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[2017] ZAGPJHC 346
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PM obo TM v MEC for Health, Gauteng Provincial Government (A5093/2014) [2017] ZAGPJHC 346 (7 March 2017)

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HIGH
COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
No:  A5093/2014
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED.
In
the matter between:
PM
obo
TM
Appellant
and
MEC
FOR HEALTH, GAUTENG PROVINCIAL
GOVERNMENT
Respondent
Case
Summary:
Delictual
damages – medical negligence - Appeal against certain parts of
trial court’s assessment of damages ensuing
as a result of
hypoxic brain injury sustained during the perinatal period leaving
the child severely disabled by quadriplegic cerebral
palsy.  The
appeal concerns the estimation of life expectancy, claims that had
been settled but not awarded, the contingency
deduction percentages
applied and the downward adjustment of 50% in respect of the award
for loss of earnings.  The latter
is based on the findings that
the provincial government is obliged to maintain the child for the
rest of her days and that she
would never be able to utilise any such
damages, if awarded.  The appeal also deals eith the dismissal
of the claim for general
damages based on the finding that her
condition precludes any compensation for non-pecuniary damages, the
disallowance of the costs
of administering a trust for the benefit of
the child, the disallowance of certain items of the claim for the
costs of suit and
the dismissal of certain of the appellant’s
claims in her personal capacity, including her claims for past and
future caregiving
beyond the scope of duties of ‘normal’
parenthood.  The respondent’s cross-appeal raises the
financial constraints
of the Department of Health, Gauteng and
everyone’s constitutionally entrenched right of access to
health care services,
which is alleged to be compromised by lump sum
awards.  The respondent utilizes this as the basis for courts,
in matters such
as these, to develop the common law, and, instead of
awarding a lump sum in respect of future medical and related
expenses, to
order the payment or provision of the required medical
services and assistive devices by a defendant, such as the
respondent, as
and when they are required in the future.
JUDGMENT
MEYER
J (WEINER and MONAMA JJ concurring)
INTRODUCTION
[1]
This is an appeal and cross-appeal against certain parts of the
judgment and order of the Gauteng Local Division of the High
Court
sitting in Johannesburg (Mayat J) assessing the
quantum
of
damages that ensued because of a hypoxic brain injury sustained by
the appellant’s daughter, TM, during the perinatal period,

which left her severely disabled by quadriplegic cerebral palsy.
TM, who was born at the Chris Hani Baragwanath Hospital
on 17 March
2005, has very little voluntary functional movement and is dependent
on others for all activities of daily living.
She has no use of
words and appears to have profound mental retardation.  She
requires constant and permanent care, a variety
of therapies,
assistive devices and medical interventions and treatment of a
general and specialist nature.  She was nine
years and five
months old at the time of the trial, and is now almost twelve.
[2]
The appellant instituted the action in her personal and
representative capacities against the respondent, the Member of the

Executive Council for Health, Gauteng Provincial Government.
The negligence of certain members of staff at the Chris Hani

Baragwanath Hospital, that TM’s brain injury was caused by the
negligence and that the respondent is liable for the ensuing
damages
have been admitted.  The trial, accordingly, proceeded on the
question of the
quantum
of damages only, from 12 to 29 August
2014.  Judgment was delivered on 3 November 2014 and a revised
judgment on 14 November
2014.  The appeal and cross-appeal are
with the leave of the trial court.
[3]
The appeal concerns the estimation of TM’s life expectancy,
claims that had been settled between the parties but not awarded,
the
contingency deduction percentages applied, the downward adjustment of
50% to the award for loss of earnings (based on the findings
that the
respondent is obliged to maintain the child for the rest of her days
and that she would never be able to utilise any damages
awarded her
for loss of earnings), the dismissal of the claim for general damages
based on the finding that her condition precludes
her from being
compensated for non-pecuniary damages, the disallowance of the costs
of administering a trust for the benefit of
TM, the disallowance of
certain items of the claim for the costs of suit and the dismissal of
certain of the appellant’s
claims in her personal capacity,
including her claims for past and future caregiving beyond the scope
of duties of ‘normal’
parenthood.  The respondent’s
cross-appeal raises the financial constraints of the Department of
Health, Gauteng and
everyone’s constitutionally entrenched
right of access to health care services, which is alleged to be
compromised by lump
sum awards, such as the one that was made in this
instance.  The respondent contends that this is the basis for
courts, in
matters such as these, to develop the common law, and
instead of making lump sum awards, to order the payment or provision
of the
required medical services and assistive devices by a
defendant, such as the respondent, as and when they are required in
the future.
[4]
The appellant’s appeal aims at having the award of damages made
by the trial court increased and the respondent’s
cross-appeal
to have the trial award reduced.  The approach to be followed by
this court of appeal to the trial court’s
award of damages is
this:
‘
It is settled law that a trial
Court has a wide discretion to award, what it in the particular
circumstances, considers to be fair
and adequate compensation to the
injured party for his bodily injuries and their sequelae.  It
follows that this Court will
not, in the absence of any misdirection
or irregularity, interfere with a trial Court’s award of
damages unless there is
a substantial variation or a striking
disparity between the trial Court’s award and what this Court
considers ought to have
been awarded, or unless this Court thinks
that no sound basis exists for the award made by the trial Court.’
AA
Mutual Insurance Association Ltd v Maqula
1978
(1) SA 805
(A), at 809B-D. Also,
Singh
v Ebrahim
(413/09)
[2010] ZASCA 145
, para 148.
LIFE
EXPECTANCY
[5]
Life expectancy refers to the additional years which a person is
expected to live, as from the person’s age at the date
of
calculating the person’s expected additional years.  A
person’s expected death age is arrived at by adding
the
additional years to the person’s age at the calculation date.
(See
AD and Another v MEC for Health and Social Development,
Western Cape Provincial Government
(27428/10)
[2016] ZAWCHC 181
(7 September 2016), para 87.)  Prof Strauss, a mathematician and
statistician who has worked as a medical researcher in the
sphere of
life expectancy for many years, and Prof Cooper, a paediatrician
specialising in neonatology, were called as expert witnesses
by the
appellant and the respondent respectively to assess TM’s likely
life expectancy.  They differed in their estimations.
Prof
Strauss estimated her life expectancy at 29.2 additional years and
Prof Cooper at about 18 years.  This issue is of considerable

importance because of the effect it has on the calculation of much of
the appellant’s damages claims.
Prof
Strauss
[6]
Prof Strauss was a professor of statistics at the University of
California for almost 30 years, and a fellow of the American

Statistical Association.  He has published more than 100 peer
reviewed articles in the scientific and medical literature,
most of
these on life expectancy or related topics.  He has been
Director of the Life Expectancy Project in California since
1994, an
internationally recognised research team based in San Francisco, who
since 1980 had been focussing on statistical and
epidemiological
studies on children and adults with developmental disabilities (the
California Group).
[7]
Prof Strauss was instrumental in developing a database, the
Californian Disability Services Register, relating to individuals
who
suffer from cerebral palsy and other disabilities (the California
database).  That database, which falls under Prof Strauss’

authority, is by far the largest database of individuals with
cerebral palsy in the world.  It comprises about 300 000
individuals
from California with childhood related disabilities,
particularly cerebral palsy, but many other conditions too, such as
down syndrome,
autism and acquired traumatic brain injury.  The
California database includes more than 50 000 children with cerebral
palsy,
with very detailed information regarding their abilities,
disabilities, the severity of their disabilities (
inter alia
in
respect of walking, feeding, speech and mobility), psychiatric
problems and social issues.  Prof Strauss and his co-researchers

are essentially statisticians who estimate life expectancy for
individuals with cerebral palsy based on the information and data

