any sign of
structural change. He nevertheless recommended immediate
physiotherapy, opining that subsequently IDT would
probably need
treatment with a DMO and then with rigid bracing.
[224]
The Sunninghill radiologist, Dr Pencharz, did not himself diagnose
scoliosis. Given the observer margin for error
of 5°, a measured
curve of 3,9° was compatible with a normal spine. Prof Dunn
agreed that a very mild curve could be seen
but said that one would
never diagnose or treat scoliosis at such a small angle. In his view
the x-ray afforded no basis for concluding
that the curve had any
structural component or that it would progress. IDT might just have
been leaning slightly to the left. In
regard to the pelvic x-ray, he
thought it showed well located hips with no pelvic tilt. Prof Dunn
could not understand on what
basis Dr Versfeld had predicted that IDT
would probably require bracing in the future. The x-ray ‘raises
no flags with me’.
[225]
IDT was 3½ when the Sunninghill x-rays were taken and just
over 4 when Dr Versfeld wrote his first report.
About three years
passed before the next x-rays were taken. In the intervening period
IDT did not receive the treatment recommended
or foreshadowed in Dr
Versfeld’s report.
[226]
The Morton radiology report stated that there was a mild scoliotic
curve to the left with the apex at T8. The
Cobb angle was measured at
12°, using T5 and T12 as the extremities of the curve. There was
‘secondary lumbar scoliosis’
to the right, the apex being
L3 and the Cobb angle being 20° using L1 and L5 as the
extremities of the curve. The pelvic x-ray
again showed a tilting up
of the left hip.
[227]
In his addendum report of 14 March 2016 Dr Versfeld considered that
there had been a ‘significant deterioration’
of IDT’s
scoliosis. He based this on the Morton report and x-rays – he
did not examine IDT again. He advised immediate
bracing with a DMO.
He estimated that IDT would need to move to a rigid Cheneau brace at
the age of 10, in which he would remain
until 18 months following
skeletal maturity. Throughout the period of bracing he would need
physiotherapy to strengthen his back
muscles.
[228]
Dr Versfeld testified that he felt vindicated by the Morton report
because what he had predicted had come to pass.
Furthermore the
original single ‘C’ curve had now become a double ‘S’
curve. He said that he had re-examined
the Sunninghill x-ray in the
light of this finding and now saw the very beginnings of a lumbar
curve to the right, something he
had missed when doing his first
report.
[229]
Dr Versfeld’s second report did not include the observation
that there were already signs of a lumbar curve
in November 2012. His
second report also did not say that the increased (though still mild)
thoracic curve had any structural component.
The radiology report
likewise said nothing of rotation. In oral evidence Dr Versfeld
confirmed that there was no sign of wedging
but expressed the view
that one could see some asymmetry of the pedicles at T6 and T7. His
opinion in that regard was expressed
somewhat diffidently. I cannot
say that I was able to see it when the x-ray was exhibited on a
screen in court.
[230]
Prof Dunn saw IDT on 31 March 2016. He did not then know of the
Morton x-rays, which is why he got x-rays from
his radiology unit. He
subsequently examined the Morton x-rays as well. He observed the
thoracic and lumbar curves. He selected
T3 and L1 as representing the
extremities of the thoracic curve and measured a Cobb angle of 25,3°.
He selected T12 and L5
for the lumbar curve and measured a Cobb angle
of 28,4°. It will be apparent that he and the Morton radiologist,
Dr Otto, selected
different vertebrae and arrived at different
angles. Prof Dunn’s Cobb angles were greater than Dr Otto’s.
[231]
Prof Dunn did not believe, however, that these curves were scoliotic.
Apart from the fact that he could not discern
a structural deformity,
he disagreed with Dr Versfeld that there was any progression of the
same curve. Sunninghill reported a
thoracolumbar curve from T9 to L2
with its apex at T11; Morton reported a thoracic curve from T5 to T12
with its apex at T8.
[232]
In regard to Morton’s pelvic x-ray, Prof Dunn said the pelvis
did not display much obliquity; he measured
it at 4,5° which was
‘clinically insignificant’. The hips seemed to be
relatively normal. The lumbar spine, which
had a curve to the right
in the vertical x-ray, now seemed to have straightened, consistent
with the absence of a structural deformity
of the lumbar spine. The
x-ray did not in his opinion show shallowness (subluxation) of the
left hip socket (the Morton radiologist
likewise expressed no such
view).
[233]
Prof Dunn said that IDT
seems to have been lying skew when the Morton pelvic x-ray was taken.
One could see this from the way his
right leg was abducted (away from
the midline) and his left leg adducted (towards the midline). This
was not in itself of any significance.
A person with normal pelvic
and spinal structures could lie skew. In diagnosing scoliosis one is
concerned with the alignment of
the pelvic structures and the spine.
Here the non-alignment was very slight at 4,5°. If one drew lines
across the top of the
iliac crests and along the iliac base, the
lines appeared to him to be ‘pretty parallel’.
[38]
[234]
Since the GSH x-rays were about the same time as the Morton x-rays,
they shed important light on the conclusions
to be drawn from the
latter x-rays. Prof Dunn did not ask the GSH radiology unit to
furnish him with a report. This accords with
his usual practice; he
has the experience and expertise to analyse spinal x-rays. The GSH
vertical x-ray showed that the thoracic
spine, which in the
Sunninghill and Morton x-rays had exhibited a curve to the left, was
now slightly curved to the right with
a Cobb angle of 6° using T2
and T12 as the extremities of the curve. There was still a lumbar
curve to the right, which Prof
Dunn measured at 18°. In effect
the whole spine showed a gentle curve from top to bottom. There was
no evidence of rotation
though the image of the pedicles of T8 (where
Morton had placed the apex of the thoracic curve to the left) was not
particularly
good. The pedicles at L3, being the apex of the lumbar
curve to the right as identified in the Morton report, were normally
positioned.
There was no evidence of wedging. The ribs joined the
spine symmetrically. The spine appeared to be coming pretty much
vertically
up from the pelvis. Although it might seem to be going to
the right, this was because the pelvis itself was tilted to the right

and not because the spine was skew relative to the pelvis.
[235]
It was put to Prof Dunn in cross-examination that in the GSH x-ray
the ribs joining the spine at T11 bulged more
to the left than to the
right and that the heart was positioned more to the right. Prof Dunn
replied that this was a result of
the way IDT was sitting – his
whole body was rotated slightly to the right, ie he was sitting
obliquely to the x-ray machine.
In x-rays of children one often sees
this overall rotation (presumably because they tend to squirm and are
not fully cooperative)
but then everything is skew, and it is the
same with IDT’s x-ray.
[236]
It was also put to him that in the GSH vertical x-ray IDT’s
pelvis was tilted up to the left. He agreed,
saying that the left
buttock was raised as he was sitting on the examination bed. Prof
Dunn pointed out, however, that in the Morton
pelvic x-ray, where IDT
was lying on his back, the tilt was less obvious, indicating that it
was dynamic, not fixed. Expressed
differently, the pelvis assumed a
more or less neutral position when IDT relaxed in the lying-down
position.
[237]
The most important conclusion which Prof Dunn drew from the GSH
x-rays was that the left thoracic curve observed
in the Sunninghill
and Morton x-rays was not a fixed or structural curve because in the
GSH x-ray the spine had fully straightened
and then curved to the
right. He added that in scoliosis a thoracic curve is usually more
rigid than a lumbar curve. The fact that
the thoracic curve had
reversed itself gave him comfort that there was no structural
element. Dr Versfeld acknowledged in cross-examination
that one saw
from the GSH x-ray that the thoracic curve could be straightened.
[238]
In addition to the
x-rays, Dr Versfeld and Prof Dunn conducted physical examinations. Dr
Versfeld’s first examination was
on 14 November 2012. Although
he did not examine IDT again following receipt of the Morton report,
the plaintiffs’ legal
team asked him to do so before
testifying, particularly having regard to Prof Dunn’s challenge
to the diagnosis. Dr Versfeld
conducted the further examination in
counsel’s chambers on the morning of 18 April 2016, the day on
which his testimony began.
[39]
In the earlier examination Dr Versfeld measured IDT’s range of
movement in the lower limbs. In the case of hip abduction,
the range
of movement on the left was 20° less than on the right for knee
straightening and knee bending (50° as against
70°). He
considered that the loss of movement on the left was caused by hip
obliquity. It is unclear whether Dr Versfeld thought
that this in
turn was evidence of scoliosis.
[239]
Prof Dunn, who did not test range of movement, said that hip
obliquity could not in itself cause a loss of range
of movement.
There had to be some structural restriction. Range of motion is
measured with reference to the pelvic axis, wherever
the axis happens
to be. In the absence of a structural restriction, such as a muscular
contracture (which Dr Versfeld did not find
to be present), the range
of motion relative to the axis will not change merely because the
axis is rotated. He wondered whether
Dr Versfeld had been careful to
place IDT’s pelvis in a neutral position before measuring the
range, which ought to have
been possible given the absence of
contractures. If not, there was a danger of measuring range of
movement with reference to the
position of a notionally vertical axis
when the axis was in fact tilted.
[240]
Dr Versfeld identified what he believed to be mild scoliosis to the
left, which is why he called for the Sunninghill
x-rays. He agreed
that a mild transitory curve could be caused by IDT’s athetoid
movements but he used his clinical experience
to look for repetitive
patterns over a period of 10 to 15 minutes. He thought the mild curve
was persistent.
[241]
He also observed IDT to have a ‘markedly round back’. In
cross-examination he accepted that because
IDT had low muscle tone he
would tend to slump more than normal but was able to sit up straight.
He nevertheless said that poor
posture promoted the development of
scoliosis and that one of the important goals of physiotherapy was to
improve posture.
[242]
On 18 April 2016 Dr Versfeld undressed IDT and got him to do various
normal activities. He described IDT as resistant,
even aggressive.
When IDT was sitting there was a very obvious upward tilt of the left
pelvis. The pelvic asymmetry was less pronounced
when IDT was
standing. When he got IDT to lean over forward there was the ‘very
beginning’ of a rib hump on the posterior
chest though from the
front he did not observe any asymmetry. The significance of a rib
hump is that as thoracic vertebrae start
rotating they take the chest
wall with it, creating a characteristic hump. This is a feature of
more advanced scoliosis. When cross-examined
about the supposed hump
(which Prof Dunn had not observed), Dr Versfeld was somewhat
equivocal, saying that he ‘thought’
there was some early
sign of a hump but that if Prof Dunn said otherwise this represented
only a ‘minimal disagreement’
between them.
[243]
Prof Dunn examined IDT on
31 March 2016. He was quite surprised to see that IDT could stand and
walk. Together with the absence
of spasticity, these were good
prognostic signs against scoliosis. While sitting on the floor IDT
could use his hands to play on
an electronic device. He seemed to
have reasonable torsal strength. Prof Dunn put IDT in the Adams
position (bending IDT over his
knee and exposing his back more or
less parallel to the ground). IDT was reasonably relaxed. His
shoulders were level (ie there
was no abnormal Bunnel angle
[40]
)
and his pelvis did not seem to have any fixed obliquity (he said one
would not notice a 5° pelvic tilt on clinical examination).
If
any structural deformity of the spine existed he believes he would
have seen signs of it. He did not notice any rib hump. He
added that
if there was a rib hump caused by spinal rotation one would expect to
see anterior chest asymmetry, which Dr Versfeld
says he did not
observe.
[244]
The orthopaedic evidence does not establish on a balance of
probability that IDT is suffering from scoliosis.
The presence of
left thoracic (though not identical) curves in the Sunninghill and
Morton x-rays could quite plausibly be the result
of the fact that
IDT, with his athetoid movements and communication difficulties, is
not an easy child to x-ray. He does also have
a tendency to lean to
the left. Prof Dunn was not in the least equivocal in his conclusion
that IDT did not have scoliosis.
Future
risk of scoliosis?
[245]
There was some evidence on the link between athetoid CP and
scoliosis. The plaintiffs’ case on scoliosis
was not put on the
basis that IDT, while presently being free of scoliosis, had a
quantifiable risk of developing it by virtue
of his CP. If the latter
had been alleged and established, I would have been entitled to allow
a percentage of the reasonably anticipated
costs of treating
scoliosis (
Burger v Union National South British Insurance Company
supra)
1975 (4) SA 72
(W) at 74D-75H; cf
De Klerk v Absa Bank
Ltd & Others
2003 (4) SA 315
(SCA) para 28 quoting with
approval a  passage from the well-known English case of
Allied
Maples Group Ltd v Simmons & Simmons (A Firm)
[1995] EWCA Civ 17
;
[1995] 4 All ER
907
(CA)).I shall nevertheless deal with the evidence on this point
since it might be regarded as bearing on the ultimate question
whether IDT already has scoliosis.
[246]
Spasticity, particularly asymmetrical spasticity, predisposes the
sufferer to muscle contractures. The shortening
of muscles on one
side of the trunk increases the risk of scoliosis. This risk is
particularly pronounced where the patient is
wheelchair-bound. As a
general proposition, athetoid CP does not pose the same risk because
the clinical picture is of random involuntary
movements on both sides
of the body. These opposing movements tend to neutralise each other.
Athetoid CP may, however, be accompanied
by elements of spasticity.
[247]
In the main, the expert evidence was that IDT did not have any
spasticity. This was the view of Dr Versfeld and
Ms Crosbie on the
plaintiffs’ side and Dr Springer and Ms Scheffler on the
defendant’s side. Mr Hakopian did not mention
spasticity. It
was not put to Prof Dunn that IDT had any spasticity. He said that
IDT did not fit the typical picture of spasticity-induced
scoliosis.
Dr Springer commented that she found no evidence of contractures and
that these were not typical of athetoid CP. The
dissenting voice was
Mr Jackson who thought there was an element of extensor spasticity on
the left side. Although IDT could move
out of the spastic extension,
there was more resistance than on the right side. In the absence of
similar observations by other
experts or a correlating of this
supposed spasticity to scoliosis, not much weight can be placed on
it.
[248]
There was evidence, particularly from Ms Crosbie and Ms Scheffler,
about whether IDT has ‘fixed’ postures
or merely postural
‘tendencies’. A person with athetoid CP who wishes to use
particular muscles (say the right hand
and arm) may instinctively try
to eliminate the disturbing effects of other involuntary movements by
stiffening certain muscles
(for example by pressing the left arm
against the trunk). IDT uses these techniques. According to Ms
Jackson they have progressed
beyond mere tendencies so that he now
‘fixes’. This increases the risk of muscle contractures.
With reference to photographs
taken in 2012 and 2015, she expressed
the view that there had been a deterioration. He was fixing more with
his left arm and rotating
his trunk more. When grasping food his grip
was now more fist-like than before. When feeding himself with a
spoon, he stabilised
himself by pushing his left heel into the ground
and pressing his left arm down onto the table. It was put to her in
cross-examination
that IDT did not adopt fixed stereotypical postures
even if he had certain postural tendencies. She replied that he was
‘going
more in this direction’ though he could still move
in and out of the postures. She did not feel qualified to say with
what
frequency and for what duration particular postures would need
to be maintained in order to give rise to contractures.
[249]
Ms Scheffler disagreed with Ms Crosbie. Fixed stereotypical postures
would normally be encountered in spastic
CP, not athetoid CP. She
felt that in general IDT moved in a very normal way but the athetosis
unpredictably ‘bumped’
his normal movements. He did not
get stuck in particular postures. She commented that people do not
develop contractures just because
they adopt particular positions for
lengthy periods. People may spend many hours seated at a desk or
behind the steering wheel
without developing muscle contractures. IDT
tended to adopt the postures observed by Ms Jackson when using his
hands or feeling
insecure. These problems could be addressed through
physiotherapy and appropriate adjustments to his physical
environment. In one
of the video clips she pointed out that the table
at which he was seated was too high which required him to bring his
elbow above
90°. He had to use a very rudimentary grip to hold a
spoon because it was thin and slippery. Things improved when he sat
on
the floor with his legs splayed out because he had a more stable
base. In other video clips which showed him at play he displayed

efficient balancing reactions when stumbling. On several occasions he
lay on his left side while holding a toy in his right hand.
This
involved trunk-lengthening, the opposite of a typical left-leaning
slump.
[250]
Prof Dunn said that he would not regard habitual postures as a cause
of scoliosis. Significant muscular imbalance
could give rise to
scoliosis though not all muscular imbalance did so.
[251]
It is common cause that IDT will benefit from physiotherapy. The
occupational therapists concur that IDT will
be assisted by various
adjustments to his physical environment. The evidence does not
establish, however, that IDT has or is likely
to develop muscle
contractures with the concomitant risk of scoliosis.
[252]
Medical research into the
link between CP and scoliosis is sparse and that which exists is
quite old. Reference was made during
Dr Versfeld’s evidence to
two articles, a 1970 paper by Balmer et al
[41]
and a 1974 paper by Rosenthal et al.
[42]
The authors of the Balmer paper referred to a 1967 paper reporting
that in a group of 3000 cases of scoliosis there were two CP

children. In a 1968 study 152 adolescents/young adults with CP were
screened, of whom 15,2% had structural scoliosis, the condition
being
‘moderately severe’ in 4%. The Balmer paper itself was a
radiological review of 100 consecutive cases of CP children
attending
an out-patient clinic in Delaware. Twenty-one of the children had
structural scoliosis, the severity being over 30°
in six of the
21 children. According to a 1955 study the incidence of scoliosis in
the general population was 1,9%, with 0,2% having
curves over 35°.
Balmer et al said that although their study involved a small series,
the results suggested that the incidence
of scoliosis in CP is higher
than in the general population.
[253]
The Balmer study does not
identify how many of their 100 children had athetoid CP.
[43]
On my understanding the defendant accepts that spastic CP increases
the patient’s risk of scoliosis. The Balmer article does
not
assist in identifying the risk in athetoid CP patients.
[254]
The Rosenthal paper recorded the results of a study of 50 ambulatory
CP adolescents with a view to identifying
the prevalence of scoliosis
in CP children approaching skeletal maturity. Of the 50 adolescents,
34 were spastic, 12 athetoid and
four ataxic. In total, 19 of the
adolescents (38%) had scoliosis. Of the 12 athetoid patients four had
scoliosis. In most of the
19 cases the curves were mild (13 were
under 20° and only three were above 30°). The study group as
a whole was small and
the athetoid sub-group comprised only 12
children. Of the four athetoid cases, two had hemiplegic CP (ie the
CP affected only one
side of the body). Dr Versfeld agreed that the
asymmetry of hemiplegia creates a greater risk of scoliosis than
generalised athetosis
such as IDT’s. Rosenthal et al said that
they were unable to correlate curve severity with the extent of CP.
Most curves
in their study required little treatment.
[255]
Prof Dunn testified that
he has never seen or operated on an athetoid patient with scoliosis.
He had reviewed the literature.
[44]
Very few papers mention athetosis in relation to scoliosis. In regard
to the Rosenthal paper, he said that the two hemiplegic athetoid

cases were not relevant to IDT’s condition and that the other
two athetoid cases involved mild curves (12° and 18°)
in
adolescents approaching skeletal maturity (both were about age 16)
and where no treatment seems to have been given or envisaged.
[256]
In the joint minute Prof Dunn recorded that there was no definitive
data on athetoid CP as it related to spinal
deformity. Dr Versfeld
testified that he would have been happy to agree on a statement that
there was ‘little definitive
data’. He agreed, though,
that the sparse information available could not be regarded as
‘definitive’. Prof Dunn
said during oral evidence that he
could not say that scoliosis did not occur in athetoid CP sufferers.
Any neuromuscular disorder
must, he said, pose some increased risk of
scoliosis. He said that even if the athetoid patient’s risk was
double that of
the ordinary person, the risk in the general
population was only 2% so that a risk of 4% would remain low. In his
experience there
was, in the case of athetoid CP, no significant risk
of scoliosis requiring intervention.
[257]
I thus conclude that the plaintiffs have not established on a balance
of probability that IDT has or is likely
to develop scoliosis or that
he will probably require treatment in respect of scoliosis. In regard
to precautionary monitoring,
the agreed six-monthly consultations
with the paediatric neurologist and the ongoing involvement of a
physiotherapist should be
sufficient in case, contrary to my view,
structural scoliosis should develop.
The
proposed treatment modalities
[258]
If scoliosis had been proved, one would still need to consider
whether the plaintiffs established that IDT would
reasonably require
and receive the proposed treatments Since SPIO suits have been
recommended by Mr Hakopian and Ms Crosbie for
the dual purposes of
treating scoliosis and dynamic stability, I shall at this juncture
assess the treatment modality for both
purposes.
[259]
I do not intend to deal with physiotherapy as a discrete form of
treatment for scoliosis. Prof Dunn said that
while physiotherapy may
have other benefits, including improvement of posture, it has not
been shown to prevent or retard the progression
of scoliosis. Ms
Jackson and Ms Scheffler agree that IDT should receive physiotherapy
for other purposes. I do not think the difference
between them on the
extent of the physiotherapy required would be affected by whether one
regards physiotherapy as a treatment
modality for scoliosis. To the
extent that it is beneficial for scoliosis, IDT will get the benefit.
DMO/SPIO
treatment
[260]
Prof Dunn said that DMO and SPIO suits have no place in the treatment
of scoliosis, that there is no evidence
for their use and that he
could not understand why Dr Versfeld had made the recommendation.
Medical writing on the subject was
qualitative and subjective. Such
treatment has never been motivated at any of the many conferences he
has attended.
[261]
Dr Versfeld testified that he had been using DMO suits for the last
seven years. He currently has four or five
children with scoliosis on
whom he is using DMOs (though whether these are cases of scoliosis on
Prof Dunn’s definition is
unclear). There were some instances
where the DMO did not work, which he attributed to a poor-fitting
suit. X-rays taken after
an initial use of the DMO usually show big
improvement. Unlike a rigid brace, the suit is only worn during
working hours.
[262]
It is not clear to me why, insofar as scoliosis is concerned, soft or
semi-rigid bracing for say 10 hours p/d
should have beneficial
results where rigid bracing would only yield benefits if worn for 20
hours or more. Dr Versfeld’s
clinical experience in the use of
DMO suits is anecdotal and based on only a handful of patients. One
knows that even without intervention
some scoliotic curves do not
progress. I do not suggest that it is inappropriate for Dr Versfeld
to prescribe DMO suits for his
patients. I do not doubt that he
genuinely believes they are beneficial. While rigorous evidence for
this may be lacking, I do
not understand it to be suggested that DMO
suits do harm. However the question I must decide is whether there is
a sufficient acceptance
for it as a treatment modality to regard its
cost as a reasonable expense which the defendant must bear.
[263]
In the nature of things, the clinical evidence of the other witnesses
in the use of DMO/SPIO suits is also of
limited, if any, weight. Ms
Crosbie said that she is currently treating three CP children who
wore these or similar suits. One
of these children has athetoid CP.
She formerly had another athetoid CP child on such treatment but the
family has emigrated.
[264]
Ms Jackson, who qualified in New Zealand in 1983 and emigrated to
South Africa in 1997, has never recommended
a DMO suit and is
apparently not familiar with them.
[265]
I do not recall Mr Hakopian being asked about the number of patients
for whom he has recommended DMO or SPIO suits.
The defendant’s
counsel explored in cross-examination whether his SPIO
recommendations were impartial. This line of questioning
arose from
his ownership of an entity called GH Medical. He explained that he
started GH Medical in 2010 because he wanted to explore
distributing
SPIO suits in South Africa. He organised for an instructor to come to
South Africa to explain the benefits and use
of the orthosis. He
arranged for someone to take over GH Medical in 2015. Ms Crosbie, who
was the first of the plaintiffs’
experts to recommend a SPIO
suit, said that she obtained her costing from GH Medical.
[266]
It is not without significance that in his first report of April
2013, following an examination on 14 November
2012, Mr Hakopian did
not mention or recommend a DMO/SPIO. He also did not identify
scoliosis at that stage. His SPIO recommendation
came in his second
report of November 2015, about two months after Ms Crosbie’s
second report. In her second report Ms Crosbie
referred in turn to Dr
Versfeld’s diagnosis of scoliosis and the latter’s
recommendation of a DMO suit. Because she
understood DMO suits no
longer to be available in South Africa, she recommended a SPIO suit.
In his second report Mr Hakopian recommended
the SPIO vest with TLSO
specifically for the mild scoliosis diagnosed by Dr Versfeld. The
SPIO compression suit, on the other hand,
was said to provide ‘deep
pressure, which appears to be an important somatic input for balance
and movement control’.
Deep pressure, he considered, would
assist IDT ‘in controlling uncoordinated and dyskinetic
movement and provide [him] with
improved dynamic stability’.
[267]
Ms Scheffler, the defendant’s physiotherapist, worked in the
public sector from 1994 to 2010 and has been
in private practice
since then. She has treated many CP patients over the years. To judge
by her evidence, she has never prescribed
the use of a DMO or SPIO
suit. She testified that in June 2014 and at the invitation of an
orthotist, Mr Malcolm Freedman, she
attended a DMO workshop in Cape
Town presented by the UK manufacturer. Mr Freedman asked her to do a
joint assessment of IDT and
of another athetoid CP child (a girl) to
determine whether they would benefit from DMOs. They scheduled an
appointment for the
girl but she got sick and the joint assessment
did not take place. The concept of a compression garment initially
struck her as
plausible but she could not find much literature to
support its use. Her impression is that after some enthusiasm the
concept fizzled
out.
[268]
The plaintiffs called Mr Freedman as a lay witness. (The defendant
had arranged for Mr Freedman to see IDT but
did not file an expert
report.) Mr Freedman testified that during his examination he put IDT
into a DMO suit. IDT seemed to tolerate
it well and it appeared to
help his movements. Mr Freedman said that he had used a DMO suit for
a two-year-old boy with scoliosis
(a 16° curve). After two years
the scoliosis corrected itself and the DMO therapy was discontinued.
He mentioned two other
patients who had used DMOs. Only one of these
patients was on a replacement cycle.
[269]
I have already mentioned that Mr Brand, the defendant’s
orthotist, initially disputed the appropriateness
of DMO/SPIO
orthoses when commenting on Ms Crosbie’s second report. He
changed his mind in the joint minute with Mr Hakopian.
He then
recanted during oral evidence. While he initially impressed as a
sincere witness, my conclusion by the end of his testimony
was that
he was unreliable. On his own version he went along with Mr
Hakopian’s recommendation for inadequate reasons and
recanted
for equally inadequate reasons, bending like a reed in the wind. I am
satisfied that he does not have enough knowledge
on the subject to
express an expert opinion for or against the use of DMO/SPIO suits.
He testified that he had never actually seen
a SPIO suit, only
photographs.
[270]
The plaintiffs’
experts who recommended DMO/SPIO suits were asked in
cross-examination about the evidential foundation for
their efficacy.
Two research papers were mentioned: a 2010 paper by Cogill et al
[45]
and a 2012 paper by Garland.
[46]
These were canvassed during the evidence of Mr Hakopian and Ms
Scheffler.
[271]
The Cogill paper is a review of existing literature, not a study of
patients. The review was inspired by a question
from the mother of a
five-year-old boy with athetoid CP who complained of difficulties in
putting his lycra suit on each day. She
wanted to know if it actually
helped his function and movement. The authors concluded, from a
survey of eight relevant papers (ranging
from 1995 to 2004), that
there were no systematic reviews or randomised controlled trials to
establish the efficacy of lycra garments.
Most published papers
involved small patient numbers. Available studies suggested that
lycra garments improved proximal stability
and function in some CP
children but the evidence was limited. There were practical
difficulties – lycra garments were tightfitting,
difficult to
don and doff, and children often complained of discomfort. The high
cost could not be ignored. Although on current
evidence children with
athetosis were among those for whom the advantages might outweigh the
disadvantages, more research was needed
before one could implement an
evidence-based approach to using lycra garments in the management of
CP children.
[272]
The Garland paper is also
not original research but a survey of 14 studies ranging from 1993 to
2011. It includes the studies reviewed
in Cogill and a few later
papers. Of the 170 patients making up the 14 studies, 16 had athetoid
CP and six had a combination of
spasticity and athetosis. Some of the
papers concluded that there was no significant improvement.
[47]
Others reported various kinds of benefits. Garland concluded,
overall, that significant improvement was reported in upper extremity

function. However, the quality of the methods of 10 out of the 14
studies reviewed was low. Future studies should consider stronger

