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[2023] ZAECBHC 24
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N.K v Member of the Executive Council for Health, Eastern Cape - Application for Leave to Appeal (502/2017) [2023] ZAECBHC 24 (15 August 2023)
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IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, BHISHO)
CASE NO. 502/2017
REPORTABLE:YES/NO
In
the matter between:
N[…]
K[…]
Plaintiff
and
THE
MEMBER OF THE EXECUTIVE COUNCIL FOR HEALTH,
Defendant
EASTERN
CAPE
JUDGMENT ON
APPLICATION FOR LEAVE TO APPEAL
ZILWA J
[1]
Pursuant to the dismissal of the applicant’s damages claim in
her personal capacity in a
medical negligence action in which she had
brought an action, both in her personal as well as in her
representative capacity on
behalf of her minor child, the applicant
seeks leave to appeal to the Full Court of this Division.
[2]
The basics upon which the leave to appeal is sought are the
following:
2.1
The Court
a quo
failed to have any or sufficient regard to the
undisputed evidence before Court supporting on a balance of
probabilities the existence
and merits of the plaintiff’s
personal claim.
2.2
The Court
a quo
failed to have any or sufficient regard to the
undisputed evidence from the plaintiff that she had been diagnosed
with depression
in consequence of the traumatic events relating to
the birth of her child and the ensuing onerous duties of caring for a
brain
damaged child, and that the plaintiff had been receiving
medical treatment in respect of such depression.
2.3
Having found that by reason of the negligence of the servants of the
defendant the plaintiff had endured
a severely complicated
intrapartum stage and birth process, and that it was evident and
undisputed on the record that following
the birth of the plaintiff’s
severely brain damaged child with far-reaching sequelae placing a
burden on the plaintiff as
the primary caregiver of the minor child,
the Court erred in failing to uphold the plaintiff’s personal
claim.
2.4
The Court
a quo
erred in failing to apply the salutary
approach to the issue of the plaintiff’s personal claim as
contained in the similar
matter of
Nkamela obo Okuhle Nkamela v
MEC for Health, Eastern Cape Province
(308/2018) [2022] ZAECBHC
15 (31 May 2022) especially at paragraph [13].
2.5
The Court
a quo
erred in the circumstances of this matter, in
holding that the plaintiff’s personal claim could not be upheld
without expert
evidence.
2.6
The Court
a quo
erred in not having any or sufficient regard
to the contents of reports from the witnesses Ebrahim and Redfern,
which were tendered
in evidence, which reflects on the condition of
the plaintiff’s child and the consequences thereof on the
plaintiff.
2.7
The Court
a quo
erred in failing to uphold the plaintiff’s
personal claim on the evidence before it.
2.8
The Court
a quo
erred in awarding costs in respect of the
plaintiff’s personal claim against the plaintiff in
circumstances where no additional
costs relating to the conduct of
this claim were demonstrated or shown to exist.
[3]
As indicated in paragraph [3] of the judgment the applicant’s
claim in her personal capacity
is premised on the contention that in
consequence of the respondent’s pleaded negligence she had
experienced severe psychological
and / or psychiatric shock and
trauma and will continuously experience same in future.
[4]
On trite legal principles in order to succeed in such claim the
applicant had the
onus
to prove her claim and damages at the
required scale of the balance of probabilities.
[5]
There was a duty on the applicant to substantiate her claim by
proving the alleged severe psychological
and / or psychiatric shock
and trauma that she claimed to have suffered and will allegedly
continued to experience in the future.
[6]
Such proof would, of necessity, entail the leading of expert
evidence. To succeed, in her
claim the plaintiff had to prove
that she sustained a detectable psychiatric injury which is not
trivial.
[1]
[7]
The applicant is a lay person and there is no suggestion that she has
any expertise that would
enable her to diagnose herself of the
alleged ailments. A Claimant cannot simply make bald and
unsubstantiated allegations of psychological
and / or psychiatric
shock and trauma that allegedly exists in the present and that will
persist in the future. This requires
proper accompanying
diagnosis from relevant experts such as psychiatrists and
psychologists.
[8]
It is common cause that in this case no such expert evidence from any
psychiatrists or psychologists
has been led by the plaintiff to
substantiate her claim of having sustained the alleged psychological
and / or psychiatric shock
and trauma. The mere
ipse dixit
by the lay applicant to have suffered such injuries has no
evidential value that would ground a damages award in her favour for
such alleged but unsubstantiated injuries. This is a specially
so where the applicant in her evidence had alleged that there
are
many things that cause her depression. The condition of her
child whose claim was upheld in the trial, is one of them.