extracted from the California database.  A pool or cohort is
selected of similar disabled persons of the same age, gender
and
similar functional abilities and disabilities (a stratified cohort)
for comparison in the estimation of life expectancy.
The
assessments of the persons forming part of the California database
are updated approximately annually and it is therefore possible
to
compare an individual, such as TM, with children of the same age who
currently have the same pattern of disabilities as hers.
[8]
The following description by Rogers J in
AD
(supra) of the
methodology followed by Prof Strauss is concise and accords with the
evidence in this instance:
‘
[88]
There is no mortality data on South African CP (cerebral palsy]
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.
[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 Prof 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.’
[9]
Prof Strauss’ main assumptions regarding TM for purposes of
his  assessment were that she was female, 9.3 years of
age,
suffered from cerebral palsy and:  (i) was not tube fed, did not
feed herself and must be fed completely;  (ii)
lifted her head
in prone, rolled to either side and did not consistently roll over
from front to back and back to front;
(iii) did not sit without
full support;  (iv) had little if any functional hand use;
(v) did not crawl, creep, scoot,
stand, or walk;  (vi) was
completely dependent in all activities of daily living;  (vii)
did not use words;  and
(viii) appeared to understand simple
commands.  These factors, according to Prof Strauss, are known
to be predictive of survival/mortality.
Her immobility and
inability to self-feed were strongly adverse factors for her life
expectancy.  Positive factors were her
abilities to lift her
head in prone, roll from side to side and feed orally.
[10]
The comparison group used by Prof Strauss to assess TM’s life
expectancy consisted of children of her age who have cerebral
palsy
and:  (i) were not tube fed and were fed completely by others;
(ii) lifted their heads in prone and had at least
some rolling
ability, but did not sit independently;  (iii) had little if any
functional hand use;  (iv) did not crawl,
creep, scoot, stand or
walk;  (v) were completely dependent in all aspects of their
care;  and (vi) did not speak but
had at least some
understanding of speech.  Prof Strauss noted that overall this
group captured TM’s pattern of abilities
and disabilities well
and provided a much closer match to her than any of the groups
considered in the published literature on
life expectancy in cerebral
palsy and was tailored to her specific age.
[11]
There were some positive and negative clinical factors that Prof
Strauss could not take into account, because suitable actuarial
data
was not available.  The positive clinical factors, in the
opinion of Prof Strauss, were that TM:  (i) enjoyed reasonable

general health; (ii) had a satisfactory weight (above the average for
girls of her age with comparably severe cerebral palsy);
and (iii)
she had no problems with hearing.  The negative clinical
factors, according to Prof Strauss, were that:  (i)
she suffered
from severe scoliosis, which might require surgery;  (ii) her
epilepsy had resumed after a two-year period (2011
to 2012) without
seizures;  (iii) she had dysconjugate eye-movement, even after
she had undergone corrective squint-surgery,
and was near sighted;
and (iv) she had excessive drooling, which indicated an inability to
handle secretions and therefore might
represent some risk of
aspiration.  Prof Strauss expressed the view that some
adjustment to his assessed life expectancy might
be required if the
balance of positive and negative factors were considered more or less
favourable than average among children
with comparable disabilities.
[12]
Research by the California Group showed that there was improved
survival in persons suffering from cerebral palsy from 1983
to 2002.
Specifically, improvements were found amongst children under the age
of 15 who were immobile and fed by others and
for adults who were
dependent on gastronomy.  Recent follow-up research by the
California Group indicated that the previously
observed trends of
improvement had continued for all children, though at a slower rate,
through to 2010.  This trend was taken
into account by Prof
Strauss in estimating TM’s life expectancy.
[13]
Based on United States data, Prof Strauss determined that a similarly
placed 9.3-year-old Californian girl suffering from cerebral
palsy
would have a life expectancy of 42.4% for that country (the normal
U.S. figure being 71.9 additional years).  He arrived
at a life
expectancy of 29.2 additional years (to age 38.5) by applying the
same percentage to the ordinary life expectancy of
a South African
female at age 9.3, which is 68.8 additional years (to age 78.1) in
accordance with Life Table 1 in the 2011 edition
of Robert Koch’s
Quantum Yearbook.  Prof Strauss determined that TM’s
median survival time is 26.8 additional
years.
Prof
Cooper
[14]
Prof Cooper is professor and academic head of Paediatrics and Child
Health at Charlotte Maxeke Johannesburg Academic Hospital
and the
University of the Witwatersrand.  He explained that there were
no South African experts equivalent to Prof Strauss.
Prof
Cooper, however, had studied the literature on the effects of
cerebral palsy on life expectancy.  He was also of the
view that
an estimation of the life expectancy of handicapped children needs to
be based on large databases of such children who
have been followed
for a sufficient length of time.  The two commonly used
databases that have been used to provide estimates
of survival for
individuals with cerebral palsy, according to Prof Cooper, were the
Californian Disability Services Register (Strauss
et al
) in
the USA, which is by far the largest database, and the Mersey
Cerebral Palsy Register (Hutton
et al
) in the UK.  The
data from Hutton
et al
, according to Prof Cooper, were
difficult to apply when children have already got well beyond two
years of age and were thus difficult
to use in this case where TM had
already reached 9.3 years of age.  Prof Cooper considered Prof
Strauss’ calculation
of TM’s life expectancy as 42% of
the general population to be a reasonable estimate.
[15]
Prof Cooper referred to an article entitled ‘
Survival of
Individuals with Cerebral Palsy born in Victoria between 1970 and
2004
’ by Reid
et al
(the Reid study).  The Reid
study reported on a data pool of 3 507 persons with cerebral palsy
born in the Australian state
of Victoria between 1970 and 2004 of
whom 418 were known to have died by 31 May 2010 (the Victoria
database).  The Reid study
gives survival probabilities at
various ages, for various groups and TM fitted into the most
unfavourable group as far as mortality
was concerned.
[16]
Prof Cooper expressed the view that, although the Reid study was
based on a much smaller sample than the Californian database,
the
data were based on medical records rather than information obtained
by non-medically trained people as, according to him, was
the case
with the California database, and were thus likely to be of a better
quality.  The Reid study, according to Prof
Cooper, was more
applicable to TM’s condition, because her condition arose from
the perinatal period.  The Reid study
was based on those
children whose disability dated from the neonatal period, whereas the
California database includes all those
with cerebral palsy at the age
of 9 years regardless of age of onset.  The Reid study found
that those born at term had a
lower survival rate than those born
preterm, given the same degree of handicap.  It did not find a
trend towards increased
survival over the four decades during which
the study had been conducted.
[17]
The data from the Victoria database are presented according to the
severity of disability and TM would fit into the group with
the most
severe motor disability and at least three to five additional
impairments, namely epilepsy, profound intellectual impairment
and
lack of speech.  Figure 2 from the Reid study shows that around
80% of those with this degree of disability from birth
would survive
to 9 years of age whereas only 40% would survive to 25 years of age.
The median survival for a 9-year-old in
that category would be an
additional 16 years.  Prof Cooper agreed that median survival is
not the same as life expectancy
and that an actuary needed to
translate that figure into life expectancy.  He noted that the
difference between median survival
and life expectancy on Prof
Strauss’ calculation was only 2.4 years longer.  On that
basis, according to Prof Cooper,
the data from the Reid study would
predict a life expectancy of around 18 additional years for TM.
Prof Cooper was, however,
also of the opinion that because TM had
been born at term, her life expectancy would even be less than his
estimated 18 years.
Prof
Strauss’ response
[18]
Prof Strauss took issue with certain of the comments and views
expressed by Prof Cooper.  He disagreed that the Victoria

database was likely to be of a better quality than the California
database.  He explained that the medical information in
the
California database had been obtained from medical specialists.
The functional information – such as the ability
to walk
without support – had not, but these functional items had been
specifically designed to be simple observations that
can be assessed
without medical training.
[19]
Prof Strauss disagreed that the Reid study was more applicable to
TM’s condition, because her condition arose from the
perinatal
period.  First, according to him, the vast majority of cases of
cerebral palsy were early onset.  Second, the
research data
indicated that the difference between perinatal injury and slightly
later onset was not a significant one for the
estimation of life
expectancy.  Thirdly, one major advantage of the California
database over that of the Hutton and Reid studies
was that
assessments were available at the child’s current age rather
than at a single and much earlier point in time.
[20]
Prof Strauss agreed that the Reid study found that those born at term
had a lower survival rate than those born preterm, given
the same
degree of handicap.  Hutton, according to Prof Strauss, showed a
similar result, but her comparison, in his view,
did not take account
of the severity of the disabilities.  Prof Strauss was of the
opinion that it seemed likely that amongst
children with cerebral
palsy, those who were full term births were on average more severely
disabled.  This, in his opinion,
would explain why the mortality
rate was higher amongst them.  Reid’s measures of severity
of disabilities, in the opinion
of Prof Strauss, were crude and did
not fully adjust for the various degrees of severity.  The
California Group’s research
indicated that once one had taken
the severity of disabilities fully into account, full term
versus
pre-term was not a significant factor for life expectancy.
[21]
Prof Strauss agreed that the California database was the first to
have shown a secular trend towards improved survival over
time.
It was likely, according to him, that the much larger database,
detailed information on function, and more sensitive
statistical
methods used by the California Group could reveal a trend that had
not been detected in the works of other groups.
In the Reid
study, it was concluded that ‘[c]ontrary to expectation, no
improvement in survival was seen over the 40 years
of the study’.
In this regard the following was stated:
‘
There are a number of reasons
to expect survival to have improved over the past half-century.
Vigorous treatment of infections,
scoliosis surgery, advances in
intensive care and ventilator support, better antiepileptic
medication, and a trend away from institutional
care would all be
anticipated to improve mortality.  Moreover, we now have a
better understanding of the importance of appropriate
nutritional
status in individuals with severe disability, a greater appreciation
of the risks of aspiration, improved surgical
procedures for
gastrostomy and fundoplication, and better gastrostomy feeding
techniques.  Despite those advances, most studies
have reported
no evidence of improved survival over the past two to three decades.
Only the California group has provided
evidence demonstrating
significantly better survival for children who were largely immobile
and fed by others, and adults dependent
on gastrostomy feeding.’
[22]
Prof Strauss testified that the use of the Reid study to determine
TM’s life expectancy was ‘very questionable’.