designs that can control for confounding factors. Clinicians should
not only rely on their clinical experience: ‘A search
of new
studies that provide valid and applicable evidence to support their
clinical practice should also be emphasized.’
[273]
During her evidence
Ms Scheffler made reference to the policy statements of two USA
medical schemes, Aetna
[48]
and
Health Net,
[49]
namely that
suit therapy devices, TLSO bracing and DMOs are experimental and/or
not medically necessary in the treatment of CP,
having regard to the
absence of peer-reviewed literature validating their effectiveness
and safety. There was objection to my receiving
these documents. I
allowed them to the extent that they constituted a summary of
published literature, on the basis that the policy
positions adopted
by the medical schemes were not in themselves relevant. The schemes’
policy documents cover some of the
articles mentioned in Cogill and
Garland and reference certain other papers as well. I do not think it
is necessary to go into
the details.
[274]
The plaintiffs’ counsel directed my attention to the fact that
in
Whiten v St George’s Healthcare NHS Trust
[2011] EWHC
2066
the cost of lycra suits was allowed for a spastic-dystonic
quadriplegic CP child (see paras 320-321). That was done pursuant to

an agreed recommendation by the physiotherapists, the basis and
purpose of which does not appear from the report. I must decide
the
case on the basis of the evidence before me.
[275]
The evidence I have summarised has led me to conclude that the
plaintiffs have failed to establish that DMO/SPIO
orthoses have
sufficient proven efficacy, whether in the treatment of scoliosis or
to enhance mobility and function, to constitute
a reasonable medical
expense for which the defendant is liable. This does not mean that
IDT will be deprived of these orthoses
if his treating team genuinely
think he should have them. He will be receiving a substantial award
for lost earnings and general
damages.
[276]
If there were sufficient scientific foundation for the efficacy of
DMO/SPIO suits, there would be the further
question whether IDT is
likely to use them for the period recommended by Dr Versfeld (ie for
the next three years) or by Ms Crosbie
(ie until IDT reaches the age
of 20) or by Mr Hakopian (ie for the rest of his life). IDT’s
mother testified that he is very
sensitive to touch. He would not
tolerate hearing aids, continually pulling them out. He did not like
his ears to be cleaned. He
disliked lotion on his skin. A neighbour
knitted a beanie to go over his ears to keep the hearing aids in
place but he would not
wear it. His tactile aversion has also
manifested itself in his preference for soft shoes.
[277]
I have already mentioned the observation in the Cogill paper to the
effect that lycra garments present practical
difficulties. They are
tightfitting and difficult to don and doff. Children often complain
of discomfort.
[278]
Ms Crosbie said that SPIO suits are not made from a scratchy material
and do not move contrary to the direction
of the skin. She thought
IDT would tolerate the suit if there were appropriate introduction
and gradual scaling-up of its use.
[279]
I am extremely doubtful whether IDT would accept any of the DMO/SPIO
regimes proposed by the plaintiffs’
experts. Apart from his
tactile aversion, the suit – particularly the two-piece
compression garment – will not be easy
to don and doff. IB said
that IDT likes to do things for himself. Many recommended
interventions are aimed at enhancing his independence.
A DMO/SPIO is
not something which he could easily don and doff on his own. In the
case of Mr Hakopian’s recommendation, the
problem will be
exacerbated by the fact that different suits will be used on the same
day depending on whether IDT is sitting or
active.
[280]
Another complicating feature is toileting. I do not recall evidence
as to how diapers would be accommodated, particularly
in the
tightfitting pants of the compression suit. There is a reasonable
prospect that IDT will become toilet-trained. Dr Choonara
testified,
however, that IDT may remain socially incontinent, in the sense that
his athetosis will make it more difficult for him
to get to the
toilet in sufficient time to prevent mishap. Tightfitting lycra
pants, which as I understand it would be worn underneath
ordinary
trousers, will be an added layer of difficulty for him when using the
toilet.
[281]
IDT’s significantly impaired communication and language
abilities will make it difficult for anyone to explain
to him why he
is being required to wear the special suit. An inability to
understand the supposed benefits is likely to increase
his
resistance. My impression is that he is quite strong-willed. He has,
over his relatively short life, been subjected to many
medical
examinations and treatments. He will in the future receive a
significant amount of therapy and medical treatment. Among
the agreed
items are weighted collars, vests and wrist bands, foot orthoses and
a belt or holder for his AAC aids. (According to
Ms Crosbie, the
weighted vest, like the SPIO suit, enhances proprioception.) I
consider that IDT will baulk at the added intrusion,
inconvenience
and discomfort of wearing a DMO or SPIO suit. This was also Ms
Lundy’s view.
[282]
A final consideration is the attitude of his parents and the treating
team. The experts who have recommended DMO
or SPIO orthoses (Dr
Versfeld, Mr Hakopian and Ms Crosbie) are not part of IDT’s
treating team, at least not at present.
They are based in
Johannesburg. In deciding whether to incur the expense of these
orthoses and whether to subject IDT to their
use, his parents (duly
advised by the treating team) will inevitably take into account the
extent to which IDT is expected to benefit.
In so far as scoliosis is
concerned, they will know that a leading orthopaedic surgeon in South
Africa with particular experience
in spinal deformities holds the
view that IDT does not have scoliosis and is at no particular risk of
developing it. They will
be aware of that surgeon’s opinion
that DMO/SPIO suits have no place in the treatment of scoliosis. They
will have been alerted
to the debate about the efficacy of lycra
suits and the absence of clear scientific support for their use. In
these circumstances
I would expect them, particularly in the event of
resistance from IDT, to decide not to subject him to this additional
form of
treatment. The trustee, which would make the funding
decision, would also be alive to the matters I have mentioned.
[283]
I have been told that in May 2016 IDT was supplied with a SPIO/TLSO
through the orthotist Mr Freedman (there is
now a claim for this as a
past expense). I have no evidence about that decision, who apart from
Mr Freedman was involved or how
it has worked out. At the time she
testified in February 2016 IB did not know about SPIO suits or the
scoliosis diagnosis. I do
not know whether, when the SPIO/TLSO was
acquired in May 2016 (shortly after Prof Dunn’s evidence), the
parents had been
told of the experts’ conflicting views.
[284]
I thus consider that DMO/SPIO treatment, even if it is now being
tried out, is unlikely to be persisted with in
the medium- to
long-term.
Cheneau
treatment
[285]
The rigid Cheneau brace which Dr Versfeld recommends for IDT between
the ages of 10 and 19½ will undoubtedly
come with considerable
discomfort. Prof Dunn testified that most of the medical evidence for
the efficacy of rigid bracing is based
on data on the treatment of
idiopathic scoliosis and comes from colder countries where compliance
is better. In warmer countries
heat exacerbates discomfort. IDT’s
constant athetoid movements within the rigid brace would also
increase discomfort.
[286]
Again, I think IDT, who will not understand the supposed benefit, is
likely to be hostile, both on grounds of
discomfort and appearance.
His parents and the treating team will be aware of the difference of
opinion (to put it no higher) as
to whether IDT in fact has
scoliosis. They will also know that if IDT has scoliosis the curve,
even if left untreated, may not
deteriorate to a level requiring
surgery and conversely that the curve, even if rigidly braced, may
still deteriorate to a level
requiring surgery.
[287]
I thus do not think that treatment in a Cheneau brace is a practical
reality.
[288]
For all of the above reasons no amount is awarded in respect of items
43, 55(a) and 55(b) of “POC1”.
Manual
wheelchair [items 58-60 of “POC1; item 43 of “POC2”]
[289]
The experts agree that IDT should have a powered wheelchair and a
compact manual machine as backup. They disagree
on choice and
associated cost. I deal first with the manual wheelchair.
[290]
Although the plaintiffs’
experts were not of one mind, the claim is based on Mr Hakopian’s
recommendation of a Lightning
pushchair (‘Lightning’) at
a current cost of R27 120 to be replaced every four years to age
18 to accommodate
growth and then every five years for life.
[50]
(The four years is an average of the chair’s estimated lifespan
of three to five years.) As an alternative, the plaintiffs
contend
that a Rodeo pushchair at R49  500 could be considered.
[291]
In her second report of September 2015 Ms Jackson recommended an
X-Panda wheelchair at R65 000 to be replaced
every three to five
years. She said the chair allows for movement when the child thrusts
and moves but then returns the child to
a pre-set position. In her
joint minute with Ms Scheffler in December 2015 Ms Jackson said that
because of IDT’s improvement
she no longer saw the need for
this type of wheelchair, a view she repeated in oral evidence. In the
joint minute she deferred
to Mr Hakopian’s recommendations.
This was unfortunate. Wheelchair recommendations are within her scope
of practice and she
in fact made wheelchair recommendations in both
her reports. Her explanation in oral evidence that she thought Mr
Hakopian had
greater expertise is weak. An expert who takes this
approach is at risk of creating the impression that she does not want
to offer
her own opinion lest it harm the claimant’s case.
[292]
Ms Crosbie in her reports deferred first to Mr Rademeyer and then to
Ms Jackson.
[293]
Shortly after her
appointment Ms Bester facilitated the purchase  of a Pacer Lite
Steel wheelchair (‘Pacer’) from
CE Mobility for R6413, a
Shona Tess Back positioning cushion (‘Tess Back’) for
R7875 and certain modest accessories
for R1750 (removable anti-tip
assembly, foam cushion, waterproof cushion cover, pelvic restraint
and perspex tray). Inclusive of
VAT, the total cost was R18 283.
[51]
This was in June 2015. IDT is still using this wheelchair.
[294]
Ms Scheffler considered that the Pacer was adequate for IDT’s
purposes. She estimated its cost as at December
2015 to be R10 000.
Her costing did not include the Tess Back or accessories. She thought
a Tess Back was not indicated.
[295]
Ms Scheffler said that Mr Hakopian’s recommendation of a
pushchair was inappropriate. Its appearance was
that of a child’s
pram. In her experience older children regarded a pushchair as
childish. One wants to enhance IDT’s
social participation and
self-esteem. The pushchair would make IDT entirely dependent on a
carer for mobility. By contrast he would
have some self-propulsion
ability with the Pacer.
[296]
Ms Scheffler’s
criticism of the pushchair is valid and consistent with other
evidence. In August 2010 Red Cross Hospital supplied
IDT with a
Shonaquip buggy. He was 1½ at that time so the use of the
pushchair is not surprising. For some months during
2013 and 2014 he
used a rollator but had ceased such use by the time he saw Dr
Springer in September 2014. There is nothing to
indicate that at that
stage he was using, or wanted to be in, a pushchair. He seems to be a
child with a desire for independence.
Ms Scheffler reported in
September 2014 that according to IB her son was refusing to be
transported in the buggy.
[52]
[297]
Ms Bester met IDT and the
family in March/April 2015. She testified that there was an urgent
need to improve IDT’s community
mobility. Prior to her
appointment the parents, if they went shopping with IDT, put him in a
shopping trolley. They avoided taking
him out because of the
difficulty in moving around with him. IB wanted a pushchair. Ms
Bester had discussions with Martha Spruit,
an occupational therapist
employed by CE Mobility. Ms Spruit challenged the concept of a buggy
because it was essentially a baby
stroller whereas IDT was a
six-year-old boy. She also felt that the buggy would provide no
postural support.
[53]
[298]
Ms Bester, herself an occupational therapist, and IB accepted Ms
Spruit’s advice, hence the purchase of
the Pacer. Ms Bester
testified that CE Mobility is a reputable firm which offers a wide
range of options. She has had previous
dealings with Ms Spruit.
[299]
When cross-examined Ms Bester seemed to me to be somewhat defensive,
perhaps concerned that her answers might
jeopardise Mr Hakopian’s
recommendation. She said she had needed a simple and immediate
solution for IDT’s community
mobility and that her brief from
Mr Joseph was to be conservative in her expenditure. She acknowledged
that a constrained budget
did not feature in her correspondence with
Ms Spruit. If a Lightning or Rodeo had been considered distinctly
preferable for IDT,
there would have been no difficulty in funding
its acquisition out of the interim payment of R1,5 million. The price
difference
would have been R8000 – R30 000 depending on
which pushchair was bought.
[300]
In her second report Ms Jackson considered but rejected the idea of a
Shonaquip buggy for IDT.
[301]
The plaintiffs filed an expert report from Mr Rademeyer, a mobility
expert and himself a wheelchair user. Although
the plaintiffs did not
in the event rely on his recommendations, they called him as a
witness, perhaps a defensive measure lest
an adverse inference be
drawn. In his report he said that imported wheelchairs could cost up
to 800% more than locally manufactured
ones and that although local
wheelchairs were more rudimentary they offered comparable
functionality. Insofar as manual wheelchairs
are concerned, his
recommendation (in November 2012) was that IDT have one paediatric
wheelchair until age 12 (estimated cost R18 480)
and an
intermediate/adult manual positioning wheelchair thereafter for life
with a replacement cycle of eight years (estimated
cost R25 440).
He did not mention specific makes of wheelchair but in oral evidence
confirmed that the Pacer would be a positioning
wheelchair. In regard
to the estimated lifespan of wheelchairs, he said it depended on the
setting (rural/urban), the user and
the quality of chair. In regard
to his own wheelchair, he said it lasted about ten years.
[302]
During evidence in chief
Ms Scheffler demonstrated the features of the Pacer, Tess Back and
tray. The large wheels can quickly be
removed by clicking on the hub
nut. The chair then folds down. The Tess Back, which can be quickly
inserted or removed, provides
lateral trunk support. Somewhat to my
surprise she did not at that stage mention what she subsequently said
in cross-examination,
namely that in her view IDT did not need the
Tess Back. The defendant filed expert reports by Dr Janine Botha, a
doctor and rehabilitation
specialist, though she was not called as a
witness. Dr Botha did not examine IDT but reviewed the medico-legal
reports. In her
second report of 24 November 2015 she said that the
Tess Back, if set up correctly, could provide adequate trunk postural
support
for IDT.
[54]
[303]
In oral evidence Mr Hakopian said that the Rodeo was more expensive
than the Lightning and had an adjustable tilting
backrest which was
not needed for compact backup mobility (at the time he testified the
plaintiffs’ claim was still formulated
with reference to
Rodeo). The Rodeo’s anti-thrust seat, while it might enhance
IDT’s comfort, was more important for
children with leg
spasticity.
[304]
Mr Hakopian testified that the Pacer was a ‘standard’ or
‘conventional’ wheelchair designed
mainly for
paraplegics. IDT would have difficulty with self-propulsion,
particularly getting his hands over the armrests and coordinating

hands and feet. He might be able to propel himself but changes in
direction would be problematic.
[305]
I have come to the conclusion that the Pacer, together with the Tess
Back and the accessories which IDT’s
Pacer currently has, is a
reasonable backup machine. In appearance it is preferable to a
pushchair for a growing child and an adult.
It at least offers some
scope for self-propulsion. The Lightning does not seem to have
support features which IDT particularly
needs, at least not for
backup mobility. If necessary, inexpensive modifications to the chair
could be made using foam, rubber
and glue, as Ms Scheffler explained
in her evidence.
[306]
I will thus allow the amount of R18 283 as a past expense (item
43 of “POC2”). Based on Mr Rademeyer’s
first
report, this wheelchair should last IDT until he reaches the age of
13.
[307]
In accordance with Ms
Scheffler’s evidence about the increase in the price of the
Pacer chassis, the current cost is about
R10 000 including
VAT.
[55]
I understood Ms
Scheffler to say that a Pacer for a teenager and adult would be more
expensive (between R8000-R10 000 for
a paediatric chair, from
R8000–R20 000 for an intermediate/adult chair). This is
consistent with Mr Rademeyer’s
first report. On the figures he
gives the increase is 38%.
[56]
In the absence of more precise information, I propose to assume an
increase of 40%. This means that at age 13 IDT will get a new
Pacer
chassis at a cost of R14 000. The current cost of the
accessories other than the tray and anti-tip assembly, is R9924.
[57]
Allowing the same amounts as before for a new tray and anti-tip
assembly (R1287),
[58]
the
total cost at age 13 will be R25 211 inclusive of VAT.
[308]
Thereafter I think a replacement cycle of seven years until the end
of the cycle in which IDT reaches his 40
th
birthday is
reasonable. The chair will be used in an urban setting and only as
compact backup.
[309]
Thereafter (ie the last 15 years of IDT’s expected life), I
consider that the replacement cycle should be
reduced to five years.
There was extensive and contentious evidence about the extent to
which IDT is likely to lose mobility as
he nears the end of his life.
Reduced mobility would result in increased use of his wheelchair.
Most of the expensive claims
hinging on the end-of-life scenario have
been settled. I will thus not analyse the differing opinions at great
length.
[310]
Various research papers
were handed in as exhibits (Strauss 2004;
[59]
McCormick 2007;
[60]
McGinley
2014
[61]
), with the most
attention being devoted to the McGinley paper. There is data showing
that the walking ability of CP sufferers declines
in later years.
This is more pronounced in sufferers who in childhood already have
relatively poor mobility (GMFCS III). Even then,
the data does not
indicate that complete loss of mobility (in the sense of being unable
to support one’s weight and assist
in passive transfers) is the
most likely scenario. Some CP patients may use their wheelchairs
more not because objectively
they have less ability to walk but
because of loss of confidence from falls or fear of falls. Patients
with bilateral syndromes
and quadriplegia are more prone to report
problems than those with hemiplegia.
[311]
I have found IDT to be a GMFCS II. This counts in his favour in the
end-of-life scenario. On the other hand his
athetosis is bilateral,
which is adverse. I cannot find that he will become completely
immobile but I accept that he will use his
wheelchair more often.
According to the McGinley paper the median age of deterioration in
cases of bilateral CP is 37. This would
be 18 years before IDT’s
EDA of 55. It would be fair in IDT’s case to assume increased
usage as from age 40 (essentially
the last 15 years of his life).
Since the last seven-year cycle will expire on his 40
th
birthday, the five-year cycle will start from that date.
[312]
In accordance with Mr Hakopian’s view, the plaintiffs claim
annual maintenance of R1500 save in replacement
years. This is on the
assumption that a Lightning would be acquired. Ms Scheffler in
November 2015 considered that a manual wheelchair
would require
maintenance at an annual amount of R800. She made a separate
allowance for customisation of IDT’s environment,
including his
wheelchair, using materials such as foam, rubber and glue (R500 every
two years), and for a wheelchair positioning
cushion (R300 p/a).
Since the Pacer accessories for which I have made allowance include
the Tess Back and a foam cushion and cover,
I think R1200 p/a is
reasonable for maintenance and customisation. This amount will be
allowed in every year other than replacement
years.
Powered
wheelchair and Mygo seat [items 61-66 of “POC1”]
Introduction
[313]
The plaintiffs’
claim in respect of the powered wheelchair, based on Mr Hakopian’s
recommendation, is that an Ottobock
B500S wheelchair (‘B500’)
with Mygo seat and wheelchair accessories be acquired forthwith for
IDT at a cost of R155 793,
with a five-year replacement
cycle.
[62]
Batteries are
claimed at R9300 p/a and maintenance at R5500 p/a (the average of an
expected range of R3000 - R8000).
[314]
The Ottobock is an
imported machine. Ottobock has a South African office in
Johannesburg. After some uncertainty, it was established
that there
is an orthotist practice at Vincent Pallotti Hospital in Cape Town
which sells, repairs and services Ottobock products.
[63]
[315]
The B500 is a front-wheel
drive.
[64]
The chassis, being
the basic chair without accessories and Mygo seat, costs R69 043.
[65]
The Mygo seat costs R46 625. There was not much evidence about
the accessories which account for the balance of R39 228.

According to the quotation and item codes the accessories are:
puncture-proof tyres on castor wheels; castor wheel suspension;

