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[2015] ZAGPJHC 141
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T obo T v Member of the Executive Council for Health And Social Development of the Gauteng Provincial Government (28471/2012) [2015] ZAGPJHC 141 (16 July 2015)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: 28471/2012
DATE:16 JULY 2015
In the matter between:
[T……] [L…….]
obo
[T……..]
[T………]
.....................................................................................................................
Plaintiff
AND
THE MEMBER OF THE EXECUTIVE COUNCIL
FOR HEALTH AND SOCIAL DEVELOPMENT OF
THE GAUTENG PROVINCIAL
GOVERNMENT
.............................................................
Defendant
J U D G M E N T
TWALA AJ
[1] Plaintiff sued the defendant out of
this Court in her personal capacity and in her representative
capacity as mother and natural
guardian of her minor child for
damages arising out of the negligence of the staff at Chris Hani
Baragwanath Hospital and/or Lenasia
South Clinic at the time when
plaintiff was admitted with her then unborn son, T………
T……. (T……….).
[2] It is common cause that on the 3rd
February 2008 plaintiff was admitted to Chris Hani Baragwanath with
her then unborn son T……..
Plaintiff endured several
hours of labour pains which necessitated a caesarean section. T………
was on 3rd
February 2008 born by normal vaginal delivery. As a
result of the prolonged labour and failure to timeously perform a
caesarean
section delivery, T……… was diagnosed
as suffering from cerebral palsy.
[3] On the 19th February 2014 Mojapelo
DJP made an order that:
“The defendant shall pay the
plaintiff all her agreed or proven damages in her representation
capacity for and on behalf of
her minor child T……. as a
result of the negligence of the staff at the Chris Hani Baragwanath
Hospital, resulting
in T………… suffering
from cerebral palsy”.
[4] The issue that remains for
determination by this Court is the quantum of damages suffered by the
plaintiff. However, at the
beginning of the hearing of this case the
parties had agreed to settle in the total sum of R17 274 873.31 on
the following heads
of damages:
i) Past medical and related expenses
R222 380.81.
ii) Future loss of earnings R2 550
000-00.
iii) General damages R1 200 000-00.
iv) With regard to future medical and
related expenses, certain disciplines are in dispute and remain for
determination. However
other disciplines have been settled between
the parties in the sum of R13 302 492-50.
[5] At the commencement of the hearing
of this case, the defendant brought an application to condone the
late filing of its adjusted
or amended plea. The plaintiff opposed
the filing of the amended plea and the application to condone its
late filing.
[6] Defendant argues that the plaintiff
served a Rule 28 Notice giving its intention to amend its particulars
of claim on the 13th
March 2015. On the 30th March 2015 the
plaintiff filed its amended particulars of claim. This necessitated
a consequential amendment
of the defendant’s plea. Although
the defendant had already indicated on the 28th January 2015 that it
intended to amend
its plea, it did not effect the amendment because
it was avoiding to make a series of amendments. It waited for the
plaintiff
to amend its particulars of claim before it could make the
consequential amendment and/or adjust its plea. It is entitled in
terms
of the rules of court to amend its pleadings at least 15 days
from date of receipt of the plaintiff’s amended papers.
[7] Plaintiff’s argument is that
the amendment by defendant is not consequential to its amended
particulars of claim. If
it is, then defendant should have filed its
amended and/or adjusted plea on the 17th April 2015 as undertaken
before Tsoka J in
the pre-trial conference held before the learned
Judge on 15th April 2015. Defendant has failed to file its amendment
until the
24th April 2015 whereas the hearing was set down for 20th
April 2015. The defendant faxed its amended plea on the 22nd April
2015
and served it on the plaintiff on the 24th April 2015.
[8] Defendant contends that it was not
ready to file its amended plea on 17th April 2015. However on the
20th April 2015 Mojapelo
DJP ordered that it should file its amended
plea by the 28th April 2015 when the case will be heard. Defendant
argues further that
the plaintiff will suffer no prejudice if the
court allows the filing of the amended plea. It is necessitated by
the plaintiff’s
amendment of its particulars of claim from R4.9
million to R65 million. Plaintiff’s inconvenience by the late
amendment or
plea adjustment can be cured by a costs order. The delay
in bringing the amendment was not deliberate.