It, in his opinion, was ‘not tailored to [TM’s]
particular pattern of abilities and disabilities’.  The

category in which she fitted, in terms of the Reid study, included
children who had to be fed by a tube because of an inability
to take
food by mouth and to swallow.  Children who need gastrostomy
because they cannot feed safely by mouth, according to
him, were more
disabled than those who could feed by mouth and their life
expectancies were shorter.  Prof Strauss also pointed
out that
the Reid study did not make any distinction for a child who, although
unable to walk, could lift her head in prone and
roll from side to
side.
[23]
Prof Strauss agreed that, according to Reid’s criteria, TM
would fall into the group with severe motor disabilities and
at least
three of five additional impairments.  Prof Cooper’s
analysis based on this classification was, in the opinion
of Prof
Strauss, ‘roughly correct’.  The figures given in
Reid’s Table 2, based on survival from age 10
to age 30,
according to Prof Strauss, resulted in a median survival time of 16.7
additional years.  But he pointed out that
the data also
extended to age 40, and Reid’s figure for that age resulted in
a median of 21.6 years.  It was common
cause that the median was
generally less than the mean, which is life expectancy.  Prof
Strauss was of the opinion that the
higher mortality rates in the
group cited by Reid into which TM fell led to a larger difference
between the median and the mean
than 2.4 years, and would be about
three to four years.  Thus, the Reid study indicated a life
expectancy for TM in the range
of between 20 to 25 additional years,
which was a little lower than Prof Strauss’ estimation of 29.2
additional years.
Prof Strauss was of the opinion that the Reid
analysis did not take account of two key positive factors that were
present in TM’s
case: First, her ability to take her nutrition
orally rather than by gastronomy (adjustment for this alone would,
according to
Prof Strauss, be enough to explain the difference
between his assessment and one based on the Reid study), and second,
TM’s
mobility through rolling.  Prof Strauss was also of
the view that a further adjustment should be made to the calculation
based
on the Reid study for improved survival in cerebral palsy in
recent decades.
Trial
court’s findings on life expectancy
[24]
In rejecting Prof Strauss’ assessment of TM’s life
expectancy, the trial court found as follows:
‘
Given the fact that Strauss is
not a medical expert, it is my view that his postulations based only
upon statistical information
cannot gainsay the medically
substantiated research and inferences of the Reid study.  Thus,
the statistical analysis based
on the California database cannot
gainsay scientific research over four decades by the Reid study,
merely by virtue of the fact
that the Californian database is
larger.  Stated in another way, it was not established on a
balance of probabilities that
the variables identified by Strauss
cumulatively or individually were causally connected to [TM’s]
life expectancy.’
The
trial court accepted that the figures given in Table 2 of the Reid
study led to a median survival time of 21.6 additional years
for TM.
It then found that-
‘
[i]f one further accepts
Strauss’ initial unqualified statement to the effect that the
difference between the median survival
time and the mean (for life
expectancy) was generally 2.4 years, then it is my view that the
additional years of [TM] can be more
realistically, logically and
probably postulated to be 24 years, without taking into account any
of the positive or negative factors,
referred to be Strauss.’
The
trial court concluded by finding:
‘
Taking all the above factors
raised by Cooper into account [that TM was born full-term] as well as
the negative factors admitted
by Strauss, it is my view that the
above calculation of 24 additional years for [TM] must be adjusted
downwards to 22 additional
years.  As such, [TM’s] total
life expectancy can be postulated to be approximately 31 years.’
[25]
In my view, the trial court erred in its outright rejection of Prof
Strauss’ assessment of TM’s life expectancy.
His
eminence and expertise in the field of life expectancy was
acknowledged by the Supreme Court of Appeal in
Singh
(supra,
paras 13
et seq
of the majority judgment and paras 150
et
seq
of the minority judgment) and by different divisions of the
High Court (see
AD
(supra), paras 84
et seq
and the
NM
Mzima v MEC for Health
(unreported judgment of the South Gauteng
Local Division delivered on 22 October 2015 (Case No. 29512/2012)) as
well as in other
jurisdictions (see
Whiten v St George’s
Healthcare NHS Trust
[2011] EWHC 2066
(QB), paras 18
et seq
and
James Robshaw v United Lincolnshire Hospitals NHS Trust
[2015] EWHC 923
(QB), paras 39
et seq
).
[26]
Furthermore, as was remarked by Snyders JA in the minority judgment
in
Singh
(supra), –
‘
[153] Before statistical
evidence was available to make an estimate of life expectancy based
on statistical calculation, the courts
had to embark on making a
round estimate of what seemed fair and reasonable in the
circumstances.  This is not such a case.
[154] Strauss’ studies have
shown which variables affect life expectancy.  Voluntary motor
function, for example, has
been shown and is generally accepted as
the key determinant of life expectancy.  In the studies
conducted, Strauss specifically
controlled for the ability to
consistently and typically lift the head in prone and roll.  On
key variables good statistical
data which facilitates a more accurate
calculation, exists.  On variables like cognitive function
statistical data does not
exist, but they could and should be
factored into the assessment as positives and negatives resulting in
some adjustment.’
[27]
Prof Strauss was careful to emphasise that it was for the court, with
the help of medical professionals, to determine whether
an adjustment
should be made for the positive and negative clinical factors which
he could not factor into the assessment, because
of the
unavailability of suitable actuarial data.  He also emphasised
that the appropriate South African Life Table to use
was ‘a
matter for the parties and/or the Court to determine.’
The opinions advanced by Prof Strauss, in my view,
were founded on
logical reasoning (see
Michael and Another v Linksfield Park
Clinic (Pty) Ltd and Another
2001 (3) SA 1188
(SCA), paras
34–40).   His reasoning and the opinions advanced by
him convincingly refuted the conflicting views
that the Victoria
database was likely to be of a better quality than the California
database, that the Reid study was more applicable
to the calculation
of TM’s life expectancy because her condition arose from the
perinatal period, that her life expectancy
would probably be less
because she was born full term and that the secular trend towards
improved survival over time as showed
in the California database
should not have been taken into account in estimating her life
expectancy.  Prof Strauss convincingly
showed that the
predictors of mortality used in the Reid study were, in certain
material respects, not tailor-made for TM’s
particular pattern
of abilities and disabilities.  By contrast, Prof Strauss had
access to the much larger California database,
detailed information
on function, and sensitive statistical methods used by the California
Group.  His comparison included
a large cohort of disabled
children of the same age and gender and with similar severity
profiles to those of TM.
[28]
Furthermore, Prof Strauss did not express the view that the
difference between the median survival time and the mean was always

