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[2023] ZAFSHC 494
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J.R.H and Another v Member of the Executive Council: Department of Health, Free State Province (3270/2016) [2023] ZAFSHC 494 (21 December 2023)
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IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Case No. 3270/2016
Reportable:
NO
Of Interest to other
Judges: NO
Circulate to
Magistrates: NO
In
the matter between:
J[...]
R[...] H[...]
FIRST PLAINTIFF
G[...]
M[...] A[...] H[...]
SECOND PLAINTIFF
and
THE
MEMBEROF THE EXECUTIVE COUNCIL:
DEPARTMENT
OF HEALTH, FREE STATE PROVINCE
DEFENDANT
CORAM
:
GUSHA, AJ
HEARD
ON:
10, 11, AND 13 OCTOBER 2023
DELIVERED
ON
:
19 DECEMBER 2023.
JUDGMENT
[1]
Pregnancy and the resultant birth of a beautiful, healthy and
bouncing baby are one
of the greatest joys and blessings of
motherhood. Indeed there is no greater love and blessing than to be
entrusted with bringing
a new life into this world, loving and
nurturing it. Admittedly motherhood in and of itself is hardly ever
easy, it is a path often
filled, amongst others, with love, laughter,
pain and all the other hardships of life in general. That however is
what makes the
journey through motherhood and life so worth-while.
[2]
The joys of motherhood start from the moment a mother-to-be realises
that there is
new life growing inside her belly to the moment, and
beyond I daresay, she gives birth and welcomes her child into this
world.
Mothers-to-be, new mothers and their significant others, revel
during this time of their lives. Sadly this was not to be for the
first and second plaintiffs. Owing to the admitted negligence of the
employees of the defendant, the plaintiffs’ firstborn
son
(A[...]) demised a mere 2 days after his birth.
[1]
[3]
The negligence of the defendant’s employees unleashed a series
of unfortunate
and heart-rending events which culminated in these
proceedings. As the defendant conceded the merits, I do not for
purposes of
this judgment deem it necessary to delve into those
events, save to, where necessary, fleetingly making reference thereto
in the
body of this judgment. Subsequent to the demise of A[...], the
plaintiffs instituted action for damages as a result of the
negligence
of the defendant’s employees and the resultant
sequelae suffered by her. Her claim comprises of the following heads;
3.1.
In respect of the First Plaintiff:
3.1.1.
Future medical expenses:
R 663 150.00
3.1.2.
Past Loss of earnings:
R1 707 385.00
3.1.3.
Future loss of earnings:
R6 587 165.00
3.1.4.
General damages:
R 650 000.00
3.1.5.
Total loss:
R9
607 700. 00
3.2.
In respect of the Second Plaintiff:
3.2.1.
Future and related expenses:
R 86 620.00
3.2.2.
Funeral expenses:
R 15 000.00
3.2.3.
General damages :
R 650 000.00
3.2.4.
Total loss:
R
751 620.00
[4]
With the merits conceded, the nub of the remaining dispute between
the parties is
with regards to the quantum and the contingencies to
be applied thereto.
[5]
The facts giving rise to the litigation between the parties are
largely uncontroverted.
It is common cause that on the 2
nd
August 2013 the first plaintiff, pregnant at the time with A[...]
was, following a diagnosis of hypertension at her local clinic,
referred to and transferred to Pelonomi Hospital whereat she was
informed that she was in labour. This notwithstanding, she was
mainly
left unattended by the medical personnel. On the afternoon of the 3
rd
August 2013, she was induced for labour and prepped for an emergency
caesarean section, but was, alas, never taken to theatre.
A[...] was
subsequently born, through vaginal birth after an episiotomy was
performed without any local anesthetic being administered,
in the
early hours of the 4
th
August 2013. He reportedly suffered
brain damage and sadly demised on the 6
th
August 2013.
