Singh and Another v Ebrahim (413/09) [2010] ZASCA 145 (26 November 2010)

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[2010] ZASCA 145
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Singh and Another v Ebrahim (413/09) [2010] ZASCA 145 (26 November 2010)

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THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
JUDGMENT
Case No: 413/09
In the matter between:
GAIL SINGH
...............................................................................................
First
Appellant
NASHEE SINGH
...................................................................................
Second
Appellant
and
ASHRAFF EBRAHIM
.....................................................................................
Respondent
Neutral citation:
Singh v Ebrahim
(413/09)
[2010] ZASCA 145
(26 November 2010)
Coram:
Conradie, Maya, Snyders, Leach JJA and R
Pillay AJA
Heard:
16, 17 and 18 August 2010
Delivered:
26 November 2010
Summary:
Damages award – medical negligence
– approach on appeal – determination of life expectancy –
amendments
on appeal – claim for so-called lost years – s
28(2) of Constitution – alleged bias of trial judge –
offer
in terms of Uniform Rule 34
___________________________________________________________________
ORDER
__________________________________________________________________
On appeal from:
KwaZulu – Natal High Court
(Durban) (Koen J sitting as court of first instance):
1.(a) The appellants’ application to amend by
substituting the amount of ‘R50 653 447.00’ for
the amount
of ‘R49 537 612.90’ where it appears
in paragraph 14.1 of the particulars of claim and in prayer B is
granted
in prayer D the amount of ‘R3 799 008.50’
is substituted for the amount of ‘R3 715 291.80’;
(b) Save as aforesaid, the application to amend and to
lead further evidence is dismissed with costs.
2. The appeal succeeds with costs, including the costs
of the applications for leave to appeal to the high court and to this
court
and including those costs attendant upon the employment of two
counsel
3. The orders granted on 30 July 2008 are set aside in
part and reproduced below with substituted provisions and additions
indicated
in bold type.
‘
(1) The defendant is ordered
to:
(a) pay to the plaintiffs in their personal capacities
the amount of R126 694,77;
(b) pay to the plaintiffs in their representative
capacities on behalf of Gian Singh the amount of R13 579,20;
(c) pay to the plaintiffs in their representative
capacities on behalf of Nico Singh, the amount of
R11 069 070,50
subject to the provisions of paragraph (4) below;
(2) the defendant is ordered to pay interest to the
plaintiffs on the aforesaid amounts at 15.5% per annum
a tempore
morae
from date of judgment to date of payment;
(3) the defendant is ordered to pay the plaintiffs’
taxed or agreed costs on the party and party scale, such costs to
include:
3.1 the costs consequent upon the employment of two
counsel, where applicable, including the preparation of written heads
of argument;
3.2 the reasonable costs of obtaining medico-legal and
actuarial reports from those experts who testified and whose
qualifying fees
are allowed;
3.3 the reasonable costs of those experts who attended
joint meeting of expert witnesses;
3.4 the reasonable qualifying and reservation fees
relating to attendance at court of the following witnesses:
Dr R Koch
Dr P Lofstedt
Mr D Rademeyer
Dr G Versfeld
Mr H Schüssler
Mr H Grimsehl
Dr R Wiersma
Miss B Donaldson
Dr M Lilienfeld
Miss I Hattingh
Miss G Steyn
Miss A Crosbie
Mr J Lapp
Dr A Botha
Miss P Jackson
Miss E Bubb
Professor P A Cooper
Dr D Strauss
Mr G Whittaker
3.5 the costs of of obtaining a transcript of the
proceedings;
(4) the plaintiffs’ attorney of record, Joseph’s
Inc, is directed to pay the amount awarded in respect of Nico Singh

in the amount of
R11 069 070.50
less the attorney
and own client costs and disbursements relating specifically to his
claim excluding the attorney and own client
cost relating to the
claims of the plaintiffs in their personal capacities and on behalf
of Gian as either agreed, taxed or assessed
(“the capital
amount”) over to the Trust (to be created within 1 month of the
date of the order), which Trust:
(a) shall be created in accordance with the Trust Deed
which shall contain the provisions set out in the draft Trust Deed, a
copy
of which is annexed hereto as annexure “X”;
(b) shall have as its Trustee Investec Pvt Trust
Limited, with those powers and duties as set out in the aforesaid
Trust Deed.
(5) The Trustee shall:
(a) be entitled in the execution of its duties and
fiduciary responsibilities towards the beneficiary of the Trust, to
have the
attorney and client costs and disbursements of Joseph Inc
taxed, unless agreed;
(b) be obliged to render security to the satisfaction of
the Master of the High Court, subject to the provisions of paragraph
6.7
thereof; (6) in the event of the Trust not being created within 1
month of date of this order, the plaintiffs and their attorney
are
directed to approach this court within two months after the expiry of
the first period of 1 month, to obtain further directions
with regard
to the manner in which the capital amount should be administered on
behalf of Nico Singh;
(7) the following persons are declared necessary
witnesses:
(a) Dr R Wiersma, a paediatric surgeon;
(b) Mr D J Smythe, the headmaster of Browns School;
(8) the trustee of the Trust is directed to employ an
overseer/supervisor, of the calibre contemplated by the parties, as a
case
manager, nominated by the chairperson of the Cerebral Palsy
Association of South Africa or any similar institution or
organisation,
having as its main object and purpose the advancement
and care of cerebral palsy sufferers, with the following powers,
duties and
responsibilities:
(a) to enquire into and investigate whether Nico
receives all the necessary therapies, treatment, other devices, aids
and accessories
as any of the professional therapists or doctors
treating him may recommend from time to time;
(b) to undertake such investigation and enquiry at
regular intervals but not less than once annually until Nico attains
majority;
(c) in the event of any necessary treatments, therapies
or accessories not being made available to Nico, to investigate the
cause
for such failure including liaison with the Trustee of the
Trust as to the financial feasibility of such treatment;
(d) if necessary, to apply to the High Court, such
application to be funded from the funds of the Trust, for whatever
relief may
be deemed appropriate;
(9) all reserved costs are declared to be costs in the
cause.
(10)
the defendant is ordered to pay the trustee’s
remuneration of R830 180.29 directly into the Trust’.
4. The orders granted by the high court on 15 December
2008 are set aside and replaced by an order reading:
‘
The application is dismissed
with costs, including the costs of two counsel.’
5. The cross-appeal is dismissed with costs, including
the costs of two counsel.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
CONRADIE JA (LEACH JA and R PILLAY AJA concurring)
[1] The appellants who were the plaintiffs in the court
a quo are the parents of Nico, who is severely disabled by cerebral
palsy
as the result of a hypoxic brain injury sustained at birth.
Just over 5 years old when the trial started, he is now nine. The
respondent,
the specialist gynaecologist whose negligence in
delivering the baby caused the brain injury, admitted liability for
the ensuing
damages.
[2] In their particulars of claim dated 18 June 2004,
the appellants claimed in their personal capacities and on behalf of
Nico
amounts totalling R8 830 000. By amendment shortly
before the commencement of the trial the claim escalated six- fold
to
R53 556 127.89. The trial, which turned into a marathon,
started before Koen J on 30 October 2006 and ran until 14
November
2006. It was heard again from 16 April to 18 May, and then from 15
October to 2 November 2007, altogether twelve weeks.
Koen J delivered
three judgments. In the first he set about resolving the disputes of
fact, which were many and varied, and having
done so, gave directions
for the computation of damages by an actuary agreed between the
parties. On the basis of those calculations
to which discretionary
adjustments were made by the judge, the court awarded to the
appellants damages of R126 694.77 in their
personal capacities,
R13 579.20 in their capacity as parents of their other son Gian,
and R9 008 503.40 for damages
claimed on behalf of Nico.
[3] In his third judgment Koen J dealt with the costs of
the action taking account of the fact that at the commencement of the
trial
the respondent had made a written offer in terms of Uniform
Rule of Court 34(1) to settle the appellants’ claims for R12m

including the costs of a curator. In the course of his judgment,
realising that he had earlier failed to award any amount in respect

of the costs of a curator which the parties had agreed would be
calculated at 7.5 per cent of the capital amount of Nico’s

damages, the judge made the necessary calculation and allowed a
further sum of R675 637.76 in that respect. This increased the
total
sum of the damages to R9 824 415.13. Since that sum fell
R2 175 584.87 short of the offer, the judge,
at the
respondent’s request, revised his earlier costs order to,
broadly, provide that instead of the respondent paying the

appellants’ costs, the latter were to pay the costs of the
former.
[4] Leave to appeal to this court against parts of the
three judgments delivered in the high court on 20 March 2008, 30 July
2008
and 15 December 2008 was granted to the appellants by the court
a quo, leave which was extended by this court to include all aspects

on which the appellants had sought leave. The respondent obtained
leave from the court a quo to cross-appeal against certain parts
of
the first and second judgments.
[5] Due to the complexity and scope of the appeal my
colleague Snyders and I were tasked with writing a joint judgment.
However,
since we differ on the outcome of the appeal, this has not
proved possible. There are nevertheless extensive areas of agreement

on the major issues in the appeal. I shall therefore make copious
reference to her judgment, here and there adding my own observations.
THE AMENDMENTS
[6] The appellants seek leave to amend their pleadings
to raise an issue that had not been raised before the court a quo
and, on
other aspects, seek leave under Rule 22(a) of the Uniform
Rules of Court to introduce new evidence on appeal. Certain minor
amendments
to their particulars of claim sought by the appellants
elicited no opposition. They are granted in the terms recorded in the
order.
[7] With regard to the application to adduce further
evidence on appeal, I agree entirely with Snyders JA in rejecting the
application
for the reasons that she does. The remaining amendment
seeks to introduce a claim for the patrimonial loss Nico would have
suffered
between his estimated date of survival and his pre-morbid
retirement age of 65. This period, from the date of premature death
to
the date on which a victim’s earnings would have ceased had
his life not been shortened, is commonly referred to as the ‘lost

years’.
[8] Mr Delport for the respondent
argued that the amendment should be refused for attempting to
introduce allegations to sustain
a proposed claim that is bad in law.
The argument is obviously sound and I see no reason to go beyond it
in refusing the amendment.
The decision of this court in
Lockhat’s
Estate v North British & Mercantile Insurance Company Limited
1959 (3) SA 295
(A) stands in the way
of a claim for the lost years. There was no attempt by the appellants
to persuade us that
Lockhat’s
Estate
is clearly
wrong. All that Mr de Waal for the appellants submitted was that we
ought to depart from
Lockhat’s
Estate
by
preferring the reasoning of the House of Lords in
Pickett
v British Rail Engineering Ltd
1980
AC 36
;
[1979] 1 All ER 774.
[9]
Pickett’s
case put an end to an extended
controversy in the English courts about claims for the lost years. In
overruling the decision of
the Court of Appeal in
Oliver
and Others v Ashman and Another
[1962]
2 QB 210
the House of Lords was influenced by what it saw as an
inequity arising from the provision of the Fatal Accidents Act 1976,
that
precluded a dependant of a deceased victim from suing for loss
of support once a living victim had recovered damages. The equitable