[9] Rule 28 (8) of the rules of court
provides as follows:
“Any party affected by an
amendment may, within 15 days after the amendment has been effected
or within such other period
as the court may determine, make any
consequential adjustment to the documents filed by him, and may also
take the steps contemplated
in rules 23 and 30”
Rule 28 (10) provides as follows:
“The court may, notwithstanding
anything to the contrary in this rule, at any stage before judgment,
grant leave to amend
any pleading or document on such other terms as
to costs or other matter as it deems fit.”
[10] The approach on allowing
amendments to pleadings has been laid down by the courts in numerous
decisions. In the case of Trans
Drakensburg Bank Ltd vs Combined
Engineering 1967 (3) Durban & Coastal Local Division, Caney J
stated the following:
“The primary principle appears to
be that an amendment will be allowed in order to obtain a proper
ventilation of the dispute
between the parties, to determine the real
issues between them, so that justice may be done. The vital
consideration is that no
amendment will be allowed in circumstances
which will cause the other party such prejudice as cannot be cured by
an order of costs
and where appropriate a postponement.”
[11] In the present case, the plaintiff
has not shown that the defendant was mala fide in bringing the
amendment of its plea. The
defendant’s explanation that the
delay in bringing the amendment was because the plaintiff only
amended its particulars of
claim on the 30th March 2015 is sound and
reasonable. Although there were discussions of amending the pleadings
in January 2015,
it would not make sense for the defendant to amend
its plea before the plaintiff amended its particulars of claim.
Plaintiff’s
claim was amended from R4.9 million to R65 million
as a result the defendant had to amend its plea. No prejudice could
be visited
on the plaintiff if the amendment of the plea is allowed.
The same is not true with the defendant who is now facing a R65
million
claim.
[12] There is no evidence before me
that proves that the defendant was deliberate and wilful in the delay
to amend its plea. Defendant
obtained the experts’ reports in
March 2015 and had to consult with the experts before it could amend
its plea. It is not
clear why it made an undertaking before Tsoka J
that it will file its amended plea on the 17 April 2015.
[13] The defendant did not comply with
the undertaking it made before Tsoka J on the 15 April 2015 to file
its amended plea on the
17 April 2015. However, this was extended by
Mojapelo DJP on the 20 April 2015 when the learned Judge ordered the
defendant to
file its amended plea on the 28 April 2015. It is my
view therefore, that there are no mala fides on the part of the
defendant
in filing its amended plea at this stage of the
proceedings. There is no prejudice that would be visited on the
plaintiff if the
defendant is allowed to file its amended plea. There
will be no delay in these proceedings for the defendant is not
asking, nor
does the amendment necessitate a postponement of this
case.
[14] In the circumstances I make the
following order:
I. Condonation of the late filing of
the amended plea is granted;
II. The Defendant is granted leave to
file its amended plea;
III. The Defendant to pay the costs of
this application.
I now turn to deal with the main issues
in this case.
[15] It is common cause that the
plaintiff’s minor child, T………., is a seven
year old with Cerebral Palsy.
The minor child has been referred to a
myriad of experts by both the plaintiff and the defendant. Nine of
these experts have compiled
joint minutes recording agreements on
certain aspects of the matter. The plaintiff called four witnesses to
testify on its behalf.
Two (2) of these witnesses are experts who
testified on the future medical treatment required by T………
and
the costs thereof in some disciplines and the associated devices.
The other two witnesses testified on the legal costs and the creation
and running of the trust. The defendant called three witnesses. I do
not intend to deal with the whole of the evidence of the witnesses
but to highlight those aspects that are in dispute between the
parties.
