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[2021] ZAKZDHC 18
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Madela v MEC for Health, Kwazulu-Natal (3079/2015) [2021] ZAKZDHC 18 (30 April 2021)

IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL LOCAL
DIVISION, DURBAN
CASE
NO: 3079/2015
In
the matter between:
NOZIPHO
LOVABLE
MADELA
Plaintiff
and
THE MEMBER OF THE
EXECUTIVE COUNCIL
FOR
HEALTH,
KWAZULU-NATAL
Defendant
ORDER
The
following orders will issue:
1.
The defendant shall pay to the plaintiff’s attorneys
in respect of
Amile Madela, the total amount of R
6 548 998.00
which amount
is computed as follows:
(a)
R 1,6 million in respect of general damages;
(b)
R 4 948 998.00 in respect of loss of earnings.
2.
The total amount mentioned in paragraph 1 is to be paid
within thirty
days from the date of this order, directly into the trust account of
the plaintiff’s attorney of record.
3.
The defendant shall pay interest, if any, on the total
amount at the
legally prescribed rate operative on 30 May 2021 calculated from that
date to the date of final payment.
4.
The total amount of R
6 548 998.00
shall be retained by the
plaintiff’s attorneys in an interest-bearing account in terms of
s
86(4)
of the
Legal Practice Act 28 of 2014
for the benefit of the
minor child Amile.
5.
The plaintiff’s attorneys are directed to forthwith create
a trust
with a financial institution for the minor child, Amile, and notify
the defendant of the particulars thereof.
6.
The defendant is further ordered to pay 7.5% of the total
amount in
paragraph 1 toward the costs of the administration of the trust
referred to in paragraph 5 above.
7.
The defendant is to pay the plaintiff’s necessary and
reasonable
costs, such costs to include:
(a)
the report, reservation fee and costs of preparing the joint minute
of Ms S Hill;
(b)
the report and preparation of the joint minutes of:
(i)
Ms R Thanjan;
(ii)
Ms K Rupee;
(iii)
Ms M
Read;
(iv
Ms S Somaroo;
(c)
the cost of consultation with Ms Hill and counsel;
(d)
preparation for trial, preparation of the stated case and heads of
argument.
8.
The defendant is directed to file any further reports pertaining
to
future medical expenses by 18 June 2021.
9.
Neither party shall be entitled to lead the evidence of
any expert
whose report was given after the date in paragraph 8 above, unless
the court has granted condonation in respect thereof
on application,
save that this shall not apply to supplementary reports.
10.
The registrar is required to allocate a trial date in the fourth
quarter
of 2021 and allocate 3 days for trial.
11.
The trial of the matter is adjourned
sine die.
12.
The matter is adjourned to continue judicial case flow management
before
Henriques J on 12 May 2021 at 09h00am.
JUDGMENT
HENRIQUES
J
Introduction
[1]
It is every mother’s dream to hold a new born baby in her
arms, to
love them, nurture them and guide them. Children are seen as the
future, not only to excel and reach beyond boundaries that
their
parents were not fortunate enough to do, but also to take care of
their parents and to bring them joy.
[2]
On 13 January 2010, Amile Sbhale Khoza (Amile) was born at Prince
Mshiyeni Memorial Hospital. Unfortunately, during birth, she suffered
intrapartum hypoxia and as a result of such hypoxia, a brain
injury.
Such was as a result of the negligence of hospital and medical staff
employed by the defendant. What ought to have been a
joyous event
turned into months of confusion and pain for Amile’s mother, Ms
Nozipho Madela, until she was able to have Amile assessed
at 14
months of age and a definitive diagnosis of cerebral palsy was made.
Judicial Case
Management
[3]
Given the long and protracted delay in narrowing and resolving
the
issues for determination, the matter was dealt with initially in
terms of the case flow system (in 2018) and thereafter in terms
of
the judicial case flow management system. Liability has been resolved
with the defendant agreeing to compensate the plaintiff
for 100% of
her proven or agreed damages.
Issues
[4]
The parties have agreed that the heads of damages on quantum
be
separated. The matter proceeded on a determination of general damages
and loss of earnings and the remaining issue, the future
medical
expenses are to stand over for determination at a later stage subject
to further judicial case management. The parties have
also submitted
an agreed set of facts to facilitate the arguing and finalisation of
these two heads of damages. I am indebted to
counsel for their
concise heads of argument and the authorities they have referred to
as well as their oral submissions.
[5]
The parties have further agreed, for purposes of the determination
of
general damages and loss of earnings, that Amile’s life expectancy
has been reduced and she will live to 56 years of age. Both
parties
rely on the report of Dr Campbell in this regard. Dr Campbell
completed his report on 5 November 2018, in which he used Koch’s
Table 2 as a reference life table in order to estimate Amile’s life
expectancy. At the time she was 8,8 years old and he estimated
that
her life expectancy was an additional 47,2 years.
[6]
In respect of the heads of damages on quantum, various experts
have
assessed and compiled reports. For purposes of this part of the
trial, the parties have handed in bundles (which are a matter
of
record) containing these reports and where possible, the joint
minutes of these experts.
[7]
The parties have agreed that the following joint minutes prepared
by
the respective experts may be utilised in argument, namely the joint
minutes of:
(a)
the speech and language therapists, Ms R Thanjan and Ms T Sishi;
(b)
the occupational therapists, Ms K Rupee and Ms H Prinsloo;
(c)
the industrial psychologists, Ms S Hill and Dr Z Mandlabana-Luthuli;
(d)
the dieticians, Ms M Read and Ms P Mthembu, and
(e)
the physiotherapists, Ms S Somaroo and Dr S Narain.
Agreed statement of
facts
[8]
In addition, the parties have also prepared an agreed set of
facts
setting out the sequelae arising from the brain damage which Amile
suffered at birth. It is utilising these agreed facts that
the
assessment of the quantum of the general damages and loss of earnings
must be done. I have borrowed extensively from the agreed
facts for
purposes of this judgment.
[9]
As a consequence of Amile’s brain damage, she suffers from
cerebral
palsy which is classified on the Gross Motor Function Classification
System at level 1. As a result of the brain damage,
she has moderate
to severe mental and intellectual impairment, severe cognitive delay,
a wide range of severe to profound neurological
deficits and mild
physiological limitations.
[10]
In consequence of her neurocognitive deficits, she has poor insight
and social judgment,
poor conceptual ability, and an inability for
logical and abstract thought. She has short focus and concentration,
is highly distractible
and is impulsive, has impairments with visual
tracking, is only able to carry out simple instructions, and has no
concept or understanding
of numbers, forms, colour, letters, left and
right differentiation or spatial aspects.
[11]
She has no awareness of her body parts and is unable to point them
out. She cannot
be educated in a main stream school, will never be
able to receive vocational training of any kind, will only benefit
from specialised
schooling that will provide stimulation, will never
be employable, and never be able to manage her finances or determine
her needs
and will constantly be reliant on someone else for her
safety and care.
[12]
Her mother, being unable to care for her and not quite appreciating
the extent of her
deficits, did not ensure that she consistently
received intervention and therapy throughout her formative years, and
it was only
once she commenced attending a special school in 2015
that she began receiving the necessary intervention. However, in some
instances
this was a little too late. The experts agree that no
matter the intervention she receives, although there is room for
improvement,
she will never function as a child who has not suffered
a brain injury and does not have the intellectual ability to benefit
from
psychological intervention.