chassis suspension; electric lighting and rear marker plate for the
chassis; control panel holder; attendant control; joystick
top
(flexible, including large ball top); and rear bumper.
[316]
The Mygo seat can be set
in various ways to provide pelvic stability, sacral support and
pelvic cushioning, trunk and head alignment
and leg and foot
positioning.
[66]
It can be
used as a seat on various bases. In the present case the proposal is
that the B500 will be its base.
[67]
The Mygo seat itself is referred to in the Mygo brochure as a ‘seat
shell’.
[68]
Mr Hakopian
proposed a Size 2 Mygo shell. Various accessories for the Mygo seat
can be selected.
[69]
[317]
In his first report (April 2013) Mr Hakopian proposed a Skippi
electric wheelchair at a cost of R75 000,
to be replaced after
five years by a ‘bigger electric wheelchair with a stand-up
feature’ costing between R170 000
– R300 000.
This was the basis of the plaintiffs’ claim at the time he
testified though an amendment in line with
the current claim was
foreshadowed. In his second report and oral evidence Mr Hakopian said
that he no longer thought a stand-up
feature was needed.
[318]
Mr Hakopian’s first report did not include a recommendation for
a Mygo seat (unless its cost was subsumed
in the somewhat broad and
generous estimate for the ‘bigger electric wheelchair’).
[319]
In his second report (November 2015) Mr Hakopian recommended the B500
with Mygo seat. The report stated that this
chair would be a good
companion for IDT, particularly when long distances had to be covered
or he had to manoeuvre through indoor
passages or over uneven
terrain. Once IDT mastered the operation of the control unit, he
could even use the B500 at school. Mr
Hakopian recommended that there
should be a heavy duty control unit, attendant control (so that a
caregiver can override IDT’s
control unit), a clear tray and a
bumper bar.
[320]
In regard to the Mygo seat, he reported that it would provide
appropriate postural support and comfort during
long hours of
sitting. He thought the Mygo’s good pelvic support, with its
four-point pelvic harness, was the most important
positioning
component for IDT, as it would achieve the best possible support base
for trunk and head alignment as well as for hand
function when
operating the control unit. Because the Mygo is fully adjustable, it
could accommodate IDT’s growth.
[321]
He stated in the report
that the all-in cost of the B500 and Mygo seat was R270 000. In
oral evidence he adjusted this downwards
to R155 794 in
accordance with the quotation, exhibit “R”. He testified
that the earlier price had been based
on an ‘incorrect product’
and the inclusion of extras which IDT did not need. In particular,
his revised costing excluded
certain postural extras, rather
concentrating on pelvic support. The wheelchair has a standard seat
with back-angle and seat-inclination
adjustability.
[70]
There are other seating, cushioning and adjustability options but
these have not been included in the quotation. This appears
consistent with reliance on the Mygo. What is not clear is precisely
what Mygo extras Mr Hakopian recommended. The Mygo product
code in
the Ottobock quotation (exhibit “R”) is the code for the
standard Mygo without any extras.
[71]
[322]
In cross-examination it
was put to Mr Hakopian that the B500 chassis had capacity for various
features which IDT would not be getting,
a proposition he accepted.
He was asked about a somewhat cheaper Ottobock product, the B400.
[72]
The following are some of the differing technical specifications of
the B500/B400 products: range – 35 km/25-35 km;
battery
charging time – 8 hr/10 hr; maximum load capacity/user
weight –140 kg/95 kg; climbing ability
–
17°/12°; maximum obstacle negotiation (height obstacles like
pavement curbs) – 8 cm/5-10 cm;
turning radius
– 76 cm/80 cm. Their top speeds are the same
(6 km/h).
[323]
The pricing of the B400
was handed up during Ms Scheffler’s evidence. The retail price
including VAT is R46 043.
[73]
The same price list reflects a price for the B500 of R71 847
[74]
,
roughly the same as the chassis price of R69 941 contained in
the Ottobock quotation exhibit “R”. It may safely
be
inferred that the B400 price does not incorporate any of the extras
listed in the Ottobock quotation. Although there was no
evidence to
this effect, I would expect extras such as puncture-proof tyres,
suspension, control panel holder, attendant controls
and the like, to
be available for the B400. The Mygo seat, as I understand it, could
be used in conjunction with the B400.
[324]
In his first report (November 2012) Mr Rademeyer said that the median
price for a locally manufactured electric
wheelchair was R48 500.
He recommended such a wheelchair for IDT once he reached the age of
12, with an estimated replacement
cycle of ten years. As I have
previously mentioned, he said that more sophisticated imported
products could cost up to 800% more.
In his second report and oral
evidence Mr Rademeyer unfortunately deferred to Mr Hakopian without
providing his own reasoned recommendation.
With regard to the Mygo
seat, he said it fell within what one would expect to pay for a
‘high-level imported product’.
[325]
In Ms Jackson’s first report (April 2013) she proposed that
upon reaching adulthood IDT get a Netti electric
wheelchair at an
estimated cost of R26 000. She said in the interim a Light Drive
device could be attached to IDT’s
manual wheelchair, which
might even be the preferred option in adulthood. She estimated the
Light Drive cost at R50 000. In
her second report (September
2015) she again recommended the Light Drive, the cost of which was
now about R85 000. Depending
on usage, terrain and IDT’s
growth rate, the system would need to be replaced every three to five
years. Ms Jackson also
recommended a pressure cushion which could be
used on the manual and electric wheelchairs at a cost of R6000 –
R10 000
with an average lifespan of two years.
[326]
In her joint minute with Ms Scheffler, Ms Jackson said that she
deferred to Mr Hakopian’s recommendations,
a stance she
maintained in oral evidence. I have remarked on the undesirability of
such an approach by independent experts on matters
falling within
their expertise. At the time of the joint minute, what she was
deferring to was Mr Hakopian’s recommended
package costing
R270 000, something which Mr Hakopian himself adjusted downwards
very substantially when testifying.
[327]
During Ms Jackson’s
re-examination a quotation from Sitwell was handed up giving the
current cost of the Netti (R70 219) and
Light Drive (R84 075).
[75]
[328]
In her reports Ms Scheffler considered two kinds of powered mobility
for IDT: a scooter or a wheelchair. Although
the scooter’s
‘image’ might be more attractive for a teenager or young
adult, it is in my view inappropriate
for IDT, given his athetoid
movements. Ms Lundy said that IDT was ‘fearless’. She
thought a scooter would be dangerous
for him as he might be tempted
to go too fast.
[329]
Regarding powered wheelchairs, Ms Scheffler did not in her reports
list specific makes of wheelchair and their
cost. What she gave was
an estimated price range for locally manufactured electric
wheelchairs. In her third report (November 2015)
the range was
R28 200 – R35 000. She thought a scooter or electric
wheelchair would have a life span of eight years.
As noted, Ms
Jackson in the joint minute declined to enter into discussion with Ms
Scheffler about wheelchairs.
[330]
In oral evidence Ms
Scheffler said that electric wheelchairs that could be considered and
that were within her estimated price range
were Cruiser, Medop and CE
Mobility. Quotations were subsequently made available, the prices
ranging from R27 898 to R48 051,
excluding seating
accessories.
[76]
[331]
It is disconcerting for a judge to be presented with such divergent
opinions. On this part of the case, as on
some others, I thought Mr
Hakopian’s recommendations excessive. There were significant
differences between the recommendations
in his first and second
reports. By the time he testified (only three months after his second
report) he ‘corrected’
his pricing from R270 000 to
R155 793. On the other hand Ms Scheffler did not provide precise
information about the local
wheelchair options. Her price range as at
November 2015 was well below Mr Rademeyer’s median price for
local wheelchairs
three years previously. The quotations subsequently
furnished indicate an upper range well in excess of what she said,
even before
taking accessories into account. I am left with the
uncomfortable sense that Mr Hakopian and Ms Scheffler would not
necessarily
have provided the same opinions if they had been briefed
by the other side. This is not to say that there was conscious bias;
but
an expert engaged for a particular party is at risk of a mind-set
which views the case from the outset from that party’s
perspective. A judge is not assisted where other experts in the case,
who could have provided their own views, instead defer to
a single
expert.
Mygo
seat
[332]
Since my decision on the Mygo seat may affect the choice of
wheelchair I deal with it first. It is an expensive
item at R46 624.
The recommendation came at a relatively late stage in the day, and
only from Mr Hakopian. The Mygo he recommended,
Size 2, comes
standard with shoulder rests and headrest. He acknowledged in
cross-examination that IDT did not strictly require
either of these
features. His main reason for promoting a Mygo seat was to give IDT a
more stable base. He said softer seats can
result in unwanted spine
movements. He also testified that the seat can be set to keep the
legs symmetrically apart, which assists
in stabilising the upper
body. He had, however, decided against selecting restraining
components above the hip.
[333]
Ms Scheffler disagreed with the Mygo recommendation. She said it
would typically be used for GMFCS IV and V patients
who need a lot of
upright postural support, particularly to improve head and neck
support. One did not want to put IDT ‘in
a straitjacket’.
Too much seating support would detract from his functioning. His
trunk is key to his balance reactions which
in her opinion are quite
good. These balance reactions promote distal function. One should
strive to improve his functioning by
maximising his ability to use
his trunk.
[334]
In cross-examination she
was referred to Mr Hakopian’s testimony that with the Mygo seat
IDT’s thighs could be positioned
out at an angle (abducted) so
as to have him sitting on a more triangular base. She was referred to
the part of the Mygo brochure
dealing with leg and foot
positioning.
[77]
She agreed
that abduction might provide a larger support base but said that to
abduct a patient’s thighs when he is able
to maintain a neutral
position is contrary to the principle of neutral postural support
which is a matter of basic bone mechanics.
[335]
She disagreed that the Mygo brochure suggested otherwise. The Mygo
brochure was dealing with leg guides for patients
with deformities.
In my view Ms Scheffler was correct. The part of the brochure to
which she was referred was headed ‘Leg
and Foot Positioning
Challenges’. A patient’s pelvis/thighs might be in a
deviant position due to contractures, eg
one leg might be abducted
and the other adducted (‘windsweeping’ - both legs
twisted to the right or left); or both
legs might be adducted (each
thigh pointing outwards); or both legs might be abducted (each thigh
pointing inwards). In such cases
the Mygo seat can be set up to
accommodate the deviation though one would still try to get the user
as close to neutral as possible.
Since IDT does not have contractures
and since his pelvis and thighs can be placed in a neutral position,
one would not deliberately
set up the seat to place him in a deviant
position. (Her view that IDT’s pelvis and legs can be placed in
a neutral position
accords with Prof Dunn’s opinion.)
[336]
She was also referred to
Mr Hakopian’s evidence that the Mygo’s side panels offer
good trunk support, thus giving IDT
maximum hand function. It was put
to her that the side panels would not have to be permanently in
place, ie could be removed when
they were inhibiting him. She said
that the Mygo’s side panels were not quick-release features, it
was quite ‘finicky’
to take them on and off. Providing
trunk support in her view would not prevent his athetosis distally;
it would just inhibit his
trunk balancing and reaction function. She
was shown a photograph of the side panels (‘flip away
laterals’) in the
Mygo brochure
[78]
and it was suggested to her that these did not seem to be ‘finicky’.
She replied that the side flaps can be opened
out to allow the user
to get in and out of the seat but that the panels are not taken on
and off. Once the patient is seated, one
could not leave the flaps
open since this would inhibit movement of the user’s arms - the
side panels did not flip back all
the way, certainly not more than
90°.
[337]
In general I found this part of Ms Scheffler’s evidence quite
convincing.
[338]
All in all, I have been left in considerable doubt as to whether the
Mygo seat is a reasonable expense for which
the defendant should have
to bear the burden. I do not think the plaintiffs have discharged the
burden of proving this item.
Powered
wheelchair
[339]
The disallowance of the
Mygo seat raises a question about the suitability of the Ottobock
products at the present time. The smallest
Ottobock seat width is
38 cm or 15″.
[79]
Ms Scheffler testified that this was way too big for IDT. His current
Pacer, I note, is a 10″ chair.
[80]
For the next six years I thus intend to allow an amount of R48 000
for one 12″ powered wheelchair. This would cover
the cost of
the Medoc 12″ machine or the Pacer 12″ machine with
accessories.
[81]
[340]
As from age 13, by which stage I assume that a 15″ chair will
have become suitable for IDT, I have concluded
that I should allow
the cost of the B400 (R46 043) and certain of the accessories
mentioned in the Ottobock quotation, exhibit
“R” (R32 951
– see below). With regard to the chassis, the specifications of
the B500 do not hold any significant
advantages over the B400. IDT is
unlikely ever to exceed the load capacity of the B400 (+ 96 kg).
There is a minimal
difference in turning radius. Particularly since
IDT will use the powered wheelchair for community mobility rather
than in the
home, this difference is of no consequence. On the
assumption that the B400 has a range of 25 km as against the 30 km of
the B500,
this is not problematic because I do not think IDT will
ever need to travel more than 25 km without opportunity for
recharging
the battery. Any inconvenience arising from the fact that
the B400 takes two hours longer to recharge can be avoided through
sensible
planning.
[341]
The plaintiffs’
counsel pointed out that the B500 is not the most expensive of
Ottobock’s wheelchairs, reference being
made to the
ParaGolfer,
Superfour
and
C2000.
[82]
I do not have
evidence about the nature and purpose of these machines and whether
they are wheelchairs as conventionally understood.
In any event the
reason for my rejection of the B500 is not that it is the most
expensive chair but that it exceeds IDT’s
reasonable
requirements.
[342]
It appears that cheaper local products than the B400 are available,
though if Mr Rademeyer’s 2012 median
were updated such cost
might not be much less. More importantly, the powered wheelchair is
going to be IDT’s most important
mobility device. Quality,
reliability and ease of use are important. Ottobock has a very good
name, as Ms Scheffler agreed. She
also said that their prices had
remained stable in the face of exchange rate fluctuations because
they had a business located in
South Africa.
[343]
However, the replacement cycle must take account of the fact that I
am allowing a reasonably high-quality machine.
Mr Rademeyer thought
that a local product would have a life-cycle of ten years. In the
light of the other evidence, that may be
optimistic. On the other
hand a five-year cycle seems too short. I think seven years (one year
less than Ms Scheffler’s suggested
replacement cycle) is fair
until the end of the cycle during which IDT reaches his 40
th
birthday. Thereafter, and for the same reasons as before, increased
use will shorten the life span which I would thus reduce in
that
period to five years.
[344]
In regard to accessories, all of those included in the Ottobock
quotation seem reasonable apart from the electric
lighting and rear
marker plate. Ottobock’s product code says that electric
lighting is ‘required for road traffic permit’
and that
the plate is ‘required in Germany for road traffic permit’.
There was no evidence about South African requirements
and nothing to
suggest that IDT would use his powered wheelchair in a setting
regulated by road traffic laws. Excluding these two
extras, the
Ottobock accessories amount to R32 951. This gives a total cost
for the chassis and accessories of R78 944.
[345]
The B400 offers some
postural support. I have already referred to Ms Scheffler’s
evidence that wheelchair seating can be customised
relatively
inexpensively using foam, rubber and glue. Ms Scheffler said she kept
substantial stocks of these and other such materials
at her premises.
The cost of all anticipated adaptations (not just for the electric
wheelchair) was not expected to exceed R500
p/a. She also said that a
basic foam positioner cushion would suffice for his wheelchair at a
cost of R300 p/a. I think it would
be reasonable to make
provision for the same foam cushion, waterproof cover and pelvic
restraint as have been allowed as
accessories for the Pacer at a
current cost of R946
[83]
with
a three-year replacement cycle to age 40 (the reason for this cut-off
age appears from the next two paragraphs). I do not
propose to make
any separate allowance for the modest cost of customisation. I also
do not intend to allow a second Tess Back.
My understanding is that
it can be used with a wide range of wheelchairs. IDT could thus use
it with the B400 or the Pacer as desired.
[346]
Ms Jackson recommended a pressure cushion. This is not for postural
support but to prevent pressure sores. Ms
Jackson testified that
because of his skinniness and altered weight-bearing pattern due to
pelvic obliquity IDT was at risk of
developing pressure sores when
sitting in the wheelchair for long periods. Ms Crosbie also
recommended such a cushion. This view
was challenged in
cross-examination on the basis that Dr Botha would say that athetoid
patients are not at increased risk of pressure
sores. Dr Botha was
not, however, called as a witness. Although I have accepted Prof
Dunn’s opinion on the absence of pelvic
deformity, it is not in
dispute that IDT tends to sit with his left pelvis raised. Even if
this is not a deformity, it may contribute
to discomfort.
[347]
The plaintiffs do not claim the cost of pressure cushions, presumably
because this concern would have been addressed
by the Mygo seat.
Since I have disallowed the Mygo, it is reasonable to include the
cost of pressure cushions from age 40 when
IDT will be using the
wheelchair more often. The same pressure cushion could be swapped
between the B400 and manual wheelchair
as desired. An average price
of R8000 is reasonable. Ms Jackson said that the cushion would
have an average life span of two
years depending on usage and would
become more of a necessity as IDT spent more time in the chair. A
three-year replacement would
in my view suffice. The pressure cushion
allowance will be in substitution of the seating allowance of R946
(which will apply until
age 40).
[348]
In regard to maintenance, the plaintiffs claim R5500 p/a. In November
2012 Mr Rademeyer estimated annual maintenance
costs at 8%. On a
total cost of R48 000 for the Omega/Pacer and R78 944 for
the B400, this would yield R3840 p/a and
R6320 p/a respectively. Ms
Scheffler in her third report spoke of an annual allowance of R2000
every two years for ‘tyres
and incidentals’. However I do
not recall Mr Hakopian or Mr Rademeyer being cross-examined about
maintenance rates. The amount
of R5500 represents about 7% p/a.
Particularly since I am assuming a longer replacement cycle than the
plaintiff’s’
experts, this is reasonable for the B400. I
will allow R3360 p/a for the maintenance of the Omega/Pacer. These
amounts should be
allowed in every year other than replacement years.
[349]
In her report of
September 2015 Ms Jackson said that batteries (I think she was
talking about the Light Drive) would cost R15 000
p/a. In his
report of November 2015 Mr Hakopian said that the B500’s
batteries would cost R9300, which is the basis of the
plaintiffs’
claim. Ms Scheffler said that batteries for the range of electronic
devices she considered would amount to R2200
p/a. That is the sum I
will allow for batteries for the Omega/Pacer, ie until IDT reaches
his 13
th
birthday. Thereafter I
must allow a reasonable cost for batteries for the B400. The cost of
the B500’s batteries was not challenged.
It is reasonable to
assume that the batteries for the B400, with its less rigorous
specifications, are cheaper. The best I can
do is to assume that the
B400’s batteries are less expensive by the same ratio as the
chassis, namely 66%.
[84]
On
that basis I will allow R6138 p/a for batteries as from IDT’s
13
th
birthday.
Walking
devices [items 50 and 56 of “POC 1”]
[350]
The plaintiffs claim the cost of a Nurmi Neo posterior walker
(‘Nurmi’) at a current cost of R17 500
to be
replaced every three to five years until age 35; and a ‘Pacer
with prompts’ at a current cost of R65 000
to be replaced
every five years as from the age of 40. (I assume that on this basis
the last posterior walker will be obtained
when IDT turns 35 and that
it will be replaced with the Pacer when IDT turns 40.) These claims
are a combination of Mr Hakopian’s
recommendation of a
posterior walker for life and Ms Jackson’s recommendation of
the Pacer from age 40.
[351]
In argument the plaintiffs’ counsel submitted that provision
should be made for three Nurmi posterior walkers
for IDT’s
‘occasional use’ between now and when he turns 40 (ie an
immediate acquisition and two replacements).
This assumes a
replacement cycle of 10 years. They further submitted that one PGT
would suffice (ie it would last for the rest
of IDT’s life –
on my finding, 15 years).
[352]
There is an image of the
Nurmi posterior walker in Mr Hakopian’s second report.
[85]
It is a device with a frame and four wheels. The lateral frame of the
machine is behind the user. There is no lateral bar in front.
The
user’s hands would be more or less at his sides when gripping
the handlebars.
[353]
The ‘Pacer with prompts’ is not the Pacer wheelchair
previously mentioned but a Pacer Gait Trainer
(‘PGT’).
There are images of it at 12/190-192. Although Mr Hakopian said that
the second image at 12/192 was a posterior
walker and that the other
images showed a gait trainer, my understanding is that it is the same
device which can be adapted for
use as a posterior walker.
[354]
In his first report
(April 2013) Mr Hakopian recommended a Flux walker with pelvic
support, at that stage costing R19 687.
[86]
In “POC2” this device is mentioned as an alternative to
the Nurmi. According to Mr Hakopian’s second report (November

2015) the current cost of the Flux, which he mentioned as an
alternative to the Nurmi, is said to be R22 000. In his first

report Mr Hakopian said that the Flux was a sturdy walker which would
improve IDT’s posture and balance and make walking
possible. In
his second report Mr Hakopian said that it was not necessary for IDT
to use the walker at all times as he was able
to walk short distances
unassisted and longer distances by holding onto furniture and walls.
From age 25 he thought IDT would become
a ‘therapeutic walker’
and use a posterior walker more frequently. His recommendation was
that the Nurmi or Flux be
obtained for IDT for life with a
replacement cycle of three to five years.
[355]
Ms Jackson’s opinion does not seem to have changed materially
in her two reports (April 2013 and September
2015). One difference
was that when she first saw IDT she considered he could benefit from
a paediatric rollator (relatively inexpensive
at R900 with a two-year
replacement cycle). In the later report she said that IDT was now
walking without an aid but that as he
got older he would probably
need mobility aids. She estimated that about halfway through his
expected life (which she thought would
equate to an age of about 25)
he had a 50% chance of needing walking aids for indoor mobility, this
chance rising to 95% three
quarters of the way through his life
(which she said would be in his early 40s). She thought the PGT would
be the safest option
for him at that stage at a current cost of
R65 000 for a medium adult size. The replacement cycle would be
two to five years
depending on usage.
[356]
It will thus be apparent that Mr Hakopian’s recommendation for
a posterior walker (or any kind of walker)
prior to IDT’s
mid-20s is at odds with Ms Jackson’s second report. Even in
regard to later years, Ms Jackson’s
assessment was that for
some years there was only a 50/50 chance that IDT would need walking
assistance. But the device she recommended
cost nearly four times
more than Mr Hakopian’s walker.
[357]
Ms Scheffler disputed these recommendations. In her first report
(April 2013), compiled when IDT had just started
walking with a
rollator, she observed that he was not yet able to manipulate the
rollator or turn around independently. She thought
the best solution
was a Kaye posterior walker, the benefits including a more upright
posture with resultant better postural control
and balance, easier
negotiation of turns and corners and the absence of a barrier between
the user and his environment (ie no lateral
bars across the front of
the machine). The Kaye would cost R4000 – R7000 as the size
increased, with three replacements during
his growing years and an
eight-year replacement cycle thereafter for life.
[358]
In her second report
(September 2014) she said that IDT now walked independently and
preferred to use the walls and furniture for
stability. She thus no
longer recommended the reverse walker. However for longer outdoor
distances IDT might, she felt, benefit
from a rollator with large
castors. Although he was likely at first to use it only occasionally,
he might become more dependent
on it as he got older. The cost of a
rollator was R1300 with a replacement cycle of eight years.
[87]
[359]
She also recommended a standing frame for IDT. Although this is not a
walking device, it is convenient to deal
with it here. The
plaintiffs’ experts did not in their reports recommend a
standing frame and there is no claim for one.
Ms Scheffler reported,
however, that standing was essential for the development and growth
of the lower limbs and spine. A standing
frame would be used for
‘therapeutic standing’ and would only provide knee and
ankle support and a working surface.
The frame would cost R1300. Two
replacements over the course of IDT’s life would suffice.
[360]
Ms Scheffler’s views remained essentially unchanged in her
third report of November 2015
though
for
reasons not stated she only recommended the rollator to age 30 and
reduced the replacement cycle from eight years to five years.
Its
current cost, she said, was R1320. The standing frame’s current
cost was now R2700.
[361]
In the joint minute between Ms Jackson and Ms Scheffler the former
adhered to her PGT recommendation for the last
10 to 15 years of
IDT’s life while the latter  reverted to her
recommendation of a rollator for life. Ms Jackson said
that she
agreed that a rollator should be provided but only when IDT reached
the age of 14 (and presumably to be discontinued when
the PGT was
acquired). Mr Jackson also supported Ms Scheffler’s view that
IDT should have a standing frame.
[362]
In oral evidence Mr Hakopian said that it would be better for
IDT to have a posterior walker than a rollator.
A posterior walker
would keep IDT more upright. A rollator would cause hip flexion
because IDT would tend to lean on the device.
One also wanted to
encourage IDT to engage with the world which is better achieved with
a posterior walker which has no lateral
barrier in front of the user.
He anticipated that IDT would mainly use the posterior walker outside
of the home. In public areas,
for example, it would prevent him from
being bumped and becoming unbalanced.
[363]
It was put to him that Ms Scheffler would say that a posterior walker
is for children with increased flexor tone
such as one sees in
spasticity. He riposted that what she was proposing (a rollator) was
generally used for geriatrics.
[364]
He acknowledged that the Nurmi was an imported walker. I asked him
why there was no local alternative. He replied
that local
manufacturers perhaps did not see sufficient opportunity in the
paediatric market. It was then put to him by the defendant’s

counsel that according to Ms Scheffler local posterior walkers were
available. He said that he was not aware of them but that it
was
important that the walker should be sufficiently durable for outdoor
use.
[365]
On this latter aspect, Ms
Scheffler during the course of her evidence referred to a pricelist
of walkers supplied by Presta. The
locally manufactured posterior
walker costs R938 for all sizes while the imported model ranges in
price from R3299 – R4034
depending on size.
[88]
She testified, however, that the key indicator for a posterior walker
as against a rollator was if the use of the latter would
cause the
user to lean over it in forward flexion, as would be the case for
example in patients with spastic paraplegia. In such
cases the
posterior walker would have the beneficial effect of requiring the
patient to straighten his back. She testified that
a posterior walker
was generally used in indoor settings and would be suggestive of a
patient at the GMFCS III level. (I have already
determined that IDT
is a GMFCS II.) She acknowledged that for outdoor use the ‘standard’
posterior walker (I think
she was referring to those depicted in the
Presta pricelist) would not be appropriate since its wheels are too
small.
[366]
She recommended a posterior walker in her first report because at
that time IDT did not have enough trunk control
to stay upright. He
thus needed a walking device for weight-bearing. When she saw him
subsequently he could stand up independently
and only needed a
walking device as an aid for balance and safety. In outdoor settings
the rollator in her view would provide similar
support to the walls
and furniture he uses indoors. I asked whether a rollator would not
encourage IDT to be ‘lazy’
and hunch over it. She replied
that this was not so: to lean forward and bear weight on a rollator
is not an easier or lazier option
than walking upright and using the
rollator just for balance and safety.
[367]
In regard to the PGT, she said this was a full-body-support
walker which IDT did not need. Typically a PGT
would only be used for
a patient at level GMFCS IV or V.
[368]
Ms Jackson’s recommendation, as previously noted, did not
accord with that of Mr Hakopian. In regard to
the PGT, she said that
IDT might not need all the ‘prompts’. She testified that
the PGT supports the user more from
the front than the back. In her
experience CP patients could be nervous if they did not have support
in front of them, particularly
as they got older.
[369]
In regard to Ms Scheffler’s recommendation of a rollator, Ms
Jackson said the disadvantage was that the
user had to be able to
grip the device’s handles. She said that the school
physiotherapist feared that a rollator might make
IDT ‘too
adventurous’. When this was taken up with Ms Scheffler, she
said that IDT had enough muscle strength and stability
to hold onto
the rollator and that there was no danger of his losing control of
it. He had shown an ability to use one during 2013/2014
when he was
learning to walk.
[370]
Ms Jackson also said that she doubted whether IDT would use a
rollator. He wanted to walk independently and one
should not force
him to use a walking aid. I think Ms Jackson’s observation
about IDT’s preference is probably sound,
and it applies as
much to the likelihood of IDT’s using a posterior walker as a
rollator. This is no doubt why Ms Jackson
only foresaw the possible
need for a walking aid as IDT’s mobility declined in later
years. It seems that IDT stopped using
a walking aid prior to
September 2014. I do not know whether the rollator he previously used
is still in the family’s possession
(there is no claim for one
as a past expense). If IDT wanted and needed a walking aid, I would
have expected that he would either
still be using the rollator or
that a posterior walker would have been acquired for him. Even the
Nurmi could comfortably have
been funded from the interim payment.
[371]
In assessing the question of a walking aid for IDT, I take into
account that IDT will have a good quality electric
wheelchair and a
backup manual wheelchair. These are likely to be his main methods of
community mobility. Indoors he will probably
prefer to manage without
a walking aid. He is thus unlikely to use one extensively. If in his
later years he becomes less mobile,
which I have found likely, it is
the wheelchairs rather than walking aids which will be called into
more frequent use. Indeed I
have taken this into account in their
replacement cycles.
[372]
I have thus come to the conclusion that the plaintiffs have not made
out a case for the cost of the Nurmi posterior
walker or the PGT. On
the other hand it is reasonable that IDT should have some alternative
aid on the occasions he prefers not
to use a wheelchair. Since Ms
Scheffler and Ms Jackson agreed in the joint minute that IDT would
benefit from a rollator (though
Mr Jackson thought it should only be
introduced from age 14), I intend to allow the cost of this device. I
do not think it matters
that the plaintiffs have not claimed this in
the alternative. If I reject the more expensive options because
something simpler
is adequate, the cost of the latter should be
allowed by way of substitution. The five-year cycle proposed in Ms
Scheffler’s
third report is reasonable, given that the rollator
will be a third-tier mobility option.
[373]
I do not recall Ms Scheffler’s estimated cost of a rollator
(R1320) being challenged. Ms Scheffler’s
maintenance cost of
R500 p/a is excessive (38% p/a – on this basis it would be
cheaper to buy a new rollator every three
years). I will allow R130
p/a except in replacement years.
[374]
Although the walking stand, like the rollator, is not claimed by the
plaintiffs, I am again inclined to allow
it in partial substitution
for the plaintiff’s claims under items 50 and 56 of “POC1”.
(When I raised this possibility
with Ms Bawa in argument she did not
resist.) There seem to be benefits IDT can derive from therapeutic
standing. And the better
he can stand, the better he is likely to
walk. I will thus allow an additional amount of R1300 in accordance
with Ms Scheffler’s
third report. There will be two
replacements evenly spaced over the rest of IDT’s expected
life. Since the standing frame
is a static device, a more frequent
replacement cycle does not appear justified. Ms Scheffler allowed
R200 p/a for maintenance,
which does not strike me as parsimonious,
so this should be allowed other than in replacement years.
Foot
orthoses and related items
SMO
and straps [items 52-53 of “POC1”]
[375]
Because IDT has pronated
feet and unstable ankles, the experts concurred that he needed some
form of foot orthotics but there were
differences as to the best
solution. The parties have now agreed that the cost of providing IDT
with an ankle foot orthotic (‘AFO’)
of the SMO type
(supra malleolar orthotic)
[89]
should be allowed at a cost of R10 779. They have also agreed
that the SMO requires straps which cost R370. The remaining
dispute
in respect of these claims is the replacement cycle. The plaintiffs
allege that the SMO should be replaced annually for
life and the
straps every six months for life. (As IDT gets heavier the SMO will
be superseded by an articulated AFO but my understanding
of the
parties’ agreement is that the cost of R10 770 will be
treated as appropriate for life. I was not addressed on
possible
differences between the lifespan of the SMO and articulated AFO.)
[376]
In his report Mr Hakopian recommended an annual replacement cycle for
the SMO and a six-month replacement cycle
for the straps. Since the
defendant’s experts, Ms Scheffler and Mr Brand, were
recommending a different type of orthosis
they did not address the
SMO’s replacement cycle. The replacement cycles would not
necessarily be the same. What Ms Scheffler
and Mr Brand recommended
was a soft ankle brace and shoe inserts. If IDT were barefoot, the
ankle brace would remain in place but
the shoe inserts would not be
used. The SMO is a more rigid integrated orthotic which runs from
just above the ankle bone over
the heel and foot but leaving the toes
open. It will remain in place when IDT takes his shoes off.
[377]
In the joint minute with Mr Hakopian, Mr Brand agreed with the SMO
recommendation and the cost. They agreed that
the replacement cycle
would be one to two years for life. In oral evidence Ms Scheffler,
while not agreeing with the solution,
accepted that this was a
reasonable replacement cycle for the SMO.
[378]
Mr Hakopian was asked in cross-examination whether replacement would
not become less frequent if IDT were to be
less ambulatory in the
last 10 to 15 years of his life. He replied that IDT would still be
standing in a standing frame (though,
as noted, the plaintiffs did
not claim a frame). Although there would probably be less wear and
tear from use, there might be offsetting
wear and tear if his feet
were to become thinner and more bony. Mr Hakopian found this
difficult to predict.
[379]
In argument the plaintiffs’ counsel submitted that it would be
reasonable to allow replacements as follows
for the SMO: twice p/a to
age 18; every 18 months thereafter to age 25; every two years
thereafter to age 40; every three years
thereafter to the end of his
life. The defendant proposed a one- to two-year cycle to age 18 and a
three-year cycle thereafter.
[380]
The SMO is likely to
suffer the most wear and tear while IDT is a child. He may often have
his shoes off without removing the SMO.
I think it reasonable to
allow an annual replacement cycle until he reaches 18, this being at
the one end of the range agreed by
Messrs Hakopian and Brand. Since
IDT acquired his first SMO in May 2016
[90]
the replacement cycle will run from 1 June 2016. From the first
replacement after his 18
th
birthday a two-year
replacement cycle will begin. I have found that IDT is likely to
become less mobile from about age 40. On balance
this is likely to
reduce wear and tear on the SMO. Although the change may be gradual,
it would be reasonable to allow a three-year
replacement cycle as
from the first replacement occurring after his 40
th
birthday.
[381]
In the absence of evidence to the contrary, I accept the six-month
replacement cycle for the straps as recommended
by Mr Hakopian.
Indeed in argument the defendant’s counsel accepted this. The
main cause of wear and tear of the straps will
be the daily process
of fastening and unfastening rather than activity. The six-month
replacement cycle will thus apply throughout
IDT’s life except
that in SMO/AFO replacement years only one set of straps will be
allowed (six months after the SMO/AFO
replacement date). Again the
cycle will run from 1 June 2016.
Special
shoes [item 54 of “POC1”]
[382]
The plaintiffs claim the cost of supplying IDT with Easy Up footwear
at R2650 per pair with an annual replacement
cycle for life. Arising,
I think, from something I raised with Mr Hakopian, the plaintiffs
have reduced this claim by 50% as an
allowance for ordinary footwear
which IDT would have needed but for the special shoes (described in
argument as a ‘robust
deduction’). The defendant denies
that there is any need for special footwear.
[383]
The main features of the
Easy Up shoe
[91]
are described
thus by Mr Hakopian: rear opening for easy foot insertion; extra
width and depth which allow for use with orthotics;
and a Boa closer
system. The first and third of these features will enable IDT to take
his shoes on and off with relative ease
using only one hand. The
extra width and depth will accommodate the SMO.
[384]
Ms Scheffler did not offer an opinion as to whether a special shoe
would reasonably be required if IDT were using
an SMO. Mr Brand in
oral evidence said that normal shoes would be worn. One would not, he
said, want a stiffer shoe which restricted
movement. I do not recall
that this was put to Mr Hakopian. What was taken up with him was
whether IDT should have a rigid orthotic
at all (the SMO).
[385]
Mr Hakopian testified that, given IDT’s uncontrolled movements,
a special shoe with its easy closing system
would be best. He said
there were at least four companies which manufactured this type of
footwear. His cost estimate of R2650
per pair was probably at the
high end of the price range. The cheapest might be about 40% less.
This suggests that the mid-range
would be about 80% of his cost
estimate, ie R2120. Mr Hakopian was not in favour of cheaper shoes
which had a more flexible sole.
When it was suggested to him in
cross-examination that orthotic shoes might have a social stigma, he
replied that the shoes he
was recommending were quite attractive and
that other children often envied them.
[386]
On balance I think it would be reasonable for IDT to be supplied with
the Easy Up, both to accommodate the SMO
and for ease of use.
Although there might be cheaper options available, the specifics were
not explored. The defendant’s
main point was that special shoes
were not justified at all. I thus accept the cost of R2650.
[387]
On my understanding IDT would wear the SMO, and thus the special
shoes, most of the time. He would probably want
at least one other
pair of more fashionable ‘ordinary’ shoes for special
occasions. He will be saved the expense of
the other ordinary shoes
he might reasonably have been expected to have were it not for his
impairments but I think the 50% deduction
on this count is
reasonable. It follows that the net allowance will be R1325.
[388]
As to the replacement cycle of the Easy Up, IDT will quite often be
in his wheelchair. He will certainly never
be a long-distance walker.
I am allowing the cost of a high-quality shoe. A two-year replacement
cycle to age 18 (to allow for
growth), a three-year cycle thereafter
to age 40 and a four-year cycle from 40 (the era of reduced mobility)
would be fair.
Special
socks [item 55 of “POC1”]
[389]
In line with a recommendation by Mr Hakopian, the plaintiffs claim
the cost of special ankle-high socks at a cost
of R185 per pair and
on the basis that IDT will need four pairs every six months. (Mr
Hakopian in his November 2015 report actually
recommended three pairs
every six months.) Mr Hakopian described the special socks as
‘seamless, wrinkle free, with moisture
wicking and
anti-microbial properties’.
[390]
In oral evidence he said that the SMO has less ventilation than an
ordinary shoe. Furthermore the movement of
socks could irritate the
skin. IDT is known to be touch-sensitive. He acknowledged that
ordinary socks were used with such patients
until relatively recently
but with the development of special socks he now recommends them. It
was put to him that Mr Brand has
never prescribed special socks,
regardless of the patient’s socio-economic circumstances (Mr
Brand confirmed this in his
evidence). Mr Hakopian replied that there
are many orthotists who would not prescribe them and many others who
would.
[391]
I am not persuaded that special socks represent a reasonable expense
for which the defendant can be held liable.
Apart from the fact that
the case for their advantages is marginal, IDT would have required
ordinary socks in his uninjured state.
The difference in cost between
a reasonable quantity of ordinary socks (including sports socks) and
the three or four pairs of
special socks recommended by Mr Hakopian
is likely to be minimal.
[392]
This item is therefore disallowed.
Car
transportation seat [items 67-68 of “POC1”]
[393]
The claims relating to the (additional) cost of a vehicle to
accommodate IDT’s wheelchair, ramps and ancillary