2.4 years.  He expressly pointed out that the higher mortality
rates of the group cited by Reid, into which TM fell, led to
a larger
difference between the median survival time and the mean than 2.4
years, and would be about three to four years.
The trial court
was accordingly wrong in accepting that the difference between the
median survival time and the mean in a calculation
of TM’s life
expectancy based on the Reid study was 2.4 years.
[29]
The question now is whether an adjustment should be made for the
positive and negative clinical factors which Prof Strauss
could not
factor into the assessment of TM’s life expectancy.  Dr
Lippert, a paediatric neurologist, furnished written
comments on the
positive and negative clinical factors raised by Prof Strauss and
some of them were addressed in his oral evidence.
The fact that
TM had no problems with hearing was in his opinion ‘a very
minor point in estimating life expectancy’.
Much
weightier was the commitment of her parents to nurse and tend to her
and her access to quality medical care.  Dr Lippert
was of the
view that her epilepsy was unlikely to influence or affect life
expectancy ‘much’ in her case, if attended
well.
Regrettably, no reasons for his opinion were advanced nor was
epilepsy as a predictor of mortality in individuals with
cerebral
palsy canvassed with him when he testified.  He expressed the
view that TM’s near sightedness was unrelated
to her condition
and brain damage.  She also had abnormal eye movements, even
after she had corrective squint-surgery, and
central or cortical
visual impairment because of damage to her brain.  Dr Lippert
was of the opinion that the possibility
of her visual impairments
affecting her life expectancy was remote.  In regard to
excessive drooling, he agreed that this
might be a negative factor in
terms of life expectancy if it was caused by tongue thrusting and by
weakness of the ability to clear
the throat and swallow well (her
tongue did not have the coordinating ability to interiorise food, it
was inept), but that it would
have less of an impact if it was caused
by an inability to close her mouth or seal her lips because of a
motoric disability.
He placed TM in the ‘moderate to
better category’ as far as the risk of aspiration pneumonias
was concerned.
[30]
Dr Versfeld, a specialist orthopaedic surgeon, was of the opinion
that TM’s scoliosis was ‘somewhere between moderate
and
severe’.  If untreated, in his opinion, it would adversely
affect her life expectancy:  First, from a functionability
point
of view;  and, second, if the spinal curve gets too large, it
would ultimately negatively impact on her respiratory
function.
She required surgery to correct her spine.  Surgery, according
to him, would improve the functionability of
both her upper and lower
limbs, she would be better off with sitting and standing and her lung
function would be protected.
Surgery, in his
opinion, ‘would be somewhere between a small and medium size
intervention’ and TM ‘would sustain
the surgery well’,
the chances that the surgery would be successful ‘are very
high’ and the ‘risk of complications
is low here’.
The respondent did not lead any evidence to contradict the medical
opinions of Dr Lippert or Dr Versfeld
in relation to the positive and
negative clinical factors raised by Prof Strauss.
[31]
The Reid study found epilepsy to be amongst the predictors of
mortality for individuals with cerebral palsy and it found
respiratory
causes (pneumonia, respiratory failure, influenza or
lower respiratory tract infection, pneumonitis due to food and vomit,
obstruction/asphyxiation
from a foreign body, and other respiratory
causes such as asthma and acute bronchiolitis) to be the most common
direct causes of
death.
[32]
In his medico-legal report, Prof Strauss stated the following
regarding scoliosis as a predictor of mortality:
‘
A potential concern here is the
severe scoliosis, which in some cases becomes a life-threatening
condition.  The research literature
suggests that if successful
surgery occurs then the long-term excess mortality rate is minimal,
but if for some reason the needed
surgery does not occur then the
mortality risks are very high.  It may be that this issue
deserves further consideration.’
[33]
I have no reason to doubt that TM will receive the required surgery
for her severe scoliosis and that the surgery would probably
be
successful with a low risk of complications.  The adverse impact
of scoliosis on her life expectancy, therefor, seems minimal.

But her epilepsy and her risk of aspiration indicate that a downward
adjustment should be made to the life expectancy of 29.2 years

estimated by Prof Strauss.  The unanimous decision of the
Supreme Court of Appeal in
Singh
(supra), paras 65 and 199,
was that the South African 1984/1986 life tables, although out of
date, were still the best available
and they were thus applied to the
assessment of the life expectancy of the child in that case.
Therefore I propose to apply
the 1984/1986 life tables to the
assessment of TM’s life expectancy, which results in a further
downward adjustment of Prof
Strauss’ estimation, and to follow
Rogers J in
Du Toit
(supra), paras 176-197, in making a
further downward qualitative adjustment based on the more recent
information and data that became
available after the 2010 census and
Statistics South Africa (SSA) in 2015, producing male and female life
expectancies at birth
for persons not at risk of HIV/AIDS.
[34]
Thus, my assessment arrives at a life expectancy of about 26
additional years for TM.  The difference of four years between

my assessment and the trial court’s estimate of 22 additional
years does not warrant interference in a matter that is essentially

speculative.  (See
Singh
(supra), para 66.)
SETTLED
ITEMS OF TM’s CLAIM FOR FURURE MEDICAL AND RELATED EXPENSES NOT
AWARDED
[35]
During the course of the trial the parties settled numerous items
included in the appellant’s claim for TM’s future
medical
and related expenses, in most instances subject only to a calculation
based on the life expectancy of TM as determined
by the court and the
defence raised by the respondent in respect of the lack of financial
resources.  The parties recorded
the settled items in a list of
some 60 pages, which they submitted to the trial court (the
compromise).  The trial court,
however, despite its
determination of TM’s life expectancy and its rejection of the
respondent’s defence of lack of
financial resources, excluded
many items that were settled between the parties from the award it
made in respect of TM’s
future medical expenses.  The
items which were agreed, but not awarded (items 5, 7-9, 13, 15-18,
20.1-20.3, 22-23, 51-52,
54-55, 72-90, 91.1-91.29, 92-97, 99 and 101
listed in the compromise), can be grouped roughly into items relating
to psychiatric
treatment, urological treatment, orthotics, speech
therapy and occupational therapy up to the age of 18 (the agreed but
excluded
items).   The undisputed total cost of the agreed
but excluded items, actuarially calculated on a life expectancy of 22

years, is the sum of R3 002 748.00.
[36]
The parties also agreed that TM should be awarded a ‘Rodeo’
mobile positioning chair, to be replaced in four years
for the next
size up, and thereafter in eight years for the next size up, and for
its upholstery to be replaced every two years,
except in the years of
replacement of the Rodeo mobile positioning chair (the Rodeo
wheelchair).  (This aspect of their agreement
is listed in items
67 and 68 of the compromise.)  The trial court accepted the
evidence that TM would require the Rodeo wheelchair,
which provides
good pelvic and spinal posture, and for it to be replaced twice.
The court then awarded a rounded off amount
of R30 000.00.
However, the undisputed total cost of the Rodeo wheelchairs,
including the upholstery replacements, actuarially
calculated on a
life expectancy of 22 years, is R179 186.00.
[37]
Hlobo v Multilateral Motor Vehicle Accidents Fund
2001 (2) SA
59
(SCA) concerns a compromise agreement that was made an order of
court.  Therein, Plewman JA said the following:
‘
[10]  The proper approach
to the question, in my view, should have been as follows.  A
compromise (or
transactio
)
arrived at between litigants is a well-established measure.  Our
courts encourage parties to deal with their disputes in
this way and
the rules decree that compromises must be sought.  When
concluded such a compromise disposes of the proceedings.
Estate
Erasmus v Church
1927 TPD
at 23.’
[38]
Slabbert v MEC for Health and Social Development, Gauteng
(432/2016)
[2016] ZASCA 157
(3 October 2016) also concerns a
compromise agreement that was made an order of court.  Therein,
Potterill AJA said the following:
‘
[7]  An agreement of
compromise creates new rights and obligations as a substantive
contract that exists independently from
the original cause.  The
purpose of a compromise is twofold: (a) to bring an end to existing
litigation and (b) to prevent
or avoid litigation.  When a
compromise is embodied in an order of court the order brings finality
to the lis between the
parties and it becomes
res
judicata
.  The court
order changes the terms of a settlement agreement to an enforceable
court order – through execution or contempt
proceedings.
Thus, litigation after the consent order will relate to
non-compliance with the consent order and not
the underlying dispute.
[8]  This being said, a
transactio
(compromise) is made by consent between parties and
like any contract or order of court made by consent, it may be set
aside on
the ground that it was fraudulently obtained. It may also be
set aside on the ground of
justus error
, ‘provided that
such error vitiated true consent and did not merely relate to motive
or to the merits of a dispute which
it was the very purpose of the
parties to compromise.’  A compromise agreement may also
be set aside if the parties
to the agreement laboured under a common
mistake.  However, a unilateral mistake on the part of one party
that does not flow
from a misrepresentation by the other does not
allow for the former party to resile from a consent agreement.  The
question
thus is whether one of these grounds exists for the MEC to
resile from the compromise agreement.
. . .
[16]
The court a quo was correct that a court cannot ignore facts
placed before it, but these facts must sustain one of the
established
grounds on which a compromise agreement can be rescinded.  Although
a High Court has inherent discretion, it can
never exercise it
against recognised principles of substantive law. Our constitutional
dispensation does not afford courts a carte
blanche to ignore
substantive law and grant orders couched as being in the ‘interests
of justice’.  Moreover,
certainty and finality are key
elements of justice. Parties to a compromise agreement accept an
element of risk that their bargain
might not be as advantageous to
them as litigation might have been.  This element of risk is
inherent in the very concept
of compromise.  It, however, does
not afford parties the right to go back on the bargain for unilateral
mistakes. Settlement
agreements have as their underlying foundation
the benefit of orderly and effective administration of justice.
Courts cannot allow
for consent orders to be set aside for reasons
not sanctioned by applicable legal principles.’
[39]
The trial court, therefore, exercised its discretion against
recognised principles of substantive law.  It did not have
a
discretion to exclude the agreed items from the award for TM’s
future medical and related expenses in circumstances where
there was
no justification in law to set aside the compromise.  No facts
were placed before the trial court to sustain one
of the established
grounds on which a compromise can be rescinded.
[40]
The additional sum of R2 702 473.20 (the total cost of the agreed but
excluded items in the sum of R3 002 748.00 minus a 10%
contingency
deduction in the sum of R300 274.80, which contingency deduction
counsel for the appellant agreed would be fair in
all the
circumstances and counsel for the respondent did not argue otherwise)
plus the additional sum of R131 267.40 (the total
cost of the Rodeo
wheelchairs, including the upholstery replacements, in the sum of
R179 186.00 minus a contingency deduction of
10% in the sum of R17
918.60 and minus the sum of R30 000.00 awarded by the trial court)
must be added to the sum of R12 470 738.00,
which the trial court
awarded in respect of TM’s future medical and related
expenses.  The total sum to be awarded in
respect of TM’s
future medical and related expenses, therefore, is the sum of R15 304
478.60.
CONTINGENCIES
[41]
The trial court applied contingency deductions to TM’s future
medical and related expenses.  The deductions were
10%, 15%, 25%
(in a few instances) and 40% (in one instance).  The trial court
did not furnish reasons for its application
of contingency deductions
and the different percentages.  We were informed by counsel for
the appellant (and counsel for the
respondent did not take issue with
him on this), that the relative average is 14.8%.  The appellant
appeals the contingency
deductions of 25% and the one of 40%.
The appellant does not contend for nil contingency deductions (except
in the instance
where the trial court applied the 40% deduction to
the award for house adaptations to make it wheelchair accessible and
to accommodate
a live-in carer and a therapy room), but that the
contingency deductions of 25% should be reduced to 10%.
[42]
The application of contingency deductions ‘. . . is essentially
a matter of judgment resting on the judge’s view
of the
likelihood of the expenses allowed actually being incurred’
(
Singh
(supra), para 74).  The trial court in
Singh
(
Singh and another v Ebrahim (1)
[2010] 3 All SA 187
(D),
para 107) held that-
‘
[a]djustment should be made as
part of a suitable contingency for the following:
(a)
that the maximum tariff may
have been applied in some instances;
(b)
that the effectiveness of some
of the therapies may be questioned;
(c)
whether the therapies will
continue for the full proposed program, also in view of the relative
lateness with which some of the
therapies have been commenced with N;
(d)
the concern whether some of the
therapies will be carried out with the diligence with which they have
been claimed (although this
might require merely a minor adjustment);
(e)
the difficulties of fitting in
all the therapies as N’s position might change from time to
time;
(f)
the possible interruption of
certain therapies if no benefit is to be gained from the continued
application thereof;
(g)
to make allowance for some
break (but not 12 weeks) per year;
(h)
It must also be remembered that
N’s performance fluctuates from day to day which will enable
him to fit in less therapy in
some days and more in others.
Miss Hattingh testified that what he can do one day he will not
necessarily be able to do the
following day (balancing therapy which
is of a physical nature with therapy of a more academic nature could
possibly go some way
in addressing this difficulty).’
[43]
The Supreme Court of Appeal did not interfere with the discretionary
decision of the trial court in
Singh
.  In this regard
Conradie JA, para 74, said the following:
‘
Judging by the therapeutic aids
he has been given thus far, there is a distinct prospect that Nico
will not be given all the aids
for which provision has been made.
I also share the judge’s view that Nico will probably not have
the time or energy
to fit in all the many therapies provided for and
moreover he is now four years older and some of the therapies will no
longer
assist in improving his condition.’
[44]
I am of the view that interference by this court with the
discretionary decision of the trial court to apply a 25% contingency