[13]
Amile requires constant supervision and a caregiver, and has
compromised oral and sensory
motor impairment. She drools a lot and
is classified on the Eating and Drinking Classification System at
level III to II, meaning
that she eats and drinks with limitation to
safety, and is unable to chew her food, has difficulty swallowing,
requires her food
to be blended and has to be supervised during
eating.
[14]
She is classified on the Functional Communication Classification
System at level IV,
also needs assistance in most situations,
especially with unfamiliar people and environments and is unable to
verbally communicate
her daily needs and wants with familiar people.
She presents with severe limitations in expressive language and
communicates with
gestures. In consequence thereof, she will require
alternative and augmentative communication (AAC) devices and speech
therapy to
address her feeding and swallowing impairment, and AAC and
language development.
[15]
Given her neurological deficits and physiological limitations, Amile
has mild hypertonia,
particularly of her trunk and abdominal muscles
which results in a slow tempo of movement, asymmetry of posture and
compromised dynamic
balance. She is able to mobilize independently
and can stand on each foot, one at a time, for eight to nine seconds
with poor balance.
She can reach out without taking a step forward
but both her right and left legs are impaired with the right being
the worst. She
has poor dynamic balance, tends to walk in a zig-zag
fashion rather than in a straight line. Although she is able to jump
up, down
and forwards, this is not typical of a child of her age, and
she is unable to jump backwards and is unable to hop.
[16]
She has weakness of the right upper and lower limbs, but is
independent on level surfaces.
However, on the Manual Ability
Classification System she presents at level III with an inability to
use her hands functionally, requires
assistance to prepare and modify
activities, has less functionality in her right hand than left and
does not handle objects in an
age appropriate way. She has poor fine
motor function of both hands and is incapable of self-feeding at all
and must be fed all her
meals. She requires moderate assistance with
bathing, dressing and grooming and requires occupational therapy and
physiotherapy.
[17]
Given her inability to care for herself, Amile is unable to brush her
own teeth and
ensure her own oral hygiene. This, together with her
neuro-cognitive deficits, results in her refusing to allow the proper
brushing
of her teeth and as a result, she suffers from halitosis,
gross plaque and calculus. She will require a caregiver throughout
her
life.
[18]
From the age of 14 months, Amile has received physiotherapy and
speech therapy for
a period of two years. However, she stopped having
therapy in or about 2013 as the plaintiff moved away from the
vicinity of the
hospital and did not feel the need for Amile to
continue therapy as she felt it was not serving any purpose. Since
2015 however,
Amile had been receiving speech therapy from the Lower
Umfolozi Hospital and attending therapy every couple of months until
May 2018.
She has not been attending therapy regularly at the Lower
Umfolozi Hospital as the plaintiff was unable to maintain such visits
as
it was costly and time consuming as she worked full time.
[19]
As a consequence, Amile attended Zamimpilo Special School which had
boarding facilities
from February 2019 until September 2019.
Zamimpilo is a state aided boarding school offering the services of
caregivers, teachers’
aids, physiotherapists, occupational
therapists and psychologists and accesses speech therapy at the Ceza
Provincial Hospital. The
plaintiff did not follow home programmes
given to her to supplement any of the therapy that Amile received and
as a consequence,
Amile’s attendance at the supplementary health
treatments was inconsistent and non-compliant. Consequently, Amile
has surpassed
the age for maximal benefit of therapy and has not
received sufficient stimulation, nor has she been exposed to and
taught any skills.
[20]
Despite these disabilities, Amile has a happy disposition and does
not exhibit behavioural
irregularities. She can sustain her attention
if she enjoys an activity, does not meet the criteria for an anxiety
disorder and can
use a toilet with some assistance. She is not on any
medication, is stable when walking and can transition from sitting to
standing,
roll, jump and manoeuvre stairs. She can clear obstacles
with some impairment and has never been hospitalised after her birth.
[21]
She can understand and comprehend simple instructions, is capable of
play, able to
scribble, has no visual or audio impairment. She
utilises non-verbal cues to express her needs and wants, and can
utilise AAC equipment
and will be able to be taught some
communicative abilities.
General Damages
[22]
I
propose to deal firstly with the issue of general damages. The
purpose of an award
of
general
damages
is
to
compensate
a
victim
for
all
pain,
suffering,
shock
and
discomfort, suffered as a result of a wrongful act.
[23]
There
has been some debate as to whether, in assessing general damages, an
awareness of the extent of the brain injury warrants a
higher award.
In
NK
obo ZK v Member of the Executive Council for Health of the Gauteng
Provincial Government
[1]
Willis JA
quoted
from Marine & Trade Insurance Co Ltd v Katz NO,
in
which Trollip JA pointed out that ‘in awards arising from brain
injuries, although a person may not have “full insight into
her
dire plight and full appreciation of her grievous loss”, there may
be a “twilight” situation in which she is not a so-called
“cabbage” and accordingly an award for general damages would be
appropriate.’
[2]
[24]
This
approach has been followed in a number of instances. However, in
Southern
Insurance Association Ltd v Bailey NO,
[3]
Nicholas JA held that the courts have not adopted a “functional”
determination as to how general damages should be awarded. It
has
consistently preferred a flexible approach, determined by the
broadest
general
considerations,
depending
on
what
is
fair in
all
the
circumstances
of the
case.
[25]
In addition in arriving at an appropriate award, I do not have to
determine what the
award will be used for but I must consider Amile’s
loss of amenities of life, and her pain and her suffering. I was
referred to
the following comparative cases in considering the award
of general damages.
[26]
In
Torres
v Road Accident Fund,
[4]
the
plaintiff
was a
24-year-old male who was 20 years old at the time he sustained his
injury. He suffered a severe diffuse brain injury, a soft
tissue
injury to the neck and soft injuries to the face and chin. He
suffered significant neuro-cognitive and neuro-behavioural deficits
associated with concentration, working memory, impulse control and
abstract reasoning. He suffered from depression and an adjustment
disorder. An award of R600 000 was made for general damages at that
time, with the equivalent value in 2020 being R1,2 million.
[27]
In
Megalane
NO
v
Road
Accident
Fund
,
[5]
the
victim,
an
11-year-old
school
boy at
the time of the accident, suffered a severe brain injury with diffuse
and focal brain damage in the form of a subdural haematoma.
This
resulted in cognitive impairment characterised by poor verbal and
visual memory, poor concentration and distractibility. He
also had
impaired executive function characterised by frontal lobe
disinhibition, causing inappropriate behaviour, speech difficulties
characterised by dysarthria and word retrieval difficulties; and
lastly bilateral hemiparesis with severe spasticity of all four
limbs
and left facial paralysis as well as aphasias.
[28]
After suffering the injuries, he was confined to a wheelchair and his
intelligence
level was that of a young child. Prior to the accident,
he was an above average scholar. Subsequent to the accident, he was
left
with severe permanent physical and mental disabilities rendering
him unemployable. An award of R1 million was made for general
damages,
with the equivalent value in 2020 being R2,2 million.
[29]
In
MSM
obo KBM v MEC for Health, Gauteng
,
[6]
a judgment delivered on 18 December 2019, the minor was seven years
old at the time of judgment and had a reduced life expectancy
of 24,6
years. The judgment did not set out a list of disabilities and
deficits suffered by the minor child, and an award of R2 million
for
general damages was made.