transportation expenses have been settled subject to LE [items
125-128 of “POC1”].
[394]
What remains in issue is IDT’s need for a special car seat. The
plaintiffs claim the cost of a Recaro transportation
seat at a cost
of R27 720 with a four-year replacement cycle during IDT’s
growth phase and a seven-year replacement
cycle thereafter.
[395]
The claim for the Recaro is based on Mr Hakopian’s first report
of April 2013. In that report he described
the seat as having
‘
adjustable
lateral thoracic pads, height adjustable head support, 5-point belt
with reinforced abdominal/pelvic pad and table’.
He
said that these components would maintain IDT’s spine in an
upright position while the rotational base plate would assist
with
easy transfer in and out of the seat.
[396]
In his second report of November 2015 Mr Hakopian said that for safe
travelling IDT should be restrained in a
transportation seat for
special-needs children. The seat should have
‘
5-point harness,
well contorted head support, table/upper extremity support,
rotational base for easy transfer in and out of the
seat’.
These
features, which seem much the same as those of the Recaro, were now
said to be met by the Panda
Easyfit
car
seat at R54 150 or the SPL car seat at R65 300. No
explanation was given for the apparent jettisoning of the Recaro
at
about half the price. It could not have been weight considerations
because Mr Hakopian testified that the limits were 36 kg
for the
Panda, 50 kg for the Recaro and 70 kg for the SPL.
[397]
In the same report Mr Hakopian recommended that IDT should also have
a B & S car restraint at a cost of R5500.
This is a five-point
harness which can be used with an ordinary car seat or child booster
seat. Mr Hakopian said that this restraint
would be used when the
specialised car seat was not available.
[398]
In her first report of April 2013 Ms Jackson recommended that until
IDT was large enough to use an ordinary safety
belt he should have a
special car seat. She recommended a Patron
Monterry
Sam car seat at a cost of R25 000 with a five-year lifespan.
This seat had tilt-in-space capacity, head support and a swivel
base
to facilitate getting the child in and out of the seat. Once IDT was
large enough, Ms Jackson recommended the B & S restraint
system
at a cost of R4500 while he was a teenager and R5500 in adulthood.
The replacement cycle would be five to seven years depending
on
usage.
[399]
In her second report of September 2015 Ms Jackson again recommended a
specialised car seat until IDT was large
enough to use the B & S
restraint. She did not repeat her previous specific recommendation
but said it would be reasonable
to allow an expense of ‘up to
R65 000’ for a seat with a lifespan of five years. She did
not explain why ‘up
to’ this sum should be allowed if, as
her first report suggested, there was a suitable special seat at a
significantly lower
price. Her upper limit happens to have accorded
with the top end of Mr Hakopian’s recommendations in his report
of November
2015.
[400]
In her first report of April 2013 Ms Scheffler said that a ‘postural
support car seat’ would provide
IDT with the ‘required
postural support for sitting safely and independently in a vehicle’.
The chair, at a cost of
R3100, should be able to be adjusted for the
required degree of support. She thought he would only need this
support during his
primary school years, which meant that there would
only have to be one replacement.
[401]
By the time she assessed IDT in September 2014 she had come to the
view that he no longer needed a postural support
seat but she thought
he would benefit from a booster seat for which no allowance was
necessary because it was ‘a normal accessory
for young children
to improve general safety’. She adhered to this view in her
third report of November 2015. Mr Brand in
his first report expressed
agreement with Ms Scheffler’s opinion.
[402]
In June 2015, shortly
after Ms Bester was appointed, she assisted in the purchase of a
Safeway car seat from Game at a price of
R1294.
[92]
According to Ms Bester, this was for use in the facilitator’s
car. Ms Lundy confirmed that the seat was kept in her car.
The
defendant has agreed to this item as a past expense. Ms Bester
testified that another car seat was bought for IDT in January
2016,
from Makro. This was not an ordinary booster seat, it was for older
children. She felt IDT needed more support because he
was going to be
travelling with his parents on a rare holiday. The cost of this seat,
about R1200, has not been claimed as a past
expense. However the
defendant’s counsel said that the defendant should be liable
for both seats.
[93]
I think
that is fair and I shall thus add it to the amounts allowed for past
expenses (for convenience I will include it under
item 40 of “POC2”).
[403]
It seems that for some months now IDT has been using an ordinary
booster seat for routine travel with his facilitator.
While I
appreciate that Ms Bester may have felt the need to be conservative
in expenditure pending the outcome of the litigation,
I do not think
that as an experienced occupational therapist she would have
compromised IDT’s safety.
[404]
Ms Jackson thought that IDT should have a specialised seat until he
was big enough to use a B & S restraint.
In oral evidence she
said that if there was an accident or the car braked suddenly, an
unimpaired person could brace himself and
control his trunk whereas
IDT was compromised and needed added protection. She remained of the
view, however, that once he had
grown in stature the B & S
restraint would suffice.
[405]
Like Ms Jackson, Mr Hakopian in oral evidence considered that a
special seat was indicated on grounds of safety.
He acknowledged that
IDT could sit upright on his own but said that in the event of sudden
movement he would not be stable. It
was put to him that IDT would be
adequately protected by a standard booster seat. He insisted that
special-needs children are not
as stable as ordinary children and
that additional head, chest and hip support was desirable. It was put
to him that there was
no literature to support the proposition that
CP children were at greater risk of injury from car accidents if they
did not use
specialised seating. Mr Hakopian did not dispute this.
[406]
Ms Scheffler in her evidence disputed the validity of this reasoning.
She said that even unimpaired passengers
cannot react sufficiently
quickly to avoid injury which is why cars have seatbelts. She felt
that additional support was only indicated
if IDT could not maintain
an upright position. I asked her whether he would not nevertheless
tend to lean over to his left side,
a tendency he has shown in other
settings. She said that this would not occur if he were seated on a
stable base with back support
from the car seat.
[407]
When Ms Jackson’s recommendation of a B & S restraint
system was put to Mr Hakopian, he expressed the
view that it would be
useful backup to the specialised seat he recommended.
[408]
The swivelling base of the specialised seats is indicated for users
who have to be transferred by carers into
and out of the car. The
evidence indicates that IDT is able to get himself in and out of a
car seat. There is no reason to believe
that he will lose this
ability.
[409]
In regard to safety, all children, not only CP children, are
vulnerable in motorcars. An unimpaired child has
less strength than
an adult, is more easily distracted and far less attuned to the
dangers of the road. This is why booster seats
are used by prudent
parents who can afford them. If an ordinary booster seat is adequate,
I do not understand the plaintiffs to
contend that this would
represent a cost recoverable from the defendant.
[410]
However it seems to me as a matter of common sense that IDT’s
athetoid movements and tendency to lean to
the left add a further
layer of vulnerability. Road traffic accidents are all too common in
this country. IDT is involved in daily
commuting to and from school
and therapy sessions. If he were able at this stage to use a B &
S restraint, I would have regarded
this as a sufficient safeguard.
While the harness does not provide the pelvic and head support of the
specialised seat, it would
tend to hold the child upright. However Ms
Jackson’s view that he would need to grow in stature before he
can use a B &
S restraint was not challenged in
cross-examination. I thus do not know that there is a paediatric
version suitable for IDT’s
current stage of development.
[411]
In all the circumstances, I will allow a specialised seat in the
claimed amount of R27 720, being the cost
of a Recaro, the
lowest of the price options furnished in the reports of Mr Hakopian
and Ms Jackson. Mr Hakopian did not express
a view as to the life
cycle of the specialised seat nor do I recall there being oral
evidence on the point. In her first report
Ms Jackson spoke of a
five-year life cycle. IDT is now about 7½. If a specialised
seat is obtained fairly shortly after
delivery of my judgment, this
should last him just about until his 13
th
year by which
stage he will probably be able to start using the smaller B & S
restraint (in her first report Ms Jackson distinguished
between the
‘teenage’ size and ‘adult’ size). I will thus
not make allowance for a replacement.
[412]
The cost of a B & S restraint will be allowed as from IDT’s
13
th
birthday. Ms Jackson expressed the view that this
restraint system would have a life span of five to seven years. This
estimate
was not challenged. For calculation purposes a six-year
replacement cycle for life should be used. The first B & S, to be
acquired
on IDT’s 13
th
birthday, will be at the
‘teenage’ cost of R4500. As from IDT’s 19
th
birthday, the ‘adult’ cost to be allowed will be R5500.
Floor
seat [item 51a of “POC1”]
[413]
The plaintiffs claim the once-off cost of R18 000 for a corner
floor seat. This would mainly be for when
IDT is sitting on the mat
at school with the other children.
[414]
Ms Jackson, on whose second report of September 2015 the plaintiffs
rely, testified that when she observed IDT
at the school in September
2015 she noticed that while sitting on the mat he struggled to keep
still and to focus on the teacher.
Ms Lundy was kept busy restraining
him and could not use her hands to key-sign what the teacher was
saying. Ms Jackson felt that
IDT needed to expend his energy on
learning and stimulation, not physical movement. A corner floor seat
would give him better support
and would free up his facilitator to
sign for him. She thought this would make IDT more like the other
children, commenting that
he is ‘different enough as it is’.
[415]
Although Ms Jackson previously recommended that IDT get a replacement
seat after four years, she said in oral
evidence that children
generally stop using the mat in Grade 4, at about age 9. Since IDT is
already 7½, one corner seat
would suffice.
[416]
Ms Scheffler, who did not make any recommendation for a floor seat in
her reports, disagreed with Ms Jackson’s
view. In the joint
minute of December 2015, Ms Scheffler recorded that IDT could sit on
the mat without support; alternatively,
he could use his chair and
table at home and at school. In oral evidence she elaborated, saying
that children are always changing
their positions on the mat. A floor
seat would require IDT to sit upright with his legs splayed out in
front. This was not appropriate
in a classroom situation.
[417]
It was put to her that Ms de Freitas, the private speech therapist,
had observed IDT to become sluggish and tired
during therapy. At
these times he began to lean forward, which impeded the use of his
AAC device. Ms de Freitas regarded posture
as one of their greatest
challenges and had discussed the possibility of a harness for upper
body support. It was put to Ms Scheffler
that this showed relative
weakness in IDT’s torso. She replied that his environmental
setup was the important issue. The
school had not reported a similar
problem of posture. During the school visit she too had observed that
Ms Lundy was holding IDT
during storytime but she had taken this up
with Ms Lundy, being of the opinion that it was unnecessary to hold
him.
[418]
Ms Hattingh and Ms van
der Merwe reported as follows on their visit to the school in
September 2015.
[94]
During
storytime IDT and Ms Lundy sat about 1,5 m away from the other
children. IDT was on her lap while she leant against
a cupboard. He
then sat on the carpet independently. Ms Lundy did not interpret any
of the lesson content for him but prompted
him to stay quiet and look
at the teacher. IDT constantly fiddled with her jersey and hair. She
did not intervene or provide ‘external
structure’ when he
got up and walked to the teacher. The authors reported that IDT was
given to throwing tantrums when upset
or overstimulated. The class
teacher reported to them that IDT was often disruptive so that she
had to stop an activity she was
doing with the whole class.
Communication with him was a major problem in class. He was easily
distractible.
[419]
These observations were put to Ms Lundy in cross-examination. She
said she could not understand why the authors
considered her not yet
adept at facilitation but she was very keen to go on further courses
and was not at all resistant to guidance
from experts.
[420]
Although Ms Scheffler may be right that IDT should at times be free
to move as he pleases on the mat, it is clear
that his posture and
focus while the teacher is dealing with the class as a whole is
problematic and detracts from Ms Lundy’s
ability to assist him
with lesson content. The floor seat can be used judiciously to combat
these problems. I will thus allow the
seat at a cost of R18 000
(cost, as distinct from need, was not challenged in evidence).
Bath
and shower chair [items 69 and 118 of “POC1”]
[421]
Based on Mr Hakopian’s reports, the plaintiffs claim the cost
of a Leckey bath and shower chair at R16 000
with a three-year
replacement cycle [item 69]. Alternatively, and based on Ms Crosbie’s
reports, they claim a shower/bath
chair at a cost of R20 500
(the average of her R16 000 – R25 000 range) every
five years [item 118].
[422]
The Leckey chair (made by
Ottobock) has adjustable back rest and leg support. It has a rolling
base so that the user can be wheeled
into the shower (provided the
shower cubicle has been appropriately adapted). There is also a hole
in the chair to facilitate washing
from underneath. The chair Mr
Hakopian recommended in his first report was an Ultima SS at R17 100.
In his second report he
updated this cost to R25 000 and added
two alternatives: the Leckey at R16 000 and the Blue Wave at
R15 000.
[95]
He estimated
a five-year replacement cycle.
[423]
Ms Crosbie’s recommendations in her reports are similar. Her
first choice was the more expensive Ultima
supplied by Mr Hakopian’s
(former) company, GH Medical. In her second report she added the
Leckey as an alternative. She
also gave a five-year replacement
cycle.
[424]
In her first report Ms Scheffler recommended a shower chair with back
rest to provide stability. She said showering
was preferable to
bathing as athetosis increases the risk of slipping. Even if a bath
hoist were used, the caregiver would be in
an ‘ergonomically
disadvantaged position’. She said the cost of the shower chair
was R2000 with a five-year replacement
cycle. It should be noted that
at this time (April 2013) IDT was not yet walking.
[425]
In her third report
(November 2015) Ms Scheffler again recommended a shower chair with
back rest. The cost was now said to be R750,
apparently because of a
price reduction. I note that in the second report of Ms Coetzer, the
defendant’s occupational therapist
(who was not called), she
recommended a shower chair at an estimated cost of R1750 (this was as
at October 2014).
[96]
[426]
In his oral evidence Mr Hakopian said that the chair he recommended
could be flattened for use in a bath or used
as a seat in the shower.
He regarded the Ultima and Leckey as superior to the Blue Wave
because they are made of stainless steel
rather than PVC.
[427]
According to his mother, IDT mainly baths but sometimes showers. He
climbs into the bath himself. He can wash
himself though she assists
to ensure thoroughness. She washes his hair. He operates the taps but
needs to be supervised to prevent
scalding. He loves toys in his
bath. She needs to help him out of the bath because of the risk of
slipping.
[428]
When they were living with her parents the house only had a shower.
In the Muslim community, she said, adults
generally shower rather
than bath because it is not regarded as appropriate to lie in ‘dirty
water’. Particularly in
view of his physical challenges, they
would encourage IDT to shower but not compel him to do so. He is able
to shower by supporting
himself against the wall. He sits down on the
shower floor to soap himself. She thought a shower chair might be
helpful. (During
the evidence of Dr Choonara, the plaintiffs’
expert urologist who happens to be of the Muslim faith, Mr Irish
asked whether
Muslims were prohibited from bathing. He said that he
was unaware of any such rule and that he himself baths. I have no
reason
to doubt his answer. The customs of Muslim people in this
respect is not an issue before me. I accept, however, that IB
truthfully
stated her family’s view of matters and the mores
prevailing in her community.)
[429]
It was put to Mr Hakopian that IDT has been bathing and showering up
to now without apparently needing a special
chair. In regard to
showering, it was put to him that IDT has sufficient mobility to get
into the shower, even if the assistance
of a
carer
were needed. He agreed. It was put to him that all IDT needed was a
shower seat. He agreed. But when Ms Scheffler’s recommendation

was put to him, he said that IDT should be showering and bathing.
[430]
IDT may as a child continue to bath but I think it probable that as
he gets older he will, for reasons of practicality,
safety and family
preference, take to showering as a matter of routine. As a child he
will continue to have the assistance of his
parents or carer when he
baths. If necessary a non-slip mat can be placed in the bath though
Ms Bester said he does not currently
use one.
[431]
Insofar as showering is concerned, IDT’s ability to walk
independently, if necessary with the assistance
of his rollator or
carer, will make it unnecessary for him to be wheeled into a shower
cubicle. All that is reasonably required
is a seat with some back
support to provide stability, particularly when he is soaping
himself. I do not think that anything approaching
the complexity and
sophistication of the seats recommended by Mr Hakopian and Ms Crosbie
is needed.
[432]
Ms Scheffler’s recent cost estimate of R750 for a basic shower
chair seems to be on the low side and out
of kilter with Ms Coetzer’s
estimate. Although I do not recall the question of cost being
explored in oral evidence, in a
trial of this length it may not be
fair to expect every minor issue to be pursued. So as not to leave
IDT underfunded in respect
of an important aspect of his daily
living, I propose to allow R1500 as the cost of a shower seat every
five years.
Physiotherapy
[items 45-47 of “POC1”]
Introduction
[433]
It is agreed that IDT requires physiotherapy. The principal expert
witnesses on this issue were Ms Jackson and
Ms Scheffler.
Distinctions were drawn between the following types of physiotherapy:
(i) immediate intensive physiotherapy
to make up for the absence
of adequate physiotherapy in the past; (ii) routine
physiotherapy, distinctions being drawn between
what IDT would
require as a child and as an adult; (iii) physiotherapy
following orthopaedic surgery and fractures; (iv) physiotherapy

following acute illness; (v) cardiopulmonary physiotherapy;
(vi) physiotherapy for arthritis, pain and fatigue;
(vii) physiotherapy
following soft tissue injuries.
[434]
Although Ms Jackson recommended immediate intensive physiotherapy in
her first and second reports, by the time
of the joint minute in
December 2015 (less than three months after the second report) she
had come to the conclusion that IDT had
sufficiently improved so as
not to require intensive physiotherapy. The claim in respect of such
therapy has fallen away.
[435]
Ms Jackson and Ms Scheffler were more or less in agreement on the
amount of physiotherapy IDT would need following
major and minor
fractures though Ms Scheffler thought that some of this could be
taken from the allowance for routine therapy.
Neither expressed a
firm opinion as to how many fractures should be anticipated. The
parties have subsequently reached agreement
on globular amounts to be
allowed for physiotherapy on the basis that IDT is likely to suffer
two minor and two major fractures
(items 42 and 43 of “POC1”).
[436]
Although Ms Jackson in her reports recommended separate allowances
for cardiopulmonary physiotherapy, physiotherapy
following acute
illness, physiotherapy for arthritis pain and fatigue, and
physiotherapy following soft tissue injuries, these
have now been
subsumed within the claim for routine physiotherapy.
[437]
The parties have agreed
on a physiotherapy rate of R490 p/h which approximates Ms Scheffler’s
current rate. This is considerably
less than the rate proposed by Ms
Jackson in her second report of September 2015, which was over R1000
p/h inclusive of VAT.
[97]
[438]
IDT currently receives physiotherapy at school. This is covered by
his school fees, in respect of which there
is no claim (I was
informed that this was on the basis that Paarl School’s fees
did not exceed the school fees which IDT’s
parents would
probably have paid if he were unimpaired). The plaintiffs accept that
the school physiotherapy must be deducted from
the overall amount of
appropriate physiotherapy in arriving at the amount for which the
defendant is liable.
[439]
It is common cause that IDT will only receive physiotherapy at school
until he turns 13. The precise extent of
the school therapy is not
altogether clear. According to Ms Bester, IDT has one half-hour
physiotherapy session per week. Mr Kruger,
the principal, testified
that although the school year comprised 42 weeks, some types of
therapy were limited to 36 weeks because
in the other weeks the
therapists were involved as scribes for examinations and in
assessments. I understood him to say, however,
that physiotherapists
were not involved in the examinations. The plaintiffs have assumed
that IDT will receive physiotherapy at
school over 40 weeks. This
comes to 20 hours p/a. IDT probably does not get quite as much as
this. Sometimes his physiotherapy
is scheduled for 08h00 but he and
Ms Lundy battle to get there on time. On other occasions, according
to Ms Bester, IDT might lose
up to ten minutes of a 30-minute session
because of the time taken in walking between the classroom and the
therapy room. In the
circumstances the defendant cannot cavil at an
allowance of 20 hours p/a for school physiotherapy.
[440]
The amount of physiotherapy which IDT will reasonably require at any
stage of his life cannot be predicted with
precision. Both Ms Jackson
and Ms Scheffler acknowledged this. There is nevertheless a
disturbing disparity between the recommendations.
I shall refer to a
certain number of hours p/a while observing that neither Ms Jackson
nor Ms Scheffler had in mind that physiotherapy
would be evenly
spaced throughout the year – there might be blocks of therapy.
Ms
Jackson’s recommended regime
[441]
In regard to routine physiotherapy to age 18, Ms Jackson in her
reports recommended 90 minutes per week. She did
not say whether this
was based on a 52-week year. The joint minute suggests she had a
46-week year in mind for intensive physiotherapy.
If she was working
on the same basis for routine physiotherapy, her recommendation
amounted to 69 hours p/a. Although her reports
did not mention a
deduction for school physiotherapy, a deduction of 20 hours would
have reduced the claim to 49 hours. As noted,
in her reports and in
the joint minute she recommended fairly substantial additional
sessions for special types of physiotherapy.
[442]
The amount now claimed for all physiotherapy (other than following
fractures) is 40 additional hours p/a until
IDT’s 13
th
birthday and then 60 hours p/a until his 18
th
birthday.
The increased allowance as from IDT’s 13
th
birthday
is based on an assumption that 20 hours of school physiotherapy will
fall away.
[443]
In her reports Ms Jackson also recommended two ‘complex
evaluations’ p/a to age 18 at a higher charge
than routine
physiotherapy. The plaintiffs now claim one complex evaluation p/a to
age 18 at R1000 per evaluation.
[444]
In regard to routine physiotherapy in adulthood, Ms Jackson in
her reports recommended 24-36 hours p/a and
two annual evaluations.
Again, she recommended a further allowance for special physiotherapy.
[445]
The amount now claimed for all physiotherapy in adulthood (other than
following fractures) is 36 hours p/a with
no extra allowance for
annual evaluations.
Ms Scheffler’s
recommended regime
[446]
These reductions still leave a large gap between the plaintiffs’
claim and Ms Scheffler’s recommendations.
In her first and
second reports she offered a fairly wide range for routine
physiotherapy. In her third report and in the joint
minute her stated
view for routine physiotherapy to age 18 was 36 hours p/a for six
years and 24 hours p/a for six years. This
was the view she
maintained in oral evidence. Since this recommendation was not based
on a view that IDT would need less physiotherapy
as a teenager than
currently, it is not clear to me why she did not simply recommend an
average 30 hours p/a to age 18.
[447]
In all three of her reports Ms Scheffler said that IDT’s
routine physiotherapy requirements to age 18 (ie
the average 30 hours
p/a) would be fully covered by the physiotherapy available to him at
the school so that there was no additional
amount for which the
defendant was liable. That is clearly not so. In the joint minute she
agreed that IDT needed more physiotherapy
than the school provided.
Based on a deduction of 20 hours p/a, Ms Scheffler’s
recommendation would give the plaintiffs a
claim for 10 hours p/a to
age 13 and 30 hours p/a thereafter to age 18. These amounts are
respectively one-quarter and one-half
of the reduced claims now
advanced by the plaintiffs (the reduced amounts perhaps being less
than Ms Jackson herself regarded as
appropriate).
[448]
For the period following IDT’s 18
th
birthday, Ms
Scheffler recommended 12 hours p/a from age 18-21 and thereafter six
to eight hours p/a. She recognised that IDT might
require additional
physiotherapy in adulthood for arthritis, pain, fatigue and following
soft tissue injuries. She indicated the
hours which might be required
per episode. She did not venture a firm opinion as to how frequently
these episodes might occur but
expressed tentative views of the
relative risks based mainly on the McGinley paper previously
mentioned.
[449]
Leaving aside any additional allowance for special therapy, Ms
Scheffler’s recommendation of (a maximum
of) eight hours p/a
for adult routine physiotherapy is about one-fifth of the plaintiffs’
claimed allowance.
Discussion
[450]
How is a court to resolve these widely divergent positions? I did not
find the oral evidence very helpful in explaining
why one position
rather than another should be adopted. It has not been suggested that
precise factual findings on each difference
that might exist between
the experts in regard to IDT’s actual condition (eg range of
motion for various muscles, the extent
of any ‘fixing’,
the presence or otherwise of any element of spasticity etc) would
provide a sure guide to the ‘right’
amount of
physiotherapy.
[451]
The best assistance for the court would be an expert’s
independent and objective clinical judgement, always
acknowledging
that there is no absolutely right answer. I regret to say that I am
not convinced that on this part of the case I
have received such
assistance. I do not feel the assurance that Ms Jackson and Ms
Scheffler would have expressed the same views
if they had been
briefed for the other side. This is not to say that either of them
meant to mislead me. However I cannot but think
that subconscious
pro-client bias has caused the one expert to make recommendations at
the top end of what might be defendable
and the other to do the
opposite.
[452]
An appropriate amount lies somewhere between the two sets of
recommendations. In determining the appropriate allowance
one must
not only consider the incremental benefit from more physiotherapy. It
is also necessary to consider the totality of the
interventions he
will be receiving. Even if additional physiotherapy might in the
abstract yield some additional benefit, he may
simply not have time
for it. IDT cannot be expected to live a life of constant medical
interventions. The following are among the
factors to bear in mind in
the overall picture (this is based on matters the parties have agreed
or, in the absence of such agreement,
on my findings):
· IDT will be
attending Paarl School to age 18. While at school he will receive
some individual therapy. Private therapy
needs to be accommodated
outside of school hours.
· IDT’s
condition means that everyday activities like dressing, eating and
washing take longer than usual.
· IDT will be
assessed by a paediatric neurologist twice p/a until age 20 and once
p/a thereafter. He will also be treated
for ADHD (50% chance).
· IDT will
probably be seen from time to time by a urologist. The parties have
agreed that he will undergo two urodynamic
studies in childhood.
· He will need to
see an oral hygienist twice p/a and have dental treatment once every
three years. (Presumably this is not
all dental treatment but only
the additional treatment caused by his CP.)
· IDT will be
assessed once p/a by a dietician.
· IDT will see an
audiologist four times p/a for life for tympanograms in order to
assess and monitor middle ear infection,
with possible referrals to
an ENT specialist (50% chance). In respect of hearing aids, he will
require annual comprehensive assessments
and there will also be five
hours of counselling to promote compliance (50% chance).
· IDT requires a
once-off feeding intervention for 12 hours. There will be a two-hour
feeding assessment every five years.
There is also to be a facial
desensitisation program.
· IDT will receive
individual speech therapy throughout his life, starting at 92 hours
p/a (to age 10), reducing to 80 hours
p/a (10-13), 40 hours p/a
(13-18) 20 hours p/a (18-25) and 10 hours p/a (+25). Some of this
therapy (about half) will occur in
the home. For the other therapy
IDT and his carer must travel to the therapist, which will take
additional time (there is an allowance
for a 15 km round trip).
· Until he turns
18, IDT is also to receive 20 hours p/a of group speech/language
therapy. This too will require travel.
· As to private
occupational therapy, there will be a reducing scale: 30 hours p/a
(to age 14) 12 hours p/a (14-20) and five
hours p/a thereafter. There
will also be in-depth assessments every two years. The parties’
agreement in this regard does
not specify to what extent therapy will
take place in the home. Ms Crosbie’s evidence was that some
therapy would be at the
home, other therapy at the therapist’s
office. Time would have to be allowed for travel.
· The parties have
agreed to allow hippotherapy (horse-riding therapy) until IDT reaches
18. This will be half-an-hour p/w
seven months p/a (ie about 15 hours
p/a). IDT and his carer will need to travel to the horse-riding
venue.
· There are
unresolved claims in respect of educational psychology and
psychotherapy which, if allowed, would require substantial
engagement
between IDT and the educational psychologist. As will appear below, I
will be allowing two sessions p/a of specialised
psychotherapy during
adulthood.
· There are also
psychiatry claims. Although I intend to allow for some consultations
with a psychiatrist, this will not
add substantially to IDT’s
treatment burden.
· IDT will have
home program for speech/AAC therapy, physiotherapy and occupational
therapy. These programs will be conducted
by Ms Lundy, IB or other
carers. Quite how long they will take each day is unclear.
· Like any other
child, IDT may need to see a GP from time to time.
· IDT will suffer
the usual episodes of colds and flu and will thus not always be
available for whatever therapy has been
scheduled for the week.
· The parties have
agreed that IDT will probably suffer two minor fractures and two
major fractures, and for settlement purposes
have treated these as
occurring at age 17 (minor), 22 (major), 27 (minor) and 35 (major).
Following each of the major fractures
there is an allowance for 15
hours of post-operative physiotherapy. The fractures, whether major
or minor, might make routine physiotherapy
temporarily impossible or
impractical.
· In childhood IDT
needs time for recreation and holidays.
[453]
In the immediate future, the agreed allowances for individual
and group speech therapy, occupational therapy
and hippotherapy come
to 157 hours p/a. If one assumes that half of the individual speech
therapy and occupational therapy will
be done in the home, and if one
allows half an hour for travel in respect of the remaining therapy
(it would probably be more),
there would be 86 additional hours for
travel. Based on a 46-week year (ie six weeks of ‘pure holiday’
for IDT), these
therapies with their travel time will take up about
5¼ hrs p/w. Over and above this, there will be the less
frequent but
nevertheless time-consuming interventions (including
travel) relating to neurology, urology, dentistry, diet, audiology,
feeding
and psychiatry. Then some time must be allowed for the home
programs.
[454]
Having regard (i) to other demands on IDT’s time, (ii) to
the ranges recommended by Ms Jackson and
Ms Scheffler, and (iii) to
the fact that IDT might not consistently receive the full 20 hours
p/a of school physiotherapy,
I have concluded that until he reaches
his 13
th
birthday there should be an allowance of an
additional half-hour p/w based on a 46-week year. In practice IDT
might receive this
by way of a one-hour session every other week. The
annual additional allowance will thus be 23 hours, ie over and above
the school
physiotherapy of 20 hours. (The additional allowance of 23
hours can be contrasted with the plaintiffs’  40
additional
hours and Ms Scheffler’s effective recommendation of
10 additional hours.)
[455]
The above approach assumes a total of 43 hours p/a of physiotherapy,
inclusive of school physiotherapy. There
does not seem to be any
basis for assuming that IDT will need less physiotherapy between the
ages of 13 and 18. By then some of
his other therapies will have
become less demanding (speech and occupational therapy will have more
than halved). I will thus allow
43 hours p/a of physiotherapy from
IDT’s 13
th
birthday. My understanding is that IDT
will remain at Paarl School until the end of the year in which he
reaches his 18
th
birthday. Accordingly, and approaching
the matter practically, I will grant the allowance of 43 hours until
the end of the calendar
year in which he reaches his 18
th
birthday. (This can be contrasted with the plaintiffs’ claim
for 60 hours and Ms Scheffler’s recommendation for an
average
30 hours.)
[456]
As from the beginning of the calendar year in which IDT reaches his
19
th
birthday and until the end of the year in which he
reaches his 40
th
birthday, I will allow half-an-hour per
week based on a 52-week year (ie 26 hours p/a). Again, this could be
received in one-hour
sessions every other week. Because IDT will no
longer be at school, there is less need for ‘pure holiday’.
Alternatively
he might receive the physiotherapy in more intensive
blocks, something which the absence of school will make feasible. In
setting
this allowance I take into account that apart from routine
physiotherapy there may be occasions where physiotherapy is required