deduction to some of the items comprising its award for TM’s
future medical and related expenses, is not warranted.
The
factors that were taken into account in
Singh
in making the
adjustment as part of a suitable contingency also apply in this
case.  TM has been given a multitude of therapeutic
aids and
there is also a distinct prospect that all the expenses allowed will
not actually be incurred.
[45]
In support of the claim for house adaptations in the sum of
R1 250 900, the appellant relied on the report of an

architect, Mr Len Eybers, which report was admitted by the
respondent.  The respondent also admitted liability for the
reasonable
costs of house adaptations, subject to the defence
relating to  the lack of financial resources.  The trial
court held
as follows:
‘
As regards the future costs of
adapting a notional home, specifically tailored for [TM], it appeared
from all the evidence that
[TM’s] parents are comfortably
settled in their present home with [TM] as well as her brother.
Her parents do not suggest
moving out of the family home, which they
have purchased and their home is also conveniently located near
Pathways [the care centre
TM attended].  However, I also
appreciate that the family home may possibly require certain
adaptations as [TM] grows.
As such, I intend to grant damages
for the estimated costs of a future notional, ideal home recommended,
subject to a large contingency
deduction of 40%.  Both actuaries
computed this amount to be R750 000, after deduction of the stated
contingency allowance
as directed by me.’
[46]
Although not said in so many words, it seems that the trial court
applied a much higher contingency rate to the claim for house

adaptations because of its view of the real likelihood of the expense
or a great part thereof, if awarded, not actually being incurred.

I do not believe that this court should interfere with that
discretionary decision.  Furthermore, the amount claimed was
based on costing that was estimated by an architect and not
calculated by a quantity surveyor.  In his report Mr Eybers
designed
a notional house to which he added the additions for the
requirements of TM and he estimated the costs of the additions.
His estimates were based on ‘an architectural square meter
basis’ and he stated that ‘[i]f more detailed and
specialised costs calculations and estimates are required on a
measured basis, deference is made to a quantity surveyor.’
The
amount claimed also does not seem to me to be reasonable in its
entirety.  (See the judgment of the trial court
in
Singh
(supra), paras 135-148, where an amount of R61 500.00 was allowed
for house adaptations.)  It would be unreasonable to expect
the
respondent to pay for items, such as the ‘overhead track
system’ at an estimated cost of R219 863,81, which is
included
in Mr Eybers’ total estimated cost.  The overhead track
system, according to Mr Eybers, is a system-
‘
. . . that allows one
person/helper to lift or lower [TM] by operating a keypad attached to
the motor hoist.  When [TM] is
at the correct height in the
sling, she can be conveniently pushed to any position between the
fixed beams in the Therapy room,
Bedroom 4, and Bath 3.  Once
she is in the correct position above the bed, toilet, bath, basin,
shower and even her wheelchair,
she then can be conveniently lowered
with the motor hoist.’
LOSS
OF EARNINGS
[47]
The industrial psychologists, Ms Donaldson and Mr Marais, who were
called as expert witnesses by the appellant and the respondent

respectively, were
ad idem
that, but for her disabilities, TM
would probably have achieved matric and a three-year diploma or
degree qualification.
According to Ms Donaldson’s
postulation, TM would have entered the work force at a lower salary
than that commanded by her
qualifications, to get a foot in the
door.  She postulated an entry level salary commensurate with
the Paterson C4 job grading,
with straight line increases to the C4
level, reaching a peak in her career at age 45 and thereafter
inflationary increases until
retirement at age 65.  Mr Marais
postulated an entry level salary commensurate with the Paterson job
grade level B2/B3, moving
upwards every four years to the 50
th
percentile of each level, reaching a ceiling at the C4 level at age
45 and thereafter inflationary increases until retirement at
age 65.
[48]
The trial court, correctly in my view, considered a median between
the postulations of Ms Donaldson and Mr Marais appropriate
for the
quantification of TM’s loss of earnings.  Based on a
diminished life expectancy of 22 years and the assumption
that TM
would not have been promoted during her expected working life of a
few years, the trial court awarded the sum of R1 500 000

for TM’s loss of earnings, less a 50% contingency deduction,
resulting in a net award of R750 000.  In arriving
at the
percentage of the contingency deduction, the trial court said the
following:
‘
The relevant contingencies in
this respect are the hazards of life including unemployment, illness,
errors in the estimation of
earnings and life expectancy, early
retirement as well as other hazards of life.  In addition, for
reasons already given I
am of the view that a further downward
adjustment must be made to take account of the fact that the
defendant is obliged to maintain
[TM] for the rest of her days in an
amount far in excess of any salary, which [TM] would probably have
earned for the duration
of her expected life time.  A relevant
consideration in relation to my discretion in this respect, as
already stated, is the
reality that [TM] will never be able to
utilise any damages awarded her for loss of income, either directly
or indirectly.
This is particularly so as her needs and
requirements, as set out above, will be paid by the defendant.’
[49]
The trial court’s finding that the respondent is obliged to
maintain TM for the rest of her days is factually and legally

incorrect.  The respondent is by virtue of the delict committed
against TM obliged to compensate her for the damages she incurred,

particularly her general damages, her medical and related expenses
and her loss of income.  There is no duty in law on the