[16] Ms Allison Margaret Crosbie, an
Occupational Therapist, testified as follows:
“that she works with children
with cerebral palsy. She evaluated the minor child at her offices and
visited him at home. She
consulted the plaintiff who advised that the
minor child sleeps well at night and wakes up at 05H00 the next
morning. He walks
with an unsteady gait and stumbles on uneven
surfaces. He bumps into objects as he walks like a drunk person. He
produces excessive
amount of saliva – hence food comes out of
his mouth than going in. He is incontinent and makes growling sounds
when he is
doing No.2. He is not aware of No.1 at all. He does not
have the sense of danger. He is suffering epileptic seizures. He
sleeps
at night from 08H30 and wakes up the next day at 05H00. If he
wakes up during the night, then it is known that there is something
wrong. With his inhibitions, T…….. will require 24 hour
a day care 7days a week for the remainder of his life. This
has been
agreed to between herself and Ms Quintal for the defendant in a joint
minute dated the 31 March 2015 which forms part
of these proceedings.
It was further agreed that T……… will require a
facilitator to accompany him to any stimulation
centre, attend
therapy sessions with him and then carry out a sensory rich IEP
program at home in the afternoons when he is not
at the stimulation
centre. He will require a facilitator/ Au Pair for 8 hours a day
until he is approximately 18 years of age
5 days a week. The
facilitator will receive training from the Case Manager and during
the therapy sessions with the treating therapists.
He will require 3
care givers from the age of 18 for the rest of his life. The
caregivers are normally trained to assist elderly
people. They
receive a basic nursing training for the elderly and will require
further training to be emotionally mature, compassionate
and
physically strong for a child suffering from cerebral palsy. He
requires a Case Manager who stands as go between the parents
and the
trustees, between the trustees and the financial advisers and informs
them of what is in the medical reports and of the
amounts required in
the immediate future. The caregivers have an 8 hour shift. A
domestic worker is necessary at once or twice
per week in order to
ensure that T……… has a hygienic environment, has
clean clothes and that the therapy toys
and equipment are kept clean
and tidy.”
[17] Ms Crosbie conceded to the
submission by counsel for the defendant that she was not an expert on
trust. She conceded further
that she neglected to put in her report
that T……….. will require care for 24 hours a
day. Counsel for the
defendant put it to her that this does not
appear in her report and not even on the past medical expenses which
have already been
settled between the parties. She conceded that
T……….. and his family now lives in a house
provided by the
plaintiff’s attorney and is provided with 2
caregivers which the attorney has been paying. It is further
contended by counsel
for the defendant that when T……
wakes up at night it is an infrequent occurrence and his parents can
and will attend
to him. He does not need a caregiver who will sleep
in the same room as T………. just to help him with
the blankets
at night. The witness conceded that a caregiver at night
is not absolutely necessary but needs to look at the temperature and
heart
beat and help with the blankets since T…….. kicks
off the blankets. T……’s mother is very much
involved in her son’s situation and if she can clean for him,
then it is not necessary to have a domestic.
[18] Ms Kerry Churchill, a
Physiotherapist, testified as follows:
“T…………..
requires a wheelchair to maintain him in a functional position during
feeding and for
long distance mobility. The wheelchair she
recommended is light in weight and capable of folding. It is easy to
transport and fits
very well in a small car with limited space. There
are other wheelchairs in the market which are heavier in weight, fold
their
base but the wheels stay attached. They are cumbersome and
strenuous to handle. She recommended that the maintenance costs be
provided
for the wheelchair at 10% of its value and it should be
replaced every 3 years until age 21 and every 5 years thereafter. The
cost
of the wheelchair from the supplier she is familiar with is R42
000 and the maintenance of 10% is R4 200. T………..
requires a gait trainer every 3 years until age 18 which will cost
R10 300 and the maintenance at 10% of the value thereof. For
the rest
of his life he will require the rifton pacer gait trainer on yearly
basis at the cost of R50 500 and the maintenance at
10% of the value
thereof. He will require a walking frame every 2 years from age 18
until age 45. Due to the sensory difficulties
with feeding, he
requires a seating system that will restrain and calm him down. This
was agreed upon her and her counterpart for
the defendant.
[19] Under cross examination she
conceded that the wheelchair can serve dual purpose as a feeding
chair as well. It must have a
removable tray which helps him put his
upper limbs on and cause him to sit up straight for lumbar support.
She insisted that the
wheelchair must be light in weight and must
have tilt function, a harness, a cushion and trunk support. He
requires a gait trainer
to assist him in improving his gait. He can
walk short distances and will only be on the chair when he is on an
outing or being
fed.
