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[2020] ZAGPJHC 126
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M J obo K J v MEC for Health Gauteng Province (2014/20974) [2020] ZAGPJHC 126 (20 April 2020)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 2014/20974
In
the matter between:
M:
J obo
K
Plaintiff
And
MEC
FOR HEALTH GAUTENG
PROVINCE
Defendant
JUDGEMENT
MAKUME, J:
A
INTRODUCTION
[1]
This is a claim for damages by the plaintiff arising out of the birth
of her minor child K at Tembisa Hospital on the 19
th
August 2006. The only issue for determination by this court is
quantum of damages the Defendant having earlier conceded liability.
An order was granted on the 2
nd
June 2018 that Defendant must pay Eighty percent (80%) of the agreed
or proven damages flowing from the neurological injuries sustained
by
the minor child K during her birth.
[2]
The Plaintiff is J M an adult female person born on the 2
nd
February 1971 who resides at […], Ivory Park 2 MIDRAND. She is
the biological mother of K.
[3]
The Defendant is the Member of the Executive Council for Health
Gauteng Provincial Government who is responsible for the control,
functioning, operations and management of the Gauteng Department of
Health.
[4] Tembisa Hospital is a
medical institution which falls under the authority of and is
controlled, managed and operated by the
Department of Health of the
Gauteng Province.
BACKGROUND
[5] On the 18
th
August 2006 the Plaintiff was admitted to the Tembisa Hospital for
confinement.
She endured several hours of labour when an urgent Caesarean
operation was indicated.
[6]
As a result of Plaintiff’s prolonged labour and the defendant’s
employees failing to perform urgent Caesarean operation
she gave
birth to K by way of a normal vaginal delivery on the 19
th
August 2006.
[7]
As a result when K was born she suffered an hypoxic Ischaemic
incident/birth asphyxia due to intrapartum asphyxia causing her
to
sustain severe brain damage as a result of which she suffers from
cerebral palsy and mental retardation.
[8]
At the Case Management Conference held on the 10
th
February 2020 before Weiner J the parties agreed that the matter was
trial ready in respect of quantum on the following heads of
damages:
8.1
General damages
8.2
Loss of earnings
8.3
Care giving
8.4
Care Management
8.5
Cost of motor vehicle
8.6
Cost of home
[9]
Subsequent to that conference the parties convened again shortly
before the trial on the 9
th
March 2020 at which pretrial conference the following was agreed:
9.1 The Defendant offered
to settle general damages in the amount of R1 800 000.00
which offer was accepted by the plaintiff.
9.2
The defendant undertook to file its own actuarial report by the 13
th
March 2020 for purposes of calculating the plaintiff’s future
loss of earnings.
[10] Notwithstanding the
undertaking as set out in 9.2 above when this matter
commenced
before me on the 18
th
March 2020 the Defendant had not filed its actuarial report. This
necessitated an agreement to the effect that calculation of the
Plaintiff’s future loss of earnings will be based on the
calculation as set out in the Plaintiff’s actuarial report
which was handed in as Annexure “A”
[11]
Accordingly the only issue to be decided by me in respect of K’s
future loss of earnings relates to the level of
education she
would have achieved and based on that her projected employment
opportunities.
[12] The parties’
Counsels are in agreement about complications experienced by the
minor child, K. A further agreement was
reached between the parties
that plaintiff’s medico-legal reports be handed in as evidence
without formal proof thereof.
B.
PLAINTIFF’S EXPERT REPORTS
[13] The Plaintiff handed
up a number of its expert reports including joint minutesof
opposing
experts. The point of dispute between the plaintiff and the defendant
is to be found in Bundle “K” which is
the joint minute
report of the opposing Industrial Psychologists. In particular
Defendant’s Counsel points out that at paragraph
2.5.3 of the
joint minute the Industrial Psychologists differ in terms of the
likely earnings of K. It is this aspect that the
defendant counsel
latched on in arguing for a higher contingency in the final
calculation of K’s future loss of earnings.