respondent to maintain her for the rest of her days.  The trial
court’s finding that TM ‘will never be able to
utilise
any damages awarded her for loss of income, either directly or
indirectly’, has no factual basis either.  The
damages
awarded for her loss of earnings may well be used for her support,
and will probably be so used beyond the years of parental

responsibility.
[50]
The trial court’s large contingency deduction of 50% is also
substantially out of general accord with the contingency
deductions
previously applied in comparable cases.  In
Singh
(
Singh
and another v Ebrahim
(8027/2004)
[2008] ZAKZHC 112
(30 July
2008), para 9) diminished life expectancy was assessed, and, in
awarding damages for loss of earnings, Koen J applied
a contingency
deduction of 15%.  In
AD
(supra), paras 586-599, Rogers J
considered a number of decided cases and the factors to be taken into
account, also that the child’s
life expectancy of 48 additional
years was significantly longer than that of the child in
Singh
,
and a contingency deduction of 17,5% was applied to the minor child’s
award for loss of earnings.
[51]
I agree with counsel for the appellant that it would be fair and
appropriate for this court to apply a 20% contingency deduction
to
TM’s estimated loss of earnings.  We requested the parties
to furnish us with actuarial calculations
inter alia
on the
basis of a life expectancy of 22 additional years from 14 November
2014 and in which the postulations of Ms Donaldson and
of Mr Marais
are averaged.  The appellant obtained such actuarial
calculations from the actuary, Mr GA Whittaker, and the
respondent
did not take issue with his calculations.  TM’s loss of
income was calculated in the sum of R1 312 495 (R1
640 619 less 20%
contingency deduction in the sum of R328 124), which is the amount I
propose to award.
GENERAL
DAMAGES
[52]
TM is permanently disabled and has a diminished life expectancy.
In short, she has severe and irreversible brain damage,
very little
voluntary functional movement and is dependent on others for all
activities of daily living.  She has no use of
words and appears
to have profound mental retardation.  She has abnormal eye
movements and visual impairments, is unable to
feed herself, at risk
of aspiration pneumonias, is doubly incontinent and an epileptic.
She has scoliosis and severe spasticity
of her muscles, which is
painful and results in contractures for which surgery is required.
She is prone to developing significant
psychological and psychiatric
disorders.  She requires constant and permanent care, a variety
of surgical interventions, medical
treatments, therapies and
assistive devices.  It requires no elaboration that TM has
suffered a devastating loss of the normal
amenities of life.
[53]
The trial court, however, dismissed the claim for compensation for
TM’s general damages, that is to say damages for pain
and
suffering and loss of amenities of life.  In finding that TM was
not entitled to compensation for her non-pecuniary damages,
the trial
court relied on the decision in
Collins v Administrator Cape
1995
(4) SA 73
(CPD).  The plaintiff in that case was the father of a
baby of 16 weeks who was a patient in the paediatric tracheostomy
unit
of the hospital in question where she sustained irreversible
brain damage as a result of the displacement of a tracheostomy tube

on which she was dependent for ventilation.  The duration of the
cerebral hypoxia was such as to result in irreversible brain
damage.
The hospital staff was found to be negligent in failing promptly to
replace the tube.  After an initial prolonged
coma the child
passed into a permanent vegetative state, which would remain for the
rest of her life, estimated at the time of
the trial to be another
two to seven years.  The child was unable to see or to swallow;
had no awareness of environmental
stimuli or pain nor any apparent
awareness of herself.  She was found ‘in every respect a
“cabbage” case’.
[54]
Scott J pointed out that ‘[t]he problem of how to compensate
persons in such a condition (frequently referred to in the
cases as
the “unconscious” plaintiff) has been the subject of much
debate and difference of judicial opinion’
and he then reviewed
the position in England, Australia, Canada, Germany, the Netherlands
and in our law.  Scott J
inter alia
said the following:
‘
Where, as a result of injury, a
plaintiff is mentally retarded even to the extent that he may have no
insight into his loss, provided
only that he has awareness, an award
of non-pecuniary damages can be utilised for his benefit even if the
expenditure is frivolous
and does no more than amuse him.  Where
the plaintiff is unconscious and all his physical needs have been
taken care of, the
truth of the matter is that it is not possible to
compensate him for his loss.  It is like paying a dead person
money in order
to compensate him for the loss of his life.’
Scott
J held that the plaintiff in that case was not entitled to an award
of non-pecuniary damages.  In conclusion he said
the following:
‘
In the circumstances of the
present case, however, any award would not only serve no useful
purpose, it would serve no purpose at
all, whether useful or
otherwise.  The claimant, by reason of her condition, is in
truth, incapable of being compensated by
a monetary award.’
[55]
But the present case does not concern an unconscious claimant.
TM is not in a vegetative state nor would she, by reason
of
unconsciousness, not be able to derive any advantage from an award of
non-pecuniary damages.  I need only refer to the
evidence of
TM’s mother and father as was correctly and concisely set out
in the judgment of the trial court.  Her mother
testified-
‘
. . . that although [TM] is not
able to communicate verbally, she appears to be aware of her
surroundings.  She has relatively
good vision and her hearing is
intact.  She is capable of understanding some English, Southern
Sotho and Zulu.  She is
also capable of making certain sounds,
such as moaning.  She can smile, laugh out loud, and become very
excited on certain
occasions, such as when she sees one of her
parents. . . . When she is fed at home, she sits on the lap of one of
her parents.
At school she is fed whilst sitting in her buggy.’
And
further:
‘
Despite her severe
disabilities, the plaintiff indicated that [TM] is alert and able to
recognise some objects and pictures.
She is also aware of the
functional uses of some objects and is able to convey certain choices
to her parents, including her choice
of food.  She also cries
when she is upset.  She enjoys activities such as horse riding,
swimming, swinging in a hammock,
kicking her legs and being on the
trampoline.  She enjoys some music.  She laughs if her
parents laugh or gesture to
her in a certain way.’
Her
father-
‘
. . . also confirmed that he
takes [TM] to school every day.  He indicated that he generally
arrives home from work by 6 pm
about three times a week to assist
with feeding [TM] and to play with her.  He explained in this
respect that [TM] had to
be positioned properly, before she can be
fed.  It was also his testimony that as [TM] has grown, only he
can effectively
carry her.  He also tries to make time to play
with [TM] as well as her brother.  He indicated in this regard
that [TM]
loved playing on the trampoline and that she also likes
“playing soccer”, if he held her up and “walked
with
her”.’
[56]
As was stated by Rogers J in
AD
(supra), para 618:
‘
Money
cannot compensate Imaad for everything he has lost.  It does,
however, have the power to enable those caring for him
to buy 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 . . . .’
[57]
Taking all things into account as well as the past awards for general
damages in similar cases, such as
Singh
(Koen J awarded R1,2
million which would be more than R1,8 million today, if updated),
AD
(Rogers J awarded R1,8 million) and the authorities referred to
by Rogers J (paras 614-617), I consider R1,8 million to be a fair