because of soft tissue injuries, arthritis and the like. I have
considered whether I should reduce the allowance of 26 hours in
the
fracture years. I think not – my understanding is that
physiotherapy following fractures will be targeted at a specific

problem. IDT’s need for general physiotherapy will remain and
he will have sufficient time to allow for both routine physiotherapy

and post-fracture therapy. (My allowance of 26 hours can be
contrasted with the plaintiffs’ 36 hours. As noted, Ms
Scheffler’s
recommendations, inclusive of soft tissue injuries,
arthritis etc, have not been precisely quantified but might come to
an effective
15 hours p/a.)
[457]
I have assumed decreased
mobility when IDT turns 40 (which for practical purposes can be
equated with the beginning of the calendar
year in which he attains
his 40
th
birthday). Ms Jackson
testified that sedentary people are at greater risk that common
ailments such as colds and flu will develop
into pneumonia,
particularly as they get older. Low muscle tone makes the clearing of
secretions and coughing more difficult. The
McGinley paper reported
that falls by CP adults are less likely to result in minor soft
tissue injuries than in ordinary adults,
possibly due to the greater
integrity of soft tissue.
[98]
This does not mean that the overall incidence of soft tissue injury
among CP adults is lower than in the adult population, given
that as
they age CP adults fall more often than ordinary adults. The McGinley
article states that acute and chronic pain is frequently
reported by
adult CP sufferers, osteoarthritis often being a common cause of
pain. Fatigue is also common, and is associated with
a decline in
walking.
[458]
I consider that it would be fair to grant an increased allowance of
36 hours p/a as from the beginning of the
year in which IDT turns 40.
This will continue until his EDA. (This allowance accords with the
plaintiffs’ claim.)
NMES
therapy [items 48-49 of “POC1”]
[459]
The plaintiffs claim the cost of equipment for Neuromuscular Electric
Stimulation (‘NMES’), which
would be used as an adjunct
to physiotherapy. On my understanding of Mr Jackson’s reports,
the physiotherapist would own
equipment to administer NMES during
physiotherapy sessions. She considers that IDT should have his own
slightly less expensive
equipment for follow-up use in the home. It
is this home device and the consumable electrodes for which the
plaintiffs claim.
[460]
Although Ms Jackson’s reports did not expressly say so, her
view was evidently that IDT should have NMES
treatment for life. In
her second report she said that the home unit would cost R14 500,
that it should be replaced every
seven to ten years, that consumable
electrodes would cost R80 – R90 per pack, and that IDT would
need three packs p/m. This
was initially the basis of the claims in
items 48 and 49 of “POC1”.
[461]
In oral evidence she said that she envisaged an initial ‘big
push’ with NMES treatment which could
then be scaled down. She
no longer thought that IDT needed NMES all the time. One could
probably cut down the recommended usage
by half or even two-thirds.
From a practical point of view, she said, this meant that the
replacement cycle could be extended from
8½ years to 17 - 25½
years.
[462]
The amended claim in item 48 of “POC” is based on a
replacement cycle of 17 years with a corresponding
decrease in
electrodes. Given my finding of LE, this would mean an initial
acquisition and two replacements. If the replacement
cycle were
regarded as 25½ years, only one replacement would be needed.
[463]
According to Ms Jackson’s reports, NMES treatment is directed
at: (i) opening or re-opening neural
pathways to create
awareness in the individual of the possibilities of motor
function; (ii) strengthening the muscles
in which the
stimulation causes contractions, such strengthening taking place with
less volitional effort and thus with less likelihood
of triggering
spasticity and involuntary movement; (iii) increasing the range
of motion in muscle groups that are not contracted;
(iv) assisting
in the development of efficient functional movement patterns;
(v) improving overall circulation.
[464]
She thought that NMES treatment would be helpful in IDT’s case
to access motor patterns that had previously
been unavailable to him
and to strengthen weak muscles across the spectrum. It would be used
to assist in strengthening and maintaining
or increasing range of
movement in his limbs and trunk and in improving his movement
patterns. In oral evidence she said she was
particularly interested
in using NMES to assist in activating IDT’s core muscles in
functional movements.
[465]
She was asked whether IDT would use the device not only in the home
but also at school. She said he would do bursts
of it during the day,
for at least an hour. She added that some patients went to bed with
the device fitted.
[466]
Regarding the pedigree of NMES treatment, she said it had been in use
for about six years when she left New Zealand
in 1997. When she
arrived in this country it was not yet being used. It has been
introduced over the last few years. She used it
quite a lot in her
practice. She was asked whether she had ever used it on an athetoid
CP patient. She replied that her practice
had previously given NMES
therapy to an athetoid patient who is now adult but whom they had
been treating since the age of eight.
This patient also has
scoliosis.
[467]
I should perhaps make the point that Ms Jackson will not be IDT’s
treating physiotherapist. She is based
in Johannesburg.
[468]
In cross-examination it
was put to her that there is insufficient medical support for the use
of NMES treatment on persons with
athetoid CP. She was referred in
that regard to a review of literature contained in a policy statement
issued by a leading American
medical aid society, Aetna.
[99]
Aetna’s position, which for similar reasons to those previously
explained, is not itself relevant, is that while NMES treatment
is
medically necessary for disuse atrophy where the nerve supply to the
muscle is intact and the atrophy is attributable to non-neurological

causes (eg burn scarring, major surgery, splinting), its use is
‘experimental and investigational’ for various other

conditions, including CP, because its effectiveness as medically
necessary has not been established.
[469]
The literature on which
the conclusion relating to CP was based
[100]
comprises research papers by Pape et al (1993), Hazlewood et al
(1994) and
Steinbok
et al (1997) and
systematic reviews of the literature by Kerr et al (2004) and Boyd et
al (2001). The Pape study was limited to
six patients with mild
ambulatory spastic hemiplegia or diplegia. (IDT does not have spastic
CP.) Although the authors concluded
that in selective cases,
especially children with mild CP, overnight NMES might be a useful
adjunct to conventional rehabilitation
services, Aetna noted that
this was an uncontrolled study of children who were at an age (3 to
5) when rapid changes would in any
event be expected. No attempt had
been made to standardise physical therapy. Other rehabilitative
procedures which five of the
six children were receiving might have
had a ‘confounding effect’ on the outcome of the study.
Data for long-term improvements
were absent.
[470]
The Hazlewood study comprised 10 patients with hemiplegia CP. (IDT’s
condition is bilateral.) The study
was confined to testing
improvements in ankle dorsiflexion. (A loss of range in this respect
has not been reported for IDT.) Although
there were some differences
following NMES treatment, the authors concluded that, because of the
‘complex and diverse pathology’
associated with CP, the
application of NMES treatment for CP children required further
investigation to determine which types of
CP patients were likely to
benefit as well as the desired parameters of stimulation. These
investigations were necessary before
NMES treatment could be widely
used in the clinical setting.
[471]
The
Steinbok
study concluded that NMES
might be beneficial for children with spastic CP who had undergone a
selective posterior rhizotomy (surgical
severing of a nerve root in
the spinal cord) more than one year previously. The authors
concluded, however, that more research
was needed to confirm these
results. They emphasised that their findings could not be
extrapolated to the larger population of
children with spastic CP who
had not undergone rhizotomy. (As noted, IDT does not have spastic CP
nor has he undergone a rhizotomy.)
[472]
The systematic reviews of the literature concluded that findings of
improvement following NMES treatment had to
be ‘interpreted
with caution’ because the studies had ‘insufficient power
to provide conclusive evidence for
or against the use of these
modalities’.
[473]
Ms Scheffler did not deal with NMES therapy in her reports. In the
joint minute she disagreed with Ms Jackson’s
recommendation. In
oral evidence she said that there was no scientific basis for NMES
therapy in IDT’s case. He did not have
neural pathway issues or
decreased range of motion.
[474]
I do not have evidence of the extent to which, and the conditions for
which, NMES therapy is used by South African
physiotherapists.
[475]
Although some witnesses have reported loss of range for certain
movements, the findings are equivocal. Loss of
range does not appear
to be a significant issue for IDT. In any event, the scientific
foundation for NMES treatment in general,
and athetoid CP in
particular, is lacking. I may add that Ms Jackson’s substantial
scaling back of her recommendation in
oral evidence (barely seven
months after her second report and five months after the joint
minute) does not inspire confidence.
[476]
I thus reject the claims in items 48 and 49 of “POC1”.
Educational
psychology [items 93-103 of “POC1”]
Introduction
[477]
Based on Ms Bubb’s recommendations, the plaintiffs advance the
following claims in “POC1”
· R18 000 -
the cost of books downloaded/purchased on the internet in excess of
the expense IDT would have incurred
on books but for his injury
(R30 000), less R12 000 (40%) on account of the fact that
IDT has access to a library at
school (prior to Ms Bubb’s oral
testimony the full R30 000 was claimed);
· R2962 –
cost of an immediate educational assessment;
· R15 069 –
five further educational assessments over the rest of his school
career at R3000 per assessment;
· R74 716 –
development of an Individual Education Program (‘IEP’)
for IDT for the duration of his
school career, based on 4 x
two-hour sessions p/a at R975 p/h;
· R24 103 –
monitoring by an educational psychologist in the school environment,
based on 12 hours p/a to age
13 and 8 hours p/a thereafter to age 18
at a cost of R975 p/h but on the further basis that only 25% hereof
represents an
additional expense, the balance being incorporated in
the cost of developing the IEP (prior to Ms Bubb’s oral
testimony the
claim was for 100%);
· R6000 –
the immediate cost of teaching IDT effective study methods;
· R16 754 –
further training in study methods for the rest of his school career,
based on a total 20 sessions
at R975 p/h (this would be about two
sessions p/a);
· R81 601 –
150 sessions of psychotherapy throughout his life (to be used ‘as
and when needed’), including
equine therapy, music therapy and
EMDR (Eye Movement Desensitisation and Reprocessing) at R975 p/h.
[478]
Ms Bubb, who is
undoubtedly a very experienced educational psychologist, testified
that full psychometric testing of IDT was impossible.
Using her
clinical experience and limited psychometric testing, she considered
that IDT was probably functioning, intellectually,
between ‘average’
and ‘borderline’. (In standard IQ nomenclature 110-119 is
high average, 90-109 is average,
80-89 is low average, 70-79 is
borderline and below 70 is mild retardation.) Her view that this was
‘probable’ was
challenged in cross-examination on the
basis that it is simply not possible to say, given the impossibility
of performing full
psychometric testing. Ms Bubb felt that comfort
could be drawn from the fact that in the limited cases where his
intellectual functioning
could be tested he was in the average range.
There was also the fact that Dr Thompson, the paediatrician at Red
Cross Hospital
who saw IDT on a number of occasions, had recorded her
view as being that he was of ‘near-normal intellect’.
Although
Dr Lippert and Dr Springer in their joint minute said that
the clinical impression suggested ‘mild retardation’,
they
added that IDT would need about two years for therapeutic
interventions to take effect and give a stable enough picture.
[101]
[479]
She was referred in
re-examination to the view expressed by IDT’s class teacher, as
reported by the defendant’s occupational
therapist Ms Coetzer,
that IDT was ‘thought of as astute in the realm of things other
than language use and communication’
and had been ‘steadily
learning to match visual cues with needs’.
[102]
The teacher gave a similar report to Ms Bubb, saying that she did not
think there was a problem with his cognitive reasoning but
with
paying attention. His focus had begun to improve now that he had a
facilitator.
[480]
I do not think it is necessary or possible to make precise findings
about IDT’s current level of intellectual
functioning. What can
be said is that he has sufficient intellectual capacity to derive
benefit from appropriate educational input
and stimulation. This
would be so even if he were regarded as suffering from mild
retardation though I do not think this should
be assumed against him
in deciding on appropriate educational interventions. The defendant
does not positively assert that IDT
suffers from mental retardation.
The high watermark of its case is that it is not possible to say. One
does not withhold education
from a child just because one cannot be
sure of his precise level of intellectual functioning.
Educational
interventions
[481]
This does not mean that IDT reasonably requires all of the
interventions recommended by Ms Bubb. Apart from psychotherapy,
Ms
Bubb’s recommendations are confined to IDT’s school-going
years. Those recommendations were the same in her two
reports despite
IDT’s having been placed at Paarl School in the intervening
period. Every expert who visited Paarl School,
including Ms Bubb, was
impressed. I heard evidence from the principal, Mr Kruger. He was a
transparently honest and reliable witness
and struck me as a man of
considerable humanity and great commitment to his learners. He is
very experienced, having obtained his
degree in remedial education in
1987. He chairs the South African National Association for Schools
for Children with Special Needs.
After a number of positions at other
schools, he became principal of Paarl School in 2014.
[482]
There are 343 learners at Paarl School, of whom 169 have CP. Of the
CP children, 35 are athetoid though IDT is
apparently the only CP
child with hearing loss. He is currently in a class with about ten
other  learners.  The school
employs 36 teachers, 25 class
assistants, a nursing sister, a social worker, two child
psychologists (a third intern has just left),
four physiotherapists,
three general occupational therapists, a job-preparation occupational
therapist and three speech therapists.
[483]
The school has been innovative in making use of the services of
volunteer ‘
geselstannies
’
– loving adults with whom learners can talk if they are
troubled or upset.
[484]
He was asked whether the school was short-staffed (an issue
foreshadowed in certain of the plaintiffs’ expert
reports). He
did not believe that this was so in comparison with other schools.
While they could always use more teachers and therapists,
they were
coping. Staff turnover was low. Since he had been at the school he
had not received requests from parents for therapy
which the school
could not provide. I do not accept the plaintiffs’ submission
that the school is ‘labouring under
financial constraints’
if by this they mean that the school is unable to provide a
reasonable educational environment for
special-needs children.
[485]
Mr Kruger said that younger learners tend to get more therapy; the
school had limited resources for learners in
the higher grades. The
school psychologists perform individual therapy, provide support for
the teachers and guidance to the parents.
Individual psychological
therapy would take place on referral, usually by the teacher. This is
based on need; not every learner
requires individual therapy. He said
that the school’s psychologists were hard-working but not
overloaded. The ratio of psychologists
to pupils was better than
other schools. The psychologists appeared to him to be coping. They
had not complained or asked for additional
assistance.
[486]
He said that IDT was not receiving individual psychotherapy at the
school. His experience was that CP children
were generally better
equipped to handle life situations than learners with other physical
disabilities.
[487]
Mr Kruger testified that all learners are screened by the various
specialists. An Individual Intervention Program
(‘IIP’)
is prepared for each learner. This is done by a multidisciplinary
team, including the parents and the child
psychologist, the latter
acting as an internal case manager. Each child undergoes two annual
assessments involving the multidisciplinary
team.
[488]
He was asked whether the school’s approach could accommodate
the involvement of a private educational psychologist.
My impression
was that Mr Kruger did not wish to oppose anything which might
potentially benefit a learner. The school was not
an ‘island’.
The school was not resistant to external help if this could benefit
the learner.
[489]
He cautioned, however, that this could be time-consuming for school
staff. He did not think that the school’s
multidisciplinary
team could readily make time for the external engagements
contemplated in Ms Bubb’s recommendations. He
also said that
the involvement of a private psychologist in the child’s
education program could create the unfortunate perception
among staff
that they were ‘being watched’, ie were not to be fully
trusted in their assessment of and programs for
the learner. His own
view was that the school staff were better placed than an external
therapist to determine the child’s
IIP (a similar tool to Ms
Bubb’s IEP) and to undertake assessments. He said that ‘we
are a hands-on school’.
The staff had daily contact with
learners and were best placed to set the pace. The staff were a
‘close community’
with ample opportunity for liaising
with each other. He thought the additional assessments recommended by
Ms Bubb were unnecessary.
There was already a program for assessing
learners academically and therapeutically.
[490]
He said AAC was not foreign to Paarl School. He was sure his staff
would not be resistant to external help in
learning to key-sign and
to use IDT’s AAC equipment.
[491]
He testified that the school had a fully functioning library,
including e-books. In his experience the extent
to which CP children
used reading material varied.
[492]
Ms Bubb visited the school in 2014 and again in September 2015. Her
impression was that the school psychologist
did not seem to be
closely involved with IDT. She thought they were overworked. Things
would get worse if one of the psychologists
left. (Mr Kruger’s
evidence did not suggest that either of the current psychologists was
likely to be leaving soon or that
if one of them left she would not
be replaced.)
[493]
It was put to her in cross-examination that she was over-complicating
matters by recommending four IEC meetings
with an external therapist.
If necessary an external therapist could communicate with the
corresponding school therapist by phone
or email. It was put to her
that on her approach the staff would be bogged down in meetings. All
the children at the school, not
only IDT, were special-needs
children. Ms Bubb said that there could be considerable change over
the course of a single year and
that she would want at least two IEPs
p/a, preferably four.
[494]
I am not persuaded that IDT’s condition reasonably requires
there to be the external interventions recommended
by Ms Bubb in
setting IDT’s educational program, in assessing his progress
and in training him in study methods. He is at
an excellent school
with dedicated teachers and specialists, including child
psychologists. The prominent role assigned by Ms Bubb
to a private
educational psychologist would consume a lot of staff time and
diminish their time for other learners. If similar
privileges were
extended to other children, things would become quite impossible.
Apart from unreasonable demands on their time,
I can well imagine
that the staff might be resentful at having an external expert
‘watching over their shoulder’. This
would not be helpful
for IDT.
[495]
There may be times when Paarl School’s efforts for IDT will be
less than perfect but perfection is not the
standard. If IDT were
uninjured, his school might also be less than perfect. He might
require extra lessons because teachers in
particular subjects were
weak. In an ideal world all children might notionally receive some
benefit from the intensive involvement
of a private educational
psychologist but this is not the norm.
[496]
I will thus disallow items 94-101.
Books
[497]
In regard to the claim for books (item 93), it has not been proved to
my satisfaction that IDT’s injury
has led to a net increase in
the reasonable cost of reading material. Mr Kruger testified that the
school has a good library which
includes e-books. It may well be that
IDT will never develop any material ability or desire to read and
that he will find diversion
in television, DVDs and computer games
rather than books. If he does have some recourse to books, there is
nothing to indicate
that the school’s library would be
insufficient to meet his reasonable needs in childhood. If IDT were
uninjured, substantial
amounts would have been needed for school
books and stationery during his childhood. It is also reasonable to
assume that additional
amounts would have been expended, both in
childhood and adulthood, on leisure reading, magazines, newspapers
and the like. There
would probably also have been a range of more
diverse leisure activities which would have entailed expense but
which are now closed
to IDT. The loss of these and other amenities is
something for which IDT is entitled to be compensated by way of
general damages.
How this money is spent to make his life happier is
a matter for those charged with his care.
[498]
I will thus disallow item 93.
Psychotherapy
[499]
In regard to the claim for 150 sessions of diverse psychotherapies
(item 102), equine therapy (hippotherapy) is
already the subject of
separate agreement under item 109 (part of the occupational therapy
claims) – as previously mentioned,
it has been agreed that IDT
will receive an effective 15 hours p/a of hippotherapy from the
present time to age 18. This in itself
will amount to 150 ‘sessions’
over a ten-year period.
[500]
Ms Bubb’s recommendation of 150 hours remained unchanged in her
second report despite IDT’s intervening
placement at Paarl
School. In view of his busy schedule to age 18, including the
physiotherapy I have allowed and the hippotherapy
which has been
agreed, I do not think there should be any further allowance for
psychotherapy during his school going years. During
this period he
will have the stimulation of his teachers and classmates.
[501]
IDT’s life will become lonelier as he enters adulthood. He may
survive one or both of his parents. He will
find it difficult to
develop and maintain friendships with his peers. He will not be able
to marry or have intimate relations.
He will not have the pleasure
and satisfaction which gainful employment can bring. He will,
tragically, have ‘time on his
hands’. As will appear from
the next part of this judgment, he will have an increased risk of
depression and anxiety disorders.
While these are risks which cannot
be averted with certainty, specialised psychotherapy such as music
therapy, EMDR and somatic
psychotherapy may assist IDT in coping with
the isolation of his adult life. Ms Bubb also explained that
neuropsychology literature
supports the view that trauma is ‘held
in the body’. IDT’s kernicterus is a trauma he has
suffered. The specialised
therapies she recommended were not
conversational therapies which required the patient to have
communication skills.
[502]
In the circumstances I think it reasonable to allow an average of two
sessions p/a of specialised psychotherapy
as from IDT’s 19
th
birthday to the end of his life. Based on my LE finding, this would
amount to 72 sessions in total. (In argument the defendant’s

counsel proposed an allowance for 60 sessions.) Although for
calculation purposes the allowance should be evenly spaced, in
practice
he may receive it in more intensive blocks. The rate will be
R975 p/h.
Psychiatric
claims [item 7 of “POC1”]
[503]
The psychotherapy and related claims in respect of the plaintiffs
personally have been settled. The claims in
respect of IDT are in
dispute. The plaintiff called Dr Grinker, a psychiatrist. The
defendant did not call a psychiatrist.
[504]
The essence of plaintiffs’ case is that IDT’s brain
damage and physical condition have increased his
risk of developing
psychiatric conditions such as depression and anxiety. They claim
R12 500 p/a for life on the basis of
a 30% chance that he will
develop a disorder requiring psychiatric intervention at this cost.
That the court can allow damages
on the basis of an increased risk
falling short of a probability is uncontentious (
Burger
and
De
Klerk
supra).
[505]
The 30% chance is based
on a view that a CP child is five times more likely to develop a
psychiatric disorder than an unimpaired
child. According to Dr
Grinker the incidence of psychiatric disorders in the general
population is 5% - 10%, meaning that the risk
in the case of a CP
sufferer is 25% - 50%. Dr Grinker supported the fivefold increased
risk with reference to his clinical experience
and a 1995 research
paper by McDermott et al.
[103]
[506]
Dr Grinker’s anecdotal clinical experience did not strike me as
sufficiently extensive or chronicled to
quantify the increased risk.
I did not understand him to say that he has kept data. His impression
could not be tested with reference
to the facts.
[507]
The McDermott paper, which examined a group of 47 CP children, found
reported behavioural problems in 25,5% of
them as opposed to 5,4% in
a large control group. After certain statistical adjustments CP
children were said to be 5,3 times more
likely to have behavioural
problems compared with the control group. This reduced to 4,9 times
if one excluded children with mental
retardation. The results were
said to indicate that previous estimates of a 30%-80% risk of
behavioural problems might be exaggerated.
[508]
This paper does not
provide powerful support for Dr Grinker’s opinion. The sample
size was relatively small. Only 12 of the
47 children did not have
mental retardation. Furthermore the psychiatric claims in the present
case are not concerned with IDT’s
increased risk of behavioural
problems in general but with whether he will require psychiatric
interventions of the kind described
by Dr Grinker, ie consultations
with a psychiatrist (diagnosis, prescription and monitoring) and
psychiatric medication (eg antidepressants
or anxiolytics). The
authors distinguish between various behavioural disorders
(antisocial, anxiety, headstrong, hyperactive, peer
conflict and
dependency). These problems would not necessarily require psychiatric
intervention. In the present case there is a
separate claim (under
neurology) for attention deficit hyperactivity disorder which has
been settled subject to LE.
[104]
IDT has access to a school psychologist. There are separate claims
(under educational psychology) for psychotherapy.
[105]
[509]
Of the behavioural disorders mentioned in the McDermott paper, only
anxiety seems to fit within the spectrum of
disorders which Dr
Grinker had in mind. Anxiety was only reported in 6 of the 47
children in the McDermott paper. The authors do
not say what
interventions these children were receiving.
[510]
In regard to the
prevalence of psychiatric disorders in the general population, Dr
Grinker said that his estimate of 5% - 10% would
be something found
in a basic psychiatric text. In cross-examination he was shown a 2008
paper by Stein et al
[106]
which surmised that the prevalence of psychiatric disorders in South
Africa was relatively high because of stressors such as racial
and
gender discrimination, political and criminal violence, poverty and
substance abuse. In a group of 4351 adults, the incidence
of anxiety
disorders was found to be 15,8%, major depression 9,8% and
substance-abuse disorders 13,3%. The overall risk of any
psychiatric
disorder was 30,3%. I accept the plaintiffs’ point that IDT’s
uninjured risk of substance-induced psychiatric
disorders was, in the
light of his family and social circumstances, low. In regard to
depression, females are more at risk than
males though the paper does
not state the relative percentages.
[107]
Although the research paper does not indicate the treatment which the
affected persons were receiving, the study method seems to
have been
designed to identify psychiatric disorders which would typically
require psychiatric intervention.
[108]
[511]
Although the McDermott paper does not provide strong support for Dr
Grinker’s opinion of a fivefold increase
in the risk of
conditions requiring psychiatric intervention, it does not seem to be
disputed that CP exposes the sufferer to some
increased risk. It has
not been suggested that there are other research papers which would
shed more light. As Dr Grinker explained,
IDT’s increased risk
is not only from organic brain damage but also from an awareness of
his condition. Although IDT’s
intellectual ability cannot be
precisely determined, he is capable of experiencing happiness and
sadness. Even if his condition
were described as mild mental
retardation, he has enough insight, in my view, to know that he is
different from other children
and cannot do what they can do. As he
gets older, he will see others forming intimate relationships,
marrying and having children.
His physical handicaps and his hearing
and communication deficits will make his world a very lonely one. He
will find it difficult
if not impossible to process his feelings
through meaningful discussion with others.
[512]
The defendant’s counsel referred me to
Hing
v RAF
2014 (3) SA 350
(WCC) regarding the adequacy of proof of
psychiatric injury. The issue in that case was whether the claimant
had suffered such
injury as a result of the shock of an accident in
which her sister died. The evidence did not establish that the
claimant had suffered
more than normal grief and sorrow. That was a
factual finding in a particular setting. I am not asked to find that
IDT currently
has a psychiatric ailment. I am asked to find that
there is an increased risk of such disorders as result of the brain
damage.
The brain damage has been proved. The disorders, if the risk
eventuates, are real psychiatric disorders.
[513]
At the moment IDT is, despite all his challenges, a happy child. He
has not yet required psychiatric treatment.
The defendant’s
developmental paediatrician, Dr Springer, said that someone like IDT
would face ‘pockets of risk’,
particularly when entering
adolescence and then adulthood. This appears consistent with the
opinion of Dr Grinker and the plaintiffs’
educational
psychologist, Ms Bubb, though Dr Grinker said that these were peaks
of risk rather than pockets.
[514]
I am satisfied that IDT does face some increased risk of psychiatric
illness, particularly depression and anxiety,
requiring psychiatric
intervention. The court must do the best it can. Having regard to the
Stein paper, I am inclined to put IDT’s
uninjured risk at 10%,
the upper threshold of Dr Grinker’s estimate of incidence in
the general population. I accept IDT’s
injured risk as being
30%, which is three times the uninjured risk. For two reasons this is
lower than the fivefold increased risk
which Dr Grinker proposed:
(i) Firstly, as I have explained, the McDermott paper does not
support a conclusion that the fivefold
increase in reported
behavioural problems equates to a fivefold increase in psychiatric
intervention. (ii) The special stressors
which increase the
incidence of psychiatric disorders in South Africa do not logically
give rise to a corresponding increase among
CP sufferers.
[515]
I asked Dr Grinker whether an award should not be based on the
difference between the uninjured and injured percentages
rather than
by simply applying the injured percentage (as he had done). He
appeared to accept the logic. The percentage to be applied
is thus
20%.
[516]
Although I have spoken of an injured risk of 30%, I do not mean a 30%
risk in every year of life. As I have said,
IDT is currently a happy
child who has not suffered psychiatric illness. Following the award
of damages in this case he will receive
treatments and therapies
which may improve his external circumstances. I think his first real
risk will be when he enters adolescence,
which for calculation
purposes I would put on his 15
th
birthday. At that time he
will have a 30% risk (a 20% increased risk) of developing a disorder
requiring psychiatric intervention.
I think it should be assumed that
appropriate medication in this phase will bring relief. I will allow
treatment for one year.
[517]
The next period of heightened risk is early adulthood. For
calculation purposes I would put this on his 25
th
birthday. At that time he will again have a 30% risk (a 20% increased
risk) of developing a disorder requiring psychiatric intervention.
I
think it should be assumed that even if he responds well to
medication he will remain prophylactically on appropriate medication