[30]
In
Matlakala
v MEC for Health, Gauteng Provincial Government,
[7]
a medical negligence matter, the child, as a result of incorrect
resuscitation procedures at a provincial hospital, suffered from
spastic dystonic cerebral palsy which was irreversible. The minor was
totally incommunicative and had never learned to sit, stand
or work
and was regarded as uneducable, had the lowest level of gross motor
function classification and only produced sounds, no
words and was
incapable of social activity. The minor child needed constant care
for his most basic functions. An award of R1,5 million
was made.
[31]
In
ZK
v MEC for Health, Gauteng Provincial Government,
[8]
a boy suffered a hypoxic-ischaemic incident during birth and suffered
severe brain damage which manifested itself in spastic cerebral
palsy, quadriplegia, mental retardation, epilepsy, marked delays in
development, speech deficits, general spasticity, compromised
respiratory function, subluxation of the hip, scoliosis of the spine
and behavioural problems. The little boy would be incontinent
for his
entire life, would have to use nappies and would have to be changed
constantly by caregivers. He experienced pain and discomfort
and
would have to undergo physiotherapy requiring the regular use
of
a
hoist
in
later
years.
He
had
difficulty
eating
and
had
to
be
forced
fed
and
was
not in a state of ‘unconscious suffering’
.
An
award of R1,8 million was made for general damages.
[32]
In
MP
obo SP v MEC for Health, Eastern Cape Province,
[9]
the child suffered from cerebral palsy as a consequence of a hypoxic
ischaemic injury to the brain which affected him in a quadriplegic
manner involving the trunk of his body. He was unable to stand
without assistance and was only able to roll, scoot or crawl in order
to
move. He was unable to feed himself or perform his personal hygiene.
His speech had
been
severely
affected.
His
brain
functions
however,
were
at
a
much
higher
level
than his body enabled him to express, which was found to be a factor
aggravating his suffering. There had been a devastating
loss of
enjoyment
of
ordinary amenities of life, although he would be able to attend a
school and operate an iPad. Full time care was required. An award
of
R2 million was made for general damages.
[33]
In
Mngomeni
obo EN Zangwe v MEC for Health, Eastern Cape Province,
[10]
the
child
suffered from spastic quadriplegic cerebral palsy, was severely
mentally and physically retarded and permanently disabled. He
had
been rendered unemployable in the open market and suffered a
catastrophic loss of the amenities of life and was dependent
on
assistance
in
all
personal
care
and
activities
of
daily
living,
requiring
24-hour care and supervision. The minor child would need continuous
medical care and treatment as well as specialised equipment,
devices,
accommodation and services to accommodate his special needs for the
remainder of his life. An award of R2 million was made
for general
damages.
[34]
In
CS
(obo TGS) v MEC for Health, Gauteng
,
[11]
the minor child was born with cerebral palsy and suffered permanent
severe brain damage resulting in severe motor and cognitive
impairment
in the form of quadriplegia, complicated by contractures
leaving him permanently disabled and disfigured. A muscular scoliosis
deformity
had to be surgically addressed. He had a disfigured
claw-like right hand, could not walk or talk and his hearing and
vision were
severely reduced. He had a pulmonological disability,
resulting in frequent ear infections and faced a number of
orthopaedic,
gastro-enterological,
neurosurgical
and
dental
surgical
procedures
in
the
future. His life expectancy was reduced to 30 years. An award of
general
damages
in the sum of R1,8 million was made.
[35]
In
JR
v The MEC for Health, North West Province
,
[12]
a minor child suffered septicaemia which resulted in cerebral venous
thrombosis which led to permanent brain damage and right sided
hemiparesis. The minor child was severely cognitively and
intellectually compromised to such an extent that this would have a
significant
impact on his capacity to learn and his future
employability. He suffered from impaired speech and had some
elementary aspects of
communication. He was unemployable and would
need to be placed in a special school requiring permanent caregivers
and supervision.
An award of R800 000 was made for general damages.
[36]
In
Booyse
v MEC for Health, Gauteng Province,
[13]
the court awarded R1,5 million for general damages. The child had
passed away during the course of
litigation
at the age of nine.
[37]
Ms
Moodley, who appeared for the defendant, submitted that having regard
to the nature of Amile’s injuries, an award of between
R1,2 to R1,5
million is fair. In her submission, she aligned herself with the
principles enunciated by Willis JA in
ZK
,
[14]
specifically at paragraph 13. Mr Oliff, who appeared for the
plaintiff, submitted that given the nature of the injuries, although
Amile’s condition is not as bad as the authorities he referred to,
it is sufficiently serious for it to warrant an award
of
between R1,6 and R1,8 million.
[38]
The
parties relied on a number of decisions dealing with similar
circumstances
in
support of their contentions as to the appropriate amount to be
awarded
for
general damages. Despite these, I am mindful of the words of Rogers J
in
AD
and another v MEC for Health and Social Development, Western Cape
Provincial Government,
[15]
where
he held the following:
‘
Money cannot
compensate [the minor on behalf of whom the claim has been made] for
everything he has lost. It does, however, have the
power to enable
those caring for him to try things which may alleviate his pain and
suffering and to provide him with some pleasures
in substitution for
those which are now closed to him. These might include certain of the
treatments which I have not felt able to
allow as quantifiable future
medical costs. . . ’
[39]
The
approach adopted by Rogers J was referred to in
PM
obo TM v MEC for Health, Gauteng Provincial Government.
[16]
Our courts have warned that when considering past awards, each must
be scrutinised carefully and a court must make its own independent
assessment as past awards are merely a guide and are not to
be
slavishly followed.
[17]
[40]
In
Singh
v Ebrahim,
[18]
in
a minority judgment Snyders JA held the following in relation to the
assessment of damages involving children:
‘
The conservative
approach to the assessment of damages is an approach based on
policy
considerations. Those policy considerations take account of the fact
that when a court assesses damages, particularly for loss
of future
earning capacity and medical expenses, it has been said to be
“pondering the imponderable”. It in essence makes an
assessment
of what the future holds. Fairness to a defendant when an uncertain
future is assessed at a time when the injuries caused
by the
defendant is known and could give rise to an overly sympathetic
assessment of the plaintiff’s damages, has also to be borne
in
mind. The general equities in the case need to be given due weight to
achieve fairness, not only to the defendant, but the plaintiff
and
the public at large. The latter, because awards made affect the
course of awards in the future, overly optimistic awards may
promote
inequality and foster litigation.’ (Footnotes omitted.)
[41]
I have had regard to the various comparable cases referred to by both
parties. In arriving
at the award, I have borne in mind that no two
cases are exactly the same and awards in past decisions only serve as
a rough guide.
Each matter must be decided on its own set of facts.
In determining the amount of general damages to award, I have taken
into account
the sequelae agreed on by the parties in the agreed set
of facts. I accept that Amile sustained severe neurological and
cognitive
deficits which are permanent.
[42]
Amile has serious and permanent brain damage and is intellectually
impaired and suffers
from neuro-cognitive deficits. She will require
permanent assistance and caregivers for the remainder of her life. In
addition, she
has a reduced life expectancy and is dependent on
others for activities forming part of daily living. In addition, she
will have
to attend a special school. Having considered all the above
and the submissions of the parties’ legal representatives, I am of
the view that an award of R1,6 million in respect of general damages
is appropriate in the circumstances.