solution favoured by the House of Lords was to permit the living
victim to claim for patrimonial loss
1
after his premature death in the hope
that he would leave the damages so recovered to his dependants by
will; or if he did not have
a will, in the expectation that more
often than not his dependants would also be his heirs.
[10] Our law is quite different to,
and as Snyders JA remarks, more satisfactory than, the English law.
The loss of the capacity
to save during the lost years is not
regarded as establishing an enforceable claim by the victim of a
wrong: Ramsbottom JA makes
this unmistakably plain where he says at
305H-306B of
Lockhat’s
Estate
:
‘
But I
think that it is clear that the only right which the injured man had
was to claim loss of earnings up to the date of this
death, and
nothing more could pass to his executors. A man who has been killed
has no claim for compensation after his death; after
that event he
needs no support for himself and is under no duty to support his
family. His dependants have their own action against
the wrongdoer
for the loss that they have sustained. If the wrongdoer is unable to
pay, they may be able to claim support from
the estate of the
deceased, but that does not give the executor the right to claim from
the wrongdoer earnings or savings that
have been lost through the
death of the deceased. If it did, the dependants would have no claim
against the wrongdoer; their claim
for maintenance would be against
the estate of the deceased. That is not the law.’
[11] No one has since
Lockhat
’
s
Estate
suggested that
it is not good law. The cases which have dealt, if only in passing,
with lost years claims have accepted it as sound.
Academic opinion
has been unwaveringly in support of its correctness. See J E
Scholtens ‘Damages for Death’ (1959)
76
SALJ
373; PQR Boberg ‘Shortened Expectation of Life as
an Element in the Assessment of Damages for Loss of Earnings’
(1960) 77
SALJ
438
;
PQR Boberg ‘Damages occasioned by shortened (or
lengthened) Expectation of Life’
(1962) 79
SALJ
43
; PQR Boberg
The
Law of Delict
vol 1
Aquilian
Liability
542; see also Florence J Howroyd in
‘Damages for Pecuniary Loss Occasioned by shortened Expectation
of Life’
(1960) 77
SALJ
448.
THE BILL OF RIGHTS
[12] In regard to the application of section 28(2) of
the Constitution, I agree with what my colleague states in paragraphs
[123]
to [130] of her judgment and have nothing to add.
THE LIFE EXPECTANCY
[13] Easily the most important from the point of view of
dramatically affecting much of the appellants’ damages claims,
and
also the most controversial, is the question of Nico’s life
expectancy. In view of the importance of the issue, the appellants

took a good deal of trouble to ensure that the most persuasive
evidence available was placed before the court. They found a person

who could give such evidence in Dr D J Strauss, for thirty years a
professor of statistics at the University of California who
made it
the central focus of his work for the last thirteen of those years to
develop a data base recording the chances of survival
of, inter
alias, sufferers from cerebral palsy. His eminence and expertise in
this field has not been questioned. In the course
of his work Dr
Strauss and his collaborators, referred to as the California Group,
have assembled what he called ‘an extremely
large data base in
California which has information on about 300 000 people who
have developed mental disabilities and that
includes cerebral palsy’.
[14] Dr Strauss explained his mortality tables in this
way:
‘
Essentially
the mortality tables for cerebral palsy sufferers are constructed by
identifying a group of similar persons closest
in disabilities to the
subject for whom a life expectancy figure is sought and determining
from the assembled data what the life
expectancy of a person would
be.’
Since each individual within a group has his own
particular disabilities, it is necessary to refine the life
expectancy prediction
for each, a topic which I deal with below.
[15] The life expectancy estimates are summarized by Dr
Strauss in a table as follows:
‘
Table 1. Life Expectancies
for various profiles of functional level
All estimates apply to a 5.2 year-old South African
male.
_________________________________________________________
# Description Remaining
Years
_________________________________________________________
1. General population 62.8
2. All persons in the database who have cerebral 27.9
palsy, feed orally, do not crawl, creep, scoot or
walk, and do not feed self
3. Nico Singh
a. Does not lift head in prone 20.3
b. Lifts head in prone, but does not roll over 25.2
c. Rolls; taking account of low weight 29.9
d. Rolls; low weight ignored 31.6’
[16] Four days after having written his report on 5
October 2006, Dr Strauss, at the request of the appellants’
attorney,
prepared a supplementary report on the footing that Nico’s
mass was 12.1 rather than 11kg. That pushed up his life expectancy
by
0.6 of a year. Of greater import was the appellants’ attorney’s
request to use as an alternative basis for calculating
Nico’s
life expectancy mortality tables devised by the actuary Mr R J Koch,
giving for a person in the highest income bracket
– R300 000
and more annually – at age 5.2 years, a normal life expectancy
of 66.3 additional years compared to
the 62.8 years of the official
84/86 Life Tables.
[17] On 12 October 2006, in response to a request by the
appellants’ attorney for estimates of life expectancies on the
assumption
that Nico was a child needing gastrostomy feeding (feeding
by a tube permanently inserted into the stomach), Dr Strauss produced

the following table:
‘
Table [2]. Life
Expectancies for various profiles of functional level. All estimates
apply to a 5.2 year-old South African male.
Remaining Years
Description White So. 300 000 + Rand
African
1. General population 62.8 66.3
2. Nico Singh: cerebral palsy,
tube fed
and
a. does not lift head when lying in prone 15.9 16.8
b. lifts head, head and chest, or has
partial or full rolling 23.8 25.1’
[18] Since motor function has been found to be the key
determinant of survival, mobility is the main criterion for grouping
similar
people together. Feeding skill is important in assessing
gross motor function; tube feeding or the need for it is taken to be
a
strongly negative factor, not because a percutaneous endoscopic
gastrostomy interferes with life expectancy (on the contrary by

introducing food directly into the stomach the intake of nutrients
and consequently life expectancy is enhanced) but because a
child who
cannot eat at all is generally more disabled than one who can take
food orally.
[19] Body mass is an important determinant of survival
but cognative ability, while not negligible, is a much smaller factor
in
assessing the chances of survival. Dr Strauss expressed it by
saying that ‘profound retardation is bad for life expectancy,

although not as bad as bad mobility’.
[20] Motor function varies considerably and to construct
a usable model with only children who match Nico exactly would leave
one
with a group too small to be statistically significant. As Dr
Strauss expressed it:
‘
We
estimate the hazard for a particular child that matches the criteria
that we are interested in which in Nico’s case was
rolls, or
lifts head, fed by others and so on.’
[
21]
Using these criteria as controls as well as taking into account that
the survival rate of children like Nico with very severe
disabilities
has in recent years improved somewhat Dr Strauss drew up his tables
of life expectancies for various profiles of functional
level.
[22] The criteria employed to construct these categories
may be called mainstream criteria. There are subsidiary survival
criteria
that are not statistically taken into account in
constructing the categories because no statistical data is available.
The weight
given to the subsidiary criteria, either positive or
negative, must depend on the assessment of the individual child; they
are
used as an adjustment mechanism once the mainstream category into
which a child most closely falls has been identified.
[23] With regard to the mainstream
criteria governing the broad classification of a disabled child, it
is important to appreciate
that it is not that a child
can
lift its head or roll, but that it
does
so. Head lifting in prone is the
first skill that a baby develops at the age of about one month. It is
common knowledge that once
it is able to do so, it does so typically
and consistently from that age on. At the age of two months, the baby
learns to roll;
it then does so consistently and typically. For a
disabled child to have the same ability to roll as a two month old
baby, one
would expect it to typically and consistently do so. To
serve as a proper statistical control the head lifting and rolling
should,
Dr Strauss explained, be relatively normal for the child.
[24] With regard to rolling, one other observation is
required. The mainstream criterion is ‘rolling over’ that
is to
say, from front to back and the other way round. Partial
rolling, even if it is laborious, is nevertheless also taken into
account
by Dr Strauss and, although it is not full compliance with
the data base criteria, one appreciates the merit of treating it as
an element in assessing mobility. As I shall presently show, all of
these manifestations of rolling must, in order to have statistical

relevance, occur consistently and typically.
[25] There is another element that ought to be taken
into account in a mobility assessment: Nico has occasionally been
seen to scoot,
that is to say, by the use of his legs to propel
himself along on his buttocks. This is an indication of mobility
beyond that which
one would expect of a two month old baby.
[26] The evidence of Nico lifting his
head is patchy. On 27 July 2006 Ms R M Hardy, a psychologist,
reported that Nico, assessed
by her on
6
June 2006, could hardly lift his head. Ms A M Crosbie, an
occupational therapist, who tested Nico on 22 June 2006, reported
that
he had very little head control. Examined by a paediatrician
Prof P A Cooper on the same day it was found that Nico was able to

lift his head in prone. A day later, on 23 June 2006, the paediatric
physiotherapist Ms Philippa Jackson assessed Nico; she reported
that
Nico could not lift his head lying in prone. Ida-Marie Hattingh, a
speech/language pathologist and audiologist, who also assessed
Nico
on 23 June 2006 reported that Nico had poor head control and that his
head needed to be supported at all times. On 4 August
2006
Dr Margaret Lilienfeld, an
augmentative and alternative communication specialist and
occupational therapist, reported that ‘Nico
is extremely weak
and has difficulty in holding his head up even when in supported
sitting’. On 27 September 2006 Dr A S
Botha reported that Nico,
(assessed on
12
September 2006) could lift his head and part of his chest when lying
on his stomach. However, two days earlier Nico had been
assessed by
Dr R D Campbell who reported that Nico was unable to lift his head.
[27] At best for Nico, his ability to lift his head in
prone is sporadic. There certainly was no sustained display of this
vital
mobility skill, something which is also demonstrated by the
appellants’ failure to produce any recorded visual evidence of

Nico lifting his head. In view of the critical importance of
recording such evidence, the fact that no evidence appears to exist,

leads to the irresistible inference that Nico’s head lifting
was so infrequent or intermittent that it was not reasonably

practical to photograph it. Such video discs as do exist, do not
assist. Dr Strauss says in his report of 29 September 2006 that
in
the video discs he reviewed, Nico did not demonstrate that he meets
the criterion for head lifting.
[28] Mr de Waal argued that Dr Strauss could not have
been expected to observe evidence of head lifting because he was sent
eating
and sleeping videos, but did not explain why, if there were
head lifting videos in existence, it was not thought advisable to
make
them available to Dr Strauss.
[29] The first appellant had seen Nico roll to both
sides although, she said, he had a preference for rolling to one
side. She did
not say how often he did this but from the fact that
over a period of years no visual material was produced to the court
or any
of the experts to prove the rolling, we may assume that it
happened too infrequently to be captured on camera. In regard to both

the head lifting and the rolling, it is troubling to consider that
with surveillance cameras widely available nowadays, it was
not
thought to place this crucial issue of motor skills beyond contention
by obtaining video footage of how, and precisely when,
Nico
demonstrated the ability to roll or lift his head in prone. The
visual material sent to Dr Strauss did not demonstrate an
ability to
roll, whether fully or partially.
[30] Alison Crosbie who assessed Nico on 22 June 2006
reported that he could roll onto his back but not the other way
round. She
said ‘Nico is able to roll to one side on his own’.
The next day Philippa Jackson in her assessment of Nico observed
that
he could only roll to his left and only with great difficulty. Dr
Campbell’s observation on 25 September 2006 was that
Nico
rolled and could indeed roll in such a way as to meet the Strauss
criteria. At an examination by Prof Cooper on 12 November
2006, Nico
was observed to be rolling from supine into prone and the other way,
both to the left and to the right.
[31] Dr Strauss reviewed nineteen expert reports
produced up to the time of his own report and saw two or three video
discs. His
recollection was that Nico was in a chair most of the time
so that there was not much opportunity to observe gross motor
activity.
Based on what he saw or read, and in view of the divergence
of opinion among the experts, Dr Strauss did not, as he put it, ‘take

a position’ on either the issue of head lifting or that of
rolling. What he did say, was that ‘Nico’s severe

disabilities in gross motor function are a strongly negative factor
for his life expectancy’. In regard to the ability to
lift the
head in prone, Dr Strauss said that ‘it is a significant skill
in children with severe cerebral palsy, as it distinguishes
those
with some modest gross motor function from those with effectively
none’.
[32] The appellants’ supplementary summary of
expert testimony in respect of Dr Strauss informs the reader that Dr
Strauss
was requested on the basis of ‘recent evidence in the
matter’ to express an opinion on Nico’s life expectancy.