[6]
In an often heart-rending and agonizing wail, the first plaintiff
testified that she
only held her son for a few seconds before he was
taken away from her by the medical personnel. She never saw him alive
again and
never had the opportunity to lay him to rest as she was
hospitalised at the time of his interment. The second plaintiff too
never
attended the interment as he supported her at the hospital. She
was thereafter left unattended in the corridor on a stretcher. When
the second plaintiff arrived at Pelonomi hospital, he found her on a
stretcher in the corridor and the sheets she lay on drenched
in
blood. When he attempted to raise alarm, he was met with resistance
from the hospital and security personnel.
[7]
The first plaintiff was eventually taken to theatre and when she
regained consciousness,
she found herself in an ambulance reportedly
en route to Universities hospital whereto she had reportedly been
transferred. She
was admitted to and hospitalised at Universitas
hospital from the 4
th
August 2013 until the 19
th
August 2013. During her stay at Universitas hospital, she received
dialysis treatment.
[8]
As a result of her ordeal, the first plaintiff suffered from heavy
and persistent
vaginal bleeding for 3 years which prevented the
couple from engaging in any sexual intercourse with each other. She
testified
that she was extremely depressed, suffers from panic
attacks, is anti-social, has problems with her memory and has
difficulty sleeping.
She twice attempted suicide, once in 2013 and
once in 2019. I pause here to mention that, seeing and listening to
the first plaintiff
tender her evidence, was the most agonizing and
difficult experience in my judicial life. So emotional was she that
it was often
difficult to hear or make sense of her evidence
throughout the screams. To not be affected by that, one would have to
be devoid
of all human emotion. No human being should ever be
subjected to the treatment that she was.
[9]
The second plaintiff testified and largely supported the evidence of
the first plaintiff.
He testified that upon his arrival at Pelonomi
hospital he realised that his wife
[2]
was pale and lying in a pool of blood. His pleas for help to the
medical personnel fell on deaf ears and was rather met with him
being
removed from the hospital by the hospital security and members of the
South African Police Service. As a result of the scuffle
between him
and the security personnel he fell aground and suffered what he
called a “stroke” and that he could feel
his chin was out
of position.
[3]
[10]
Additional to the
viva voce
evidence of the plaintiffs, the
following expert evidence was introduced into the record; Dr Shevel a
psychiatrist, Dr Truter a
clinical psychologist, Mr Peverett an
industrial psychologist and Munro Actuaries. For the defendant the
following expert evidence
was tendered; Dr Lekalakala a psychiatrist,
Dr Pienaar a clinical psychologist and Dr Van Pletzen an industrial
psychologist.
[11]
The respective experts on behalf of the parties, but for the
Actuaries, filed joint minutes.
I now proceed to deal therewith.
[12]
In so far as the joint minute of the industrial psychologists is
concerned, the experts are agreed
that but for the incident, the
first plaintiff would have entered the labour market at 24 years,
plateaued at 45 years and would
have retired at 65 years. She would
have earned R81 000.00
per annum,
and would have earned a
salary of R236 000.00
per annum
by the age of 65 years. The
experts are also in agreement that the first plaintiff’s
pre-incident career and earnings is
deemed significantly compromised
and that her future earning capacity would probably be similar to
what obtained post-incident,
i.e. limited to the informal sector and
limited to between R0 – R21 500.00
per annum.
[13]
In an endeavour to curtail the issues w.r.t. the first plaintiff’s
loss of income, the
parties agreed that same be calculated by an
actuary on the basis as postulated in the joint minute, provided that
contingencies
be the prerogative of the court. In calculations
accepted by the first plaintiff, the defendant’s actuary
calculated her
loss of income claim as follows;
Past Income
Future Income
Total Income
Income but for the
incident
R717 586.00
R4 020 524.00
R4 738 110.00
Income post
incident
R56 947.00
R228 846.00
R285 793.00
Difference
R660 639.00
R3 791 678.00
R4 452 317.00
[14]
Resultantly, in so far as the first plaintiff’s claim for loss
of income is concerned,
the only dispute between the parties are the
contingencies to be applied in the various scenarios.
[15]
The two clinical psychologists on behalf of the parties Drs. Truter
and Pienaar also filed a
joint minute for the benefit of the court. A
cursory reading of the joint minute does not suggest any notable
differences of opinion
between the two experts.