[14]
In her amended particulars of claim dated 17
th
March 2020 at paragraph [13] read with paragraph 15.2 the plaintiff
says that as a result of the admitted negligence by the defendant’s
employees K will experience loss of earnings, alternatively future
earning capacity as a resulting of a permanent and total inability
to
generate any meaningful income result in future loss of R5,3 million.
[15]
It is common cause between the parties that K suffers from a severe
type of cerebral palsy. Prof J. Smith, a Neonatologist,
in analyzing
the MRI Scan as it appears in the report of Dr Ranchod confirms that
“the features were those of an acute profound
hypoxic ischaemic
brain injury”.
[16]
Dr G. S. Gericke, a Specialist Pediatrician on Clinical examination
reports that K suffers mixed cerebral palsy and that the
history and
clinical findings do not contain information which point towards a
condition other than classical cerebral palsy.
[17]
Ms Aires, a Physiotherapist, says that K is classified on the GMFCS
System as being a child with Level 111 function. According
to that
system the incumbent walks with adaptive equipment assistance,
requires hand-held mobility assistance to walk indoors while
utilizing wheeled mobility indoors, in the community and at school,
can sit on own or with limited external support and has some
independence in standing transfers.
[18] Professor R.
Solomon, a Paediatric Neurologist, assessed K and made the finding
that she suffers Dyskinetic Cerebral Palsy
and has profound
intellectual disability.
C.
LOSS OF EARNING
[19]
Against the medical findings set out above the Industrial
Psychologists also produced their reports. As a basis of their
reports
it can be accepted as common cause that both agree that K is
unemployable. They differ in respect of her likely earnings
pre-accident
having regard to her family history and educational
achievement of her parents and siblings.
[20]
Plaintiff’s Industrial Psychologist Talid TALMUD (TALMUD) of
Jacobson Talmud Consulting Pty Ltd makes the point that
had the
incident not occurred K would have been able to attend mainstream
school and complete Grade 12 level of education and possibly
a
diploma level of education.
[21]
TALMUD further makes the point that now that K finds herself in this
position post morbid she has suffered from developmental
delays and
has been diagnosed with cerebral palsy due to complications following
the incident. Taking into account that diagnosis
Talmud opined
that K has been rendered unemployable in the open labour market.
[22]
It is significant to note that both Industrial Psychologists in
assessing K’s premorbid occupational or employment
sustainability
that one of the factors to be taken into consideration
is her family history, circumstances and their educational
qualifications
and occupation.
[23]
It is common cause that K’s father obtained a Grade 10 level of
education and is currently unemployed whilst her mother
obtained
Grade 12 level of education and is currently employed as a General
Worker. Her eldest brother obtained Grade 12 level
of education.
[24]
This court accepts the general notion that with the advent of
technology children of late tend to progress higher or further
than
their parents academically and vocationally. It is not surprising
that Dr Geeta Prag, an Educational Psychologist makes the
finding at
paragraph 3.4 of her report that when considering the reported
information regarding the family schooling and employment
history, it
would be apt to reason that pre-incident, K would have been able to
complete a Grade 12 with a Certificate pass/Diploma.
Further that she
would have been able to attend the FET College to obtain Certificate
Courses (NQF5) or a Tertiary institute of
her choice to obtain
Diploma Courses (NQF6). With those qualifications Dr Prag concludes
that K would have been able to secure
employment in the field of her
studies.
[25]
Nicolene Kotze, the Defendant’s Industrial Psychologist, agrees
with the finding by Dr Prag but strangely dismisses that
finding when
she at 7 (v) of her report says that because of an article published
in 2018 by one Subethra Pather an Academic Development
Lecturer at
Cape Peninsula University of Technology which indicated that more
than 40% of students drop out in their first year
of study, that
there is no guarantee that K would have completed post Grade 12
qualification. On that basis alone Nicolene Kotze
opines that a
higher than normal pre-accident contingency deduction should be
applied.
[26]
The basis for this conclusion is in my view speculative. The article
by S. Pather is not before this court for scrutiny. It
does not tell
us if the assessment related to Cape Peninsula University of
Technology only or other institutions of higher learning.