[43]
On the
facts of this particular matter, this would be a fair award to make.
Many
counsel
in medical negligence matters rely on the decision of
PM
obo TN v MEC for Health, Gauteng Province,
[19]
which
has set the bar for general damages in cerebral palsy cases at R1,8
million. However, as already indicated, the injuries which
the minor
child suffered in
PM
were
greater than the injuries suffered by Amile and each case must be
decided on its own set of facts. In
Minister
of Police v Dlwathi,
[20]
the court held that the assessment of an appropriate award of general
damages is a discretionary matter and has as its objective
to fairly
and adequately compensate an injured party.
[21]
The court referred to the decisions in
Protea
Assurance Co Ltd v Lamb,
[22]
and
Road
Accident Fund v Marunga
.
[23]
The joint minutes of
the expert industrial psychologists
[44]
Both parties have obtained reports in relation to the loss of
earnings: the plaintiff
by Ms Sonia Hill (Ms Hill) and the defendant
by Dr Zandile Madlabana- Luthuli (Dr Luthuli). The defendant, in its
heads of argument
submitted that the aspect of loss of earnings ought
to stand over for determination at a later stage, together with the
determination
of future medical expenses.
[45]
On the morning of the trial, prior to its commencement, the legal
representatives indicated
that a belated joint minute had been
prepared by the respective industrial psychologists. They suggested
that in light thereof, the
court should have regard to the joint
minute and not independently apply its mind to the proposed career
paths and progressions to
calculate loss of earnings. All the court
would have to consider are the contingencies to be applied.
[46]
I had some reservations about this approach and raised this with
counsel. These reservations
stemmed from what Dr Luthuli indicated in
her report that during the course of preparation, she did not have
access to any collateral
information, nor did she have the benefit of
interviewing Amile or her mother. The basis upon which she drew the
conclusions in her
report were based on her having regard to other
expert reports that had been filed. In my view therefore, in the
absence of a supplementary
report and her indicating what formed the
basis for signing the joint minute and agreeing to the conclusions by
Ms Hill, I was of
the view that this would
not
be a prudent course to follow.
[47]
In the
result, I indicated to counsel that I did not consider myself bound
by the joint minute and would not place any reliance thereon,
nor
could I place any reliance on the report of Dr Luthuli. Ms Moodley
agreed that I was not bound by the joint minute and relied
on the
judgment in
Bee
v Road Accident Fund.
[24]
I was of the view that the most appropriate way in which to deal with
the
aspect of loss of earnings was to consider the report of Ms Hill.
These are my reasons.
[48]
The
responsibility of expert witnesses has been the subject matter of
a
number of decisions and the duties and responsibilities of expert
witnesses, specifically in civil matters was dealt with in
National
Justice Compania Naviera SA v Prudential Assurance Co Ltd (“the
Ikarian Reefer”),
[25]
where the court held the following:
‘
The duties and
responsibilities of expert witnesses in civil cases include the
following:
1.  Expert
evidence presented to the Court should be, and should be seen to be,
the independent product of the expert uninfluenced
as to form or
content by the exigencies of litigation (Whitehouse v Jordan
[1980] UKHL 12
; ,
[1981]
1 WLR 246
at p 256, per Lord Wilberforce).
2.  An expert
witness should provide independent assistance to the Court by way of
objective unbiased opinion in relation to
matters within his
expertise (see Polivitte Ltd v Commercial Union Assurance Co Plc,
[1987] 1 Lloyd's Rep 379 at p 386 per Mr Justice
Garland and Re J,
[1990] FCR 193
per Mr Justice Cazalet). An expert witness in the High
Court should never assume the role of an advocate.
3.  An expert
witness should state the facts or assumption upon which his opinion
is based. He should not omit to consider material
facts which could
detract from his concluded opinion (Re J sup).
4.   An
expert witness should make it clear when a particular question or
issue falls outside his expertise.
5.
If an expert's opinion is not properly researched because he
considers that insufficient data is available, then
this must be
stated with an indication that the
opinion is no more
than a provisional one (Re J sup). In cases where an expert witness
who has prepared a report could not assert
that the report contained
the truth, the whole truth and nothing but the truth without some
qualification, that qualification should
be stated in the report ’
[49]
The SCA had cause to consider the role of experts in
Bee v Road
Accident Fund.
The court held the following at para 22:
‘
It
is trite that an expert witness is required to assist the court and
not to usurp the function of
the
court. Expert witnesses are required to lay a factual basis for their
conclusions and explain their reasoning to the court. The
court must
satisfy itself as to the correctness of the expert’s reasoning.’
In
Masstores
(Pty)
Ltd
v Pick ʼn Pay
Retailers
(Pty) Ltd
[26]
the
SCA said as follows:
‘
Lastly, the
expert evidence lacked any reasoning. An expert’s opinion must be
underpinned by proper reasoning in order for a court
to assess the
cogency of that opinion. Absent in reasoning the opinion is
inadmissible.’
‘
In
Road
Accident Appeal Tribunal and others v Gouws and another
[2018 (3)
SA 413
(SCA) ([2018]
1 All SA 701
;
[2017] ZASCA 188)
para 33, this
court said: “Courts are not bound by the view of any expert. They
make the ultimate decision on issues on which experts
provide an
opinion.”
(See also
Michael
and another v Linksfield Park Clinic (Pty) Ltd and another
2001
(3) SA 1188
(SCA) ([2002]
1 All SA 384
(A)) para 34).
[50]
The
facts on which the expert witness expresses an opinion must be
capable of being reconciled with all other evidence in the case.
For
an opinion to be underpinned by proper reasoning, it must be based on
correct facts. Incorrect facts militate against proper
reasoning and
the correct analysis of the facts is paramount for proper reasoning,
failing which the court will not be able to properly
assess the
cogency of
that
opinion. An expert opinion which lacks proper reasoning is not
helpful to the court.
[27]
[51]
In
Bee
para 24 the court held the following:
‘
[24] In
Thomas
v BD Sarens (Pty) Ltd
[2012] ZAGPJHC 161 para 13, Sutherland J
said:
“
Where two or more
experts meet and agree on an opinion, although the parties are not at
liberty to repudiate such an agreement placed
before the court, it
does not follow that a court is bound to defer to the agreed opinion.
In practice, doubtlessly rare, a court
may reject an agreed opinion
on any of a number of grounds all amounting to the same thing; ie the
proffered opinion was unconvincing.”
In
Malema v Road
Accident Fund
[2017] ZAGPJHC 275 para 94 Molahlehi J expressed
the same view.’
[52]
In
R
v Jacobs,
[28]
Ramsbottom
J said the following:
‘
Expert witnesses
are witnesses who are allowed to speak as to their opinion, but they
are not the judges of the fact in relation to
which they express an
opinion; the Court . . . is the judge of the fact. . . In cases of
this sort it is of the greatest importance
that the value of the
opinion should be capable of being tested; and unless the expert
witness states the grounds upon which he bases
his opinion it is not
possible to test its correctness, so as to form a proper judgment
upon it.’