for the rest of his life to prevent relapse.
[518]
Dr Grinker’s estimates of the costs of psychiatric
consultations and medication were not challenged. In
the first phase
(for one year as from IDT’s 15
th
birthday) there
would be four evenly spaced consultations of R1200 each and
medication at a monthly cost of R500. In the second
phase (as from
IDT’s 25
th
birthday), there will be a similar
allowance (consultation and medication) for one year. The medication
will continue at the same
rate for life but the consultations will,
as from 26
th
year, reduce to one consultation per year.
[519]
The amount to be awarded in respect of item 7 of “POC1”
must be calculated in accordance with the
above assumptions.
Case
management [item 124 of “POC1”; items 10-16 & 86-87
of “POC2”]
[520]
The defendant accepts that it must bear the reasonable costs of a
case manager. Save in one respect, the parties
have reached agreement
on the case manager’s hours. They differ on the hourly rate and
on the treatment of travelling time.
Hourly
rate and travel time
[521]
As previously mentioned plaintiffs appointed Ms Bester as the case
manager in March 2015. She is an occupational
therapist. Her treating
rate is R650 p/h. The plaintiffs, duly advised, agreed to pay her
R950 p/h as an all-in fee, ie on the
basis that Ms Bester would not
charge separately for disbursements. The rate applies to travel time
as well as active attendances.
The plaintiffs’ claims in
respect of case management are based on this rate, save that in the
light of Ms Bester’s
oral evidence they have reduced the charge
for travelling time to R325 p/h (half of her treating rate) plus
travel costs at the
AA rate of R5,00 p/km (an estimated R180 per
round-trip between her office in Plumstead and IDT’s home in
Brackenfell). To
accommodate the reduced travel rate, the plaintiffs
propose a 20% deduction from the amounts arrived at on the basis of
R950 p/h.
[522]
The defendant’s position, based on Ms Scheffler’s
opinion, is that a reasonable hourly rate would
be R600 – R650
excluding travel time. In respect of travel, the defendant would
allow R5,00 p/km in excess of 12 km.
[523]
The plaintiffs do not have a right to recover Ms Bester’s
anticipated charges as such. Their entitlement
is a reasonable amount
for case management. Ms Bester’s charges and her explanations
in support of them are simply part of
the evidence on which I must
determine what a reasonable allowance would be. Apart from anything
else, it cannot be assumed that
Ms Bester will be IDT’s case
manager for the rest of IDT’s life.
[524]
The evidence shows that case managers are usually occupational
therapists or physiotherapists. Ms Crosbie, an
occupational therapist
whose practice is in Johannesburg, was involved in assisting the
plaintiffs and their attorney to locate
a suitable case manager in
Cape Town. She testified that some of the occupational therapists she
approached declined because of
lack of experience. Others did not
want to become involved in a pending case. Ms Bester was willing to
accept the appointment.
Ms Crosbie could not find anyone suitable
closer to Brackenfell. She was not involved in setting Ms Bester’s
remuneration.
[525]
In her first report of June 2013 (about two years before Ms Bester’s
appointment) Ms Crosbie said that R400
p/h would be an appropriate
rate for the case manager if she were an occupational therapist. In
her second report of September
2015 (some months after Ms Bester’s
appointment) Ms Crosbie said that an appropriate all-in rate for the
case manager was
R950 – R1050 p/h, alternatively R880 p/h plus
disbursements. She conceded in cross-examination that the revised
rate was
influenced in part by what Ms Bester was actually charging.
She testified that her treating rate as an occupational therapist was

R720 p/h but that Cape Town rates were lower at about R460 p/h.
[526]
The parties have settled the occupational therapy claims on the basis
of an hourly charge of R490.
[527]
As to physiotherapy rates, Ms Jackson, whose practice is in
Johannesburg where rates are typically higher, charges
between R680 –
R730 p/h. Ms Scheffler’s treating rate is R450 – R500
p/h. The parties have agreed that a rate
of R490 p/h will apply to
the physiotherapy claims.
[528]
Ms Scheffler testified that as a case manager she charges between
R600 – R650 p/h. Her treatment and case
management rates are
all-inclusive save for travel which she bills at R5,00 p/km for
distances exceeding 12  km.
[529]
Ms Hattingh and Ms van der Merwe said in their joint report that a
rate of R460 – R750 p/h, excluding travel
costs, would be
reasonable for the case manager, depending on the precise level of
expertise. In terms of the settlement, speech
therapy has been agreed
at R700 p/h.
[530]
I accept that case management justifies a higher rate than the
manager’s treating rate. Ms Bester explained
that the treating
rate is for prearranged room-based therapy. By contrast the demands
on the case manager’s time are unpredictable.
She may need to
assist in medical and other crises. She needs to draw on a variety of
skills, including conflict-resolution, assessing
the suitability of
proposed caregivers and the like. Many of her attendances require
travel to the patient’s home, to suppliers,
to meetings with
trustees and so forth. I did not understand Ms Scheffler to challenge
this; indeed the latter’s case management
rate, like Ms
Bester’s, is about 40% - 50% higher than her treating rate.
[531]
My understanding of the agreement reached between the parties on case
management is that the hours specified in
item 124 have been agreed
save for those contained in 124.5 and 124.6. Counsel confirmed that
the agreement is not predicated on
any portion of the hours’
being travelling time. Currently Ms Bester’s round-trip between
Plumstead and Brackenfell
is 90 km. I would expect the round-trip to
take at least one hour. Other time attendances may require travel to
closer destinations.
If and when another case manager is appointed,
the travel schedule will change. I think it likely that a future case
manager will
be closer to IDT’s home than Ms Bester currently
is. There is also the fact, as Ms Bester herself said, that she would
try
when possible to combine attendances for IDT with other
attendances in the area. It is thus reasonable to assume, over the
long
term, that every hour of case management will be accompanied by
a round trip of 30 km. In the immediate future it may be more but
in
subsequent years it may be less.
[532]
Based on the evidence, I cannot find that it is reasonable or usual
for a case manager to charge for travel on
a time-basis. (Ms Bester’s
belated concession, during oral evidence, that it might be reasonable
to downscale her charge
for travel time from R950 p/h to R325 p/h
plus R5,00 p/km reflects this.) The case manager could, however,
reasonably charge for
travel costs at the AA rate of R5,00/km. For
the rest, the fact that case management often requires travel is
simply one of the
factors justifying an increased hourly rate for
active work. On my assumptions, the recoverable travel disbursement
p/h of case
management would be R150. If one deducts this from Ms
Bester’s rate of R950 one is left with R800 p/h for actual
work. This
is slightly above the top end of the range furnished by Ms
Hattingh and Ms Van der Merwe but only 23% higher than Ms Bester’s

usual treating rate.
[533]
I will thus allow an all-in rate for case management of R950 p/h on
the basis that there will be no additional
allowance for time or
expenses of travel.
[534]
In regard to past case management (April 2015 to March 2016), Ms
Bester’s charges include travel time at
R950 p/h. Since I do
not think this is reasonable, some deduction must be made. This
cannot be done exactly. I will disallow 20%
as a robust adjustment in
accordance with the plaintiff’s submission previously
mentioned. I will thus allow R65 217
rather than R81 521 in
respect of items 10 – 16 and 86 – 87 of “POC2”.
House
adaptations [items 124.5 & 124.6]
[535]
The plaintiffs claim 20 hours of case management to help the family
find a suitable home and to consult with the
architect and builder
regarding adaptations; and they claim a further three to five hours
p/w on site over a three-month period
to ‘troubleshoot and
oversee’ construction. The plaintiffs mainly relied on
Crosbie’s estimate. In her second
report she said that during
the renovation phase the case manager should spend about one hour p/d
on site.
[536]
I agree with the defendant’s criticism of this claim as
excessive. The defendant through counsel proposed
an allowance of ten
hours to assist in finding a house and ten hours for overseeing
adaptations. I regard this as generous. Ten
hours should be
sufficient to convey to the parents what they should look out for and
to visit one or two potential properties
identified by the parents.
Once the adaptations have been specified, it is the responsibility of
the architect and builder to ensure
compliance with the
specifications. It is not the function of a case manager to be a
building project manager or to micro-manage.
If the builder fails to
follow the plans, he would be responsible for remedial work at no
additional cost. Ten hours over the life
of the project should be
sufficient to check that things do not go badly off the rails. Ms
Scheffler’s evidence was that
ten hours in total would suffice.
[537]
I will thus allow 20 hours in total for items 124.5 and 124.6. I was
not addressed as to when this expense will
be incurred. For
calculation purposes it would be reasonable to assume that the
process of identifying a new house will start six
months after date
of this judgment and that the case manager’s 20 hours will be
spent over a one-year period as from that
date.
Miscellaneous
past expenses [“POC2”]
[538]
The plaintiffs do not press item 37. I heard evidence in support of
items 39, 40 and 83. They are modest and I
am satisfied that they
were reasonably incurred for IDT’s benefit and should be
allowed.
[539]
Item 84 is the cost of a
consultation with a urologist, Dr Jee, on 20 April 2016. According to
the plaintiffs’ counsel, this
was with a view to the carrying
out of a UDS. Dr Jee declined to perform the test but furnished a
short report.
[109]
Dr
Choonara’s evidence was that a UDS would be reasonable and
helpful. Ms Munro indicated that from the plaintiffs’

perspective it did not matter whether this was allowed as a past
expense or as a litigation cost. Ms Bawa proposed that I treat
it as
a litigation cost. I do not see why this modest item should be left
over for potential dispute at taxation. While the results
of a UDS
might have been of assistance to the expert witnesses, the cost was
in any event reasonably incurred for IDT’s benefit
and should
be allowed as a past expense.
[540]
Item 85 is R33 671,70,
being the amount of an invoice issued by Mr Freedman in May 2016 in
respect of the supply of SMOs, SPIO/TLSO
and related
attendances.
[110]
This
occurred midway through the trial and no evidence in regard to Mr
Freedman’s attendances was led. I do not understand
the
defendant to dispute that the expenditure was incurred. In regard to
the SMOs, the parties agreed a cost of R10 779 which
is the
amount I will allow. Given the views I have expressed on SPIO/TLSO, I
will thus disallow these items as a past expense.
In regard to
consultation time totalling R1206 I propose to be pragmatic and allow
50% as relating to the SMOs. Accordingly I shall
allow a total of
R11 382 in respect of item 85.
[541]
The plaintiffs’
counsel in argument added an ‘item 90’ for R9624,40,
being the amount of an invoice issued by
an audiologist, Ms Swart,
for conducting audiological assessments in mid-February 2016.
[111]
Ms van der Merwe referred to these during her evidence. Counsel were
content to have this item treated as a litigation cost. Since
the
claim was not formally included in “POC2”, I think it
should be dealt with on taxation though I consider that the
expense
was reasonably incurred.
Damage
to earning capacity
Introduction
[542]
Since I have determined IDT’s probable death age as 55, this is
the terminal date for computing the damage
to his earning capacity.
There is no claim for the ‘lost years’ of earning power
he may, but for reduced LE, have had
from the age of 55 to his
retirement age.
[543]
It is common cause that uninjured IDT would have had the capacity to
earn income and that because of his injury
he is unable to earn any
income. Neither side asked me to estimate a lump sum. They contended
that I should determine an amount
along actuarial lines by projecting
a probable income-earning career for IDT. They differed on the
precise career path and the
earnings attached to that path.
[544]
The main experts on this part of the case were Ms Donaldson, an
industrial psychologist, for the plaintiffs and
Ms Auret-Besselaar, a
counselling psychologist and HR consultant, for the defendant.
Although Ms Donaldson towards the end of her
cross-examination
questioned Ms Auret-Besselaar’s expertise on the basis that she
was not an industrial psychologist, I am
satisfied that both
witnesses have the qualifications and experience to assist the court.
Ms Auret-Besselaar’s focus in her
advanced studies was
organisational psychology. Her work has included significant
involvement in career counselling, competency
assessments, job
design, job grading and remuneration structures.
IDT’s
uninjured earning attributes
[545]
There is no direct evidence for IDT’s pre-morbid intellectual
abilities. His communication impairment and
athetosis have also
precluded proper psychometric testing of his post-morbid intellectual
abilities. Even if he were to be regarded
as now displaying mild
mental retardation, this would not justify an adverse conclusion
about his pre-morbid abilities.
[546]
Ms Bubb, the plaintiffs’ educational psychologist, testified
that IDT would probably have been of ‘average
to high average’
ability, capable of matriculating and obtaining a university or
technical college qualification. Although
Ms Donaldson and Ms
Auret-Besselaar in their joint minute deferred to Ms Bubb’s
view, there does not seem to me to have been
much foundation for Ms
Bubb’s conclusion apart from the inferences to be drawn from
family history, which are matters on
which Ms Donaldson and Ms
Auret-Besselaar themselves could and did comment. They agreed in
their joint minute that in the uninjured
scenario IDT would have
passed matric and become a qualified artisan and that this is the
career path he would probably have pursued
though they based this
more modest projection on financial constraints, not lack of ability.
[547]
Personality traits also have a bearing on a person’s career
prospects. Ms Donaldson and Ms Auret-Besselaar
made observations in
that regard with reference to the personalities of the immediate
family. Even in his injured state, IDT is
a generally happy child
with a capacity to work his way into the hearts of the people he
encounters. He seems to me to display
determination in the face of
his difficulties. There is no reason to doubt that he would have had
these same beneficial traits,
and others, in the uninjured scenario.
[548]
IDT’s father, AD, passed matric. Since then he has worked as a
tiler in a family business, NH Tiling, which
is owned by his father
and uncle. AD has no formal artisanal qualification. He has been
described as a foreman in the business.
The precise extent of his
supervisory role is unclear. He apparently hopes one day to take over
the business. AD did not testify.
[549]
AD’s father passed standard 6/grade 8. He is a tiler. AD’s
mother has relatively little education
but can read and write. She is
currently a housewife, having previously been a factory machinist.
[550]
AD’s mother has three children from a previous marriage. There
is no information about them. AD has two
full siblings. His older
sister passed grade 12 and is a secretary at UCT. His younger sister
passed grade 12 and is a qualified
nurse.
[551]
IDT’s mother, IB, matriculated with university exemption. She
registered for an accounting degree with UNISA
and passed her
first-year courses but had to abandon her studies when, following her
parents’ separation, her father could
no longer afford the
fees. She worked at Bokomo as a filing clerk and then in credit
control. She was made redundant in 2010 but
got employment with Sasko
as a general clerk in 2011. She was retrenched in September 2013. She
believes that she was disadvantaged
in the retrenchment process
because of all the time she needed to take off for IDT. She has
recently embarked on an 18-month early
development childhood course
at Northlink College, funded by a bursary. She was prompted to do so
by her desire to enhance her
skills in dealing with IDT. She hopes,
once she has completed the course, to be accepted as a second-year
student for a BEd at
UCT or UWC.
[552]
IB’s mother passed standard 9/grade 11. In 1996 she started a
creche and day care centre in Belhar attended
by about 60 children.
She employs several teachers. This demonstrates some entrepreneurial
and managerial flair.
[553]
IB’s parents got divorced about eight years ago and she now
sees little of her father. He passed standard
6/grade 8 and had
fairly regular employment as an unqualified plumber though he is also
reported to be a drug addict.
[554]
IB has four siblings. One of her sisters, who is now about 24, passed
grade 12 and is employed by Toyota Forklift
as a junior transport
controller. The two youngest sisters are still at school. Her
brother, who is 20 and suffers from dyslexia,
attended a special
school.
[555]
IB impressed me as an honest witness. She has a pleasant demeanour.
She is warm, outgoing and intelligent. She
said, and I accept as
true, that she and her husband would have been ambitious for IDT and
would have tried to ensure that he had
more opportunities for
advancement than they had enjoyed. They took out an education policy
with Old Mutual to fund his tertiary
education. She would have wanted
him to get a degree and become a professional person.
[556]
As described by IB, AD is more subdued. The impression Ms
Auret-Besselaar obtained when interviewing IB (AD, though
invited,
was unable to attend) is that IB was somewhat frustrated at AD’s
lack of drive. He had let pass an opportunity for
a job interview
with Old Mutual. He seemed content to work in the family business.
[557]
I accept that AD is not as extrovert or driven as his wife. This
said, his decision to remain in the family business
in the hope of
one day taking it over is not a point of criticism. It is honourable
and may turn out to be financially rewarding,
even if his current
earnings are relatively modest. Following their reconciliation, AD
seems to have taken on an increasing share
of IDT’s care and
development. He and IB were married at a young age. It must have been
a great blow to learn that their
first (and currently only) child was
severely and permanently handicapped. It would have put a great
strain on their relationship.
Despite the recent employment of a
facilitator, IDT’s demands have left them little opportunity to
pursue their own interests.
The way they have dealt with the
challenges is a credit to both their characters.
[558]
Ms Auret-Besselaar suggested that AD rather than IB would have been
IDT’s primary role model and that this
would have been less
conducive to his advancement. I do not accept that view. IB’s
personality would have impressed itself
on IDT. I am satisfied that
AD would have given her his full support in IDT’s educational
upbringing. According to IB, AD
would have been keen for IDT to
obtain a formal artisanal qualification. He keenly felt his own
disadvantage in lacking a formal
qualification. If IDT had shown
aptitude for tertiary education, AD would not have stood in his way.
[559]
Given the family background and the changing political landscape in
South Africa over the last 20 years, there
is a reasonable
possibility that IDT would not only have matriculated but gone on to
university. However neither side contended
that this was the scenario
I should assume as probable for purposes of computing loss of
earnings. Both Ms Donaldson and Ms Auret-Besselaar
considered the
most likely career path to be a three-year apprenticeship,
culminating in formal qualification and employment as
an artisan.
Apart from a minor matter of timing, the main difference between them
is the remuneration IDT would have earned in
following this career.
[560]
I should mention at this stage that the parties have agreed: (i) that
a net discount rate of 2,5% for salary
inflation will be used in the
actuarial calculation of lost earnings; (ii) that IDT’s salary
as an artisan would have peaked,
in real terms, at age 45; (iii) on
the way in which his real salary increases would have occurred from
entry level to age 45; (iv)
that IDT would have worked until 65 ; (v)
that the only salary increases after age 45 would have been to keep
pace with inflation.
Accordingly, and apart from apprenticeship
remuneration, the main issues I must decide are the entry-level
salary and the peak
salary at today’s values.
PEC
salary surveys
[561]
PE Corporate Services
(‘PEC’) issues annual salary surveys. Its surveys are the
most extensive available in this country.
In order to receive the
survey a firm must make payment and contribute data. Given its cost
(about R30 000 p/a), the survey
covers only about 25% of persons
in formal employment. According to the most recent PEC survey (for
2015), over 800 firms employing
more than 1,5 million people
participate.
[112]
Of these
firms 33% are part of listed groups, 9% are public sector and
non-profit employers, and 58% are private firms. The grading
of firms
in terms of numbers of persons employed is as follows: 1-50 employees
– 24%; 51-100 employees – 11%; 101-250
employees –
24%; 251-500 employees – 12%; 501 or more employees –
29%.
[562]
PEC provides salary information inter alia for the first, second and
third years of artisanal apprenticeship and
for various classes of
artisans. For any particular class, salaries are furnished for
differing levels of responsibility in accordance
with the Paterson
job grading system. There is a regional breakdown of salaries and
‘all locations’ salaries across
five percentiles (10
th
,
lower, median, upper and 90
th
).
Plaintiffs’
projected career path for IDT
[563]
The plaintiffs’
claim (quantified at R4 239 158) is based on the following
model proposed by Ms Donaldson. Immediately
after matriculating IDT
would have entered a three-year apprenticeship (Paterson job grade
B1) while studying at an FET (Further
Education and Training)
college. He would have been remunerated in the first year in
accordance with the lower quartile all-locations
salary indicated by
the PEC survey, namely an annual guaranteed package of R83 755.
[113]
He would have been remunerated in the second and third years in
accordance with the median quartile all-locations salaries (R149 599

and R150 017).
[114]
Immediately thereafter he would have entered employment as a
qualified artisan. A qualified artisan would commence employment at

Paterson job grade C1. Since one cannot say what type of artisanship
IDT would have chosen, his remuneration should be determined
with
reference to PEC’s ‘Artisan-Other’ survey, which
according to Ms Donaldson would reflect lower earnings
than specific
artisanships. She proposes the lower quartile all-locations salary
(R252 790).
[115]
IDT’s
salary would peak at age 45, by which stage he would be earning the
upper quartile all-locations salary for a
‘Foreman/Supervisor-Workshop’
at Paterson job grade C4
(R509 744).
[116]
Defendant’s
projected career path for IDT
[564]
The defendant’s Ms
Auret-Besselaar criticised the use of PEC salary information on the
basis that the majority of artisans
are employed by smaller firms who
do not participate in the survey. These non-participating employers
according to Ms Auret-Besselaar
pay considerably less than corporate
employers. Ms Auret-Besselaar testified that it would be more
realistic to use a blend of
the minimum wages prescribed by the
National Bargaining Council for the Electrical Industry (‘the
Electrical BC’) and
the Building Industry Bargaining Council,
Cape of Good Hope (‘the Building BC’) and information
contained in Robert
Koch’s 2016 Quantum Yearbook.
[117]
[565]
The Electrical and Building BCs prescribe minimum wages p/h. In order
to translate this into annual remuneration
one needs to make
assumptions about hours worked. I do not have the full BC agreements
but gathered from Ms Auret-Besselaar’s
evidence that employers
are only obliged to pay two hours’ remuneration on inclement
days. Her assumption was that IDT would
work eight hours p/d and 22
days p/m.
[566]
Koch includes ‘Earnings Guidelines’ for claims for loss
of income. In this part of his work he gives
‘Corporate Survey
Earnings’ according to Peromnes levels (another system of job
grading), ‘Earnings in the Informal
Sector’ and
‘Suggested Earnings Assumptions for Non-Corporate Workers’.
In this last category he has an entry
for ‘Artisan/Tradesman/Truck
Driver’ and furnishes entry-level, median-level and peak-level
annual salaries. The peak
salary for this class of non-corporate
worker is R308 000.
[567]
She drew attention to the following statements in Koch’s work:
(i) that his corporate survey earnings
reflect remuneration paid
by the larger organisations that subscribe to the surveys conducted
by PEC, Deloitte Touche and others,
representing less than 25% of the
total workforce; (ii) that industrial psychologists ‘are
reminded that it is misleading
to cite formal sector earnings
packages without stating the percentage chance that such earnings
would have been achieved’;
(iii) that a court which relies
solely on corporate sector statistics ‘runs a serious risk of
over-compensating the
victim’.
[568]
Ms Auret-Besselaar’s
model was the following.
[118]
IDT would have taken six to eight months to find an apprenticeship.
He would have completed a three-year apprenticeship, earning
the
average of the minimum wages prescribed by the Electrical and
Building BCs. The said average would be R74 055 in the first

year, R84 002 in the second and R105 265 in the third.
[119]
IDT would then have started work as a qualified artisan. Although the
average of the prescribed Electrical and Building BC wages
for
qualified artisans is R172 744,
[120]
IDT would probably have been paid less because (i) some
employers are exempt from paying the prescribed wages; (ii) other

employers de facto pay less (she referenced AD’s remuneration
as an example); (iii) because of inclement weather, artisans
do
not always qualify for full daily hours, which offsets overtime. She
thus proposed a starting annual salary of R114 000
–
R138 000.
[121]
The
mid-range figure would be R126 000. She says IDT would have
earned this figure for three to five years after which he
would have
started to get increases in real terms. She recommended a peak salary
of R240 250, being the average of the (i) the
mean of the
two prescribed minimum wages for artisans (ie R172 744) and
(ii) Koch’s figure of R308 000 previously
mentioned.
Discussion
[569]
The salary information contained in the PEC survey and Koch’s
Yearbook is hearsay. This is inevitable in
this field. However there
is a difference in the quality of the hearsay. It is reasonable to
infer that the PEC survey accurately
captures the data furnished by
the participating employers. There is a reasonably precise breakdown,
indicating the employee numbers
making up each figure. Koch’s
figures for non-corporate workers, on the other hand, are not really
explained in his work.
I do not suggest that he would not be able to
substantiate them but he was not a witness and Ms Auret-Besselaar did
not display
a very sure grasp of the distinction between corporate
and non-corporate employers or how Koch had arrived at his figures.
[570]
I am willing to accept
that many non-participating employers pay less than the amounts
reflected in the PEC survey. On the other
hand the distinction
between participating and non-participating employers does not
reflect a structural difference in the market;
it is merely a
distinction between those who find it worthwhile to participate in
the survey and those who do not. There must be
many successful firms
which do not participate but which have an interest in attracting and
retaining good artisans. They have
to compete with other employers,
including those participating in the PEC survey. Koch observes that
there are many smaller non-participating
businesses which remunerate
by having regard to the results of the surveys.
[122]
Conversely large participating companies such as listed entities may
be more efficient than their smaller competitors. It is not
generally
characteristic of an efficient firm to pay for services at above a
fair market rate.
[571]
Ms Donaldson and Ms
Auret-Besselaar agreed in a joint minute that South Africa suffers
from a dearth of qualified artisans and that
they are in high
demand.
[123]
This is borne
out by the chapter on South Africa in a 2013 joint publication by The
World Bank and International Labour Organisation.
[124]
The history and status quo set out in this document, the contents of
which were traversed during Ms Auret-Besselaar’s testimony,