I also do
not know what the reasons are for such drop our rate it could be
financial or anything else except ability to learn or
any
intellectual short coming.
[27]
In any case in the joint minute of the Industrial Psychologists dated
the 12
th
February 2020 at paragraph 2.6 there is agreement based on Scenario 2
being NQF level 5 Higher Certificate level of education which
includes a Diploma. This agreement and concession puts paid for
reliance on the report by Subetra Pather.
D.
CALCULATION OF FUTURE LOSS OF INCOME
EARNING CAPACITY
[28]
The main point of difference between the parties is not that K would
not have been able to earn income pre-morbid, it is her
likely
earning s. Plaintiff has submitted uncontroverted evidence by her
actuary Gerald Jacobson who has detailed two scenarios
Scenario 1
being the scenario when K would have progressed up to Grade 12 and
Scenario 2 being when K would have a Diploma qualification.
[29]
The Plaintiff has advanced argument and asks this court to award loss
based on Scenario 2 being value of income in the amount
of
R5 820 767.00 less 20% contingency which gives us an amount
of R4 656 614.00. To this must still be deducted
20%
liability in terms of the earlier court order.
[30]
The defendant has without producing any evidence asked the court to
award damages as detailed in Scenario 1 in the plaintiff’s
actuarial report. This is notwithstanding the fact that in the joint
minute the Industrial Psychologists agreed that the minor
child K
would have progressed and achieved a diploma certificate. In the
final analysis the defendant relying on the academic report
by
Subethra Pather submits that the defendant would settle for a higher
contingency of between 25% to 35% in the event that the
court should
accept basis 11 of the actuatial report.
[31]
The Defendant referred me to an as yet unreported decision by my
brother Davis J in the matter of Morongoe Ruth Modise obo
Minor and
Road Accident Fund Case Number 10329/2019 Gauteng Division of the
High Court Pretoria a judgement delivered on the 12
th
August 2019.
[32]
In the judgement Davis J rejected the Defendant’s argument that
a 35% contingency deduction as he says that there was
no basis for
that increased percentage having regard to inter alia Southern
Insurance Association Ltd v Bailey No
1984 (1) SA 98
(A) at page 116
G-117A, Goodall v President Insurance Company Ltd
1978 (1) SA 389
(W)
and Shield Insurance Company Ltd v Hall
1976 (4) SA 431
(A).
[33] The basis on which
the actuary calculated the future loss of earnings was as
set out in the reports of
Dr A P J Botha a specialist surgeon and Dr V. R.
Mogashoa
a Paediatric Neurologist as well as the Industrial Psychologists
referred to above.
[34] In the Modise matter
the court only accepted a 35% contingency in calculating
post-incident earning. This is different for
in this matter we have
to deal with pre-morbid scenario.
E.
CONTINGENCIES
[35]
It is generally accepted that contingencies cover a wide range of
considerations which vary from case to case. A trial court
has a wide
discretion in that regard. The usual considerations include taxation,
life expectancy, loss of employment, etc. In his
report Gerald
Jacobson took all these factors into consideration.
[36]
In BEE v Road Accident Fund
2018 (4) SA 366
SCA the age of the
claimant was taken into consideration as relevant in determining
contingencies. It was held that the younger
the victim the longer the
period over which the vicissitudes of life will operate and the
greater the uncertainty in assessing
the claimant’s likely
career path. In that case a contingency of 15% for future loss of
earnings over a lifespan of 11 years
was appropriate.
[37] In this matter I
find nothing wrong with the plaintiff’s call to fix contingency
in respect of future loss of earnings
at 20% as proposed in the
actuarial report.