The only ‘recent evidence’ to have come to light,
evidence that Dr Strauss did not already have, was a report by Dr

Cooper on his examination of Nico on 12 November 2006.
[33] Dr Strauss’s envisaged testimony was in this
document said to be that ‘it appears that Nico’s ability
to
roll has been seen on a consistent basis, and that he has been
observed to lift his head in prone consistently’. This, he

declared, places Nico in the ‘consistently rolls scenario’
and that, therefore, one should assume the most favourable
of the
three motor function scenarios. (ie 3(b), (c) and (d) see para [16])
[34] When Dr Strauss came to testify he was referred to
Dr Cooper’s finding and it was put to him that he, Dr Strauss,
‘
. . .
. assumed rolling and sitting (sic) and particularly that he [Nico]
was able to roll from side to side in both directions
consistently
and typically as per your requirement and that he was able to roll
from supine to prone and prone to supine in both
directions,
correct?’
The answer to this was, ‘That was considered in
one of my scenarios, yes’.
[35] Dr Strauss then proceeded to
explain how the ‘scenario that assumed the ability to roll,
which was the most optimistic
of the three’, was constructed.
It did not measure the mobility only of children who roll over but
also of children who roll
from side to side but not from front to
back or vice versa, children who consistently roll from front to back
but not vice versa,
and those who roll both ways from front to back
and back to front. He did not, as I understand his evidence, deviate
from the statistical
control imperative that the rolling, whether
full or partial, and whether laborious or easy, should occur
consistently and typically.
2
[36] Dr Strauss followed this methodology to achieve
greater statistical stability from a larger cohort and to cater for
the uncertainty
about Nico’s abilities; on the assumptions he
was asked to make, the three levels combined, in his view, produced a
life
expectancy that would be a fair reflection of the ability of a
child like Nico. He neatly explained it by saying that, ‘If
it
is assumed that Nico has the ability to roll but we don’t want
to specify just how good it is, then I think four, five,
six [the
three categories mentioned above] is the right group’.
[37] Throughout his evidence Dr Strauss was careful to
emphasise that it was for the court with the help of medical
professionals
to determine the category into which a child most
properly falls. All he was prepared to do was point out which
criteria, both
mainline and peripheral, were or might be significant.
Assessing the statistical significance of the particular disabilities
displayed
by a particular child, he recognised as a bit of an art
form. ‘The court may well decide’, he said, ‘that
one
group is more appropriate than another, but my own sense is that,
based on what I am hearing now, is that four, five, six pretty
much
captures Nico’s situation’.
[38] In speaking of his own sense based on what he was
hearing, Dr Strauss was referring to the assumptions that underlay
the assessment
in his first report in regard to scenario (d) which
assumed rolling and ignored the low weight. What he testified to was
based
on information that he had been given by the appellants’
attorney and counsel such as the following:
‘
Professor
Cooper found on his examination on 12 November 2006 that Nico was
able to roll from supine to prone and prone to supine
in both
directions. He was able to roll from side to side in both directions
consistently and typically as per the requirement
database discussed
by Dr Strauss in his previous reports.’
[39] As I read his evidence, Dr Cooper said nothing of
the kind. He did indeed see Nico rolling from front to back and back
to front
in both directions towards an object that he wanted.
Although it took him several minutes to advance a metre by a mixture
of rolling
and scooting, he managed to get there. This, I would
think, demonstrates quite a lot of mobility, but of course Dr Cooper
could
not say, and could not know, whether he moved in this way
consistently or typically.
[40] The conclusion that Dr Strauss
was in the expert notice said to have come to was that ‘should
the information set out
in paragraph 1
3
be accepted’ ‘it would
appear that the balance is more favourable than the average among
children with comparable physical
disabilities . . . ’.
[41] This, on my reading, is what Dr Strauss meant when
he said, ‘if it is assumed that Nico has the ability to roll
but we
do not want to specify just how good that is, then I think
four, five and six is the right group’. Four, five and six are,

of course, subgroups that do not carry a statistical value: they are
encompassed in group 3(d) of ‘Rolls: Low weight ignored’

but they are evidently enough to bring Nico into that group. However,
I do not understand Dr Strauss to imply that anything less
than
consistent and typical activity of this kind would meet any of the
criteria. He put the matter beyond doubt when he replied
to the
following question in cross examination:
‘
. . .
she [Ms McFarlane] says that he is able to roll to the left and the
right independently . . . . She then adds that he expends
a lot of
time and energy in doing so and then says the manner in which he
moves through these positions is also abnormal. Would
that meet you
criterion?
Yes, if you
could do it in an abnormal fashion, this doesn’t speak to the
consistent and typical issue, abnormal is not a
problem, however, I
agree with what I think you are saying which is that expending a lot
of time and energy should be listed as
a minus compared to children
who can do it more easily.’
[42] A further indication that Dr Strauss thought Nico
belonged in the 3(d) group only on the basis of the factors he had
been asked
to assume is the exchange between him and Mr Delport in
cross-examination where Dr Strauss replies affirmatively to the
question:
‘
. .
.he does not lift his head in prone consistently and typically and he
doesn’t roll over, then we are, I assume, back at
3(a)?’
Dr Strauss adds the caveat,
‘
that if it were found that
Nico does not consistently lift his head in prone I would say that he
is unusually high functioning in
other respects for that group and so
I would not have analysed it that way’.
[43 ] Dr Strauss was careful to
emphasise that the totality of the evidence should be taken into
account and that ‘he would
not presume to tell the court what
the right category is’. He did not have a personal view of
whether the information furnished
to him was right. That would be for
the judge, steeped in the atmosphere of the trial, to decide.
4
[44] The court found that Nico had
not, on a balance of probability, been shown to meet the mainline
criteria, a finding that it
expressed by remarking that ‘a huge
question mark remains over whether Nico can roll over consistently
and typically’.
Having lamented the fact that his doubts were
not removed by evidence of consistent and typical rolling adduced by
someone who
had regular contact with him, the judge referred to the
evidence of Dr Campbell who ‘was . . . generous in putting Nico
into
the group that can roll consistently and typically, giving him,
as he explained it, the benefit of the doubt’.
5
The judge then, with equal
generosity, made the following finding: ‘Maybe, as is
apparently common with persons with Nico’s
type of cerebral
palsy, his ability differs from day to day. If so then giving Nico
the benefit of the doubt is probably fair with
due recognition of his
rights, and that an adjustment be made by applying an appropriate
contingency.’
6
[45] The judge dealt with the head lifting by saying
that ‘a smaller question mark . . appears to apply on the
totality of
the evidence to Nico’s ability to lift his head.
That matter is also best approached on the same basis as his ability
to
roll typically and consistently’.
[46] In legal parlance, what the court appears to have
decided is that in the case of the rolling, the onus resting on the
appellants
was not discharged by a long way. In regard to the head
lifting, the appellants came closer to discharging the onus. On both
issues
they were given the ‘benefit of the doubt’, which
is a rather unconventional way for a litigant to be found to have

discharged an onus.
TUBE FEEDING
[47] Another motor skill, one that would to a large
extent determine Nico’s life expectancy, is that of feeding
orally, that
is to say, of being able to chew and swallow in such a
way that there is no significant risk of aspiration and, of course,
so that
he ingests sufficient nutrients to keep him healthy.
[48] Quite the worst survival scenario is for an
immobile child who is, or requires to be, tube fed. Such a child who
does not lift
its head in prone can reasonably expect to live only
another 15.9 years: If it lifts its head, head and chest, or has
partial or
full rolling, it might expect to live another 23.8 years,
three and a half years longer than the 20.3 years of a child which
does
not require PEG feeding, but is unable consistently to lift its
head in prone.
[49] Whatever the judge might have said about the ‘firm
evidence of Dr Campbell’ (which was accepted) that Nico
required
PEG feeding, at least as an adjunct to normal feeding, and
his rejection of Dr Botha’s evidence who thought that Nico did

not require tube feeding, he nevertheless felt doubts about the PEG
feeding issue: somewhat watering down the evidence of Dr Campbell
the
judge found that ‘there [is] a very real possibility if not a
probability that [Nico] will require PEG feeding in the
future’.
[50] Of all the witnesses who
ventured an opinion on the topic, Dr Botha was the only one who
declined to even consider tube feeding
as a possibility, but it
should be borne in mind that this was a later view formed in
preference to an earlier view that it would
be sensible to postpone a
decision on tube feeding pending the outcome of the feeding therapy
that Nico was expected to undergo.
The later view was precipitately
formed without waiting for the feeding evaluation that he himself had
thought necessary for forming
a final view.
7
[51] No doubt the
possibility or the probability of Nico requiring tube feeding at some
time in the future is a factor exerting
a downward pull on the
child’s life expectancy. But whether or not Nico may require
PEG feeding in the future is not a mainstream
criterion that would
suffice to put Nico in the tube feeding category. The mainstream
criterion is
presently
being tube fed or requiring tube
feeding and that was not the finding of the court.
HUTTON AND PHARAOH
[52] Shortly before the trial was to resume on 20 April
2007, the appellants gave notice of another expert report on Nico’s

life expectancy, a report that adopted a markedly different approach
and came to a markedly different conclusion. Professor Peter
Pharoah
is an emeritus professor of public health at the University of
Liverpool. The co-author of the report is Professor Jane
Hutton, a
professor of medical statistics at the University of Warwick. I call
it ’the Hutton Report’. The lateness
of the Hutton report
meant that all the witnesses who had earlier testified were examined
and cross-examined on the disability
criteria set out in the Strauss
report, a fact that inevitably distracts from the persuasive value of
the report.
[53] The basis of the survival predictions of the Hutton
Report is the Mersey Register, which comprises all children diagnosed
with
cerebral palsy born since 1966 to mothers whose area of
residence at the time of birth was within the boundaries of the
counties
of Merseyside and Cheshire in the United Kingdom. The
register was kept up to date until 1989 when new confidentiality
legislation
prohibited publication of further data. The Mersey
Register, as it was referred to, classifies cerebral palsy sufferers
in four
categories: Mental ability measures four levels of cognitive
disability; manual ability is also analysed into four levels, the
severest of which is a child that is unable to feed or dress itself.
The most severe level of ambulatory ability is a child that
is
confined to a wheelchair and unable to propel itself, but is able to
operate an electrically powered wheelchair by himself;
the final
disability category is visual ability.
[54] We know from the evidence of Dr Strauss that mental
ability plays a relatively small role in the survival of cerebral
palsied
children and Professors Pharoah and Hutton confirmed that
cognative ability has the least effect on life expectancy. No one has

suggested that visual ability plays a measurable role. That leaves
the other two functional variables, manual and ambulatory ability,

two categories of considerable width, the worst of which would
include sufferers from disabilities nowhere near as severe as the

disabilities from which Nico suffers. The categorisation in the
Hutton report would obviously, within the confines of its modest
data
base when compared to the California data base, be useful when one is
dealing with a child who may be said to fall comfortably
into one or
other of its categories. That the data base does not adequately
provide for children with Nico’s level of disability
is
illustrated by the paucity of information it contains on comparable
children. The closest one gets to Nico’s disability
level is a
child in estimate 1 in the Hutton report, and of those there are only
nine, two of whom died after attaining the age
of 5.4 years (Nico’s
age at 1 December 2006). Professor Hutton conceded that the death of
one child from a small group would
make ‘quite a bit of
difference’ to the statistical outcome.
[55] The court found that the two data bases are not
mutually exclusive. The respondent argued before us that they are. In
my view,
they measure different functionalities. Professor Pharoah
testified that their data did not show that having a gastrostomy or
not
was helpful in looking at the survival pattern. In the context of
the Strauss criteria it is crucially important. Being primarily
an
epidemiological study into the causes of cerebral palsy the Mersey
register does not measure those variables. Professor Pharoah
said,
‘
We
haven’t set this up to try and look at the different levels of
disability and all these things.’
[56] When Professor Pharoah was asked whether he relied
on any of the research done by the California Group, he replied that
Dr
Strauss followed a separate approach. Professor Hutton, also, was
quite candid that they and Professor Strauss collected a different