[16]
In their joint minute, they are agreed that with the background and
information available the
first plaintiff did not suffer from
predating diagnosed psychopathology. It is further their joint expert
opinion that the events
surrounding the birth of A[...] contributes
to her ongoing post-traumatic stress disorder (PTSD) features.
[17]
In a joint minute furnished to court during the trial, the two
physiatrists, Drs. Shevel and
Lekalakala agree that the first
plaintiff suffers from major depressive disorder. Dr Lekalakala
considers her chronic depression
to be of a mild to moderate degree
whereas Dr Shevel considers it to be moderate to severe. Dr Shevel
furthermore notes the presence
of chronic generalized anxiety with
superimposed panic attacks and agoraphobia and notes that she is now
largely confined to her
home environment.
[18]
Both experts are agreed that the first plaintiff requires psychiatric
/ psychological treatment.
They however have divergent opinions on
the extent of the said treatment. Dr Lekalakala opines that the first
plaintiff requires
psychotherapy treatment whereas Dr Shevel opines
that due to the severity of her condition, the first plaintiff
requires long-term
treatment including the use of psychiatric
medication and psychotherapy.
[19]
With regards to the second plaintiff the psychologists in their joint
minute agree that the second
plaintiff still relives the trauma and
suffers from post-traumatic stress disorder (PTSD) and that he would
benefit from psychological
interventions.
[20]
In their joint minute, the psychiatrists are agreed that allowance
should be made that the second
plaintiff attend twenty (20) sessions
of psychotherapy.
[21]
Having outlined the evidence and the different expert opinions, the
remark I made earlier in
this judgment
[4]
,
rings with deafening intensity. The first plaintiff undoubtedly
suffered psychological, emotional and behavioural sequelae as
a
result of the traumatic birth and subsequent demise of her son. She
also suffered physical injuries which led to her receiving
dialysis
and suffered vaginal bleeding for three (3) years thereafter. Add to
this the fact that she never had the opportunity
to bond and grieve
for her son and to get the closure she so needed by attending his
interment. So severe was the trauma that for
some 3 years after the
fact, she could not be intimate with her husband. At the risk of
repetition; no human being should ever
be subjected to the treatment
that the she was subjected to.
[22]
Juxtaposed, the sequelae that the second plaintiff suffered are to a
much lesser degree than
those suffered by the first plaintiff.
[23]
Perhaps one ray of sunshine in this tragic and unfortunate turn of
events is that the plaintiffs
have now found some semblance of
closure by visiting their son’s grave, they have managed to
rekindle their intimacy and
appear to be ever so strong in their love
for each other, this much was evident from how they supported each
other in court.
[24]
In
determining the quantum of general damages of this case I am alive to
the principle as laid down in
De
Jongh v Du Pisanie N.O
.
2005
(5) SA 547
(SCA)
that
in these instances the court must ensure that its award is fair to
both parties, further that it must give just compensation
to the
plaintiff, but that it must not pour largesse from the horn of plenty
at the expense of the defendant.
[5]
[25]
Further in determining general damages, a court has a wide discretion
and must determine each
case on its own merits and generally leans
towards conservatism and has regard to considerations such as awards
in comparable cases,
inflationary changes in the value of money and
problems arising from collateral benefits.
[6]
[26]
Attempting
to determine an adequate
solatium
for the plaintiffs suffering is, of course, a daunting task as no
monetary compensation can ever make up for the loss of their
child
and the resultant mental anguish they suffered. I have however sought
guidance in awards in previous cases but comparisons
are always
odious, particularly as the facts in different cases already, if
ever, are directly comparable.
[7]
[27]
I now turn to deal with the claim for loss of income and future
medical expenses as well as the
contingencies to be applied thereto.
The law on contingencies is trite and no benefit will accrue form
restating it here.
[8]
The
evidence
in
casu
shows
that the plaintiffs were relatively healthy individuals who did not
suffer any psychological psychiatric and or problems which
would have
prevented them from gainfully participating in the labour market but
for the events leading up to and including the
death of their first
–born son.