[20] Mr Fuls Rudolf testified that he
is a legal costs consultant. He has 24 years of experience in the
industry. His experience
is that parties normally recover about 70%
of their fees on a bill of costs and 50% of the disbursements. The
bigger the matter
the bigger the shortfall. However, he conceded
under cross examination that nothing prevents the Taxing Master from
giving a party
the full amount claimed. Further that, if a party is
not satisfied with the Taxing Master’s decision, the aggrieved
party
has the right to take that decision on review.
[21] Mr Barend Jacobus van Heerden
testified that he is fiduciary practitioner. He administers trusts
and estates. He administers
trust for disabled children and has about
300 of these trusts. He has been in this business for the past 30
years. He explained
that the trustees meet and discuss the investment
issues and the needs of the child. The case manager is a go between
the trustees
and the parents of the minor child. He agreed with the
defendant’s counsel that it is good business for him but
advised that
creation of the trust in cases like the present one is a
better option for it functions better than the Guardian’s Fund.
[22] Then it was the turn for the
defence case. The defendant called Ms L Patel who testified that an
Assistant Director in the
Gauteng Health Department. In a nutshell
her evidence was about the services the clinics and public hospitals
provide including
catering for children with cerebral palsy like
T…….. Her evidence related to public health facilities
around the
area where the minor child resides. Under cross
examination she conceded that the public hospitals and clinics do not
have capacity
to handle everybody for therapy. They put people for
therapy in groups. If a particular clinic or hospital lacks capacity,
patience
are referred to another. They are obliged to abide by court
orders at all times. She does not know how many people need treatment
for cerebral palsy in the Johannesburg or Gauteng area.
[23] Ms Elizabeth Burger, the Deputy
Director, Rehabilitation, Gauteng, testified that all the hospitals
in Gauteng have physiotherapists.
The wheelchairs the department
offers weigh about 14kg and are regarded as within the “light
weight category”. The
wheelchair is regarded as light weight
when it weighs between 5 and 22kgs. The wheelchair in terms of the
tender of the department
costs R9 063 and the gait trainer or reverse
walker costs R563. Under cross examination she disclosed that the
tender is valid
for 2 years starting from 1 October 2014 to 30
September 2016. Thereafter the department will call for a new tender
on new or similar
specifications depending on the needs of the
patients.
[24] Ms Fredda Strauss, the Deputy
Master of the High Court, Pretoria discouraged the payment of the
minor child’s money into
the Guardians Fund. She alluded to the
fact that the guardians fund has long processes to be followed before
the funds could be
released. It has a maximum payment of R250 000 per
annum and takes about 40 days before payment is release at any given
time. It
is a laborious process. It pays a compounded interest rate
of 7.3% per annum and does not charge administration costs. The costs
of administering a trust is 7.5% of the value of the estate. The
trust only submits its accounts to the Master on winding up of
the
estate. The curator bonis submit its account to the Master on a
yearly basis. The curator’s fees are 6% on the income
of the
investments of the estate and charges 2% on the balance of the estate
when the estate is wound up. The trustees are called
upon to furnish
security to the Master.
[25] The defendant raises three (3)
issues in its amended plea as follows:
i. That the plaintiff had a duty to
mitigate its damages and has failed to do so;
ii. That the interests of the child are
of paramount importance in this case; and
iii. That the plaintiff’s case
exposes the defendant to double jeopardy.
[26] The defendant contents that the
onus lies with the plaintiff to prove that the amounts claimed are
reasonable and necessary.
She has a duty to mitigate her damages.
Plaintiff has to show that her claim on behalf of T………
would not put
him (T………) at optimum living
conditions which would not have been on par with those he would have
enjoyed
had he not been injured. The treatment and assistive devices
required can be obtained at the State expense from medical
institutions
that are under the control and administration of the
defendant at a maximum amount of R120 per visit.
[27] It is absurd for the defendant to
even suggest that mitigating the plaintiff’s damages entails
T……….
attending at the health facilities under
the control and administration of the defendant. The defendant or its
health facility
has caused damages to the plaintiff and now wants to
dictate the form of compensation that the plaintiff should accept
under the
guise that plaintiff should mitigate its damages. The
defendant does not suggest how the plaintiff was supposed to mitigate
her
damages except that T………. should again be
subjected to the painful treatment at the hands of the defendant’s
employees in State health facilities. What will happen if there is
another medical negligence at the hands of the State health
institutions? Must the plaintiff institute another action against the
defendant? This would fly in the face that litigation between
the
parties must be finite.