point to the likelihood that initiatives to reverse this dearth will
take many years.
[572]
In my view Ms Auret-Besselaar’s projection was unduly
pessimistic and at odds with her concurrence in the
joint minute that
South Africa desperately needs qualified artisans. I cannot but think
that there was at least some subconscious
bias in favour of the side
for whom she was called. When she was explaining how she arrived at
her peak salary for IDT, I asked
whether, if she were testifying for
a plaintiff, she would have proposed Koch’s figure of R308 000
(rather than an average
of that figure and the lower prescribed
wage). She said she probably would have done so though one would
still have needed to consider
a contingency deduction. I was also
surprised at her view that in his initial three to five years of
employment IDT would have
earned even less than the prescribed
minimum – not slightly less but about 27% less – an
unfavourable shortfall which
would take some years thereafter to
eliminate.
[573]
The picture she presented in her first report was even more gloomy:
post-matric unemployment for six to eight
months followed by
employment for four to six years as an unskilled labourer then rising
to the status of a semi-skilled labourer
at Paterson BI level (the
same job level as a first year artisan) and increasing his Paterson
level every six to eight years until
he reached B4 and a 50% - 75%
chance of rising to B5.
[574]
I regard IDT’s family circumstances as indicating on balance
that he would have been an able artisan with
a work ethic which
employers would have valued and with at least some of the initiative
required for taking on responsibilities
above artisinal work.
[575]
On the other hand I cannot altogether absolve Ms Donaldson from undue
generosity and there were times in cross-examination
when she seemed
unwilling to make fair concessions. I think the suggested progression
to the upper quartile of a C4 position, while
possible, is not the
likely scenario. Her model not only assumes that IDT would rise to
the position of a foreman, potentially
supervising up to 25
subordinates and operating in a unionised setting, but that he would
advance to the upper echelons of earners
employed by the sorts of
firms participating in the PEC survey. There are fewer and fewer
positions as one goes up the ladder.
The dearth of artisans at lower
levels may not be matched by opportunities at higher levels, at least
not by the time IDT would
have been reaching the peak of his career.
She conceded that her projection might call for moderation if one did
not accept Ms
Bubb’s view that pre-morbidly IDT was of ‘average
to high-average’ intellectual ability.
[576]
If I were minded to use exact PEC figures, I would select the Western
Cape figures rather than the all-locations
figures. However I do not
intend to adopt exact PEC figures and in any event the differences
are not substantial, the Western Cape
figures sometimes being higher
and sometimes lower.
Conclusions
[577]
I must provide exact assumptions for the actuaries even though
precision is factually spurious. The exercise is
by its nature
speculative.
[578]
In regard to the question whether there would have been some delay
before IDT obtained an apprenticeship, I accept
Ms Donaldson’s
view that IDT’s parents would have taken steps, as IDT came to
the end of his matric year, to find him
a position. Since it is
common cause that he would have found an apprenticeship, I see no
basis for making the adverse assumption
that there would have been a
delay in getting it. In the ordinary course IDT would have
matriculated at the age of 18 (ie at the
end of 2027). His
apprenticeship would thus have started in January 2028.
[579]
For three years he would have been employed as an apprentice. Given
that he would start without experience or
skills, an employer would
probably have little incentive to pay much above the prescribed
minimum. The PEC lower quartile figure
proposed by Ms Donaldson for
the first year is very close to the minimum prescribed by the
Building BC (the Electrical BC minimum
is lower). On this basis I
consider that his remuneration in the first year of apprenticeship
would be R82 000.
[580]
Ms Donaldson proposed
that in the second and third years of apprenticeship IDT would earn
at the PEC median quartile. This would
involve a disproportionate
increase of 79% from the first year to the second year, which seems
implausibly high, and an increase
of 3% from the second year to the
third year, which seems implausibly low.
[125]
It is instructive to consider the rates of increase in the prescribed
minimum wages, namely 19% and 11% in the case of the Electrical
BC
and 10% and 37% in the case of the Building BC. The increases in the
average of the prescribed minima are 13% and 25%.
[126]
These rates of progression are likely to reflect more accurately the
increasing value of the apprentice over the three-year period.
[581]
I thus consider that the starting apprenticeship salary of R82 000
should be increased by 15% in the second
year (to R94 300) and
by 30% in the third year (to R122 590). The third-year salary on
this basis turns out to be about
midway between the amounts proposed
by Ms Donaldson and Ms Auret-Besselaar.
[582]
Both the PEC data and the
prescribed wages show that there is a substantial increase from the
third year of apprenticeship to the
first year as a qualified
artisan. In like-for-like PEC comparisons the all-locations increase
is 96% in the lower quartile
[127]
and 95% in the median quartile.
[128]
In the case of the Electrical BC the increase is 100%.
[129]
In the case of the Building BC the increase is 40%,
[130]
this comparatively low increase perhaps offsetting the unusually high
increase of 37% from the second to third year of apprenticeship.
The
median rate of increase in the prescribed minima is 64%.
[131]
[583]
I consider that an increase of 75% from the third year of
apprenticeship to the first year of artisanship would
be realistic.
This gives a commencement salary as an artisan of R214 533. This
happens to be very close to the PEC 10
th
percentile (less
than Ms Donaldson’s lower quartile figure but about 24% higher
than the prescribed minimum and about 70%
higher than the amount
proposed by Ms Auret-Besselaar).
[584]
I have PEC salary levels
for Paterson job grades C2 and C4 (the latter proposed by Ms
Donaldson) but not C3. Again, and rather selecting
an exact salary
from a particular position and quartile, I propose to look at real
increases to the peak salary at age 45. Ms Auret-Besselaar
proposed a
commencement salary of about R126 000, with real increases
starting from the fourth to sixth year of employment
and peaking at
R240 259, ie an increase of 91% over 19 years. Ms Donaldson
proposed a starting salary of R252 790 and
a peak salary of
R509 744, a real increase of 102% over 24 years. Both of these
may be distorted, in Ms Donaldson’s
case mainly by an
over-optimistic end salary and in Ms Auret-Besselaar’s case
mainly be an unduly pessimistic starting salary.
If one looks at
like-for-like PEC all-locations comparisons, the increases from C1 to
C4 for the 10
th
,
lower and median quartiles are between 46% and 50%.
[132]
However any particular PEC quartile would include people with
differing years of experience. It is reasonable to suppose that in

his first year of artisanship IDT would be at the lower end of
salaries for his job grade and that as he peaked at age 45 he would

have moved to the higher end, including potentially into a higher
percentile bracket.
[585]
Accordingly I intend to base the peak salary on a real increase over
24 years of 60% which would equate to a compound
increase in salary
of around 2% p/a. This yields a peak salary of R343 253. By way
of a comfort check, I observe that this
would put IDT at around the
PEC Western Cape median quartile for a C2 position
(Foreman/Supervisor 2) and between the 10
th
and lower
quartiles for a C4 position. This seems fair without being unduly
generous.
Contingencies
Earnings
[586]
Since I have done my best to determine a probable career path, I see
no basis for taking into account, as a contingency,
that IDT would
not have had the ability to do as well as I have assumed. While that
is reasonably possible, it is also reasonably
possible that he would
have done better. I have tried to steer a middle course.
[587]
No contingency deduction in respect of inflation and taxation is
justified. Actual inflation and taxation may
be more or less than the
agreed actuarial assumptions.
[588]
The main circumstances justifying a contingency adjustment are
(i) that in the pre-morbid scenario IDT’s
earning capacity
might have been cut short or interrupted for unrelated causes;
(ii) that the South African economy, whether
because of domestic
or international circumstances, might not perform sufficiently well
to provide employment for artisans at current
salary levels or in the
numbers currently anticipated.
[589]
In regard to the first of these factors, the quantified loss of
earnings will take into account IDT’s reduced
LE. He will not
be receiving compensation for the earnings he might otherwise have
earned between the ages of 55 and 65. The contingency
for which I
must allow is thus that pre-morbidly he might have been incapacitated
before reaching the age of 55, not 65.
[590]
The defendant’s counsel raised for consideration that an
artisan’s work might be more hazardous than
that of an office
worker. There is no evidence of that. The risks from a sedentary
lifestyle might be greater.
[591]
In
Southern Insurance Association Ltd v Bailey NO
1984 (1) SA
98
(A), which concerned a child injured at the age of two, the lost
earnings were based on an assumption that she would have worked
to
age 60. Nicholas JA observed that the fortunes of life are not always
adverse. He nevertheless thought that the trial judge’s

contingency deduction of only 10% was ‘unduly generous’
(ie to the claimant) and increased it to 25%. A like deduction
in
respect of a victim injured in early childhood was made in
Nanile
v Minister of Posts and Telecommunications
C & H Vol IV
A4-30. In
Mautla v Road Accident Fund
C & H Vol V B3-1,
also a child victim case, the deduction from pre-morbid earnings was
20%. In
S v Road Accident Fund
[2015] ZAGPPHC 1125 Fourie J,
with reference to these and other cases, made a contingency deduction
of 25% from the pre-morbid earnings
of a child injured at the age of
three and who would have worked to age 65.
[592]
In
RAF v
Guedes
2006 (5) 583
(SCA) the court made reference to the trial judge’s apparent
reliance on, but misunderstanding of, Koch’s
sliding scale for
contingencies (0,5% p/a to retirement, yielding approximate
deductions of 25%, 20% and 10% for children, youths
and middle-aged
persons respectively). Zulman JA did not express a view as to the
merits of Koch’ suggestions but, based
on the trial judge’s
misdirection, increased the pre-morbid contingency deduction for a
26-year-old woman from 10% to 20%.
[593]
In
Lochner v MEC for Health and Social Development, Mpumalanga
[2013] ZAGPHC 338
, where the victim was rendered blind at birth
and was six at the time of trial, Tolmay J said that the courts
‘normally apply
a contingency of 15% pre-morbid when all things
are more or less equal’ (para 79) and then applied 20% because
the victim
was young and the future period long. Tolmay J’s
statement regarding 15% does not appear to be borne out by the other
cases
I have mentioned.
[594]
Importantly, though,
reduced LE did not feature in any of these cases. Lost earnings were
computed up to a normal retirement age.
The chance that pre-morbidly
IDT might have died before reaching the age of 55 (his post-morbid
EDA) is significantly smaller than
the chance that he might not have
reached age 65. And the risk of death in IDT’s peak-earning
period (ie up to age 45) would
be lower than in the flat years (45
–55). Life tables bear this out. According to K2, of the male
cohort alive at age seven,
only 7% will die before age 45. This
increases to 15% by age 55 and 31% by age 65. Almost half the deaths
occurring between ages
7 – 65 will occur in the age group 55 –
65.
[133]
[595]
K2 would thus support a mortality contingency of 15% for IDT. However
death is not the only vicissitude which
could have impaired his
earning capacity. He might have suffered non-fatal injuries or
illnesses.
[596]
As to the risk of an adverse change in economic circumstances, there
is the countervailing possibility that economic
growth may exceed
current expectations and that qualified artisans will be even more in
demand in future years than they are now.
The experience of global
and domestic economic circumstances over the last decade might cause
some unease or caution but I would
not accord this factor significant
weight.
[597]
In
Singh
, where damage to earning capacity was, unlike the
cases I have mentioned, assessed with reference to the victim’s
reduced
LE, the trial judge made a 15% contingency deduction in
respect of a boy whose LE he assessed at 30 years. In the SCA the
majority
thought the boy’s LE was 26 years (but did not
intervene) while the minority would have increased the LE to 35
years. Neither
the majority nor the minority thought that there was
any reason to interfere with the 15% deduction though Snyders JA
expressed
the view that it might have been somewhat ‘conservative’,
ie adverse to the child (para 208).
[598]
In the present case IDT’s LE is 48 years, a good deal longer
than the maximum estimate in
Singh.
However in view of the
fact that his lost earnings will exclude the ten years from 55 to 65
and that his risk of death up to his
peak earning age would have been
low, a 25% deduction would definitely be too high. Indeed I think the
deduction should be closer
to 15% than 25%.
[599]
In all the circumstances I consider that a 17,5% contingency
deduction should be applied to the actuarially
calculated lost
earnings.
Future
medical costs
[600]
The defendant’s counsel raised the possibility of applying a
contingency deduction to future medical costs.
A contingency
deduction was made by the court a quo in
Singh
, a
discretionary decision in which the SCA did not interfere. A similar
approach was followed by Fourie J in
Buys v MEC for Health and
Social Development, Gauteng
[2015] ZAGPPHC 530. The deductions in
these cases were 10% and 15% respectively. The defendant’s
counsel said that they did
not ask for a global contingency deduction
of this kind.
[601]
In
Singh
the deduction was made because the judge was doubtful
about some of the medical expenses (eg items allowed at the maximum
tariff
where less might be charged, doubts as to the effectiveness of
some of the therapies, whether therapy programs would run their full

course, whether they would be diligently carried out, the difficulty
of accommodating all of them in the child’s schedule
and so
forth – see para 107). While I make no pretence to be able to
predict IDT’s future expenses precisely, I have
attempted in
each instance to determine whether the intervention would be
reasonable and, if so, its reasonable cost. In regard
to time-based
interventions, particularly physiotherapy and psychotherapy, I have
taken into account what can reasonably be accommodated
in IDT’s
schedule. I do not regard the possibility that the costs will be less
than I have assessed them as exceeding the
opposite possibility. This
includes the possibility that new treatments, not yet dreamt of, may
become available which might reduce
or increase the overall
expenditure on IDT’s health.
[602]
The factors mentioned in
Buys
in support of the contingency
deduction were: (i) the possibility of errors in the estimation
of LE; (ii) the possibility
of illness which might have occurred
in any event; (iii) inflation or deflation; (iv) ‘other
risks of life, such
as accidents or even death, which would have
become a reality sooner or later, in any event’. I do not find
these compelling:
·
As
to (i), I have determined IDT’s post-morbid LE on the basis of
evidence before me. Things may turn out differently but
that could
cut both ways. IDT’s life might be longer or shorter. One might
think intuitively that he is more likely to die
in the 48 years from
now to age 55 than survive beyond age 55 but that may not be sound.
Dr Strauss’ life table for IDT’s
cohort as from age seven
reflects slightly fewer death in the group aged 7 – 55 than in
the group aged 55 and beyond.
[134]
· As to (ii),
there is no evidence that the illnesses of which IDT may have been at
risk pre-morbidly will not still be a
risk for him. He is not being
compensated for the cost of treating them. There is no notional
saving post-morbidly.
· As to (iii), the
parties here have agreed a net discount rate. There is no evidence
that medical inflation is more likely
to differ from the agreed rate
in one direction than the other.
· Factor (iv)
seems to be a different way of expressing factor (i).
[603]
Accordingly I do not intend to make a general contingency deduction
from medical expenses. This is by no means
novel (see, eg,
Van
Deventer v Premier Gauteng
[2004 TPD] C & H Vol V E2.1;
De
Jongh v Du Pisanie
NO
2005 (5) SA 457
(SCA) paras
48-49;
Lochner v MEC for Health and Social Development, Mpumalanga
supra paras 32, 37 etc). I have borne in mind the possibility of
item-specific contingencies but have not considered it appropriate
to
make deductions save for the psychiatric claims which were advanced
and have been allowed on the basis of a percentage risk.
(A number of
items were settled on the basis of a percentage risk.)
General
damages
[604]
The plaintiffs have claimed R1,9 million as general damages. In
argument the plaintiffs’ counsel supported
an award of R1,8
million.
[605]
The defendant’s counsel submitted that I should award R850 000.
In support of that figure they said
that large awards drain the funds
available in provincial health budgets and can cause significant
detriment to the public at large.
I disagree with this as a point of
departure. There is a respectable argument for the contrary view, viz
that the risk of substantial
awards may motivate organs of state to
provide better service. I was referred to
Minister of Safety and
Security v Seymour
2006 (6) SA 320
(SCA), an unlawful arrest and
imprisonment claim, where Nugent JA said (para 20) that our courts
have not been ‘extravagant’
in compensating such wrongs
and that one needs to bear in mind when making awards ‘that
there are many legitimate calls upon
the public purse to ensure that
other rights that are no less important also receive protection’.
The learned judge of appeal
was not advocating parsimony but warning
against undue generosity. I do not think there should be a bias for
or against the defendant.
[606]
I have a wide discretion to arrive at a fair amount having regard to
IDT’s pain and suffering, disfigurement,
disability and loss of
amenities of life. Most of these prejudicial effects will be apparent
from this judgment. I should nevertheless
itemise those which have
weighed most with me. Although they do not all fall neatly within a
particular category, I shall group
them as seems most appropriate. In
assessing their significance I take into account the beneficial and
palliative effects of the
medical interventions factored into my
award for future medical expenses.
[607]
In regard to pain:
· IDT’s
athetoid movements have been and will for the rest of his life be a
source of muscle fatigue and stress.
· His impaired
gross motor functioning will cause him to fall more often. Apart from
the pain and suffering of the four fractures
which the parties agree
he will probably sustain and of the related surgical interventions,
he will from time to time suffer soft
tissue injuries.
· He is at
increased risk of arthritis.
·
IDT’s condition has
required and will require him to undergo a range of health care
interventions, including increased dental
treatment, urological
investigations and physiotherapy. In July 2012 most of his milk teeth
were removed due to rampant decay.
[135]
These interventions have entailed and will inevitably entail a
measure of discomfort.
· He suffers from
heightened skin sensitivity.
· He has suffered
ear infections more frequently than a healthy child.
[608]
In regard to suffering:
· He is
practically deaf. In all probability his limited auditory world is a
jumble of unordered sounds with perhaps the
occasional discernment of
simple communications.
· IDT does not and
probably never will have expressive speech. Coupled with his
deafness, this deficit will cause the inevitable
frustrations and
despair that go with an inability to communicate effectively and
efficiently.
· His athetosis
means that virtually all daily activities, such as dressing, eating
and washing, are an effort.
· He has an
increased risk of epilepsy (a 20% chance as agreed).
· He has an
increased risk of psychiatric disorders such as depression and
anxiety. Medical intervention may not succeed
in reducing or
eliminating the unpleasant symptoms.
· He will know
that he is different from others though he will not have the horror
of living with the memory of a better
life.
[609]
In regard to disfigurement:
· IDT’s
athetosis causes him to stand out from other people. There is
evidence that children find his uncontrolled
jerky movements and
facial contortions frightening and tend to shun him. Less
understanding adults might find his physical presence
off-putting.
[610]
In regard to loss of amenities of life:
· IDT will never
be able to run or partake in sport.
· He will have
great difficulty in developing friendships, particularly in
adulthood.
· He will not be
able to marry, have intimate relations or father children.
· His world will
become even more lonely if one or both parents predecease him.
· He has reduced
opportunities for getting out of the home and experiencing the
pleasures of life. Travelling beyond the
Cape Peninsula for holidays
is likely to be a rare event.
· His inability to
hear and speak and the uncertain prospect of his ever being able to
read effectively will mean that a
host of leisure activities will be
closed to him or will give him reduced pleasure.
· He will never
have the satisfaction that can come from enhanced education, gainful
employment and from significant achievement.
[611]
Although a trial court should not slavishly follow previous awards,
one can have regard to them in getting a general
sense of the
appropriate range (
Protea Assurance Code Ltd v Lamb
1971 (1)
SA 530
(A) at 536) and in so doing one should have regard to changes
in the purchasing power of money (
SA Eagle Insurance Co Ltd v
Hartley
[1990] ZASCA 106
;
1990 (4) SA 833
(A) at 841D;
Minister of Safety and
Security v Seymour
2006 (6) SA 320
(SCA) para 16-17).
[612]
In the
Singh
case
[136]
Koen J awarded R1,2 million as general damages which would be more
than R1,8 million if updated for inflation. There the child,
Nico,
who was 6½ at the time of judgment and whom the trial judge
found to have a LE of 30 years, was unable to walk and
lacked
self-feeding ability. On the other hand Nico had no loss of hearing.
He did not have expressive speech though that may have
been solely
because of oromuscular difficulties. IDT’s lack of expressive
speech is a result not only of oromuscular difficulties
but of
impaired language development in the brain due to deafness. As here,
there seems to have been difficulty in reaching a clear
view about
Nico’s cognitive abilities. Koen J did not say whether he
regarded Nico as having insight into his condition.
(General damages
were not in issue in the appeal though Snyders JA in passing
commented adversely on the inadequacy of the reasons
for the award –
para 165.)
[613]
I am inclined to agree with the defendant’s counsel that the
cases Koen J cited are difficult to relate
directly to the
circumstances confronting him and me. They concerned paralysing
injuries suffered by adults. In some of them, where
the awards in
current terms exceeded R1,8 million, the victims retained full mental
acuity and were effectively ‘locked in’
and required
constant care. While their circumstances were more appalling than
IDT’s, they generally had significantly lower
LE.
[614]
In
S (obo S) v MEC Health Gauteng
[2015] ZAGPPHC 605, another
CP case, Louw J awarded R1,8 million as general damages. The child’s
physical impairments were
considerably more severe than in
Singh
or the present case. On the other hand the child had no insight
into his condition. His LE was 19 years. In the present case IDT

does, I find, have some insight into his condition and he will have
to live with it for the next 48 years. Some of his suffering
will be
associated with his appreciation, even if diminished, that he is
different from others and unable to enjoy all the things
that they
can enjoy and with his capacity for feeling loneliness.
[615]
The defendant’s counsel referred me to the fully reasoned award
of general damages made by Saldulker J (as
she then was) in
Megalane
NO v RAF
[2006] C & H Vol V A4-10 paras 63-121. There an
11-year-old boy suffered severe brain injury resulting in significant
cognitive
impairments and executive functioning, speech difficulties
and bilateral hemiparesis with severe spasticity of all four limbs.
He was generally wheelchair-bound though he could walk limited
distances with strong support. His LE was 49 years. He was found
to
have some insight into his condition and retain some memory of his
former life. The judge’s award in current terms was
R1,831
million. The boy’s circumstances in
Megalane
were
somewhat more dire than IDT’s.
[616]
In
Matlakala
NO v MEC For Health,
Gauteng Provincial Government
[2015] ZAGPJHC 223 Keightley AJ
made an award in current terms of R1,575 million in respect of a boy
who suffered brain injury at
birth due to medical negligence. Unlike
IDT, he was completely unable to walk and had the worst GMFCS
classification, was uncommunicative,
unalert and uneducable. His
higher mental functions were severely disabled. He needed constant
care for even the most basic functions.
His LE does not appear from
the judgment. While in some respects the child’s deficits were
materially worse than IDT’s,
he appears not to have had mental
capacity for insight into his condition.
[617]
The plaintiffs’ counsel referred me to the judgment of
Pickering J in
Bonesse v RAF
[2014] C & H Vol VII A3-1 in
which he awarded general damages of R2,5 million. The victim was a
13-year-old girl who, following
brain damage in a car accident, was
left doubly incontinent, could self-feed though messily, had limited
ability to manage bi-manual
tasks and was dependent on a wheelchair
for mobility. She was unable to sit in the wheelchair for more than
an hour. She had no
meaningful self-directed social interaction. The
brain damage had caused frontal dementia with an inclination to be
aggressive,
dysinhibited and emotionally labile. Her working memory
was substantially impaired and she was severely mentally retarded.
She
had some insight into her condition and what she had lost. Mr
Irish described this award as ‘an outlier’. He also
directed
my attention to the unreported judgment of
Paterson NO v
RAF
Case 10671/05 which Pickering J cited and where the updated
award in 2014 exceeded R2,2 million. That was also a case of an adult

victim who knew what she had lost.
[618]
Money cannot compensate IDT for everything he has lost. It does,
however, have the power to enable those caring
for him to try things
which may alleviate his pain and suffering and to provide him with
some pleasures in substitution for those
which are now closed to him.
These might include certain of the treatments which I have not felt
able to allow as quantifiable
future medical costs (eg NMES therapy,
SPIO suits, psychotherapy and physiotherapy in excess of the
allowances I have made, e-books
and the like).
[619]
Taking all things into account I consider that R1,8 million is a fair
award for general damages.
Remaining
trust issues
[620]
I have already dealt with the top-up and clawback provisions. I deal
now with the remaining trust issues.
Plaintiffs
as founders?
[621]
The defendant initially contended that the MEC should be the founder
of the trust. The plaintiffs objected to
this and pleaded that they
should be the founders. The defendant no longer contends that the MEC
should be the founder. The defendant
submits that the court itself
should be the founder. The defendant’s counsel submitted that
if the court ordered the plaintiffs
to register a trust as founders
there was a risk that they might later contend that it was not their
intention to establish a trust
in the form proposed by the court.
[622]
I do not intend to go into the question whether, in the case of a
court-ordered trust, the court itself could
be treated as the
founder. The plaintiffs are IDT’s parents. Even if it has only
symbolic significance, their recognition
as founders of the trust is
entirely appropriate. They have agreed that the award should be paid
to a trust. To the extent that
there is disagreement on the terms of
the trust, the plaintiffs have submitted to my jurisdiction to
determine the disputed terms.
It is fanciful to suppose that they
could or would challenge the binding force of the court’s
order.
Geographic
accessibility
[623]
The defendant’s
proposed trust deed contains a provision that the case manager must
be ‘geographically accessible’
to the beneficiary.
[137]
The plaintiffs object to this qualification.
[624]
I agree with the plaintiffs’ submission that the qualification
should not be included. Apart from anything
else, the expression is
inherently vague. From a practical perspective, those responsible for
the appointment of the case manager
(which is to be made by the
trustee in accordance with the defendant’s selection made from
three candidates proposed by the
parents or next of kin) are unlikely
to appoint a case manager who is too distant to make case management
practical or cost-effective.
I doubt whether a suitably qualified
professional would accept a case management assignment in such
circumstances.
[625]
The parents, trustee and proposed case manager would also take into
account my decision to exclude fees for travel
time in computing the
future cost of case management. While my judgment will not bind the
trustee in regard to future expenses
to be incurred for IDT’s
benefit, the parents and trustee will be aware of the risk that the
payment of fees to a case manager
for travel time might be
successfully challenged as unreasonable or unnecessary.
Co-residence
[626]
The defendant’s
trust deed contains a provision which confers on the trustee the
power, in its discretion, to allow ‘interested
parties’
(in context this would primarily be IDT’s parents or next of
kin or curator ad personam) to use and enjoy
any property owned by
the trust on such terms and conditions as the trustee may determine
subject to the proviso that the costs
of such use should not be borne
by the medical fund.
[138]
[627]
The plaintiffs have no objection to a provision that the medical fund
should not bear any costs brought about
by the enjoyment of trust
property by interested parties. They object, however, to a provision
which allows the trustee to determine
whether they or IDT’s
next of kin should be entitled to the enjoyment of trust property.
The trust is likely to acquire a
residential property for IDT. An
agreed item of damages is the cost of adapting a residential property
for IDT’s special
needs. It is likely that his parents or next
of kin will reside with him in the house.
[628]
It seems to me to be inconsistent with the notion of trust property
that someone other than IDT (as the beneficiary
of the trust) should
be entitled to use trust property without the trustee’s
consent. On the other hand it is perfectly understandable
that IDT’s
parents, and in the event of their demise his next of kin, would wish
to reside with him. That will probably be
in IDT’s best
interests. I think a fair balance would be struck by a provision to
the effect that an interested party may
have the use or enjoyment of
trust property with the consent of the trustee, which consent shall
not be unreasonably withheld.
There should also be a provision that
any costs reasonably associated with such use or enjoyment shall not
be defrayed out of the
medical fund.
The
parents as co-trustees?
[629]
The proposed trustee is Nedgroup Trust (Pty) Ltd (‘NGT’).
The plaintiffs do not wish to be appointed
as co-trustees though they
will abide the court’s decision if I conclude that one or both
of them should be so appointed.
[630]
Counsel for the parties are agreed that in the circumstances I should
not compel either of the plaintiffs to become
a co-trustee with
NGT.
[631]
Mr Dutton for the amicus devoted a considerable part of his written
and oral submissions to the desirability in
general that a family
member should be a co-trustee of a personal injury trust established
for the benefit of a child.
[632]
Where a parent wishes to be a co-trustee, a court would naturally
give careful consideration to making such an
appointment. However
trusteeship comes with considerable responsibilities. Unlike the
position of the founder, the office of trustee
is neither transient
nor symbolic. While trustees can agree to delegate certain functions
to one of their number, this does not
relieve them of responsibility
in the event of default. The administration of this trust calls for
financial and other skills which
the parents cannot reasonably be
expected to have.
[633]
I have been informed that NGT, as the proposed trustee, has furnished
the parties with proof that it has appropriate
professional indemnity
cover. On this basis they have agreed to waive the requirement for
security. Although this aspect was not
mentioned in argument, I can
see that the defendant and the Master would not necessarily take the
same attitude towards a family
member. It is unlikely that a family
member could obtain appropriate insurance.
[634]
I think I should also take into account that the parties have dealt
with NGT on the basis that it will be the
sole trustee. Trusteeship
could well be more burdensome for NGT if there were a family member
as a co-trustee.
[635]
Once one accepts that a substantial award of damages should be paid
to a trustee or curator, there is inevitably
a dilution of the
control which the child’s guardian would normally have over the
money. That, after all, is one of the reasons
for appointing a
trustee or curator. Even if one of the parents were appointed as a
co-trustee, the professional trustee could
veto a decision proposed
by the parent.
[636]
Mr Dutton referred me to the judgment of Marshall QC in
SM V HM
[2011] EWCOP B30 which contains an exhaustive analysis of the
considerations to be taken into account by the English Court of
Protection
when deciding whether to authorise the payment of damages
to a trust rather than a deputy, the latter being akin to our curator