[9]
There is a faint suggestion in the applicant’s notice of
application for leave to appeal
that the evidence of the expert
witnesses, Drs Ebrahim (Obstetrician and Gynaecologist) and Redfern
(Paediatrician) about the condition
of the plaintiff’s child
and the consequences thereof on the plaintiff should somehow be used
as proof that the plaintiff
has suffered the alleged psychological
and psychiatric shock. None of those experts claimed to have
any expertise in psychological
or psychiatric issues and there was no
suggestion in their expert notices that their testimony would be also
used to also prove
psychological and psychiatric shock and trauma on
the part of the plaintiff. It is hardly surprising that in
argument Mr
Dugmore SC did not attempt to rely on their testimony as
expert proof of the alleged psychological and psychiatric shock and
trauma
on the applicant. Such argument would have been totally
devoid of basis or merit.
[10]
In
Barnard v Santam Bpk
[2]
it was
held that the existence of a recognisable psychological lesion in a
claim that is based on a serious psychiatric injury should,
as a
rule, be proved by supporting psychiatric evidence. No such
evidence was led in this case.
[11]
In
Road
Accident Fund v Sauls
[3]
it was
held that in order to be successful in a claim such as the one in
issue herein the applicant has to prove, not mere nervous
shock or
trauma, but that she had sustained a detectable psychiatric injury.
[12]
In
Komape
v Minister of Basic Education
[4]
the
SCA held at paragraph 45 that liability (in a case such as the
present) can only follow if there is a psychiatric lesion.
As
indicated above no such evidence has been led in
casu
.
[13]
During argument reference was made by applicant’s Counsel to
the case of
Nkamela
obo Okuhle Nkamela v MEC for Health – Eastern Cape Province
[5]
and in particular to paragraph [13] thereof. The factual matrix
in that judgment for the upholding of the plaintiff’s
claim in
her personal capacity is not apparent in the judgment itself.
In any event, in the event that the factual matrix
therein is similar
to the one in
casu
I
would respectfully decline to follow the result therein in so far as
it would be at odds with the SCA judgments and other judgments
referred to above.
[14]
Section 17(1)(a) of the Superior Courts Act 10 of 2023 provides that
leave to appeal may only be given where,
inter
alia
,
the Court is of the opinion that the appeal would have a reasonable
prospect of success. In
Four
Wheel Drive Accessory Distributors CC v Rattan NO
[6]
it was held that the focus of the Court must be on whether the appeal
would have a reasonable prosect of success. There must
be a
sound, rational basis for any conclusion to that effect.
[15] I
am not persuaded that the applicant would have a reasonable prospect
of success on the contemplated appeal.
[16]
In
MEC
for Health, Eastern Cape v Mkhitha and Another
[7]
the
SCA reiterated that leave to appeal must not be granted unless there
truly is a reasonable prospect of success or there is some
other
compelling reason why the appeal should be heard. A mere
possibility of success, an arguable case or one that is not
hopeless,
is not enough. There must be a sound, rational basis to
conclude that there is a reasonable prospect of success
on appeal.
[17]
For the reasons stated above I am not in the least persuaded that the
present contemplated appeal would have
a reasonable prospect of
success or that there is some other compelling reason why it should
be heard.
[18]
In
the result the application for leave to appeal is dismissed with
costs.
P ZILWA
JUDGE OF THE HIGH
COURT
BHISHO
Counsel
for the Applicant:
Adv.
Dugmore SC with Adv Malunga
Instructed
by:
Messrs
Sakhela Inc.
54
Steward Drive
Baysville
EAST
LONDON
Counsel
for the Respondents:
Adv.
Kunju SC
Instructed
by:
The
State Attorneys
Old
Spoornet Building
17
Fleet Street
EAST
LONDON
Date
Heard:
04
August 2013
Judgment
Delivered:
15
August 2013
[1]
Bester v
Commercial Union Versekeringsmpy van Suid Afrika
Bpk
1973 (1) 769 (A) at 782
and 799.
[2]
[1998] ZASCA 84
;
1999 (1) SA 202
(SCA) at 216E - F
[3]
2002 (2) SA 55
(SCA).
[4]
2020 (2) SA 347
(SCA).
[5]
(308/2018) [2022]
ZAECBHC 15 (31 May2022).
[6]
2019 (3) SA 451
(SCA) at 463F.
[7]
(1221/2015)
[2016]
ZASCA 176
(25 November 2016).