award for general damages in this instance.
CREATION
AND COSTS OF ADMINISTERING THE TRUST
[58]
The trial court found that the establishment of a trust for the
benefit of TM was necessary for the protection of TM’s
funds
and that it was ‘just and appropriate for a trust to be formed
with [TM’s] parents and a banking trust of a major
bank as
trustees.’  The trial court’s order in this regard
reads thus:
‘
The plaintiff’s attorney
of record “Joseph’s Incorporated” is directed to
establish a trust from the award
in terms of 1(b) above to a trust
for [TM], less the attorney and own client costs of the said
attorneys as well as disbursements
relating to [TM’s] claim.
The said trust is to be created within one month of the date of this
order, with [TM’s]
parents, the plaintiff and [NM] as well as
the Trust Division of Nedbank Limited as trustees.  The said
trust shall have as
its primary objective the maintenance of [TM]
during her lifetime.’
[59]
The trial court also ordered the respondent to pay the reasonable
costs of establishing a trust.  But no order was made
in respect
of the costs of administering the trust.  The trial court
proposed the Trust Division of Nedbank as one of the
trustees on the
assumption that Nedbank, being the appellant’s employer, would
render its trust services free of charge.
There was, however,
no evidentiary basis for the assumption.  Also, the appellant
and her husband did not and presently still
do not wish to be
trustees and I do not believe that it would serve the best interests
of TM if they were compelled to assume the
specialist duties of
trustees of such a trust for the benefit of TM.  The appellant
proposed that Mr Wilsnach, who was called
as a witness at the trial,
administer the trust.  He is an attorney who qualified in 1982
and he specialises in the administration
of trusts and estates.
The professional entity through which he practices was managing 281
trusts involving funds of about
R370 million at the time when he
testified before the trial court.
[60]
That TM’s award should be paid into a trust to be administered
for her benefit, the appointment of Mr Wilsnach as the
sole trustee
and the wording of the revised trust deed proposed by the appellant
and attached to her notice of appeal, are not
in issue before us.
Presently in dispute is whether the ten percent claimed by the
appellant in her representative capacity
from the respondent for the
costs of creating and administering the trust should be calculated on
the capital amount awarded to
TM, as contended for by the appellant,
or on the balance that is ultimately paid over to the trust, as
contended for by the respondent.
[61]
I am of the view that the ten percent claimed for the costs of
creating and administering the trust should be calculated on
the
capital amount awarded to TM.  First, the ten percent claimed on
the capital amount awarded to TM was calculated with
reference to
the fees charged by Mr Wilsnach, which, on his undisputed
evidence, is lower than those charged by major banks.
Second,
the costs of furnishing security, which is included in the amount
claimed by the appellant, is substantial.  Third,
as Conradie JA
said in
Singh
(supra), para 100, a calculation of the
trustee’s remuneration on the balance that is ultimately paid
over to the trust, would
give rise thereto ‘. . . that the
extent of a defendant’s liability to pay a percentage of a
trustee’s fees would
not be known until the amount paid over to
the trust has been established . . .’ and that ‘. . . the
amount actually
administered in the trust is likely to vary over the
years of the trust’s existence.’  Fourth, in
deciding on
a fair and just order to be made in respect of the costs
of administering the trust for the benefit of TM, I also bear in mind
that there was no legal obligation upon the appellant to include the
claw-back provision into the trust deed that she proposed for
the
repayment to the respondent of any portion of the ring-fenced
‘medical fund’, which benefits only the respondent

without any concomitant benefit to TM, such as in the form of a
top-up provision.
COSTS
OF SUIT
[62]
The appellant appeals the trial court’s costs order to the
extent that the costs of Dr Choonara’s medico-legal
report and
attendance at court, the costs of Prof Strauss’ return flight
from San Francisco to Johannesburg and the costs
of preparing heads
of argument at the request of the trial court, were not included.
The only dispute raised before us, as
far as these three items is
concerned, is whether the respondent should be liable for the costs
of a business class or economy
flight ticket for Prof Strauss.
Although the decision to afford Prof Strauss the comfort of business
class cannot be criticised,
it would, in my view, be unreasonable to
expect the respondent to pay for the luxury.
MOTHER’S
PERSONAL CLAIMS
[63]
The trial court awarded the sum of R313 190 as damages to the
appellant in her personal capacity in respect of her past hospital

and medical expenses (R261 190) and in respect of the expenses she
incurred in employing a caregiver to look after TM (R52 000).

In issue is the trial court’s refusal to award damages to the
appellant personally in respect of her claims for future medical

expenses, general damages for shock and trauma as well as loss of
amenities of life (she claimed the sum of R350 000), for past

caregiving beyond the scope of duties of ‘normal’
parenthood (she claimed the sum of R432 000 calculated at R4000 per

month for nine years) and future caregiving and case management
beyond the scope of duties of ‘normal’ parenthood (she

claimed the sum of R600 000 calculated at R5000 per month for ten
years during TM’s adulthood).
[64]
The appellant claimed the sum of R50 000 for psychological
counselling, psychiatric care and the costs of anti-depressants.

The trial court indicated that it intended ‘to grant damages in
the sum of R120 000 in another context for what is termed
“directive
therapy for both [TM’s] parents at Pathways”’ and
concluded that ‘damages for future psychiatric
care as well as
future psychological counselling for the plaintiff in the sum of R50
000 has not been established.’
The trial court’s
reasoning was as follows:
‘
Whilst Grinaker reported a
profound sense of sadness on the part of the plaintiff, and whilst
the plaintiff gave moving testimony
relating to her feelings about
[TM’s] circumstances, the plaintiff did not indicate that she
was depressed at all.
Therefore, even though the plaintiff
poignantly described how she would never see [TM] pass the milestones
normal daughters go
through, (such as bringing home her first
boyfriend or getting married), the plaintiff did not at any stage of
her testimony suggest
that she was permanently depressed.  This
was confirmed by Grinnaker’s report, which merely indicated
that there was
a certain level of depression, which continued to wax
and wane for both of [TM’s] parents.  It can of course be
plausibly
assumed in this respect that this level of depression is
normal for most people.  Therefore, Grinaker concluded that it
did
not appear to him that either parent was depressed to the point
that psychiatric treatment with psychotropic medication, such as

anti-depressive medication was required.  His allowance for
future psychological counselling for the plaintiff despite his

conclusion in this respect is accordingly at odds with the evidence
before the court relating to the admirable fortitude, dedication
and
commitment of both [TM’s] parents, without any sign of
depression.’
[65]
I am unable to fault the trial court’s reasoning in this regard
and I agree that damages for future psychiatric care
and
psychological counselling for the appellant had not been established
on a balance of probabilities.
[66]
In rejecting the appellant’s claim for general damages, the
trial court found, in the first instance, that there was
‘no
evidence suggesting shock or trauma’ on the part of the
appellant.  This finding is challenged before us based
on the
following evidence of the appellant:  That TM was immediately
taken from the appellant after she had been born and
not brought to
her the next day when other new-born babies were taken to their
mothers.  The appellant suspected that something
was wrong and,
accordingly, spoke to a certain medical doctor, who explained to her
that TM had suffered brain damage.  The
appellant thereafter
experienced emotions of denial, then guilt, which turned into anger
once it had become apparent that TM’s
condition had been caused
by the negligence of members of staff at the hospital.  The
appellant testified that as time went
by the situation had become
worse and not better;  TM grew taller and eventually only her
father was able to carry her.
She felt a deep sense of sadness
for not always knowing what TM wanted and that the two of them would
never be able to confide
in each other.  She expressed concern
when TM reaches puberty and said that dealing with her was a
‘continuous adjustment’.
[67]
There is no evidence that the appellant, as a result of the
negligence of the staff at the hospital, had sustained detectable