[28] In the unreported judgment of this
division delivered on the 30 April 2015 in the case of Rewayne Hersig
vs Premier, Heath
& Social Development, Case No: 42685/2011,
Mathopo J noted the following:
“ The anomaly or absurdity in the
defendant’s plea is best illustrated by the urgent application
obtained by the plaintiff
on 24 March 2012 for urgent treatment of
his bedsores. During the hearing of this matter I was informed by the
parties that despite
the lapse of the period of 30 days the defendant
had not yet complied with the order of Makume J.”
Ms Patel for the defendant was at pains
to explain the issue of capacity within the State facilities. She in
fact conceded that
there are capacity problems with the State
facilities. She said they are obliged to obey court orders and they
have never failed
to comply with court orders. However, it is
abundantly clear from the sentiments expressed by Mathopo J in the
Hersig case supra
that the defendant ignores court orders.
[29] Recently, there has been various
judgments in this division in similar cases. In the case of Souls
Cleopas vs The Premier of
Gauteng, Case No: 09/41967, Tsoka J stated
the following:
“It sounds strange to the ear and
even bordering on arrogance for the defendant to seem to suggest that
it will negligently
cause damages to the plaintiff and thereafter
arrogate to itself the form of compensation that the plaintiff should
accept. It
is not for the defendant to determine the form of
compensation for plaintiff’s damages. Once the plaintiff has
determined
the extent of defendant’s duty to compensate him,
the defendant has no choice but to pay up so long as the damages
have,
to the best of the plaintiff, been proved.”
[30] Mr van der Walt SC for the
plaintiff correctly submitted that an order has been made by this
Court that the defendant shall
pay to the plaintiff all her agreed or
proven damages. The defendant cannot request that an order be granted
substituting payment
for services. Further, the defendant, as a State
department, its payments are regulated by and is bound by the
provisions of the
Public Finance Management Act, 1 of 1999
. There is
no provision in the PFMA which substitutes payment for services. On
the 19 February 2014 Mojapelo DJP made the following
order, inter
alia:
“The defendant shall pay the
plaintiff all of her agreed or proven damages in her representative
capacity for and on behalf
of her minor child, T……., as
a result of the negligence of the staff of the Chris Hani Baragwanath
Hospital, resulting
in T…….. suffering from cerebral
palsy.”
[31] In the circumstances, I associate
myself with the judgment of Tsoka J supra in that once the plaintiff
has proven her damages,
the defendant is obliged to pay.
[32] According to the undisputed
evidence of the experts and to the extent as agreed amongst the
expert as it appears on the joint
minutes, T………
will require medical treatment and assistive devices in the future.
Counsel for the defendant,
Mr Khoza SC contends that the regime of
caregivers does not give T………’s family any
role in his life.
He argues that it has been accepted by the experts
that T………. mother is very much involved in her
son’s
life and assist as much as she can. It is strange that
nowhere in the medical reports is stated that T………..
has sleeping problems. In fact T…………s
mother had no concern about his sleeping patterns. Therefore
it is
not necessary to have someone looking after T………..
whilst he is sleeping.
[33] I agree with Mr Khoza SC that as
much as Ts….… requires to be cared for, his family, as
well, has a role to play
in his life. Ts……….
will be living with his family in the house bought for him by the
defendant. It is part
of their role to keep the house they are living
in tidy and clean. In my view, there is no need for a third caregiver
to look after
Ts……… at night. It is also not
necessary to have a domestic to clean T……. room once or
twice
a week when his family members live with him in the house.
[34] I have dealt with the issue
subjecting T……… to the services of State health
facilities above. I now turn
to deal with the issue of the State
health facilities supplying T……….. with
assistive devices as recommended
by the experts.
[35] In the case of Hersig supra, the
plaintiff required urgent medical treatment for his bedsores. He
could not get it from the
State health institutions. He was left with
no option but to approach the court and obtain an order on an urgent
basis. The order
was granted but was ignored by these institutions.