range of variables. She was wrong, however, in thinking that the
Mersey data base and the California data base nevertheless gave

essentially the same result for very severe children. They obviously
do not.
[57] In arriving at his estimation of Nico’s life
expectancy, the judge ignored the evidence given by Professors
Pharoah and
Hutton which he regarded as so unhelpful as to be
irrelevant to the resolution of the disputes between the parties. I
fully agree
with this approach.
[58] How the court arrived at its finding that Nico’s
life expectancy was 30 years is not entirely clear. The judge did not

put Nico into any particular category or even attempt to do so. He
did not arrive at a figure suggested by a statistical category
and
add or deduct a contingency allowance. He simply said:
‘
It
therefore seems to me that it is more appropriate that a contingency
be applied firstly in arriving at an anticipated reasonable
life
expectancy. Nico’s life expectancy thus estimated on the
available totality of the evidence duly weighed and considered
should
in my view be 30 years.’
[59] It seems that what the judge did was to give Nico
the ‘benefit of the doubt’ and, on the assumption that
Nico lifted
his head in prone and rolled, both of these in the manner
contemplated by the criteria, and did not require tube feeding, Nico
would fall between the 29.9 years of Dr Strauss’s ‘rolls
taking account of low weight’ category and the 31.6 years
of
his ‘rolls low weight ignored’ category’. These
assumptions would account for the 30 years assessment, but,
however
it was arrived at, it was clear that the judge regarded it as a
generous one and in my view he was correct in thinking
that it was.
[60] The respondent’s cross appeal requests a
revision of Nico’s life expectancy from the 30 years that the
judge a
quo thought appropriate to 23.8 years, a figure that is
derived from Dr Strauss’s estimate of the survival prospect for
a
child which is tube fed but does lift its head, its head and chest,
or has partial or full rolling. In doing so, the respondent
goes
along with the judge’s approach of assuming in favour of Nico
that he consistently and typically lifts his head in prone
and rolls
within the criteria stated by Dr Strauss in item 2(b) of the tube
feeding table.
[61] Dr Strauss articulated that there were, in Nico’s
case, certain positive features:
‘
Okay,
we are now discussing the question of what to do with the factors
that have not been taken into account with the data, for
example,
good general health at present. Of course, the Court must decide
which of these factors are true. I am relying on the
evidence I have
reviewed from the clinicians, but if the information I am given is
accepted then it looks to me as if the pattern
of positive and
negative factors in Nico’s case is rather favourable compared
to children with similar physical disabilities.
. . . my sense is
that some moderate upward adjustment would be reasonable and I
suggested three years or 10 per cent, that’s
based on how you
look at a lot of things and I would not offer it as a definite piece
of science.’
[62] It is necessary to weigh up
positive and negative features in the case of an individual child
since the statistical categories,
as Dr Strauss explained, are rather
crude. The refinement, if you like, the individualization, of a
disabled child who has by Strauss’s
statistical methodology
been located in a specific category, is the task of the court. The
court must decide by how much the child’s
condition is better
or worse than the category in which he falls. ‘If Nico was
found not to typically and consistently lift
his head in prone, he
would fall into category 3(a)’,
8
Dr Strauss testified, ‘but he
is unusually high functioning in other respects for that group and so
I would not have analysed
it in that way. Of course, that is a
decision for his Lordship to take, but arithmetically, yes, I agree
with you’.
[63] In the scheme of the data base, head lifting and
rolling are classified as sequential skills so that, in the normal
course
nearly every child who rolls over consistently also lifts its
head in prone. A child who rolls but does not lift its head was
described
by Dr Strauss as ‘a bit of a problem . . . to work
out the life expectancy . . . because it would be such a strange
case’.
Against the background of the evidence concerning the
significance of motor function as a test of physical strength, what
was meant,
I think, is that a child who rolls (within the mainstream
criteria) but does not, within those criteria, lift its head, is a
strange
case. Nico has not been shown to be capable of lifting his
head in prone consistently and typically, or of rolling consistently

and typically.
[64] In my view the proper category for Nico is, as Dr
Strauss testified, 3(a) of the first table under the item ‘does
not
lift head in prone’ which would (without adjustments) give
him a life expectancy of 20.3 years; but, as Dr Strauss indicated,

Nico displays other non- mainstream abilities, in fact is ‘unusually
high functioning in other respects for that group’.
An element
of this unusually high functioning, an important one, is that
although Nico does not display a purposive ability to
roll in the
manner required by the mainstream criteria, he is able to perform
some rolling movements; and despite the fact that
his movements, or
most of them, are not purposive, they should nevertheless be taken
into account in an assessment of his mobility.
[65] To take account of the unusually high functioning
for a child in category 3(a) of table 1, I would suggest a
substantial adaptation
to the base category of 20.3 years of the
order of 25 per cent which would allow one to arrive at a life
expectancy of, say, 26
years. I should add that for the reasons
relied upon by my colleague in paragraph [199], I do so on the basis
of the 1984/86 life
tables.
[66] The question now is whether my assessment of a life
expectancy of 26 years permits interference with the estimate of 30
years
(an important element in the assessment of the damages to which
Nico is entitled) made by the high court in the exercise of its

discretion A difference of four years in a matter that is essentially
speculative, would in my view not warrant interference.
[67] There were before us many disputes about items of
damages for medical and related expenses concerning which the
appellants
voiced various concerns. It was argued that certain
tariffs for the rehabilitative services were too low, that medical
inflation
ought to have been assessed at a rate above that which the
judge applied, that there should not have been a standard contingency

deduction of 10 per cent such as the learned judge employed and that
the award for care givers was too low to enable the appellants
in
remunerating such care givers to comply with the provisions of the
Basic Conditions of Employment Act 75 of 1997
.
[68] The appellants submitted that this court should
re-assess just about every item of medical expenses awarded by the
court below.
According to the appellants’ heads almost all the
awards are affected by one or more of the following considerations:
Whether or not an item [of medical expense] ought in
principle to be awarded;
The tariff or cost of the item or therapy;
Whether or not the item or therapy attracts normal
inflation or medical inflation;
In the event that the item or therapy does attract
medical inflation what the rate of medical inflation is (which is
appealed)
The duration for which the therapy or item is required
and, if the duration extends over Nico’s lifetime, what his
estimated
life expectancy is (which is appealed and cross-appealed);
and
How frequently the item or therapy is to be supplied or
administered;
Whether and to what extent a contingency deduction
ought to be applied.
[69] In support of the general submissions above, two
schedules are annexed to the already excessive heads, one containing
the items
and the amounts contended for by the appellants, and the
other a schedule described as ‘a written explanation of the
appeals
and cross-appeals on an item by item approach’.
[70] The appellants are in effect asking for a
comprehensive re-evaluation of many individual items of damages going
to make up
the cost of future medical and related expenses. This is
not permissible in an appeal against the exercise of a lower court’s

discretion. The task of a court in an appeal on discretionary
damages, is to assess whether the discretion has been properly
exercised
not whether each component making up the damages award has
been correctly assessed. Like my colleague, and for the reasons she
deals with in paragraph [211] I accordingly decline the invitation by
the appellants to enter into a consideration of the minutiae
of the
damages award (on which they have submitted more than a hundred pages
of heads).
[71] There is an area in regard to which there was a
faulty exercise of the court’s discretion. The concern is
addressed in
paragraphs [193] to [198] of my colleague’s
judgment. Uncontroverted evidence showed that world wide the rate of
medical
inflation for the last thirty years or so has tended to
exceed the rate of inflation applicable to non-medical goods and
services
by about 3.5%.
[72] The court seems to have lost
sight of this uncontested evidence when it decided that a net
discount rate of 2.5 per cent was
appropriate on items attracting
medical inflation. The discount is the rate by which it is assumed
that an investment return will
exceed inflation so that money
invested will grow at a real rate equal to the difference between the
two. The result of applying
a 2.5 per cent discount rate is that one
is left with a medical inflation rate of 6.97 per cent, only about
one half of a percent
above the rate for ordinary inflation that was
agreed to be 6.5 per cent.
9
The reasoning in the judgment reveals
that the learned judge did not intend this result: It was arrived at
by a misapprehension,
which this court is entitled to correct.
[73] With an investment return rate at the time of the
trial assumed at 9.65 per cent and medical inflation assumed at 10
per cent,
amounts destined to pay medical expenses ought not to have
been either discounted or adjusted for inflation. Instead, it ought
to have been found that medical inflation would probably remain
slightly above whatever the market rate of return from time to time

happened to be. The same does not hold true for the cost of
caregivers which was, after some doubt, agreed to attract wage
inflation
at the agreed rate of 7 per cent.
[74] I do not consider it inappropriate for a flat
contingency rate to have been applied to medical expenses even
though, in some
cases, in assessing such expenses, an allowance was
made for the possibility that a particular procedure might not be
undergone.
This is essentially a matter of judgment resting on the
judge’s view of the likelihood of the expenses allowed actually
being
incurred. Judging by the therapeutic aids he has been given
thus far, there is a distinct prospect that Nico will not be given
all the aids for which provision has been made. I also share the
judge’s view that Nico will probably not have the time or

energy to fit in all the many therapies provided for and moreover he
is now four years older and some of the therapies will no
longer
assist in improving his condition.
THE CAREGIVERS
[75] My colleague in paragraphs [200] to [206] of her
judgment considers that there has been an under provision for relief
care
givers having regard to the provisions of the
Basic Conditions
of Employment Act 75 of 1997
and I agree with that.
[76] The court said:
‘
With
the provision of the three care givers and the consideration that the
plaintiffs can and should assist, there is in my view
no need to
provide for the cost of relief caregivers. The caregivers provided
for should be costed subject to inflationary increases
of 7 per cent
and over a 14 month year. That should be sufficient to provide for
vacation and sick leave.’
[77] Vacation leave for each
caregiver comes to three weeks per year.
10
On a percentage basis nine weeks out
of 52 for all three the caregivers is 17.3 per cent. The court added
two months per year, ie
16 per cent to the cost of the services of
each caregiver. No allowance was made for sick and compassionate
leave, (which are not
certain to arise) nor for weekend pay for
caregivers.
[78] If there was no need to provide for relief
caregivers, it would not have been necessary to cost the three
permanent caregivers
over 14 months so as, in the judge’s view,
to make sufficient provision for vacation and sick leave. It would
seem, therefore,
that when the judge expressed the view that there
was no need to provide for the cost of relief caregivers, he referred
to weekend
caregivers. It must have been in relation to these that
the fact that there were to be three caregivers as well as parents
who
‘could and should assist’ persuaded the court not to
allow the costs of any further caregivers. But altogether the weekend

time comes to six weeks per year and that would be too much for the
three permanent caregivers to cope with.
THE TENDER
[79] On the afternoon of 20 October 2006, shortly before
the trial commenced, the respondent made a tender under Rule 31(1)
and
(5) of the Uniform Rules of Court. It was not accepted by the
appellants. When the court awarded the appellants R9 148 777.37