[53]
As indicated, I had some concerns about merely accepting the joint
minute signed by
the industrial experts. Dr Luthuli had not
interviewed the plaintiff or the minor child, nor had she subjected
the minor child to
any assessments. In fact, her report was explicit
that she reserved her right to supplement it if she was required to
do that. Her
report appears to have been based on information
obtained from having regard to the other expert reports filed by the
various experts.
There was no factual basis underpinning her
reasoning or conclusions.
[54]
Given the authorities referred to earlier in this judgment, I did not
accept her report
nor did I consider myself bound by the joint
minute, as the reliability of Dr Luthuli’s opinion as well as her
ability to sign
a joint minute when the reliability thereof could not
be tested was questionable. In addition, the defendant indicated that
it would
not be calling Dr Luthuli as a witness.
[55]
I
am
mindful
of
the
words
expressed
by
Rodgers
AJA
(as
he
then
was)
in
Bee
[29]
where
he held the following:
‘
In my view these
pronouncements indicate that if an expert witness cannot convince the
court of the reliability of the opinion and
his report, the opinion
will not be admitted. The joint report of experts is a document which
encapsulates the opinions of the experts
and it does not lose the
characteristic of expert opinion. The joint report must therefore be
treated as expert opinion. The fact
that it is signed by two or more
experts does not alter its characteristic of expert opinion. The
principles applicable to expert
evidence or reports are also
applicable to a joint report. The joint report before the court is
consequently part of evidential material
which the court must
consider in order to arrive at a just decision. The court, in such
instance, will be entitled to test the reliability
of the joint
opinion, and if the court finds the joint opinion to be unreliable,
the court will be entitled to reject the joint opinion.
The court is
entitled to reject the joint report or agreed opinion if the court is
of the view that the joint report or opinion is
based on incorrect
facts, incorrect assumptions or is unconvincing.’
[56]
Further, at para 31, the court held the following:
‘
The court cannot
base its decision on unreliable evidence. There is no valid reason
why a court should be precluded from considering
and taking into
account reliable evidence placed before it. For the court to ignore
reliable and credible evidence tendered, in my
view, defeats the ends
of justice . . . The court can only make a proper determination of
the appropriate compensation to award if
it takes into account all
the relevant evidential material and is not restricted to the joint
minute of experts, which joint minute
is based on erroneous
assumptions and incorrect facts. . .’
[57]
The
SCA in
Jacobs
and another v Transnet Limited t/a Metrorail
and
another
,
[30]
summarised the position in relation to the role of an expert witness
as follows:
‘
It is well
established that an expert is required to assist the court, not the
party for whom he or she testifies. Objectivity is
the central
prerequisite for his or her opinions. In assessing an expert's
credibility an appellate court can test his or her underlying
reasoning and is in
no worse a position than a trial court in that respect. Diemont JA
put it thus in
Stock v Stock
:
“
An expert . . .
must be made to understand that he is there to assist the Court. If
he is to be helpful he must be neutral. The evidence
of such a
witness is of little value where he, or she, is partisan and
consistently asserts the cause of the party who calls him.
I may add
that when it comes to assessing the credibility of such a witness,
this Court can test his reasoning and is accordingly
to that extent
in as good a position as the trial court was.”’ (Footnotes
omitted.)
[58]
Davis
J
,
in
Schneider
NO and Others v AA and Another
,
[31]
held
the following:
‘
In short, an
expert comes to court to give the court the benefit of his or her
expertise.
Agreed,
an expert is called by a particular party, presumably because the
conclusion
of
the
expert,
using
his
or
her
expertise,
is
in
favour
of
the
line
of
argument
of
the
particular
party. But that does not absolve the expert from providing the court
with as
objective
and
unbiased
an
opinion,
based
on
his
or
her
expertise,
as
possible.
An
expert
is
not
a
hired
gun
who
dispenses
his
or
her
expertise
for
the
purposes
of
a
particular
case.
An
expert
does
not
assume
the
role
of
an
advocate,
nor
gives
evidence
which
goes
beyond
the
logic
which
is
dictated
by the
scientific knowledge
which
that expert claims to possess.’
[59]
In the
matter between
Mathebula
v Road Accident Fund
,
[32]
the following was stated:
‘
An expert is not
entitled, any more than any other witness, to give hearsay evidence
as to any fact, and all facts on which the expert
witness relies must
ordinarily be established during the trial, except those facts which
the expert draws as a conclusion by reason
of his or her expertise
from other facts which have been admitted by the other party or
established by admissible evidence. . .’
[60]
In
PriceWaterhouseCoopers
Inc and others v National Potato
Co-operative
Ltd and another
,
[33]
the Supreme Court of Appeal considered the admissibility of an expert
opinion and the duties and responsibilities of an expert witness
in
civil cases:
‘
Opinion evidence
is admissible “when the Court can receive “appreciable help”
from that witness on the particular issue.”
. . .
As to the nature of
an expert’s opinion, in the same case, Wessels JA said:
“
. . . an expert’s
opinion represents his reasoned conclusion based on certain facts or
data, which are either common cause, or established
by his own
evidence or that of some other competent witness. Except possibly
where it is not controverted, an expert’s bald statement
of his
opinion is not of any real assistance. Proper evaluation of the
opinion can only be undertaken if the process of reasoning
which led
to the conclusion, including the premises from which the reasoning
proceeds, are disclosed by the expert.”’
[61]
In
AD
and another v MEC for Health and Social Development, Western Cape
Provincial Government
,
[34]
a decision of Rogers J delivered on 7 September 2016 at paras 39-45,
he deals with opinion evidence. At para 39 he held the following:
‘
When faced with
conflicting expert opinions, the court must determine which, if any,
of the opinions to accept, based on the reasoning
and reliability of
the expert witnesses. The court must determine whether and to what
extent an opinion is founded on logical reasoning.
An expert’s
function is to assist the court, not to be partisan. Objectivity is
the central prerequisite (see
Michael & Another v Linksfield
Park Clinic (Pty) Ltd & Another
2001 (3) SA 1188
(SCA) paras
37-39;
Jacobs & Another v Transnet Ltd t/a Metrorail &
Another
2015 (1) SCA) 139 paras 14-15). The expert must not
assume the role of advocate. If the expert’s evidence is to assist
the court
he or she must be neutral. The expert should state the
facts or assumptions from which his or her reasoning proceeds
(
PriceWaterhouseCoopers Inc & Others v National Potato
Co-Operative Ltd & Another
[2015] 2 All SA 403
(SCA) paras
97-99.)’
And
further at para 42, he held the following:
‘
. . . The expert
must demonstrate to the court that he or she has relevant knowledge
and experience to offer opinion evidence. If
such knowledge and
experience is shown, the expert can draw on the general body of
knowledge and understanding of the relevant expertise.
. .’
[62]
The report of Dr Luthuli however, did not involve any assessment or
evaluation of Amile
and her mother, nor an interview with them. Her
report was based purely on the review of expert opinions regarding
the minor as contained
in various export reports, copies of which she
was provided with. In addition, much of the information provided in
relation to the
career path and education of the maternal family was
unverified, specifically in respect of Amile’s mother’s education
and work
history, and no corroborating documents were provided
either.
[63]
The report of Dr Luthuli was unreliable given the lack of facts and
collateral information.
There was no factual basis to support the
conclusions. Both parties’ representatives were agreeable to my
approach. In addition,
as Ms Hill was reserved for the day, the
defendant was given the opportunity to cross-examine her on her
report should they not be
satisfied with the scenario she postulated.