What more can the poor plaintiff do to enforce her rights in the
circumstances
if even a court order is simply ignored? What guarantee
does the plaintiff have in this case that the defendant will honour
the
court order? What options will be available to him if the
defendant is recalcitrant and does not obey the court order?
[36] It is my view therefore that T……..
need not be dependent on the defendant for the rest of his life for
his future
medical requirements and the supply of assistive devices.
He has suffered enough at the hands of the employees of the defendant
and the litigation between the parties must reach finality. The
interest of T……… will be better served if
the
defendant pays the plaintiff’s proven damages within 30 days of
this order as provided in the PFMA.
[37] Counsel for the plaintiff contends
that the best vehicle to administer the funds for T……..
is a trust. The defendant
led evidence of Ms Strauss who is a Deputy
Master of the High Court who testified about the problems of the
guardians fund and
the advantages of a Curator Bonis.
[38] The experts are agreed that T……….
requires a Case Manager who will be a go between the parents and the
trustees. The Case Manager is the one who manages the affairs of
T……….. She knows what medical treatment he
requires and when will he require that. She plans how to satisfy the
needs of T……….. at the most convenient
of times.
In my view she can do the same with the Curator Bonis whose
administration costs are far less than those of a trust.
The evidence
before me is that the trustees’ administration costs are 7.5%
of the capital whereas the Curator Bonis charges
6% on the income of
the estate and 2% on the balance of the estate on winding up. I
therefore agree with the defendant that a curator
bonis be appointed
to manage the financial affairs of T……...
[39] The defendant contends that the
plaintiff has conceded that there is a contingency fee agreement
between herself and her attorneys
of record. By its nature the
contingency fee agreement is to the effect that the attorneys would
be entitled to a portion of the
amount of damages that would be
awarded to T…... Apportionment of the damages to the attorneys
in respect of future medical
costs will automatically put T……….
out of pocket. Therefore T…….. is running the real risk
of
running out of the necessary medical attention due the contingency
fee agreement. These medical costs should not form part of the
contingency agreement apportionment as this would be to the detriment
of T………..s basic health care. This will
expose
the defendant to “double jeopardy” since the child has a
guaranteed right to basic health care services in terms
of the
Constitution. Once he runs out of monies for his medical needs, T…….
will turn to the very public facility.
[40] Section 34 of the Constitution of
the Republic of South Africa, 1996 provides as follows:
“Everyone has the right to have
any dispute that can be resolved by the application of law decided in
a fair public hearing
before a court or, where appropriate, another
independent and impartial tribunal or forum.”
[41] It is common cause that the
plaintiff and her attorney of record entered into a contingency fee
agreement on behalf of T……….
who is a minor and
suffers from cerebral palsy. The reason why the plaintiff and her
attorney concluded a contingency fee agreement
is not hard to find.
It is because litigation is expensive and the plaintiff and her minor
child could not exercise their right
in terms of the Constitution for
they are people without means. It is virtually impossible for
impecunious litigants to access
justice and the courts. The
Legislature therefore promulgated the
Contingency Fees Act, 1997
, to
assist poor litigants to access justice.
Section 2
of the
Contingency
Fees Act provides
as follows:
“1. Notwithstanding anything to
the contrary in any law or the common law, a legal practitioner may,
if in his or her opinion
there are reasonable prospects that his or
her client may be successful in any proceedings, enter into an
agreement with such client
in which it is agreed –
(a) That the legal practitioner shall
not be entitled to any fees for services rendered in respect of such
proceedings unless such
client is successful in such proceedings to
the extent set out in such agreement;
(b) That the legal practitioner shall
be entitled to fees equal to or, subject to subsection (2), higher
than his or her normal
fees, set out in such agreement, for any such
services rendered, if such client is successful in such proceedings
to the extent
set out in such agreement.
2. Any fees referred to in subsection
1(b) which are higher than the normal fees of the legal practitioner
concerned (hereinafter
referred to as the “success fee”),
shall not exceed such normal fees by more than 100 per cent. Provided
that, in the
case of claims sounding in money, the total of any such
success fee payable by the client to the legal practitioner, shall
not
exceed 25 per cent of the total amount awarded or any amount not,
for purposes of calculating such excess, include any costs.”