plus the costs of a curator, the tender was in terms of Rule 34(12)
brought to the attention of the court which was asked to revisit
the
costs order it had previously made.
[80] The appellants’ contention that the terms of
the settlement offer were defective and that they were for that
reason not
obliged to accept the offer, makes it necessary to quote
its terms:
‘
Without
prejudice or admission of liability and by way of an offer in full
and final settlement of plaintiffs’ claim, the
defendant hereby
offers to settle the plaintiffs’ claim by:
1. payment direct to the
plaintiffs of the sum of R12 000 000 (Twelve million) Rand
inclusive of the costs of a curator
bonis;
2. the defendant also tenders in
the event of this offer of settlement being accepted by the
plaintiffs, to pay the plaintiffs’
taxed costs as between party
and party to date of service of this Notice, including any costs
attendant upon obtaining the amount
of R12 000 000 (Twelve
million) Rand and such costs to include the qualifying expenses . . .
of such witnesses in respect
of whom the plaintiffs have given proper
notice in terms of Rule 36 and the costs of two counsel.’
[81] The appellants are wrong in
saying that they were not
obliged
to accept the offer because its terms
were unclear or ambiguous. What I think the appellants may have
wanted to say, is that the
offer was so ambiguous or otherwise
unclear that it was not capable of acceptance. The settlement offer,
it is contended, did not
indicate which of the plaintiffs’
claims was being settled and moreover offered payment
direct
to the plaintiffs of whatever claim
or claims the defendant was intending to settle.
[82] There is no merit in either of these contentions.
If the offer is construed in the context in which it was made, it is
clear
beyond a shadow of a doubt that it was intended to settle all
the claims of all the plaintiffs. The appellants subsequently tried

to make out that they understood the offer to mean that it was in
full and final settlement of the plaintiffs’ claims in
their
personal capacity. To have thought that the defendant was offering
R12m to settle claims amounting to less than R200 000
is fanciful.
[83] Or, perhaps, it was argued, the offer was in full
settlement of Nico’s claims but the claims of his parents were
omitted.
It is highly unlikely that they were, but if they had been,
it would have made no difference to the claimants. They had an amount

on the table in settlement of all claims, the calculation of which
was not revealed, which they could either accept or reject and

acceptance of which would settle the case.
[84] The settlement offer – as it had to –
envisaged the discharge by compromise of the creditor-plaintiffs’
claims.
The debts claimed by them could not have been discharged by
payment to anyone other than the plaintiffs. The word ‘direct’

bears no special significance. The plaintiffs were not entitled to
say and would have been foolish to say, ‘We only regard
the
offer as valid provided payment is made to us only indirectly’.
[85] The next point raised by the appellants, is that
the settlement offer was ineffective because individual plaintiffs
could not
each have accepted his or her share of the damages. I do
not consider this criticism of the offer persuasive. The first
appellant
was alleged to have suffered damages in respect of the cost
of parental guidance and individual therapy and so was the second
appellant.
They are clearly separate claims. Nevertheless, they are
in prayer A thrown together. The damages alleged to have been
suffered
by the appellants personally in respect of Nico’s past
medical expenses are also included. In the case of their son Gian,

damages in respect of his future treatment for post traumatic stress,
are claimed as part of the appellants’ personal claims.
Yet
Nico’s future medical expenses are claimed by the first and
second appellants ‘in their representative capacity
and on
behalf of Nico’. It was clearly a matter of no moment to the
appellants whether they claimed in their personal or
in their
representative capacities.
[86] But, it is said, the appellants
or the one or the other of them, ought to have been able to accept
the offer in respect of
claims in their personal capacity/ies and
that it was impermissible to oblige them to accept all or nothing by
making an indivisible
offer. It surfaced in the debate before the
court that perhaps an indivisible offer would be conditional on all
the plaintiffs
accepting it and for that reason
11
be invalid; the new Rule 34(5)(b)
provides for an offer to be made ‘subject to such conditions as
may be stated therein’.
[87] The appellants have never said and do not say now
that they were minded to accept the offer if only the obscurity of
its terms
had not prevented them from knowing what to make of it, or
if they had not been confronted by the dilemma of not being able to
accept an offer in respect of the appellants’ personal claims,
or the claim on behalf of Gian, and continue with the litigation
on
behalf of Nico.
[88] The final point is equally
devoid of merit. The appellants maintain that they were not given an
adequate
spatium
deliberandi
within
which to decide whether to accept the offer.
12
Fifteen days is the time allowed in
Rule 34(6) during which a defendant must keep an offer open and a
plaintiff remains entitled
to accept it. Acceptance after that time
has expired requires the consent of the defendant or the sanction of
the court. The fifteen
day period becomes relevant only if the offer
is accepted or if attempts are made to accept it after its expiry. If
the offer is
never accepted a plaintiff has no cause for complaint.
[89] It is settled law that
regardless of the terms of a settlement offer, a court retains its
wide discretion on costs. In the
light of the factors discussed above
I must now decide whether the judge a quo
,
in giving the costs order that he
did, properly exercised the discretion entrusted to him. A settlement
offer is not a pure contractual
offer such as would be made in a
business milieu. A local authority, inviting tenders, say, would not
be obliged to clarify an
ambiguous offer by a tenderer before
rejecting it. An offer in terms of Rule 34(1) is part of the
mechanism established by that
Rule for the effective settlement of
disputes. A party who thinks an offer ambiguous (and I do not mean to
infer that the present
offer was anything but crystal clear) is
obliged to explore and clarify the matter rather than to litigate. If
he fails to take
a simple and elementary precaution to ensure that
avoidable litigation is avoided, he cannot complain of an adverse
costs order
if the outcome of the trial is against him.
[90] It is now contended that the alleged defects in the
settlement offer put the appellants in such a quandary that it would
be
fair to say that they need not have accepted the offer and were
entitled to embark on a very long and costly trial rather than (if

they had any real concerns) seeking to clarify the offer.
[91] In exercising its discretion, the court has regard
to the reasonableness or otherwise of a plaintiff’s rejection
of an
offer. If a plaintiff declined to take active steps to explore
a proffered settlement, and that includes clearing up any concerns

about it, a court may find that it was unreasonable not to accept the
offer. In any event, if an offer is defective but in a way
that does
not impact on the plaintiff’s decision on whether or not to
accept it, this would also be an element to be weighed
in the judge’s
discretion.
[92] The appellants also put forward the argument that
they were entitled to decline the defendant’s offer because, in
the
light of the difficulty of estimating the quantum of the
plaintiffs’ damages, it was unreasonable to expect them to
accept
it. That is a perverse submission: cases are settled precisely
because their outcome is uncertain; normally, the greater the
uncertainty,
the greater the incentive to settle. The appellants
produced a curiously twisted argument, saying that when considering
whether
or not to accept the tender they reasonably anticipated an
award in excess thereof. They set out a number of matters in respect

of which they maintain they reasonably believed that they would be
awarded greater sums than they were. The final outcome, they
say in
conclusion of this part of the argument, was ‘unreasonably
unpredictable.’ If the suggestion is that when an
outcome is
very hard to predict, a plaintiff is entitled to continue litigating
at a defendant’s expense, the essential purpose
of the rule
would be subverted.
[93] I may say that it is trite that the interest of a
minor is best served by a cautious and conservative management of his
affairs.
Nico had a payment of R12m within his grasp. To all intents
and purposes it was an asset in his estate. If the appellants’

submissions are correct, it was thrown away because they did not
think it apposite to discuss the offer with the defendant’s

legal representatives when, there is no shadow of a doubt, an
accommodation on its import would have been reached.
[94] But all this is shadow boxing. The tender was
technically valid. As Koen J points out in his judgment, the
appellants rejected
the offer because they were not persuaded that it
was, in the light of the appellants’ amended claims totalling
R53 556 127.89,
anywhere near adequate. I shall return to
the effect of the tender below.
THE CROSS APPEAL
[95] The respondent sought and was granted leave to
appeal against certain aspects of the two judgments and the orders of
the high
court. The notice of cross appeal seeks an amendment of the
order of the high court issued in terms of the second judgment to the

effect that the appellants’ claim on behalf of Nico be
recalculated on the basis that Nico has a life expectancy of 23 years

and by (I summarise) increasing the contingency deductions on a
number of therapies, on the costs associated with an electrically

powered wheel chair and the cost of the caregivers, in respect of
whom it is suggested that a 15 per cent contingency deduction
would
be appropriate. I have already dealt with the entitlement of a court
of appeal to interfere with the discretionary award
of damages by a
lower court. The same considerations as those in the appeal, apply
here.
[96] The respondent also has a complaint about Dr
Wiersma and Mr DJ Smythe having been declared necessary witnesses. I
would have
thought that this was essentially an issue involving the
exercise of a discretion: Dr Wiersma’s qualifying and
reservations
fees relating to attendance at court were allowed, so I
would not have thought it necessary to also declare him a necessary
witness.
Mr DJ Smythe, the headmaster of Browns school was a
necessary witness.
[97] Finally, the cross-appeal raises an issue
concerning the proper order to have been made on the remuneration of
the trustee
appointed by the high court The establishment of a trust
was suggested to the court by the parties who jointly submitted a
trust
deed which was, after amendment, annexed by the court to its
order.
[98] The respondent in his cross-appeal requests an
order that -
‘
It is
declared that respondent’s liability towards appellants in
terms of paragraph 1,5 of the second pre-trial minute is
limited to
7,5 per cent of the amount actually administered by a curator bonis
or trustee.’
[99] This appears to have been prompted by the
appellants’ attorneys having used an interim payment of R6,5m
to settle fees
and disbursements which, in turn, led the respondent’s
attorneys to fear that the amount, if any, ultimately paid into the

trust would be far less than that awarded to Nico. The respondent
therefore argued that it would be unfair to it to pay trustee’s

fees on amounts used to settle debts.
[100] The requested order, however, conflicts with the
agreement reached between the parties at a pre-trial conference that
the
amount of the trustee’s remuneration be calculated on the
‘capital amount agreed or awarded’ of Nico’s
damages. The ‘capital amount’ referred to in the
pre-trial minute could hardly have been meant to be the ‘capital

amount’ as defined by the court, namely the balance after the
deduction of an attorney and client fee and disbursements,
a concept
subsequently devised for purposes of the draft order handed into
court. The difficulty to which the formulation of a
settlement offer
in these terms would give rise is that the extent of a defendant’s
liability to pay a percentage of a trustee’s
fees would not be
known until the amount paid over to the trust has been established;
also, it might not be known whether or not
an amount awarded falls
short of or exceeds the settlement offer until it has emerged what
the trustee’s remuneration is
to be. Moreover, the amount
actually administered in the trust is likely to vary over the years
of the trust’s existence.
[101] Presumably it was in order to overcome this
difficulty that, as a practical measure, the parties agreed on the
7.5 per cent
of the capital award. No mention was made in their
agreement of the actual amount paid into the trust and it is
impermissible for
the respondents now to seek to move the goalposts.
The declaratory order requested in the respondent’s
cross-appeal can accordingly
not be granted.
[102] There is another matter concerning the trust that
deserves a general comment although there is nothing this court can
do about
it. Investec Private Trust Limited is appointed the trustee
with the powers and duties set out in the trust deed. In terms of the

order of the court below, the trustee shall ‘in the execution
of its duties and fiduciary responsibility to the beneficiary
of the
trust be entitled to have the attorney and own client costs and
disbursements of “the appellant’s attorney”
taxed’;
in addition, the trustee is directed to employ a case manager whose
responsibilities will include investigating whether
Nico receives all
the medical and other care recommended by doctors and therapists from
time to time and liaising with the trust
as to the financial
viability of such treatment and, in case of need apply to the court
with funds provided by the trust for such
relief as might be
required.
[103] The general comment is this: the trustee is not
bound by the order made by the high court. It is doubtful whether the
trust
deed gives it the necessary powers. The additional duties
imposed on the trustee (in particular the employment of a case
manager)
will involve a greater administrative burden for which the
7,5 per cent allowed for the trustee’s remuneration is unlikely