bonis. Among the fundamental considerations, in her view, was the
availability of a member of the child’s family able, willing

and suitable to act as a co-trustee (paras 59-60). In general the
judge was sceptical about the claimed advantages of trusts, including

supposed cost advantages, over deputyship. She interpreted the
legislation as laying down deputyship as the norm, with a trust
only
to be authorised if the person seeking its establishment can show a
clear and significant overall advantage.
[637]
In England the position of a deputy is extensively regulated by the
Mental Health Care Act 2005. One can infer
from Marshall QC’s
judgment that the institution is effective and is reliably regulated.
The same considerations do not necessarily
apply here. The judge
thought that having a family member as a co-trustee would
result in the conduct of the professional
trustee being more closely
scrutinised. She was particularly concerned that the fees of a
professional trustee, unlike those of
a deputy, were not regulated.
Fees might thus ‘drift without any check’ (paras 114 and
169).
[638]
Whatever the merits of these and other considerations may be in
England, I am not convinced of their applicability
here. We do not
have legislation which decrees curatorship as the default position,
even if hitherto that has been the more common
procedure. If the
parents or next of kin cannot, as interested outsiders, be relied
upon to take a diligent interest in the professional
trustee’s
conduct, why should one assume that they will be more diligent as
co-trustees? It is usual to appoint a single
professional person as a
curator bonis and I cannot see why this should in principle be
regarded as unacceptable in the case of
a trustee. In regard to
unchecked fees, the problem can be addressed, as has been done here,
by specifying the fees in the trust
deed (an ad valorem charge, not
hourly fees).
[639]
I do not have evidence as
to the likely costs of a curatorship as against a trust. (The
prescribed rate for curators is 6% on income
collected and 3% on
distribution or payment of capital on termination of the
curatorship.
[139]
) In
SM
v HM
the
defendant settled the claim at a significant discount and there was
no specific allocation to the cost of administering the
award. The
defendant was not involved in the subsequent proceedings to establish
a trust. If administering the trust were more
expensive than
deputyship, this would have reduced the amount of the settlement
available to meet the child’s needs. One
can thus understand
the court’s concern to know what the competing cost scenarios
were. In the present case, by contrast,
the defendant joins the
plaintiffs in asking for the establishment of a trust. They have
agreed upon the trustee’s fees.
There will be a separate award
for the full net present value of the anticipated costs of
administering the trust over IDT’s
full expected life span (see
below). If trusteeship in the present case were to be more expensive
than curatorship, it is not an
increased cost which will prejudice
IDT. Rather, it is a cost which both sides are willing to bear for
the other advantages of
trusteeship.
[640]
The appointment of a sole professional trustee naturally does not
mean that the parents have no voice. Both versions
of the trust deed
provide that the parents are among the interested parties who will
have access to the trust’s records.
They will have a
significant role to play in the appointment of the case manager. I
would expect a professional trustee, in the
proper discharge of its
duties, to take due account of the parents’ wishes. If this
were not done an application for the
trustee’s removal might
succeed.
[641]
However, and to place the matter beyond doubt, I think the following
additional provisions should be included
in the trust deed:
· that one of the
functions of the case manager is to act as an intermediary between
the parents or next of kin and the trustee
in order to convey any
requests, wishes, views or preferences they may have in relation to
IDT’s care and well-being;
· that in the
performance of its duties the trustee shall, without being bound to
comply with same, have due regard to the
reasonable requests, wishes,
views or  preferences of IDT’s parents or next of kin in
relation to the expenditure of
trust funds for IDT’s care and
well-being.
[642]
Mr Dutton pointed out that the establishment of a trust links
decisions about the child’s patrimony to decisions
governing
his or her person. It is inevitably so that the vesting of an award
of damages in a trustee or curator has the effect
that the damages
are not available to the parents for funding any expenditure,
including medical expenditure, they wish to incur
for IDT’s
benefit. The trust deed does not, however, take away the right of the
parents to incur expenditure for IDT’s
benefit if they have the
funds to do so. The trust deed also does not take away the parents’
parental responsibilities and
rights as set out in the Children’s
Act 38 of 2005.
[643]
Furthermore the provisions of s129 of the Children’s Act in
relation to consent to medical treatment and
surgical operations will
remain applicable. There are three potential scenarios in relation to
any particular medical intervention:
· The typical
scenario would involve two relevant decisions, namely (i) consent
to the treatment by the parents or other
relevant person in terms of
s 129; and (ii) a decision by the trustee to fund the
expense.
· If the trustee
considers that IDT should receive a particular medical intervention
to which the parents do not consent,
s 129 provides for
substitute consent in appropriate circumstances. If consent cannot be
obtained, the trustee cannot insist
that IDT be subjected to the
treatment.
· If the parents
consider that IDT should receive a particular medical intervention
which the trustee is not willing to fund,
they would need to fund it
themselves or forgo it or take action against the trustee if its
decision were impeachable.
The
second and third of these scenarios are likely to be rare. At the
risk of stating the obvious, I should add that if IDT becomes
capable
of making his own decisions in regard to medical treatment, the
required consent will his, not anyone else’s.
[644]
I did not understand either Mr Irish or Mr Budlender to adopt a
contrary position in relation to the provisions
of the Children’s
Act. However, to place the matter beyond doubt I think a provision
should be added in the trust deed to
the effect that its provisions
do not derogate from the provisions of the Children’s Act
relating to IDT’s rights as
a child, parental responsibilities
and rights, and consent to medical treatment and surgical operations.
[645]
It is convenient here to mention another matter raised by Mr Dutton,
namely that the creation of a trust has the
potential to bifurcate
IDT’s patrimony – the award will be held in trust whereas
other assets will have to be held
by his parents or a curator bonis.
I do not think this raises any real difficulty. The draft trust deeds
authorise the trustee
to accept donations and inheritances. IDT’s
only realistic source of additional assets is by way of inheritance.
If he inherits
an estate of any substance, the executor could
transfer it to the trust. For obvious reasons such inheritance would
not form part
of the medical fund.
Cost
of administering the trust
[646]
It is common cause that my award of damages should include the
present value of the future cost of administering
the trust. The
parties and NGT have agreed that the trustee’s remuneration
will be 1% p/a of capital under administration
and 2% of the residual
capital on termination of the trust. The capital under administration
will not include the present value
of the cost of administering the
trust.
[647]
The capital under
administration will be reduced by permissible legal costs net of any
taxed costs recovered from the defendant.
For this reason it will not
be possible to make an actuarial calculation of the administration
costs until a bill has been drawn
and taxed. In their heads the
defendant’s counsel record a tender to pay NGT a provisional
amount of R2 million in respect
of administration costs pending their
final quantification.
[140]
This exceeds the provisional sum of R300 000 requested by the
plaintiffs as a ‘robust interim award’.
[141]
In the light of the dispute mentioned below, it would perhaps be
safer if I were to reduce the provisional sum to R1 million.
[648]
There is a dispute as to whether the costs of administration are to
be included in the damages award for purposes
of calculating the cap
on the plaintiffs’ attorneys success fee. This question will
stand over for later determination.
IDT’s
rights
[649]
The discussion thus far has been premised on the assumption that IDT
will never be capable of managing his own
affairs or have the
capacity to litigate without assistance. It is too early to say
whether that will be so. Although the parties
themselves did not
raise the issue, I think it desirable to include in the trust deed a
provision that if, upon attaining majority,
IDT has the mental
capacity to institute legal proceedings without assistance, he shall
have the right to apply to court for the
variation and/or termination
of the trust and that upon such application the court may in its
discretion make such order as it
thinks just and equitable in all the
circumstances.
[650]
The insertion of such a provision would not mean that termination or
variation would be there for the asking.
The circumstances in which
the trust was established, including the circumstances of the present
litigation, and its subsequent
history might well militate against
the termination or variation of the trust but IDT should at least in
such circumstances have
the right to be heard on the question.
Conclusion
and order
[651]
On several occasions during the trial the plaintiffs’ counsel
questioned the propriety of Dr Bass’
conduct. He is a medical
doctor employed by the defendant to oversee and coordinate its
response to medico-legal claims. In fairness
to him I must record
that on the evidence before me the insinuations were unjustified.
[652]
The interim payment of R1,5 million must be deducted from the total
amount payable in terms of this judgment.
This will be formally
incorporated in the next order (ie once actuarial calculations have
been done). I record that counsel agreed
that no adjustment is
required for inflation or interest between the date of the interim
payment and the date of my judgment.
[653]
I shall deal with interest in the next order. Since future medical
expenses and lost earnings are based on current
values, there will be
no interest pre-dating the date of judgment. The plaintiffs’
counsel confirmed this. In regard to past
expenses, these appear to
have post-dated the interim payment and so will probably not attract
interest but the parties can address
me on this if necessary before
the next order is made.
[654]
Costs by agreement stand over.
[655]
I make the following order:
[1] All calculations
which depend on IDT’s life expectancy must be made on the basis
that his life expectancy is 48 years
from 12 January 2016, ie that
his expected death age is his 55
th
birthday.
[2] The disputed
items of future medical and related expenses must be calculated on
the basis of the assumptions determined
in appendix 1 to this
judgment. Save where otherwise specified, the first outlay of expense
in respect of any item shall for calculation
purposes be assumed to
have been incurred on the date of this judgment and any replacement
cycle in respect of that item shall
be reckoned from such date. Where
the replacement cycle changes after IDT reaches a particular age, the
new replacement cycle shall,
unless otherwise specified, start from
expiry of the full cycle during which IDT reaches the said age.
[3] The disputed
items of past medical and related expenses are determined as set out
in appendix 2 to this judgment.
[4] The claim for
loss of future earnings must be calculated on the basis of the
assumptions set out in appendix 3 to this
judgment.
[5] General damages
are determined at R1,8 million.
[6] Within two weeks
from the date of this judgment the parties may deliver notices
identifying: (a) the matters, if any, which
need to be clarified or
amplified to enable actuarial calculations to be made of the lump
sums payable in respect of future medical
and related expenses and
loss of earnings; (b) any matters which should have been determined
by this order but which the court
has omitted to determine.
[7] Within one month
from the date of this judgment the parties must file a minute setting
out the agreed actuarial calculations
of the lump sums mentioned in
6(a), alternatively identifying the points of dispute relating to
such calculations.
[8] Subject to 10
below, IDT’s damages shall be paid to a trust, the terms of
which shall accord with the determinations
contained in paras 46-81
and 621-649 of this judgment.
[9] Within one month
from the date of this judgment the parties must file a minute
attaching the agreed wording of a trust
deed according with the
determinations mentioned in 8, alternatively identifying the points
of dispute relating to such wording.
[10] The Master of
this court is directed, within one month of the date of this
judgment, to furnish a report regarding the
parties’ proposal
that IDT’s damages be paid to a trust. In that regard the
Master’s attention is directed in
particular to paras 24-25,
46-81 and 621-649 of the judgment. The Master must indicate in the
report whether he/she wishes to be
heard on any matters arising from
the report.
[11] Forthwith on
delivery of this judgment the plaintiffs’ attorneys must
forward a copy of same to the Master, drawing
his/her attention to 10
above. The plaintiffs’ attorney must also furnish to the Master
the parties’ proposed trust
deeds. If and when the wording of
the trust deed is agreed, the plaintiffs’ attorneys shall
forthwith send same to the Master.
[12] If and when it
has been finally determined that IDT’s damages will be paid to
a trust, the defendant shall pay a
provisional sum of R1 million to
the trust towards the cost of administering the award pending the
actuarial calculation of such
cost. The said sum shall not, pending
any contrary  determination in terms of 14, be reduced by legal
costs or contingency
fees.
[13] The actuarial
calculation of the costs of administering the trust shall stand over
until the completion of the various
steps needed to enable the
calculation to be made, including the determination of taxed and
permissible legal costs.
[14] Costs,
including the question whether the costs of administering the award
are to be included in the damages with reference
to which the
plaintiffs’ attorneys’ contingency fees are to be
calculated, shall stand over for later determination.
[15] Following
receipt of the minutes referred to above and the Master’s
report, the court will give directions regarding
the further conduct
of the matter.
[16] Agreement on
the content of the minutes referred to in 7 and 9 shall be without
prejudice to the rights of the parties
to apply for leave to appeal
against the determinations made in this judgment.
______________________
ROGERS J
APPEARANCES
For Plaintiffs
Mr D Irish SC, Ms W Munro
(& Ms K Pillay for final day of argument)
Instructed by
Joseph’s
Incorporated
Unit 1, Bompas Square
9 Bompas Road
Dunkeld
For Defendant
Mr G Budlender SC (for
final day of argument), Ms N Bawa SC & Ms M O’Sullivan
Instructed by
The State Attorney
4th Floor, 22 Long Street
Cape Town
Amicus curiae
Mr IT Dutton & Ms S
Campbell
Instructed by:
Centre for Child Law
c/o Norman Wink &
Stephens
The Chambers, 50 Keerom
Street
Cape Town
[1]
Except for the exhibits
handed in during oral evidence (marked “A” – “Z”,
“AA” –
“ZZ” and “AB” –
“AW”), the pleadings, documentary bundles and so forth
were contained
in 11 separately numbered indices as follows: 1 =
pre-trial minutes; 2 = court orders; 3 = pleadings; 4 = further
particulars;
5 = amicus papers; 6 = plaintiffs’ expert
reports; 7 = defendant’s expert reports; 8 = joint minutes of
experts;
9 = documents relating to past expenses; 10 = discovery
affidavits; 11 = miscellaneous documents; 12 = hospital records. I
shall
reference these documents by index and page numbers (eg 3/50 =
page 50 of the pleadings index).
[2]
For a description of the
GMFCS, see exhibit “AH”.
[3]
For a description of the
MACS, see exhibit "P".
[4]
For the top-up
provisions, see clause 17 of the plaintiffs' trust deed read with
the definitions of ‘Medical Fund’,
‘Date of
Depletion’, ‘Certificate of Depletion’ and
‘Supplementary Payment’. For the claw-back
provisions,
see clause 18.
[5]
See clause 14.
[6]
In
Wade
v Santam Insurance Co Ltd & Another
1985
1 PH J3 (C) Baker J ordered a defendant to pay the claimant’s
lost earnings by way of indexed instalments until date
of death or
remarriage. The report is terse. The judge apparently said that he
‘got the idea’ of ordering instalments
from s 21(1C)
of Act 56 of 1972, while acknowledging that the section was not
directly applicable. The authors of Neethling-Potgieter-Visser
Law
of Delict
7
th
Ed
observe, correctly in my view, that there appears to be no authority
for the view that the court has the inherent jurisdiction
to make
such an order (p 245 fn 223).
Wade
has
not subsequently been cited in any reported decisions.
[7]
See also on appeal at
[2008] EWCA Civ 5; [2008] 2 All ER 553 (CA).
[8]
Although
he was for many years Professor of the Department of Statistics at
the University of California, he is now retired.
I
use ‘Dr’ rather than ‘Prof’ in accordance
with what I understand to be his preference.
[9]
Paras 13 and 15.
[10]
The defendant’s
submissions in annexure “DH9” mistakenly equate LE with
EDA.
[11]
A blank CDER was handed
up as exhibit "L”.
[12]
This was the approach in
Singh &
Another v Ebrahim
[2010]
ZASCA 145.
See also
Whiten
v St Georges’ Healthcare NHS Trust
[2011]
EWHC 2066
(QB);
[2012] Med LR 1
QBD paras 84-85;
Hill
v State of Queensland
[2006]
QSC 244
paras 22, 37 & 38.
[13]
Age fractions are
decimal, so an age of 5,5 equates to five years and six months.
[14]
See exhibit "L"
item 20 of the Developmental Diagnostic Information.
[15]
These percentages would
be derived from the data on item 4 of the Evaluation Element of the
CDER.
[16]
These percentages would
be derived from item 61 of the Evaluation Element of the CDER.
[17]
This was recorded by
Tygerberg Hospital nursing staff [12/155-156] for purposes of Dr
Springer's updated assessment [7/14].
[18]
This was recorded by a
paediatric neurologist, Dr van der Walt. She did not testify but her
report was included in the bundles
[11/230].
[19]
These last two weights
were apparently recorded by a dietician, Ms Owens. She also did not
testify.
[20]
See exhibits“AK1”
and “AJ1” for Dr Springer's markings. Dr Strauss’
markings for the November 2015
weights are on exhibits “A”
and “B”.
[21]
See
exhibit “AH”. Pages 1-4 comprise Palisano et al
Gross
Motor Function Classification System Expanded and Revised
2007
.
Palisano et al are attached to the CanChild Centre for Childhood
Disability Research, McMaster University. They appear to be
the
founders of the GMFCS (see p 292 of the article by Wood et al,
exhibit “ZZ”, handed up during Ms Jackson's

re-examination). Pages 5-6 of exhibit "AH" is a separate
document from the same authors. Since the expanded and revised
GMFCS
(pp 1-4) is said to include a new age band (age 12-18) and
since pp 5-6 does not include this new age band, I
infer that
pp 5-6 sets out the original 1997 GMFCS (it is this version
which is quoted in the Would article, exhibit “ZZ”).

During oral evidence the pages were referred to without drawing this
distinction.
[22]
He referred in this
regard to a paper of which he was the lead author, Strauss et al
Life
Expectancy of Children with Cerebral Palsy
(1998
)
Pediatr Nerol [exhibit "G"]. See Table 2 read with the
text at p 1107. The proportional hazard ratios for tube-feeding

and no self-feeding ability were 3,85 and 2,01 measured against a
value of 1 for some self-feeding ability. This indicated that
being
fed by others 'doubled the risk'.
[23]
He referred in this
regard to a 2014 paper of which he was a co-author, Brooks et al
Recent
Trends in Cerebral Palsy Survival, Part II, Individual Survival
Prognosis
(2014)
Developmental Medicine & Child Neurology [exhibit "K"].
[24]
6/527-528.
[25]
6/358.
[26]
6/376-377.
[27]
6/406.
[28]
6/407.
[29]
See exhibit "P".
[30]
Exhibit “AT”
Himmelmann
and Sundh
Survival
with Cerebral Palsy over Five Decades in Western Sweden
Dev
Medicine & Child Neur
2015.
[31]
K1 - K6 in his 2014
Quantum Yearbook were handed in as exhibit "H". All that
would have changed in subsequent years
are the income brackets. For
reasons that will become apparent, these income brackets are not
relevant.
[32]
In context, this is a
reference to K1. The trial judge applied K2.
[33]
This was explained in
Prof Dunn's evidence with reference inter alia to exhibit “AD”
pp 7-8.
[34]
Exhibit “AE”
pp 1-2.
[35]
Exhibit “AF”
pp 1 and 2 (left) and pp 3-4.
[36]
Exhibit “AF”
pp 1 and 2 (right) and p 5.
[37]
Exhibit “LL”.
[38]
These two lines are
known as the inter-crystal line and the Helgenreiner line
respectively. I drew them in accordance with the
witness's
description on p 4 of exhibit “AF”.
[39]
Ms Bawa objected to
evidence of this examination on the basis that the plaintiffs had
been in possession of Prof Dunn's report
since 18 April 2016 and
that no supplementary report by Dr Versfeld dealing with the further
examination had been served. Following
brief submissions I allowed
the evidence to be led subject to the defendant's right to take time
for further instructions if
necessary. In the event Ms Bawa did not
seek time for this purpose.
[40]
A simple screening test
for scoliosis is to place the child in the Adams position in order
to measure the angle between the shoulder
blades (the Bunnel angle)
using a scoliometer. A Cobb angle of 30° would translate into a
Bunnel angle of between 7°
and 12°. Prof Dunn explained
these tests with reference to pp 3-6 of exhibit "AD”.
[41]
Balmer et al
The
Incidence and Treatment of Scoliosis in Cerebral Palsy
(1970)
Journal of Bone and Joint Surgery [exhibit "JJ"].
[42]
Rosenthal et al
The
Occurrence of Scoliosis in Cerebral Palsy
(1974)
Develop
Med Child Neurol
[exhibit
"KK"].
[43]
The authors discuss two
illustrative cases out of ten children treated with Harrington rods.
One of these two cases was a boy
with athetoid CP and a scoliotic
curve of 127°. It is not clear whether the children treated with
Harrington rods were part
of the group of 100.
[44]
Using the PubMed search
engine.
[45]
Cogill
et al
Do
Lycra Garments Improve Function and Movement in Children with
Cerebral Palsy?
(2010)
Arch Dis Child (University of Warwick) [exhibit "S"]. It
is unclear whether the document handed in is complete
since the
caption I have cited as the title is described as ‘Question1’.
[46]
Garland
The
Effect of Dynamic Elastomeric Fabric Orthoses on Upper Extremity
Function of Children with Cerebral Palsy: Systematic Review
of the
Literature
(2012)
ACPOC News.
[47]
See
Table 3 (
Bailes;
Flangahan
;
Corn;
Rennie
).
Of these the Bailes research is probably the most important since
the study method was reasonably strong. Garland classified
the level
of evidence in the various studies as I, II, III or IV, with I being
the best. The Bailes study was level I.
[48]
Exhibit “AP”.
[49]
Exhibit “AQ””.
[50]
See photograph at
12/221.
[51]
See invoice at 9/54.
[52]
7/55.
[53]
There
is an image of the buggy under consideration at 11/94.
[54]
7/215.
[55]
If the chassis now costs
R10 000 inclusive of VAT, the ex-VAT price is about R8772 as
against R6 413 in the invoice
at 9/54.
[56]
R18 480 and R25 440
[6/625].
[57]
See the CE Mobility
quotation at 11/312.
[58]
R1092 and R195 inclusive
of VAT– see invoice at 9/54.
[59]
Exhibit AO”.
[60]
Exhibit “XX”.
[61]
Exhibit AN”.
[62]
This is based on the
Ottobock quote, exhibit "R".
[63]
Exhibit "AC",
an affidavit which was handed in by agreement.
[64]
See image at 12/193.
[65]
This is the
VAT-inclusive sum of the first two items listed on the quotation,
exhibit "R".
[66]
See Mygo brochure at
12/204-217.
[67]
In the images at 12/194
and 12/205 the Mygo seat is mounted on a different kind of base
(four legs with castors). My understanding
is that the cost for the
Mygo contained in the quotation, exhibit “R”, does not
include this (or any) base.
[68]
12/214.
[69]
See 12/215-216.
[70]
Code EC12 in the code
list.
[71]
Exhibit “R”
refers to a product code 414P88=50000_K which is the standard Mygo
seat shown at 12/194.
[72]
See
brochure, exhibit
“
U”.
[73]
Exhibit “AM”
p 4 (R40 388 excluding VAT).
[74]
R63 024 excluding
VAT.
[75]
Exhibit “AB”.
[76]
11/311-316. I do not
recall these being adduced as exhibits through Ms Scheffler.
[77]
12/211-212.
[78]
12/215.
[79]
For the B400, see “U”.
[80]
See 11/97e.
[81]
See 11/316 and 11/312.
[82]
Exhibit “AM” p4.
[83]
11/311.
[84]
R46 043 as against
R69 941.
[85]
6/605-606. See also
12/245.
[86]
For an image of the
Flux, see 12/246.
[87]
Images
of the type of rollator
she had in mind are at 12/247-249.
[88]
11/248-250.
[89]
See image at 6/602.
[90]
11/304-310.
[91]
See image at 6/603.
[92]
See
invoice at
9/50.
[93]
“
DH14” para
157.
[94]
At 6/350.
[95]
See the images at 6/611.
[96]
At 7/137.
[97]
See
6/161 – ‘up to’ R920 excluding VAT.
[98]
Exhibit “AN”
p 80.
[99]
Exhibit “YY”.
[100]
See pp 16-17 of the
exhibit.
[101]
In
argument I
was
referred to Dr Marus’ report where he said that recent
literature indicates that intellectual abilities in patients
with
kernicterus-induced CP are often in the normal range [6/17]. He
annexed a chapter by Shapiro et al from
Pediatric
Life Care Planning
and Case Management
2
nd
Ed where the authors say
that intellect in these children is ‘almost always in the
normal range’ [6/29]. In the absence
of expert evidence on the
point, I do not think I can have regard to this material.
[102]
At 7/146.
[103]
McDermott et al
A
Population-based Analysis of
Behavior
Problems in Children
with Cerebral Palsy
(1996)
Journal of Paediatric Psychology [exhibit “GG”].
[104]
Item 6.
[105]
Item 102.
[106]
Stein et al
Lifetime
Prevalence of Psychiatric Disorders in South Africa
British
Journal of Psychiatry (2008) [exhibit "HH"].
[107]
Table 2 (second column,
first row) indicates, on my understanding, that women are 1,78 times
more likely than men to suffer from
depression.
[108]
The questionnaire was
designed to generate diagnoses according to the criteria of the
ICD-10 and DSM-IV diagnostic systems [pp 112-13].
[109]
File11/297-298.
[110]
File 11/304
[111]
File 9/177.
[112]
Exhibit “W”.
[113]
“
W” p 4.
[114]
“
W” pp 5-6.
[115]
“
W” p 7.
[116]
“
W” p 8.
[117]
The extracts relevant to
Ms Auret-Besselaar's model were handed in as exhibit "X".
[118]
This was set out in an
addendum handed up during the course of her evidence on 10 March
2016. The relevant pages, including the
attached extracts from
bargaining council wage determinations, were inserted in the
defendant's expert bundle as 7/246A-G.
[119]
These
figures are arrived at by multiplying by 12 the monthly figures
furnished by Ms Auret-Besselaar in para 2.2 of her addendum.
Mr
Donaldson was satisfied that Ms Auret-Besselaar had correctly
translated the prescribed wages into monthly remuneration figures,

taking into account Ms Auret-Besselaar's assumptions.
[120]
Arrived at by
multiplying by 12 the two monthly figures furnished by Ms
Auret-Besselaar in para 2.4 of her addendum and then taking
the
average of the two annualised amounts.
[121]
Arrived at by
multiplying by 12 the monthly range furnished by Ms Auret-Besselaar
in para 2.5 of her addendum.
[122]
“
X” at
p 128.
[123]
Joint
minute
para
1.3.
[124]
Exhibit “AV”.
[125]
She assumes a
progression R83 755 – R149 599 – R150 017.
[126]
The Electrical BC
progression is R64 680 – R76 574 – R85 084.
The Building BC progression is R83 430
– R91 430 –
R125 445. The median is R74 055 – R84 002 –
R105 265.
[127]
R128 818 –
R252 790.
[128]
R150 017 –
R292 702.
[129]
R85 084 –
R170 180, based on an annualisation of Ms Auret-Besselaar’s
monthly figures.
[130]
R125 445 –
R175 307.
[131]
R105 265 –
R172 744.
[132]
R216 905 –
R312 185 (10
th
).
R252 790 – R379 722 (lower). R292 902 –
R429 793 (median).
[133]
Exhibit
“H”.
The
cohort at age 7 comprises 98 448 lives. The reduced cohort is
91 084 at age 45, 83 741 at age 56 and 67 006
at age
65.
[134]
Exhibit “J”.
The table reflects a cohort of 100 000 at age seven, with
42 189 deaths to age 55 and 44 254
deaths from age 55 –
80.
[135]
See
Dr
Lofstedt’s report
at
6/239. Impairment (dysplasia) of dental enamel is a known effect of
kernicterus.
[136]
Singh (1)
[2010] 3 All SA 187 (D).
[137]
Clause 19.2.
[138]
Clause 22.9.
[139]
Regulation 8(3) of the
regulations promulgated under
s 130
of the
Administration of
Estates Act 66 of 1965
.
[140]
“
DH15” para
82.
[141]
Full heads para 4.7.