Ms Moodley declined the opportunity to cross-examine Ms Hill, and
indicated that she
was desirous of arguing that a higher than normal
contingency ought to apply rather than challenging the scenario
postulated.
[64]
The plaintiff’s industrial physiologist, Ms Hill, prepared a report
on 16 November
2018 and in doing so, apart from having regard to the
various expert reports that were available and health records, held
interviews
and informal assessments with Amile as well as her mother,
the plaintiff. Collateral information was provided in relation to the
family history by the plaintiff which was verified.
[65]
Having regard to the lack of pre-incident educational potential as
the problems arose
at birth, Ms Hill concluded that it was likely
that Amile would have attended a main stream school and had the
potential to complete
a grade 12 level of education. In addition, as
long as she enjoyed continued family support and given the greater
opportunities for
tertiary education, she was of the view that Amile
would have probably been capable of obtaining a grade 12 level of
education and
furthering her education and had the potential to
progress from a semi-skilled level to a skilled-level of employment.
[66]
Given the uncertainty and the lack of pre-incident information, Ms
Hill relied on the
Deloitte National Remuneration Survey as at 1 June
2018. She postulated the following career path for Amile:
(a)
After completing her school at the end of 2028, she would have
enrolled for further studies such as a three year course and during
such period may have worked and competed for part time jobs as a
student, earning a minimum wage of R20 per hour and in the region
of
approximately R400 per week.
(b)
After completing her studies in 2032, she would have obtained
employment as a graduate earning at the lower quartile of Peromnes
grade 12, at a basic income of R13 990 per month (total remuneration
package of R18 874 per month).
(c)
After three years she would have progressed to the mean of Peromnes
12/Paterson at a basic monthly income of R16 167 (total monthly
remuneration package of R21 675).
(d)
After five years she would have progressed to the mean of Peromnes
11/Paterson B5/C1 (ie at a more supervisory level or junior
management
level) at a basic monthly income of R21 420 (total
remuneration package of R28 671 per month).
(e)
After three to five years, she would have progressed to the mean of
Peromnes 10/Paterson C2 at a basic monthly income of R24 848
(total
remuneration package of R33 574 per month).
(f)
After five years, Amile could have then progressed to the mean of
Peromnes 9/Paterson C3 at a basic monthly income of R29 372 (total
remuneration package of R40 718 per month).
(g)
Thereafter, Amile would have continued receiving inflationary
increases until the normal retirement age of 65 years.
[67]
Everyone agrees that now that the incident has occurred, Amile is
unemployable. Although
I was advised that her mother has received a
disability grant of some R2 000 a month which has varied over the
years, this is not
a factor to be considered in the calculation of
loss of earnings as Amile is young and not employed. However, I am
advised that the
plaintiff has been made aware by her legal
representatives that the effect of the order would be that she would
no longer be eligible
for such disability grant in respect of Amile.
[68]
Having regard to the contents of Ms Hill’s report, I am of the view
that it is an
extremely conservative approach and a likely scenario.
In addition, an appropriate contingency will give the eventual award
balance
and fairness by taking into account various factors.
Contingencies
[69]
It is
trite that in deciding on the appropriate loss of earnings, one needs
to determine a contingency to be applied for past as well
as future
loss of earnings. In
Southern
Insurance Association Ltd v Bailey NO
,
[35]
it was
stated as follows:
‘
Any enquiry into
damages for loss of earning capacity is of its nature speculative,
because it involves a prediction as to the future,
without the
benefit of crystal balls, soothsayers, augurs or oracles. All that
the Court can do is to make an estimate, which is
often a very rough
estimate, of the present value of the loss.’.
[70]
The court went further at 114C-E to hold as follows:
‘
In a case where
the Court has before it material on which an actuarial calculation
can usefully be made, I do not think that the first
approach offers
any advantage over the second. On the contrary, while the result of
an actuarial computation may be no more than
an "informed
guess", it has the advantage of an attempt to ascertain the
value of what was lost on a logical basis; whereas
the trial Judge's
"gut feeling" (to use the words of appellant's counsel) as
to what is fair and reasonable is nothing
more than a blind guess. .
.’
[71]
When
assessing
damages,
the
amount
to
be
allowed
by
way of
a
deduction
for
contingencies is variable and is dependent on the circumstances of a
particular case in which a trial judge is asked to exercise
her
discretion.
Arbitrary
considerations inevitably come into play. This was expressed by Margo
J in
Goodall
v
President Insurance Co Ltd
[36]
as
follows:
‘
In the assessment
of a proper allowance for contingencies, arbitrary considerations
must inevitably play a part, for the art or science
of foretelling
the future, so confidently practised by ancient prophets and
soothsayers, and by modern authors of a certain type
of almanac, is
not numbered among the qualifications for judicial office.’
[72]
Contingencies
allow
for
the
unknown
possibility
that
the
plaintiff
may
have
less than normal expectations of life and that he/she may have
experienced periods of unemployment, illness, accident or general
economic conditions. These relate to what is often referred to as
imponderables and speculation about the future. Age is an important
factor in calculating contingencies.
[37]
[73]
The
well renowned author, Mr Robert Koch, in his book, Quantum of
Damages, deals with the contingencies to be applied and how they
ought to be applied.
The
approach
to
the
application
of
contingencies
by
Koch
was
adopted
in
the
decision of
Road
Accident Fund v Guedes
[38]
as
follows:
‘
The author
Koch
describes his work as “a publication of financial and
statistical information relevant to the assessment of damages for
personal
injury or death”. The page in question is headed “General
contingencies”. It states that when
“
assessing damages
for loss of earnings or support, it is usual for a deduction to be
made for general contingencies for which no explicit
allowance has
been made in the actuarial calculation. The deduction is the
prerogative of the Court There are no fixed rules as regards
general
contingencies. The following guidelines can be helpful.”
Then follows what is
termed a “sliding scale” and the following is stated:
“
Sliding Scale: ½%
for year to retirement age, ie 25% for a child, 20% for a youth and
10% in middle age...”’
[74]
Mr
Oliff
submitted that I ought to consider applying a
contingency of half a percent per year for the remainder of Amile’s
working life.
He submitted that given her life expectancy which is up
to 55 years, it would be unfair to apply a normal contingency to the
remaining
10 years of her life, being from age 45 to 55 as the last
10 years is when one usually has an increase in salary. Her early
death
has been taken into account in the current calculations and if
one applies the rule of thumb, one arrives at a contingency of 22%.
However, he submitted that one must apply a lower than normal
contingency based on the following:
(a)
She ought not to be punished for the last 10 years of her working
life, given that her life expectancy is reduced;
(b)
She would incur travelling expenses and travelling risks; and
(c)
Her mother has not been able to advance in her career as she has had
to look after Amile.
[75]
He submitted that considering the fact that Ms Hill applied a
conservative approach,
the rule of thumb ought to be departed from
and I ought to apply a contingency of between 15-17%.
[76]
Ms
Moodley
on the other hand submitted that I ought to apply a
higher than normal contingency and depart from the rule of thumb. Her
reason for
this is based on the following factors, namely:
(a)
If one accepts Ms Hill’s career path, although the figures are
extremely conservative, she is of the view that the progression
from
one level to the next may be overly optimistic given:
(i)
her family’s situation;
(ii)
the current economic climate in South Africa, and
(iii)
the effects of the Covid-19 pandemic.