psychiatric injury.  Whether such an injury had been sustained
is a question that falls to be answered through the expert
evidence
of psychiatrists.  (See
Bester v Commercial Union
Versekeringsmaatskappy
1973 (1) SA 769
(A), at 776D-779H;
Barnard v Santam Bpk
[1998] ZASCA 84
;
1999 (1) SA 202
(SCA), at 208H-217A;
Hing and Others v Road Accident Fund
2014 (3) SA 350
(WCC),
paras 14-30.)
[68]
I accept that the evidence established that the accident and its
consequences caused the appellant (and TM’s father)
much grief
and sorrow.  But, as was held by the trial court, such grief and
inevitable bereavement is not actionable.
Scott J in
Collins
(supra), at 94G-I, said the following:
‘
I have much sympathy for
[Lee-Ann’s parents].  The accident and its consequences
must have caused them much grief and
sorrow.  But they do not
claim damages for their grief and inevitable bereavement.  Nor
as a matter of policy, could
such a claim ever, I think, be
entertained.  The social burden would be too great.
Whatever the position may be in England
or for that matter in any
other country, the funds available in South Africa will not stretch
that far.  It is common knowledge
that the hospital authorities
are desperately short of money.  Free medical treatment has
recently been afforded to all children
under the age of six years.
. . .  All this costs money.  The same is true in the case
of other public bodies which
are defendants in actions arising out of
bodily injuries.  As sympathetic as I am to Lee-Ann’s
parents, I can see no
justification for indirectly awarding them
damages for their bereavement.’
[69]
The trial court also held that the appellant did not suffer a loss of
amenities of life that would entitle her to general damages.
In
this regard, it said the following:
‘
Notwithstanding
the enormous sacrifices the plaintiff has made in her social life as
well as other areas of her life, and notwithstanding
the obvious
heartache felt by her, it is my view that the evidence before this
court has not established any loss of amenities
of life in the way
described by Hoexter J.  Therefore, even though [TM’s]
mental and physical limitations (including
severe limitations to her
vital functions and faculties) have included a profound sense of
sadness in the plaintiff, the plaintiff’s
own body and mind
have, of course, not been directly compromised by [TM’s]
injury.  Unlike her daughter, the plaintiff
herself is able to
walk, run, sit and stand unaided.  She is also able to bath,
dress and feed herself unaided.’
[70]
The description of the amenities of life by Hoexter J to which the
trial court referred, appears in
Administrator-General, South West
Africa v Kriel
1988 (3) SA 275
(A), at 288E-F:
‘
The amenities of life may
further be described.  I consider, as those satisfactions in
one’s everyday existence which
flow from the blessings of an
uncluttered mind, a healthy body, and sound limbs.  The
amenities of life derive from such simple
but vital functions and
facilities as the ability to walk and run, the ability to sit and
stand unaided;  the ability to bath,
dress and feed oneself
unaided;  the ability to exercise one’s control over one’s
bladder and bowels.  Upon
all such powers human
self-sufficiency, happiness and dignity are undoubtedly highly
dependent.’
[71]
I am again unable to fault the reasoning of the trial court in this
regard and the appellant’s personal claim for general
damages
was, in my view, correctly refused.
[72]
I now turn to the trial court’s refusal to award damages to the
appellant for past caregiving and future caregiving and
case
management beyond the scope of duties of ‘normal’
parenthood.  The trial court said the following:
‘
I take cognisance of the fact
that the plaintiff has made a number of sacrifices as a consequence
of her dedication to [TM].  However,
she also admirably
completed a number of certificates, studied and secured full time
employment, whilst fulfilling her parental
responsibilities.
[TM] is looked after by Pathways in the day as well as a caregiver,
who lives with the family.  The
defendant correctly does not
deny being liable for the costs of a caregiver for the past two years
as well as the costs of [TM]
attending Pathways (subject to my
discretion).  At a most fundamental level, it is my view that
irrespective of the negligence
of the defendant in this matter, and
irrespective of the quantum of damages awarded to the plaintiff, the
plaintiff cannot be absolved
of her parental responsibilities as
defined by the law.  As such, it is my view that the plaintiff
cannot claim remuneration
for past caregiving.’
And
further:
‘
Apart from the notional
difficulty I have with a parent being compensated for “rendering
services” to a child, for the
reasons already given, the
plaintiff has a legal responsibility to [TM].  Thus, in the
event that [TM’s] impairments
not being causally linked to
negligence on the part of any person, then the plaintiff would have
been legally obliged to “render
services” to [TM].
Moreover, to the extent that the defendant has admitted liability for
the costs of a full-time caregiver
for [TM], as well as the costs of
being looked after at a facility, this claim [for future caregiving
beyond the scope of normal
parenthood] appears to be duplicated to a
certain extent.’
[73]
I share the trial court’s difficulty with a parent being
compensated for caring for his or her own child, or as it was
put by
the trial court, for rendering services to one’s own child, as
well as with the concept of parental caregiving beyond
the scope of
‘normal’ parenthood.  The nature and scope of normal
or usual parental obligations in any given situation,
I dare to say,
are determined by the particular circumstances, abilities,
disabilities, and the like, of each individual child,
irrespective of
the cause of any disability or other condition, such as asthma,
anorexia, obesity or substance dependency.
The cause of any
disability may be congenital, accidental, self-inflicted or the
result of another’s negligence or even intent.
In
substance, the appellant’s claim for past and future caregiving
beyond the scope of normal parenthood in this instance,
appears to be
rather one for non-pecuniary damages.  I do not believe, as a
matter of policy, that such a claim, without more,
should be
entertained.  The social burden would also be too great.
The trial court, in my view, correctly refused these
two personal
claims of the appellant.
COUNTER-APPEAL
[74]
The respondent’s cross-appeal - which essentially seeks the
development of the common law due to the financial constraints
of the
Department of Health, Gauteng and the constitutional right that
affords everyone the right to of access to health care services,

which is alleged to be compromised by lump sum awards, such as the
one that was made in this instance, and for the lump sum awarded
to
TM in respect of her future medical and related expenses to be
substituted with an order for the payment or provision by the

respondent of the required health care services and assistive devices
as and when they are required by TM in the future - is doomed
to
failure in the light of the recent decision of the Supreme Court of
Appeal in
The MEC for Health and Social Development of the Gauteng
Provincial Government v Zulu
(1020/2015)
[2016] ZASCA 185
(30
November 2016), wherein it was made clear that such law reform should
more appropriately be dealt with by the legislature,
which was also
the view taken by the trial court.
[75]
In
Zulu
, Swain JA said the following in this regard:
[12] In any event, in exercising their
power to develop the common law, judges have to be ‘mindful of
the fact that the major
engine for law reform should be the
Legislature and not the Judiciary’.  ‘The judiciary
should confine itself
to those incremental changes which are
necessary to keep the common law in step with the dynamic and
evolving fabric of our society’.
The development of the
common law sought by the appellant is not an incremental change, but
one of substance and more appropriately
dealt with by the
legislature, being an issue of policy. Any legislated change in the
common law rule could only be effected after
the necessary process of
public participation and debate.
’
(Footnotes
omitted.)
ORDER
[76]
In the result the following order is made:
(a)
The appeal
succeeds with costs, including those costs attendant upon the
employment of two counsel and the costs of the supplementary
heads of
argument submitted in respect of the costs of the trust.
(b)
The order
of the trial court is set aside in part and reproduced below with
substituted provisions and additions:
‘
1.
The defendant is to pay the plaintiff in her personal capacity the
amount of R313 190.00.
2.
The defendant is to pay the plaintiff in her representative capacity,
on behalf of the minor child, the amount of R18 416 973.60.
3.
The defendant is to pay interest to the plaintiff on the aforesaid
amounts (less any payments made) at the rate of 10.25% per
annum
a
tempore morae
from 3 November 2014 to date of payment.
4.
The defendant is to pay the plaintiff’s taxed or agreed costs
on the party and party scale, such costs to include:
4.1
the costs
consequent upon the employment of two counsel, including the
preparation of written heads of argument;
4.2
the
reasonable costs of obtaining medico-legal and actuarial reports from
those experts who testified and whose qualifying fees
are allowed;
4.3
the
reasonable costs of those expert witnesses who attended joint
meetings of expert witnesses;
4.4
the
reasonable qualifying and reservation fees relating to attendance at
court of the following witnesses:  Miss A Crosbie,
Miss B
Donaldson, Miss P Jackson, Miss E Bubb, Dr MM Lippert, Dr G Marus, Dr
D Strauss, Prof A van den Heever, Dr Versfeld, and
Dr Choonara;
4.5
the
travelling expenses of Professor Strauss (including economy class
airfare); and
4.6
the costs
of obtaining a transcript of the proceedings.
5.
The
plaintiff’s attorney of record is directed to cause to be
created within three months of the date of this order a Trust
on
behalf of the minor child, and, if it is not created within three
months, to approach this court or a judge in chambers (as
directed by
the Judge President or Deputy Judge President) for a further
direction or extension of time, which Trust:
5.1
shall be
created in accordance with the revised draft Trust Deed and shall
contain the provisions set out therein, a copy of which
is annexed
hereto, marked “X”;
5.2
shall have
as its Trustee Mr Constant Wilsnach, with those powers and duties as
set out in the aforesaid Trust Deed.
6.
The Trustee
shall:
6.1
be entitled
in the execution of his duties and fiduciary responsibilities towards
the beneficiary of the Trust, to have the attorney
and client costs
and disbursements of the plaintiff’s attorneys taxed, unless
agreed;
6.2
be obliged
to render security to the satisfaction of the Master of the High
Court.
7.
The
plaintiff’s attorneys of record:
7.1
are
authorised, pending the creation and registration of the trust, to
invest the award less such fees and/or costs to which they
are
entitled, in an interest bearing account in terms of section 78(2A)
of the Attorneys Act, 53 of 1979 and to make payment of
any
reasonable expense or disbursement for the benefit of the minor child
as a trustee would have been able to do should such expenditure
or
disbursement be regarded as reasonably necessary;
7.2
shall
account fully to the trustee appointed, of all costs, fees,
expenditure and/or disbursements paid from the award once the
Trust
had been registered and the balance of the award paid over.
8.
The
defendant shall pay the reasonable costs of creating the Trust and
the amount of R1 841 697.36 in respect of the costs of administering

the Trust.
9.
All amounts
payable in terms of this order shall be paid to the plaintiff’s
attorneys of record to the following account:
Josephs Incorporated
Trust Account
RMB Private Bank
Account number:
[…]
Branch
code:
261 251
Reference:

M Joseph.’
(c)
The
cross-appeal is dismissed with costs, including those costs attendant
upon the employment of two counsel.
P.A.
MEYER
JUDGE
OF THE HIGH COURT
I
agree.
S.E.
WEINER
JUDGE
OF THE HIGH COURT
I
agree.
R.
MONAMA
JUDGE
OF THE HIGH COURT
Date
of hearing: 19 October 2016
Date
of judgment: 07 March 2017
Counsel
for appellant: WP de Waal SC (assisted by WL Munro)
Instructed
by: Josephs Incorporated, Dunkeld, Johannesburg
Counsel
for Respondent: V Notshe SC (assisted by N Ntombela)
Instructed
by: State Attorney, Johannesburg