to be enough. The costs of an application to court will have to be
paid by the trust, but who is expected to authorise the expense
is
not stated in the court’s order. A trust company like Investec
Private Trust is doubtlessly not in the business of forming
judgments
and litigating about the welfare of beneficiaries. It would be as
well if the administrative burdens and the attendant
cost
implications are provided for in any order along these lines a court
may on another suitable occasion see fit to grant.
THE ALLEGATIONS OF BIAS
[104] The appellants’ heads on the judge’s
alleged bias commences with this introduction:
‘
The
perceived bias of the honourable presiding judge in the court a quo
was raised for purposes of the application for leave to
appeal to the
court a quo and to this honourable court with full appreciation of
the seriousness thereof. Despite the formidable
onus to demonstrate
that it is well-founded, the ground of appeal is persisted with. It
is relevant in terms of the assessment
of the evidence by the court a
quo, the exercise of the discretion relating to various aspects of
costs and contingencies, and
the quantum in general.’
[105] In referring to the ‘formidable
onus’ counsel doubtlessly had the decision in
S
v Basson
13
in mind where it was re-emphasised
14
that there is a presumption in our
law against partiality of a judicial officer, and that it difficult
for a litigant to establish
bias simply on the basis of the conduct
of a judge during a trial.
15
Despite having characterised the onus
the appellants face as ‘formidable’ they launched the
application before the high
court and pursued it in this court
without any supporting evidence apart from the record of the
proceedings.
[106] All we have outside the record
is counsel’s evidence cloaked in the form of a submission that
‘we and our clients
had a growing suspicion regarding this
problem from approximately the third day of the trial. As the trial
progressed it became
more apparent’. Bias is said to have been
demonstrated by the judge’s dislike of the attorney, the
counsel, the clients
and their case. Next there is a rather fatuous
submission that the record ‘in many instances does not reflect
tone of voice
and demeanour’.
[107] There is no evidence before us that anyone
actually perceived bias in the conduct of the judge. We were told
that the appellants
made an affidavit dealing with this topic in the
application for leave to appeal to this court, but none of this was
placed before
us: The platform from which this serious allegation was
launched was the record of the proceedings. As far as that is
concerned,
it was stated by the appellants’ counsel that ‘It
will be impossible to refer to all the specific instances in the
record where the honourable trial judge displayed the conduct which
the plaintiffs complain of.’ The record, it was suggested,

would reflect a general trend of conduct.
[108] The trend that the record does reflect is the
exemplary patience displayed by the trial judge. There is no hint of
bias in
his conduct, and if here and there some irritation manifested
itself, it is explained by the lengthy and largely pointless cross

examination of the witnesses referred to by my colleague in
paragraphs [213] to [220].
[109] The appellants’ counsel were driven to
relying on the silliest of examples to illustrate the judge’s
supposed
ill-will. These examples were not relied upon before us, but
were, at his request, furnished to the trial judge when he was for

the first time confronted with the issue of bias during the
application for leave to appeal.
[110] The judge is said to have disparagingly referred
to Ms Hattingh, one of the appellants’ witnesses, as ‘this
woman’.
Counsel’s truncation of the remark gives a skewed
impression. The judge in referring to the witness’s evidence
said
‘. . . this woman, this Mrs Hattingh . . .’. I
cannot accept that a slight was intended. Another allegedly offensive

remark of the judge occurred when Mrs Bubb in evidence said about Dr
Marus, ‘I have great respect of the man, he is a lovely
person’
and the judge retorted, ’Forget about the loveliness, let’s
talk about his ability.’
[111] Another instance of bias relied upon by the
appellants is when the judge permitted a question by Mr Delport on
whether Mr
de Waal had discussed a certain topic with a witness by
saying ‘I think it is permitted, Mr de Waal’. How a
ruling
like this can be interpreted as bias is beyond me.
[112] At one point there was a discussion about the
admissibility of evidence of the cost of radiological examinations
when such
cost has not been claimed, and the purpose of the evidence
is to lay the basis for an argument that a positive contingency ought

to be allowed. Quite correctly, the judge ruled against Mr de Waal
who now regards the ruling as biased because the judge ‘forced’

him to find authority on whether an allowance for positive
contingencies was permissible.
[113] A good deal of effort was devoted to showing how
the judge transposed into his judgment references from the
respondent’s
heads of argument that were wrong in exactly the
same respects. The inference sought to be drawn from this was that,
although the
judge said that he had considered the cases and articles
referred to therein, he had not in fact done so. This is said to have
demonstrated his bias. Whatever it demonstrates, it does not come
anywhere near to supporting an inference of bias.
[114] There is more of this sort of
thing, all unmeritorious, It would be risible if it were not so
ill-advised and so irresponsibly
inadequate to support an accusation
of misconduct as serious as bias. I think this court should express
its dismay at this sort
of baseless allegation of bias. It is an
allegation involving a judicial officer’s integrity and a
breach by him or her of
a constitutional duty. ‘The
impartiality of judicial officers’, the constitutional court
declared, ‘is an essential
requirement of a constitutional
democracy and is closely linked to the independence of courts’.
16
THE REVISION OF THE COURT’S ORDER
[115] The quantification errors by the trial judge
required a referral to the actuary agreed to by the parties for a
calculation
of the costs of an Unwin restraint system, a
recalculation of the effect of inflation on medical costs and of the
cost of relief
caregivers. In addition, the costs of psychiatric and
epileptic treatment as well as urological expenses awarded by the
high court
must be increased by 10% to take account of the fact that
they had been agreed not to be subject to any contingency deduction.
[116] The award that, on the basis of actuary
Whittaker’s reports submitted to this court and dated 18
October and 11 November
2010 ought to have been granted by the trial
court is the following:
1. Future medical and related expenses R9 001 959
2. Deduct expenses not subject to contingency R423 540
3. Subtotal R8 578 419
4. Deduct 10% contingency R857 841.90
5. Subtotal R7 720 577.10
6. Add back expenses not subject to contingency R423 540
7. Subtotal R8 144 117.10
8. Add loss of income R1 724 953.40
9. Add general damages R1 200 000
10. Total of Nico’s damages R11 069 070.50
11. Add trustee’s remuneration R830 180.25
12. Total of Nico’s claims R11 899 250.75
11. Add appellants’ own claims R126 694.77
12. Add Gian’s claim R13 579.20
13. Total of appellants’ claims R12 039 524.72
[117] If the respondent had been ordered to pay the
appellants R 12 039 524.97, no application for a
reconsideration of
the costs order made on 30 July 2008 would have
been brought. The application in terms of Rule 34(12) that culminated
in the orders
granted on 15 December 2008 therefore lacked substance.
Not only is there no reason for the appellants not to recover their
trial
costs but the costs of such application must be paid by the
respondent.
[118] Further in regard to the question of costs, I
agree with the conclusion of Snyders JA that the appellants ought not
to have
been burdened with four days’ costs as ordered by the
court below.
[119] The award in respect of the trustee’s
remuneration relates solely to trust expenses and there is no reason
not to order
that such sum be paid directly into the trust. The
‘capital amount’ of the award to Nico without that item
of his claim
will therefore be R11 069 070.50
THE ORDER ON APPEAL
[120] 1.(a) The appellants’ application to amend
by substituting the amount of ‘R50 653 447.00’
for
the amount of ‘R49 537 612.90’ where it
appears in paragraph 14.1 of the particulars of claim and in prayer
B
is granted in prayer D the amount of ‘R3 799 008.50’
is substituted for the amount of ‘R3 715 291.80’;
(b) Save as aforesaid, the application to amend and to
lead further evidence is dismissed with costs.
2. The appeal succeeds with costs, including the costs
of the applications for leave to appeal to the high court and to this
court
and including those costs attendant upon the employment of two
counsel
3. The orders granted on 30 July 2008 are set aside in
part and reproduced below with substituted provisions and additions
indicated
in bold type.
‘
(1) The defendant is ordered
to:
(a) pay to the plaintiffs in their personal capacities
the amount of R126 694,77;
(b) pay to the plaintiffs in their representative
capacities on behalf of Gian Singh the amount of R13 579,20;
(c) pay to the plaintiffs in their representative
capacities on behalf of Nico Singh, the amount of
R11 069 070,50
subject to the provisions of paragraph (4) below;
(2) the defendant is ordered to pay interest to the
plaintiffs on the aforesaid amounts at 15.5% per annum
a tempore
morae
from date of judgment to date of payment;
(3) the defendant is ordered to pay the plaintiffs’
taxed or agreed costs on the party and party scale, such costs to
include:
3.1 the costs consequent upon the employment of two
counsel, where applicable, including the preparation of written heads
of argument;
3.2 the reasonable costs of obtaining medico-legal and
actuarial reports from those experts who testified and whose
qualifying fees
are allowed;
3.3 the reasonable costs of those experts who attended
joint meeting of expert witnesses;
3.4 the reasonable qualifying and reservation fees
relating to attendance at court of the following witnesses:
Dr R Koch
Dr P Lofstedt
Mr D Rademeyer
Dr G Versfeld
Mr H Schüssler
Mr H Grimsehl
Dr R Wiersma
Miss B Donaldson
Dr M Lilienfeld
Miss I Hattingh
Miss G Steyn
Miss A Crosbie
Mr J Lapp
Dr A Botha
Miss P Jackson
Miss E Bubb
Professor P A Cooper
Dr D Strauss
Mr G Whittaker
3.5 the costs of of obtaining a transcript of the
proceedings;
(4) the plaintiffs’ attorney of record, Joseph’s
Inc, is directed to pay the amount awarded in respect of Nico Singh