[42]
Section 5
of the Act provides for
review of the contingency fee agreement by the client (the plaintiff
in this instance) as follows:
“5. Client may claim review of
the agreement or fees:
1.A client of a legal practitioner who
has entered into a contingency fee agreement and who feels aggrieved
by any provision thereof
or any fees chargeable in terms thereof may
refer such agreement or fees to the professional controlling body or
in the case of
a legal practitioner who is not a member of a
professional controlling body, to such body or person as the Minister
of Justice
may designate by notice in the Gazette for the purpose of
this action.
2. Such professional controlling body
or designated body, or person may review any such agreement and set
aside any provision thereof
or any fees claimable in terms thereof if
in his, her or its opinion the provision or fees are unreasonable or
unjust.”
[43] In the present case, the defendant
does not challenge the provisions of the contingency fee agreement.
The defendant contends
that any award of future medical expenses
should be excluded from the contingency fee agreement for the minor
child will have a
shortfall to meet his future medical needs. As a
result the minor child will turn to the health institutions under the
control
of the defendant. The defendant will not be able to turn him
back because of the constitutional rights of a child to basic health
care.
[44] Attorneys take these types of
cases on risk that if the plaintiff is successful in his or her case,
then fees will be due and
payable to the attorney. It is on a “no
win no fee basis”. Attorneys incur costs and disburse a lot of
money in running
these cases. Such costs cannot be fully recovered by
the party and party costs component only. In the case of Law Society
of South
Africa &Others vs Road Accident Fund & Another
2009
(1) SA 206
(CPD) Traverso J noted the following:
“Mr Cassim for the first
respondent, is correct in his submission that the entire scheme of
the Act is aimed at ensuring
the claimants get just compensation and
that only party and party costs are guaranteed thereunder. But in all
litigation there
is invariably an attorney and client component which
has to be borne by the client.”
[45] In my view
Section 2
and
5
of the
Act provide for the safeguards should the fee be excessive or if the
plaintiff is not satisfied with the provisions or fees
in terms of
the agreement. I agree with the plaintiff’s counsel that what
the defendant proposes to this Court is a tactic
to discourage
attorneys from taking on poor litigants’ cases. It cannot be
said that the defendant is now the champion of
the rights of the
minor child when in fact it is the defendant, through the negligent
actions of the public hospital staff, who
brought this child before
this Court.
[46] I am of the view therefore, that
this Court cannot interfere with the provisions of the contingency
fee agreement as suggested
by the defendant, since it would be
interfering with the attorney and client relationship. The
relationship between the plaintiff
and her attorney has nothing to do
with the defendant. Further, it would defeat the purpose of section
34 of the Constitution if
this Court were to make an order as
suggested by the defendant. Indigent people would be adversely
affected by such an order.
[47] As indicated above, there are
sufficient safeguards in place to protect the interest of T………..
in this
case. The defendant has placed no evidence before me to
suggest otherwise. Therefore the defendant’s amended plea falls
to
be dismissed.
[48] I have indicated supra that it
is my view that there is no necessity for T……….
to have the services
of three (3) caregivers and a domestic worker to
clean his immediate environment. This in monetary terms translates to
a deduction
of the sum of R3 278 136 for the caregiver and a sum of
R413 984 for the domestic. The total deduction on future medical and
related
expenses for T………. is therefore a sum of
R3 692 120.
[49] In the circumstances, I make the
following order:
1. The defendant shall pay to the
plaintiff a capital amount made up as follows:
1.1 Past hospital, medical and related
expenses R 222 380.8
1.2 Future loss of earnings, earning
capacity and
Loss of employability R2 550 000.00
1.3 General damages for pain and
suffering, loss Of amenities of life, disability and disfigurement
R1 200 000.00
1.4 Future hospital, medical and
related expenses R24 405 709.50
TOTAL
R28 378 090.31
2.The capital amount shall be paid on
or before the 31 August 2015 directly to the Trust account of the
plaintiff’s attorneys
of record with the following banking
details:
WIM KRYNAUW ATTORNEYS TRUST ACCOUNT
ABSA BANK TRUST ACCOUNT
ACCOUNT NO: 4…………….