[77]
She indicated that a contingency of 35% ought to be applied as if one
considers the
family history, both her mother and her mother’s
siblings qualified with a senior certificate. Although they appeared
to be settled
in their careers, they took a considerable period of
time to advance in their chosen professions and there appears to be
some delay
in advancement.
[78]
It is correct that much reliance is placed on the guide set out by
Koch when applying
the rule of thumb to half a percent per year to
retirement age. That is normally in relation to an adult. In respect
of a child,
the ‘normal contingency is 25%’. Even though I accept
that Ms Hill’s figures are conservative and that she has applied a
stepped
progression in relation to the premorbid scenario, one has to
accept that in relation to a child, one is engaging in pure
speculation.
[79]
A contingency adjustment is called for in that I must consider that
the premorbid scenario
of Amile in respect of her earning capacity
may have been cut short or interrupted for unrelated causes like the
South African economy
whether because of domestic or international
circumstances, may not perform sufficiently well for her to advance
as suggested, and
the high unemployment rate in South Africa,
specifically in relation to female graduate professionals that
prevails. One of the considerations
must also be that every single
member of her family on the maternal side qualified with a senior
certificate however, this was not
without some delay in some
instances. Their progression are also somewhat delayed in their
career path and I cannot discount this,
given the fact that Amile’s
mother is a single mother raising a child on her own.
[80]
In
Bailey supra
, which concerned a child who was injured at
the age of two, the loss of earnings was based on the fact that she
would have worked
to the age of
60.
Although Nicholas JA observed that the fortunes of life are not
always adverse, he interfered with the trial judge’s contingency
deduction of 10% on the grounds that it was ‘unduly generous’ and
increased it to 25%.
[39]
A
similar deduction was made in
Nanile
v Minister of Post and Telecommunications
.
[40]
In
S
v Road Accident Fund
[2015]
ZAGPPHC 1125, Fourie J, having regard to these and other cases, made
a contingency deduction of 25% from the premorbid earnings
of a child
who
was
injured at the age of three and would have worked to the age of 65.
[81]
In
NK
v MEC for Health, Gauteng
,
[41]
the court, in referring to the judgment of Nicholas JA in
Bailey,
remarked
that
‘
the deduction for
contingencies is meant to take into account the “vicissitudes of
life”. These include
“
the possibility
that the plaintiff may in the result have less than a normal
expectation of life; and that he may experience periods
of
unemployment by reason of incapacity due to illness or accident, or
to labour unrest or general economic conditions”.’ (Footnotes
omitted.)
In
respect of the vicissitudes of life, ‘the rate of the discount
cannot of course be assessed on any logical basis: the assessment
must be largely arbitrary and must depend upon the trial Judge’s
impression of the case.’
[42]
[82]
Further,
at 461G-H, Willis JA remarked that:
‘
[contingencies
are like] the rolling of a dice. A court is not a casino. . .
Conjecture may be required in making a contingency deduction,
but it
should not be done whimsically.’
[83]
In
Buys
v MEC for Health and Social Development of the Gauteng Provincial
Government
,
[43]
the court summarised the position with regard to contingencies as
follows:
‘
[96]
Contingencies are the hazards of life that normally beset the lives
and circumstances of ordinary people (
AA Mutual Ins Co v Van
Jaarsveld
(1), The Quantum of Damages, Vol II 360 at 367) and
should therefore, by its very nature, be a process of subjective
impression or
estimation rather than objective calculation (
Shield
Ins Co Ltd v Booysen
1979 (3) SA 953
(A) at 965 G-H).
Contingencies for which allowance should be made, would usually
include the following:
â–
the possibility of
errors in the estimation of life expectation;
â–
the possibility of
illness which would have occurred in any event;
â–
inflation or
deflation of the value of money in future; and
â–
other risks of life,
such as accidents or even death, which would have become a reality,
sooner or later, in any event.’
[84]
In my view, based on the contents of the report of Sonia Hill, the
submissions of the
parties and the family history, I am of the
considered view that a contingency of 25% is the most appropriate in
the circumstances.
Costs
[85]
The
defendant has acknowledged that it is liable for the costs of the
hearing in
respect
of the determination of loss of earnings and general damages.
However, Ms Moodley indicated that she had no instructions to
agree
to the defendant paying for the costs resulting from the formation of
the trust for Amile. The creation of such trust
is
governed by the provisions of the Administrations of the Estates
Act.
[44]
The costs of
the
creation of such trust have also been predetermined and constitute
7,5% of the total
amount
payable
to
the
trust.
Consequently,
there
is
no
basis
for
me
to
depart
from
the
set
fee
applicable
and
the
defendant
will
be
liable
for
the
costs
of
the
creation
of the trust at the rate of 7,5% of the total sum awarded.
Order
[86]
At the hearing of the matter, Mr
Oliff
handed up a draft order
which Ms
Moodley
had no difficulty with. Much of what was
contained therein was agreed to by the parties save for the quantum
of general damages and
loss of earnings which I was required to
determine.
Conclusion
[87]
There has been a delay in the delivery of this judgment. This has
been as a consequence
of the fact that I do not have a permanent
registrar assigned to me and the lack of administrative support. This
has been brought
to the attention of the Judge President and the
offices of the Chief Justice. In addition an updated actuarial
calculation had to
be obtained.
[88]
In the result, the following orders will issue:
1.
The defendant shall pay to the plaintiff’s attorneys
in respect of
Amile Madela, the total amount of R
6 548 998.00
which amount
is computed as follows:
(a)
R 1,6 million in respect of general damages;
(b)
R 4 948 998.00 in respect of loss of earnings.
2.
The total amount mentioned in paragraph 1 is to be paid
within thirty
days from the date of this order, directly into the trust account of
the plaintiff’s attorney of record.
3.
The defendant shall pay interest, if any, on the total
amount at the
legally prescribed rate operative on 30 May 2021 calculated from that
date to the date of final payment.
4.
The total amount of R 6 548 998.00 shall be retained by
the
plaintiff’s attorneys in an interest-bearing account in terms of
s
86(4)
of the
Legal Practice Act 28 of 2014
for the benefit of the
minor child Amile.
5.
The plaintiff’s attorneys are directed to forthwith create
a trust
with a financial institution for the minor child, Amile, and notify
the defendant of the particulars thereof.
6.
The defendant is further ordered to pay 7.5% of the total
amount in
paragraph 1 toward the costs of the administration of the trust
referred to in paragraph 5 above.
7.
The defendant is to pay the plaintiff’s necessary and
reasonable
costs, such costs to include:
(a)
the report, reservation fee and costs of preparing the joint minute
of Ms S Hill;
(b)
the report and preparation of the joint minutes of:
(i)
Ms R Thanjan;
(ii)
Ms K Rupee;
(iii)
Ms M
Read;
(iv
Ms S Somaroo;
(c)
the cost of consultation with Ms Hill and counsel;
(d)
preparation for trial, preparation of the stated case and heads of
argument.
8.
The defendant is directed to file any further reports pertaining
to
future medical expenses by 18 June 2021.
9.
Neither party shall be entitled to lead the evidence of
any expert
whose report was given after the date in paragraph 8 above, unless
the court has granted condonation in respect thereof
on application,
save that this shall not apply to supplementary reports.