in the amount of
R11 069 070.50
less the attorney
and own client costs and disbursements relating specifically to his
claim excluding the attorney and own client
cost relating to the
claims of the plaintiffs in their personal capacities and on behalf
of Gian as either agreed, taxed or assessed
(“the capital
amount”) over to the Trust (to be created within 1 month of the
date of the order), which Trust:
(a) shall be created in accordance with the Trust Deed
which shall contain the provisions set out in the draft Trust Deed, a
copy
of which is annexed hereto as annexure “X”;
(b) shall have as its Trustee Investec Pvt Trust
Limited, with those powers and duties as set out in the aforesaid
Trust Deed.
(5) The Trustee shall:
(a) be entitled in the execution of its duties and
fiduciary responsibilities towards the beneficiary of the Trust, to
have the
attorney and client costs and disbursements of Joseph Inc
taxed, unless agreed;
(b) be obliged to render security to the satisfaction of
the Master of the High Court, subject to the provisions of paragraph
6.7
thereof; (6) in the event of the Trust not being created within 1
month of date of this order, the plaintiffs and their attorney
are
directed to approach this court within two months after the expiry of
the first period of 1 month, to obtain further directions
with regard
to the manner in which the capital amount should be administered on
behalf of Nico Singh;
(7) the following persons are declared necessary
witnesses:
(a) Dr R Wiersma, a paediatric surgeon;
(b) Mr D J Smythe, the headmaster of Browns School;
(8) the trustee of the Trust is directed to employ an
overseer/supervisor, of the calibre contemplated by the parties, as a
case
manager, nominated by the chairperson of the Cerebral Palsy
Association of South Africa or any similar institution or
organisation,
having as its main object and purpose the advancement
and care of cerebral palsy sufferers, with the following powers,
duties and
responsibilities:
(a) to enquire into and investigate whether Nico
receives all the necessary therapies, treatment, other devices, aids
and accessories
as any of the professional therapists or doctors
treating him may recommend from time to time;
(b) to undertake such investigation and enquiry at
regular intervals but not less than once annually until Nico attains
majority;
(c) in the event of any necessary treatments, therapies
or accessories not being made available to Nico, to investigate the
cause
for such failure including liaison with the Trustee of the
Trust as to the financial feasibility of such treatment;
(d) if necessary, to apply to the High Court, such
application to be funded from the funds of the Trust, for whatever
relief may
be deemed appropriate;
(9) all reserved costs are declared to be costs in the
cause.
(10)
the defendant is ordered to pay the trustee’s
remuneration of R830 180.29 directly into the Trust’.
4. The orders granted by the high court on 15 December
2008 are set aside and replaced by an order reading:
‘
The application is dismissed
with costs, including the costs of two counsel.’
5. The cross-appeal is dismissed with costs, including
the costs of two counsel.
_____________________
J H CONRADIE
JUDGE OF APPEAL
SNYDERS JA (Maya JA concurring)
[121] This is an appeal from the Kwazulu-Natal High
Court sitting in Pietermaritzburg, Koen J presiding. The appellants
were granted
leave to appeal by the high court on some of the grounds
relied upon in their application for leave to appeal and subsequently
obtained leave on petition from this court, on the remaining grounds.
The respondent obtained leave to cross-appeal from the high
court.
[122] The appeal concerns a young boy, Nico, who, during
his birth on 22 June 2001 suffered a hypoxic event that caused him
severe
brain injury. The injury has left him in a severe and
permanent quadriplegic cerebral palsied state. Nico has, throughout
the proceedings,
been represented by his parents, the appellants, who
instituted action against the respondent, the gynaecologist that the
first
appellant consulted during her pregnancy and who delivered
Nico. The respondent conceded that the injury was caused by his
negligence.
The action was about the difficult task of determining
the amount of compensation to be paid to Nico for the injury that he
sustained
at the hands of the respondent. The appellants also claimed
damages in their personal capacities and representing their elder son

Gian and an award, which is not appealed, was made.
SECTION 28(2)
[123] The appellants urged this court, before
considering the details of the appeal, to adopt a different approach
to the one that
is usually adopted in a matter of this nature,
because of the provisions of s 28(2) of the Constitution. This is
necessary, according
to the appellants, because s 28(2) in the
context of this case means that:
‘
. . .
by reason of the well-known inherent difficulties and uncertainties
in matters of [the assessment of damages] to determine
with precision
the nature and scope of damages to be awarded, based on what the
future holds, [when] there is doubt, difficulty
and uncertainty as to
the exact nature, extent and scope of such damages;. . . [that] . . .
instead of the traditional conservatism
favouring the defendant, the
child should get the benefit of the doubt and, in so far as any
‘favouring’ comes into
play, that the child and not the
wrongdoer should be the recipient of such favour. . . ’.
[124] Section 28(2) provides:
‘
A
child’s best interests are of paramount importance in every
matter concerning the child.’
The
practical implication of s 28 has on several occasions been
considered by the Constitutional Court. In
S
v M (Centre for Child Law as Amicus Curiae)
[2007] ZACC 18
;
2007
(2) SACR 539
(CC)
the
Constitutional Court considered the duties of a sentencing court in
the light of the provisions of s 28 when the mother and
primary
caregiver of young children had to be sentenced.
17
In
Centre
for Child Law v Minister of Justice and Constitutional Development
and others
2009
(6) SA 632
(CC) the Constitutional Court decided the
constitutionality of
ss 51(1)
and (2) of the
Criminal Law Amendment
Act 105 of 1997
, as amended by the
Criminal Law (Sentencing)
Amendment Act 38 of 2007
and declared it inconsistent with the
Constitution and invalid, to the extent that it applies to persons
under the age of 18 years
at the time of the commission of the
offence.
18
In
Du
Toit and another v Minister of Welfare and Population Development and
others (Lesbian and Gay Equality Project as Amicus Curiae)
[2002] ZACC 20
;
2003
(2) SA 198
(CC) the Constitutional Court held that ‘[e]xcluding
partners in same sex life partnerships from adopting children jointly

where they would otherwise be suitable to do so [is] in conflict with
the principle enshrined in s 28(2) of the Constitution’
as it
would ‘deprive children of the possibility of a loving and
stable family life as required by s 28(1)(b) of the Constitution’.
19
Ngcobo
CJ in
Director
of Public Prosecutions, Transvaal v Minister of Justice and
Constitutional Development and others
2009
(2) SACR 130
(CC) para 73 stated that ‘[i]t is neither
necessary nor desirable to define with any precision the content of
the right to
have the child’s best interests given paramount
importance in matters concerning the child. . . .[s 28] imposes an
obligation
on all those who make decisions concerning a child to
ensure that the best interests of the child enjoy paramount
importance in
their decisions.’
[125]
The above references and quotes illustrate the broad and general
content that has been given to s 28 and the specific content
that
arose in particular factual scenarios. It also shows that s 28, like
all the rights contained in the Bill of Rights are subject
to
limitations that are reasonable and justifiable in compliance with s
36 of the Constitution.
20
The
challenge in this case is to answer the question whether s 28 and the
various
dicta
mean
that in the assessment of an appropriate award of damages in civil
litigation a more liberal as opposed to the traditional
conservative
approach should favour the child plaintiff.
[126] In the
Centre
for Child Law
case
children’s ability to make choices is recognised to generally
be more constricted than those of adults. In the context
of making
decisions in order to conduct civil litigation a child’s lack
of intellectual and psychological maturity, would
generally present a
disadvantage. The common law recognises this potential disadvantage
and provides that children be represented
by their parents or for the
appointment of a
curator
ad litem
to
represent the interests of the child in proceedings concerning the
child.
21
Section 28(1)(h) obliges a court to
appoint a legal practitioner for a child at state expense to
represent the interests of a child
in civil proceedings in order to
avoid substantial injustice.
[127] Nico is duly represented by his parents and legal
representatives. Through that representation the disadvantage he
would have
faced in challenging an adult defendant, has been removed.
Nico, duly represented, is an equal party to the litigation. His
rights
and best interests in the context of the litigation are looked
after by his parents and legal representatives. Being duly
represented
removes any disparity between a minor and his or her
opposing litigant. The only remaining difference between Nico and the
respondent
is that Nico, as plaintiff, bears the onus. This
difference does not amount to a disadvantage that stems from the fact
that he
is a minor, but from rules of evidence and procedure to which
every litigant in civil litigation is subject. It could hardly be

suggested, and the appellants’ counsel assured us that he was
not, that s 28(2) means that the onus should be changed when
the
plaintiff is a child.
[128] 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.
22
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.
23
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.
24
[129] It can be safely concluded that s 28 does not mean
that a child should not be charged in a criminal matter, should not
be
sentenced if convicted, should not bear the onus in civil
litigation, should not be subject to the same policy considerations
than
an adult plaintiff or should receive a more generous award than
an adult plaintiff. It also does not mean that an adult defendant,

when sued for damages by a child plaintiff, should not be treated
fairly and enjoy the same conservative approach as if the action
was
brought by an adult plaintiff.
[130] A few simple rhetorical questions serve to
illustrate the potential pitfalls if s 28 is to be interpreted to
favour a child
plaintiff in the way that the appellants are
contending for. What would happen in a case where the child is the
wrongdoer and thus
the defendant? What if both the plaintiff and the
defendant are children? What if the child plaintiff turns 18 during
the course
of the trial? Surely abandoning the conservative approach
in the instances where the plaintiff is a child would create
intolerable
consequences as it would give rise to a malleable
standard to be applied to litigation for damages that is dependant on
whether
the victim or wrongdoer is a child, contrary to the universal
principle of certainty. It would also elevate the rights of a child

above other rights in the Bill of Rights like equality and the right
to a fair public hearing before a court. The interpretation
of s 28
that the appellants contend for, cannot be upheld.
AMENDMENTS
[131] The appellants applied to this court in terms of s
22(a) of the Supreme Court Act 59 of 1959 for further evidence of
Nico’s
weight as at 29 March 2010, subsequent to the conclusion
of the trial on 30 July 2008, to be allowed. Nico’s weight is a
relevant fact in the assessment of his nutritional status. His
nutritional status impacts on the assessment of his longevity, which

in turn affects the determination of his future medical expenses and
loss of earning capacity. The application was opposed.
[132] Public interests demand that
there should be finality to litigation. The primary function of a
court sitting on appeal is
to determine whether the conclusion
reached by the trial court is correct or not on the evidence that
served before it.
25
A court of appeal would therefore
only allow further evidence in special circumstances.
26
Over the years some principles have
crystallised as to what minimum requirements would amount to special
circumstances. Those were
usefully summarised in Erasmus, Farlam,
Fichardt and Van Loggerenberg
Superior
Court Practice
at
A1-56 and approved in
Road
Accident Fund v Le Roux
2002
(1) SA 751
(W) at 753H-J:
‘
(1)
There should be some reasonably sufficient explanation, based on
allegations which may be true, why the evidence which it is
sought to
lead was not led at the trial.
(2) There should be a prima
facie likelihood of the truth of the evidence.
(3) The evidence should be
materially relevant to the outcome of the trial.’
Non-compliance with any one of these requirements would
ordinarily result in a refusal of the application to lead further
evidence.
[133] The motivation for the application was summarised
by the appellants as follows:
‘
It is
respectfully submitted that, in the interests of justice in general,
and specifically in relation to the best interests of
this minor
child, this incontrovertible factual evidence exposes the
unfair
and incorrect evidence
relied
upon by the defendant and the court a quo which, at the level of
probability was relied upon in terms of the imponderables
and
speculation. The inherent difficulty in the prognostication of the
long term future of a young child demands that facts which
remove or
reduce the imponderables or speculation, should be accepted into
evidence in terms of section 22(a) . . . .’
(my
emphasis).
[134] This passage reveals that the
evidence sought to be introduced is to be used to controvert the
evidence on behalf of the respondent
given by Dr Campbell, but that
was accepted by the high court. Even if it is accepted that the
evidence sought to be introduced
meets all three minimum
requirements, allowing it would unfairly deprive the respondent and
Campbell of an opportunity to respond
to it.
27
The respondent may have wanted to
investigate and disclose the reasons for the weight gain, or
explained why the significance is
minimal or does not affect Nico’s
nutritional status, or made a comparison with his growth lengthwise
that may provide another
perspective.
[135] This dilemma illustrates well why an appeal is
decided on the evidence presented at the trial. The alternative
promotes unfairness
and a lack of finality. If evidence at the trial
was ‘unfair’ or ‘incorrect’ it had to be
illustrated to
be that at the trial. If it was not the reliance by
the trial court on such evidence would not constitute a misdirection
that would
entitle interference on appeal.
[136] The evidence sought to be introduced is hardly
‘materially relevant’ to the outcome of the trial. Nico’s