REFERENCE: M……………
3. Following payment of the capital
amount, the plaintiff’s attorneys shall retain the capital
amount in an interest bearing
account in terms of Section 78(2)(A) of
the Attorneys Act, for the benefit of Tshedza Tsita (hereinafter
referred to as “the
minor child”), pending the
appointment of a Curator Bonis.
4.The plaintiff’s attorneys
shall:
4.1 appoint a Curator Bonis within a
period of two (2) months from the date of this order to administer
the estate of the minor
child;
4.2 pay all the monies held in trust by
them for the benefit of the minor child to the Curator Bonis after
deduction of their fees,
costs and disbursements.
5.The defendant shall pay the costs for
the appointment of the Curator Bonis.
6. The defendant shall pay interest on
the capital amount at a rate of 9 per cent per annum from the date on
which payment becomes
due to date of final payment.
7.The defendant shall pay the
plaintiff’s agreed or taxed party and party costs on the High
Court scale, which costs shall
be inclusive of, but not limited to,
the following:
7.1 The costs attendant on obtaining
the medico legal reports and / or addendum medico legal reports and /
or the joint minutes,
as well as the qualifying and / or preparation
fees, if any and as allowed by the Taxing Master, of the experts:
7.1.1 Ms A. Crosbie (Occupational
Therapist);
7.1.2 Ms K Churchill
(Neurodevelopmental Physiotherapist);
7.1.3 Ms I Hattingh (Speech Therapist);
7.1.4 Ms P Jackson (Physiotherapist);
7.1.5 Dr G Firth (Orthopaedic Surgeon);
7.1.6 Dr P Lofstedt (Dental Surgeon);
7.1.7 Dr L Maron (Ear, Nose and Throat
Specialist);
7.1.8 Dr L Grinker (Psychiatrist);
7.1.9 Dr M LIppert (Paediatric
Neurologists);
7.1.10 Dr S Choonara (Urologist);
7.1.11 Dr B Banieghbal (Paediatric
Sugeon);
7.1.12 Mr H Grimsehl (Orthotist);
7.1.13 Ms K Thokoane (Dietician);
7.1.14 Mr D Rademeyer (Mobility
Consultant);
7.1.15 Ms R Jessen (Raling and Patient
Mobility Consultant);
7.1.16 Ms M Scheepers (Nursing
Consultant);
7.1.17 Mr A Grobler (Quantity
Surveyor);
7.1.18 Ms S van den Heever (Educational
Psychologist);
7.1.19 Prof. D Strauss (Life Expectancy
Consultant/Statistician);
7.1.20 Mr M Schussler (Economist);
7.1.21 Mr D De Vlamingh (Industrial
Psychologist); and
7.1.22 Mr G Whittaker (Actuary).
7.2 The qualifying and/or preparation
and / or reservation costs, inclusive of consultations with counsel,
for the trial in respect
of the following witnesses, if any and as
allowed by the Taxing Master:
7.2.1 Ms A Crosbie; and
7.2.2 Ms K Churchill.
7.3 The costs attendant upon obtaining
payment of the capital amount awarded and / or any interest thereon.
7.4 The costs consequent upon the
employment of two counsel.
TWALA
ACTING JUDGE OF THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
COUNSEL FOR THE PLAINTIFF: ADV. N
van der WALDT SC
INSTRUCTED BY:WIM KRYNAUW
INCORPORATED
6TH FLOOR, MARBLE TOWERS 208-212
Jeppe Street
JOHANNESBURG
TEL: 011 955 5454
REF: W KRYNAUW/ MEC0015/DC
COUNSEL FOR THE DEFENDANT:ADV. M
KHOZA SC
INSTRUCTED BY:THE STATE ATTORNEY: ME
SMITH
10th FLOOR, NORTH STATE BLD 95
Albertina Sisulu Street,
Corner Kruis Street
JOHANNESBURG
TEL: 011 330 7665
REF: 5065/12/P4/SMI 436
DATE OF HEARING: 28 APRIL 2015 TO
08 MAY 2015
DATE OF JUDGMENT: 16 JULY 2015