10.
The registrar is required to allocate a trial date in the fourth
quarter
of 2021 and to allocate three days for trial.
11.
The trial of the matter is adjourned
sine die.
12.
The matter is adjourned to continue judicial case flow management
before
Henriques J on 12 May 2021 at 09h00am.
HENRIQUES J
Case
Information
Date
of Set Down
:           16 and
17 September 2020
Date
of Judgment
:           30
April 2021
Appearances
Counsel
for the Applicant
:
Mr M.A.
Oliff
Instructed
by
Plaintiff’s
Attorneys                        :
Justice Rechlin Ramsamy Attorneys
Suite
1403, 14th Floor
Metlife
Building
391
Anton Lembede Street
(Formerly
Smith Street)
Durban
Email:
jrr@jrr.co.za
Tel:
031 582 5000
Ref:
JRR/nm/M2545/MAT117
Counsel
for the Defendant
:
Ms M
Moodley
Instructed
by
Defendant’s
Attorneys
:           Mr S
Ndlovu
Assistant
State Attorney KZN
6th
Floor
Metlife
Building
391
Anton Lembede Street
(Formerly
Smith Street)
Durban
Tel:
031 365 2531
Ref:
24/004682/15/M/P27
This
judgment was handed down electronically by circulation to the
parties’ representatives by email and release to SAFLII. The
date
and time for hand down is deemed to be 09h30 on 30 April 2020.
[1]
NK
obo
ZK
v
Member
of the Executive Council for
Health
of the Gauteng Provincial Government
2018
(4) SA 454
para 7.
[2]
Ibid at 983A-G.
[3]
Southern
Insurance Association Ltd v Bailey NO
1984
(1) SA 98
(A) at 119D-H.
[4]
Torres
v Road Accident Fund
2010
(6A4) QOD 1 (GSJ).
[5]
Megalane
NO v Road Accident Fund
[2006]
ZAGPHC 116
; 2006 (5A4) QOD 10 (W).
[6]
MSM
obo KBM v MEC for Health, Gauteng
[2019]
ZAGPJHC 504; 2020 (2) SA 567 (GJ).
[7]
Matlakala
v
MEC
for
Health,
Gauteng
Provincial
Government
[2015]
ZAGPJHC
223;
2015
(7A4)
QOD
22 (GJ).
[8]
ZK
v
MEC
for
Health,
Gauteng
Provincial
Government
[2018]
ZASCA
13
;
2018
(7A4)
QOD
80
(SCA).
[9]
MP
obo SP v
MEC
for Health, Eastern Cape Province
[2018]
ZAECMHC 28; 2018 (7A4) QOD 87
(ECM).
[10]
Mngomeni
obo EN Zangwe v MEC for Health, Eastern Cape Province
2018
(7A4) QOD 94 (ECM).
[11]
CS
(obo TGS) v MEC for Health, Gauteng
[2015]
ZAGPPHC 605; 2018 (7A4) QOD 104 (GNP).
[12]
JR
v The MEC for Health, North West Province
2018
(7B4) QOD 80 (NWM).
[13]
Booyse
and another v MEC for Health, Gauteng Province
[2019]
ZAGPPHC 363.
[14]
ZK
v
MEC
for
Health,
Gauteng
Provincial
Government
[2018]
ZASCA
13
;
2018
(7A4)
QOD
80
(SCA).
[15]
AD
and Another v MEC for Health and Social Development, Western Cape
Provincial Government
[2016]
ZAWCHC 181
para 618.
[16]
PM
obo TM v MEC for Health, Gauteng Provincial Government
[2017]
ZAGPJHC 346
para
56.
[17]
See
Minister
of Safety and Security v Seymour
2006
(6) SA 320
(SCA) paras 17-19 and
Minister
of
Safety
and Security v Tyulu
2009
(5) SA 85
(SCA) para 26.
[18]
Singh
and another v Ebrahim
[2010]
ZASCA 145
para 128.
[19]
PM
obo TM v MEC for Health, Gauteng Provincial Government
[2017]
ZAGPJHC 346.
[20]
Minister
of Police v Dlwathi
[2016]
ZASCA 6; [2016] JOL 35451 (SCA).
[21]
Ibid para 8.
[22]
Protea
Assurance Co Ltd v Lamb
1971
(1) SA 530
(A) at 534H-535A.
[23]
Road
Accident Fund v Marunga
2003
(5) SA 164 (SCA).
[24]
Bee
v Road Accident Fund
[2018]
ZASCA 52; 2018 (4) SA 366 (SCA).
[25]
National
Justice Compania Naviera S. v Prudential Assurance C. Ltd (“the
Ikarian Reefer”)
[1993]
2
Lloyd’s
Rep 68 at 81.
[26]
Masstores
(Pty) Ltd v Pick ʼn Pay Retailers (Pty) Ltd and another
[2015]
ZASCA 164
;
2016 (2) SA
586
(SCA) para 15.
[27]
See
Jacobs
and another v Transnet Ltd t/a Metrorail and another
[2014]
ZASCA 113
;
2015 (1) SA
139
(SCA) paras 15 and 16, and
Coopers
(SA)
(Pty)
Ltd
v
Deutsche
Gesellschaft
Für
Schädlingsbekämpfung
mbH
1976 (3) SA 352
(A) at 371F-G.
[28]
R
v Jacobs
1940
TPD 142
at 146-147.
[29]
Bee
v Road Accident Fund
[2018]
ZASCA 52
;
2018 (4) SA 366
(SCA) para 30.
[30]
Jacobs
and another v Transnet Limited t/a Metrorail and another
2015
(1) SA 139
(SCA) para 15.
[31]
Schneider
NO and Others v AA and Another
2010
(5) SA 203
(WCC) at 211J-212B.
[32]
Mathebula
v Road Accident Fund
[2006]
ZAGPHC 261
para 13.
[33]
PriceWaterhouseCoopers
Inc
and
others
v
National
Potato
Co-operative
Ltd
and
another
[2015]
ZASCA
2
;
[2015] 2 All SA 403
(SCA) para 97.
[34]
AD
and another v MEC for Health and Social Development, Western Cape
Provincial Government
[2016]
ZAWCHC 116.
[35]
Southern
Insurance Association Ltd v Bailey NO
1984
(1) SA 98
(A) at 113F-G.
[36]
Goodall
v President Insurance Co Ltd
1978
(1) SA 389
(W) at 392H-393A.
[37]
Ibid.
[38]
Road
Accident Fund v Guedes
2006
(5) SA 583
(SCA) at 588.
[39]
Southern
Insurance Association Ltd v Bailey NO
1984
(1) SA 98
(A) at 117E-F.
[40]
Nanile
v Minister of Posts & Telecommunications
1990
(4A4) QOD 30 (E).
[41]
NK
v MEC for Health, Gauteng
[2018]
ZASCA 13
;
2018 (4) SA 454
(SCA) para 15.
[42]
Southern
Insurance Association Ltd v Bailey NO
1984
(1) SA 98
(A) at 116H-117A.
[43]
Buys
v
MEC
for
Health
and
Social
Development
of
the
Gauteng
Provincial
Government
[2015]
ZAGPPHC
530 para 96.
[44]
Administration of Estates Act 66 of 1965
.