[38]
ORDER
38.1
In partial disposal of the matter, the defendant shall pay the
plaintiff in her representative capacity for and on behalf
of K an
amount of R 5 525 290.88 (Five Million Five hundred and
Twenty Five Thousand Two Hundred and Ninety Rands and
Eighty Eight
Cents) which amount comprises the following:
38.1.1
General Damages in the amount of R1 800 000.00
38.1.2
Future loss of earning capacity
:
R3 725 290.88 which is arrived at as follows:
CAPITAL
R5 820 767.00
Less
20% liability
R1 164 153.40
_____________
R4 656 613.60
Less
20% contingencies
R 931 322.72
_____________
Total
R3 725 290.88
_____________
38.2 The amounts referred
to in paragraphs 38.1.1 and 38.1.2 above shall be paid within 30 days
of the date of this order, failing
which the defendant shall pay
interest on the said amount at the rate of 10.25% per annum
calculated from 30 days after the date
of this order to date of
payment.
38.3 The determination of
remaining heads of damages and related issues is postponed sine die.
38.4
Defendant shall pay Plaintiff’s taxed or agreed party and party
costs on the High court scale in respect of the action
to date, such
costs to include:
38.4.1
the costs attendant upon the obtaining of payment of the full sums
including any interest referred to herein.
38.4.2
the defendant shall pay the plaintiff’s costs consequent upon
the employment of one counsel on the senior junior scale,
including
but not limited to counsel's appearance fees, his preparation fees,
travelling costs and time, drafting of documents
attending
consultations, inspections and pre-trials.
38.4.3
The costs to date of this order, which costs shall include the costs
of the attorney which include necessary travelling costs
and expenses
(time and distance), preparation for trial and attendance at court
which shall include all costs previously reserved.
38.4.4
The costs of all medico-legal, actuarial and addendum reports
required for the determination of the quantum including but
not
limited to the following:
38.4.5
The reasonable and taxable preparation, qualifying and reservation
fees, if any, in such amount as allowed by the Taxing
Master, of the
following experts:
38.4.6
The reasonable costs incurred by and on behalf of the Plaintiff in
attending all medico-legal examinations of both parties'
experts
which shall include but not be limited to necessary travelling costs
and expenses including travelling (time and distance),
accommodation
and airfare if any.
38.4.7
The costs of and consequent to the parties' experts holding joint
meetings and compiling minutes of joint meetings if any,
and /or
addendum reports and joint minutes.
38.4.8
The costs of and consequent to the Plaintiff's trial bundles and
witness bundles, including the costs of 6 (six) copies thereof.
38.4.9
The costs of an interpreter if any.
38.4.10
The costs of and consequent to the holding of all pre-trial
conferences, including counsel Mr Desmond Brown's charges in
respect
thereof if any.
38.4.11
The travelling fees of the Plaintiff, who is hereby declared a
necessary witness, including but not limited to any airfares,
shuttles and accommodation if any.
38.5
Such agreed or taxed costs shall be paid within 14 days of the
agreement or taxation thereof.
38.5.1
In the event that the costs are not agreed the Plaintiff shall serve
a notice of taxation on the Defendant's attorney of
record.
38.5.2
The Plaintiff shall allow the Defendant 14 (Fourteen) days from the
date of allocatur to make payment of the taxed costs.
38.5.3
Should payment not be effected timeously, the Plaintiff will be
entitled to recover interest at the rate of 10.25 % per annum
on the
taxed or agreed costs from date of allocatur to date of final
payment.
38.6 The sums of money
and any interest thereon referred to in paragraphs 1.1 and 1.2 above
and the costs referred to in paragraphs
4 and 5, are payable to the
Plaintiff’s attorneys trust account, the particulars of which
are as follows:
Name of account
Holder: DU PLESSIS
ATTORNEYS TRUST ACCOUNT
Bank
Name
:
ABSA
BANK LIMITED
Branch
Name
:
Randburg Business Bank
Branch
Code
:
632 005
Account number
:
405 883
0885
Account
Type
:
Trust
Account
DATED
at JOHANNESBURG this the day of
April 2020.
___________________________________________
M A
MAKUME
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
DATE
OF HEARING
: 18
MARCH 2020
DATE
OF JUDGMENT
:
APRIL
2020
FOR
PLAINTIFF
: ADV
BROWN
PLAINTIFF
ATTORNEYS
:
DU
PLESSIS ATTORNEYS
FOR
DEFENDANT
: ADV
MTUKUSHE
DEFENDANT
ATTORNEYS :