[28]
With regards to the future medical expenses albeit Dr Lekalakala was
steadfast in the joint minute
that the first plaintiff would benefit
from psychotherapy, he did concede in cross examination that in the
event psychotherapy
is ineffective she would have to receive
psychiatric treatment. I am not persuaded that the first plaintiff
owing to her admitted
past reluctance psychological treatment would
now somehow in the future display the same aversion. Firstly because
none of us are
endowed with the proverbial crystal ball and lastly
because when quizzed and prompted on this aspect, she displayed a
willingness
to get better and was open to any and all available
treatment.
[29]
Against this backdrop I am of the view that the following
contingencies ought to be applied as
same would be fair and
reasonable in the circumstances of this case;
7.5%
on the past income in the “but for” scenario;
15% on
the future income in the “but for” scenario: and
5% on
past income in the “having regard” to scenario; and
35% on
the future income in the “having regard to” scenario.
[30]
In the result I make the following order;
30.1. Payment
by the defendant to the first plaintiff in the sum of R 5 118 532.90
made up as follows;
30.1.1.
General Damages:
R 550 000.00
30.1.2.
Loss of Income:
R 3 878 362.90
30.1.3.
Future medical expenses: R 690
170.00
30.2. Payment
by the defendant to the second plaintiff in the sum of R390 870.00
made up as follows;
30.2.1.
General damages:
R 300 000.00
30.2.2.
Future medical expenses: R 90 870.00
30.3. The
payments to be made into the following banking account;
Honey
Attorneys-Trust Account
Nedbank
– Maitland Street Branch, Bloemfontein
Branch Code: 1[...]
Reference: H[...]
30.4. In the
event the defendant does not, within 30 days from the date on which
this order is handed down, make payment
of the capital amounts, the
defendant will be liable for the payment of interest on such amount
at 10.50 % ( the statutory rate
per annum
) calculated from the
date of this order.
30.5. The
defendant to pay plaintiffs’ taxed or agreed party and party
costs which costs shall include the costs
of 1 counsel, including the
costs of the following experts;
30.5.1.
Dr DA Shevel (Psychiatrist)
30.5.2.
Mr Marc Peverett (Industrial Psychologist)
30.5.3.
Dr K Truter (Clinical Psychologist)
30.5.4.
Mrs J Valentini (Munro Forensic Actuaries)
30.6. In the
event where costs are not agreed upon:
30.6.1.
The plaintiffs will serve a notice of taxation on the defendant’s
attorney of record; and
30.6.2.
The plaintiffs will allow the defendant 30 court days to
make payment
of the taxed costs.
NG
GUSHA, AJ
On
behalf of the Plaintiffs:
Adv.
PJJ Zietsman, SC
Instructed
by:
Honey
Attorneys
BLOEMFONTEIN
On
behalf of the Defendant:
Adv.
(Ms) K. Nhlapo-Merabe
Instructed
by:
Office
of the State Attorney
BLOEMFONTEIN
[1]
The
defendant conceded liability for 100% of the first and second
plaintiffs’ proven and /or agreed upon damages as per
Rule 37
minute 11 of 11 August 2022, amended index notices and other
pleadings bundle, par 4 page 124.
[2]
The
first plaintiff.
[3]
However
in the context of his evidence, I formed the distinct impression
that what he experienced was more a state of unconsciousness
rather
than a stroke, in any event save for his mere say-so, no medical
evidence to buttresses his claim was led.
[4]
No
human being should ever be subjected to the treatment that the first
plaintiff was subjected to.
[5]
At
par 582 A-C.
[6]
Southern
Versekering v Carstens NO
1987 (3) SA 577
(A), Bay Passenger
Transport v Franzen [1975] 1 All SA 658 (A).
[7]
Povey
v Road Accident Fund 963390/16) [2022] ZAGPPHC 32 (18 January 20220,
Komape and 3 others v Minister of Basic Education and
3 others
2020
(2) SA 347
(SCA), Mbhele v MEC for Health Gauteng (355/15)
[2016]
ZASCA 166
(18 November 2016).
[8]
Nicholson
v Road Accident Fund (07/11453) [2012] ZAGP JHC 137 (30 March 2012).