weight is but one amongst several relevant factors to his nutritional
status. Even if incontrovertible it may not affect the outcome
of the
finding on his nutritional status. His nutritional status, in turn,
is only one of several factors that affect an estimate
of his
longevity.
[137] Far from meeting the requirements for the
admission of evidence in terms of s 22(a) of the Act, the appellants’
application
serves to illustrate the rationale for the general rule
that appeals should be determined on the evidence that served before
the
trial court and evidence should not be allowed unless special
circumstances exist to do so. In this case there are no special
circumstances
that justify granting the application.
[138 This conclusion is even more obvious in relation to
the appellants’ further application for this court to accept
the
evidence that they have, since the conclusion of the trial, been
evicted from their luxurious family home. Rather than being
materially
relevant to the outcome of the trial, the proposed
evidence serves only to indicate that it calls for an entirely
different enquiry
than the one conducted during the trial. The award
of building costs as damages was done after an investigation of
reasonably necessary
alterations to the family home they occupied at
the time. The mere fact of their subsequent eviction cannot possibly
warrant a
re-consideration of the award made with no investigation of
the current circumstances.
[139] The appellants also apply for an amendment to
their particulars of claim to the effect that Nico’s claim for
future
loss of earning capacity be increased by claiming, for the
first time, compensation for earning ability lost during the
so-called
lost years, the period with which Nico’s life
expectancy has been reduced as a result of the injury.
[140] The appellants’ counsel argued that the
amendment would not require any further investigation as the evidence
already
on record would sustain such a claim and that no prejudice
would come to the respondent if the amendment is allowed. As the
amendment
would introduce an excipiable claim it was argued that the
law as it currently stands is, as a matter of principle and policy,
‘fundamentally unsound’ and needs to be reconsidered and
decided on the logical basis that Nico has a right to compensation

for earning capacity lost during the years he would have remained
alive if it was not for the injury. Needless to say, the application

was opposed.
[141] A party is not precluded from
raising a new point by way of amendment on appeal, provided that
allowing the amendment would
not be unfair to the opposition. It
would be unfair if the new point was not fully canvassed at the
trial.
28
[142] The claim for so-called lost
years was never part of the appellants’ claim and for that
reason received no consideration
during the trial. In the absence of
any consideration of the issue during the trial it is hardly
imaginable that there could be
no prejudice to the other party. It
would in fact be appropriate in such circumstances to presume
prejudice.
29
It does not lie in the appellants’
mouth to contend at this stage that no evidence would have been lead
by the respondent
or no investigation would have been conducted by
the respondent in response to such a claim. The suggestion by the
appellants that
the calculation of the new claim is merely a matter
of applying a contingency deduction of 45 per cent to the evidence of
future
loss of earnings already on record, is overly simplistic and
one-sided. An investigation of living expenses in relation to
earnings,
the probability of marriage, the probable number of
children and other dependants, the probable standard of living, the
probable
level of savings, amongst other things, would be relevant to
the assessment of an appropriate contingency. The respondent would

have been entitled to investigate and address these aspects. It is
inappropriate to speculate, after the respondent has been denied
the
opportunity, whether he would have dealt with the issue in evidence
at the trial. The respondent’s contention that he
would have
contested and addressed the issue in evidence during the trial is
reasonable. Consequently it would indeed be unfair
and prejudicial to
the respondent to allow the amendment.
[143] In view of this conclusion
there is no need to consider the merits of the amendment sought by
the appellants, other than to
say that if they brought a claim on
this basis they would have faced a losing battle. In
Lockhat’s
Estate v North British & Mercantile Insurance Co Ltd
1959
(3) SA 296
(A) at 306F-G the legal position has been stated as
follows:
‘
When a
man is injured and as a result of that injury his expectation of life
is shortened, his claim for compensation is, in my
opinion, limited
to the period during which it is expected that he will continue to
live, and he has no claim for loss of savings
beyond that date; he is
not, notionally, kept alive until the date when, but for the accident
he would, actuarially, have died.’
30
[144] It is unimaginable that the
appellants would have succeeded in having the common law changed to
follow developments in English
law as set out in
Pickett
(Administratrix of the Estate of Ralph Henry Pickett Deceased) v
British Rail Engineering Limited
[1980]
AC 136.
In the
Pickett
case the House of
Lords changed the direction of English law and upheld the claim of
the administratrix of the estate of an injured
person, who had since
died, and whose life expectancy had been reduced through injury, for
loss of savings during the so-called
lost years. The vital difference
between English law and South African law is that in South Africa the
dependants of an injured
person whose life expectancy has been
reduced or who has died, would have an independent claim against the
wrongdoer.
31
The dependants are, after all, the
ones who are prejudiced when their source of support falls away due
to the fault of another whereas
the injured person will no longer
need to maintain himself after his demise.
[145] The English law has been shaped
by statute. The consequence of the inter-relationship of the statutes
and the common law gave
rise to a difficulty that the House of Lords
in
Pickett
sought to correct by allowing a
victim to recover for earnings lost during his lost years. The
difficulty was explained as follows
in the judgment:
‘
It is
assumed in the present case, and the assumption is supported by
authority, that if an action for damages is brought by the
victim
during his lifetime, and either proceeds to judgment or is settled,
further proceedings cannot be brought after his death
under the Fatal
Accidents Acts. If this assumption is correct, it provides a basis in
logic and justice, for allowing the victim
to recover for earnings
lost during his lost years.’
[146] In
Pickett
the House of Lords achieved what is
already possible in South African law. The dependants of the victim
were compensated, if not
through their own action when that was
permitted by the Fatal Accidents Act 1976 (the FA Act), then through
their inheritance from
the estate of the victim that either recovered
during the deceased’s lifetime or by action instituted by the
administrator
of the estate. At the same time double recovery for the
same loss from the same wrongdoer is prevented.
[147] The English model does not provide anything to
strive for. To the contrary South African law is to be preferred for
its simplicity
and clarity as it ensures compensation for loss
suffered whereas the dependants in English law could still find
themselves without
compensation for their loss if the deceased victim
does not bequeath his estate to them.
LIFE EXPECTANCY
[148] The appeal seeks to upset the findings of the high
court in its award of damages to Nico. The appellants’ appeal
aims
to have the damages increased and the respondent’s cross
appeal to have the damages reduced. The approach to be adopted is

clear:
‘
It is
settled law that a trial Court has a wide discretion to award what it
in the particular circumstances considers to be a fair
and adequate
compensation to the injured party for his bodily injuries and their
sequelae. It follows that this Court will not,
in the absence of any
misdirection or irregularity, interfere with a trial Court’s
award of damages unless there is a substantial
variation or a
striking disparity between the trial Court’s award and what
this Court considers ought to have been awarded,
or unless this Court
thinks that no sound basis exists for the award made by the trial
Court.’
32
[149] As a result of the massive brain injury that Nico
sustained his life expectancy has been reduced. His longevity informs
the
assessment of compensation for future loss of earnings and
medical expenses. The trial court assessed Nico’s life
expectancy
at 30 additional years. Both parties contend that
assessment to be based on a misdirection with which this court is
entitled to
interfere. The appellants seek its adjustment upwards to
40 additional years and the respondent its adjustment downwards to 23
additional years.
[150] Dr Strauss, one of the foremost
international experts in the field of medical research on life
expectancy testified on behalf
of the appellants. His evidence was,
in my view rightly, accepted by the high court, as it was founded on
logical reasoning.
33
The acceptance of his evidence has
not been challenged by the respondent, nor did the respondent tender
opposing evidence of an
expert nature.
[151] Strauss bases his estimates on a study he
conducted, together with other researchers in the field, in
California that consists
of a data base of about 300 000 people who
developed mental disabilities, including cerebral palsy. The study
includes information
about their mobility, ability to walk, feed,
dress, toilet, cognitive functioning, and psychiatric and
psychological problems.
The information gathered from the historical
database allows Strauss to statistically calculate a factor which, if
applied to statistical
life tables, provides a means of estimating
the future death rates at various ages of people with similar
disabilities. Although
the persons that make up the database vary in
important respects in their capabilities, all the information
gathered is used to
make adjustments for the differences in order to
achieve a finely tuned estimate in relation to a particular type of
individual,
Nico in this case. Strauss convincingly illustrated that
his expertise enables him to make calculations and adjustments and
arrive
at an estimate that is well motivated, individualised and
reliable. Strauss explained that the life expectancy estimated by
means
of his methodology constitutes ‘the average survival time
in a large group of similar persons’. This implies, as Strauss

also testified, that the particular individual may actually live
longer than the average person or die earlier.
[152] The above short summary of
Strauss’ methodology illustrates that an assessment of life
expectancy is a complicated and
imprecise exercise. It can
comfortably be compared with the difficult task of assessing damages
for loss of earning capacity, of
which it is an essential element in
this case. In this regard the remarks of Nicholas JA in
Southern
Insurance Association Ltd v Bailey NO
1984
(1) SA 98
(A) at 113G-H are apposite:
‘
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.
It has open to it two possible
approaches.
One is for the Judge to make a
round estimate of an amount which seems to him to be fair and
reasonable. That is entirely a matter
of guesswork, a blind plunge
into the unknown.
The other is to try to make an
assessment, by way of mathematical calculations, on the basis of
assumptions resting on the evidence.
The validity of this approach
depends of course upon the soundness of the assumptions, and these
may vary from the strongly probable
to the speculative.’
Whilst referring to these two possible approaches, the
following is said at 114C-E:
‘
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.’
[153] Before statistical evidence was available to make
an estimate of life expectancy based on statistical calculation, the
courts
had to embark on making a round estimate of what seemed fair
and reasonable in the circumstances. This is not such a case.
[154] Strauss’ studies have shown which variables
affect life expectancy. Voluntary motor function, for example, has
been
shown and is generally accepted as the key determinant of life
expectancy. In the studies conducted Strauss specifically controlled

for the ability to consistently and typically lift the head in prone
and roll. On key variables good statistical data, which facilitates
a
more accurate calculation, exists. On variables like cognitive
function statistical data does not exist, but they could and should

be factored into the assessment as positives or negatives resulting
in some adjustment.
[155] When Strauss calculated his first estimate of
Nico’s life expectancy he was not instructed with consensus on
Nico’s
ability to consistently and typically lift his head in
prone or roll. He consequently made a calculated estimate for four
possible
scenarios which focussed on known variables. The variables
are that he is a male, born on 22 July 2001 (age 5.2 years), that he

suffers from cerebral palsy, that he possibly lifts his head when
lying on his stomach, that he has some ability to roll, that
he is
fed orally rather than by gastrostomy, that he does not crawl, creep,
scoot or walk, that he does not feed himself, but must
be fed
completely, that he is fully dependant in all aspects of his care and
that he has the low weight of 11kg. The four scenarios
that he
regarded as apposite are, (a) that Nico does not lift his head in
prone, (b) that he lifts his head in prone but does not
roll over,
(c) that he rolls, with an adjustment for his low weight and (d) that
he rolls, without an adjustment for his low weight.
[156] The results of Strauss’ calculations
represent the average additional years that Nico is expected to live
and for the
different scenarios he estimated (a) 20.3, (b) 25.2, (c)
29.9 and (d) 31.6 additional years. In his calculation Strauss made
use
of the 1984/86 South African Life Tables applicable to white
South African males (the SA life tables). In addition to these
conclusions
Strauss noted several variables of a positive and
negative nature that he did not have good statistical data on and did
not take
into account in his first estimate. Those included the
absence of epilepsy, better than average cognitive function,
excellent cough
response, feeding problems, iron deficiency and signs
of malnutrition.
[157] The first estimate was the backbone of Strauss’
evidence and he did not deviate from it. He was asked to do a second

report when it was realised that he was instructed with incorrect
data as to Nico’s weight. He adjusted his calculations
taking a
weight of just above 12 kg into account instead of the previous 11
kg. The corrected weight affected only scenario (c)
by an upward
adjustment of 0.6 to 30.5 additional years.
[158] Finally, Strauss was asked to
make adjustments to his calculations which take account of positive
and negative factors for
which he had no good statistical data
available and which he did not include in the estimate done in his
first report. He did so
and took into account that Nico does not
suffer from mental retardation, that his weight is within the 40
th
percentile for children with cerebral
palsy, his quadriplegia is of a predominantly dyskinetic, as opposed
to spastic, type, his
motor dysfunction is choreo athetoid, he does
not suffer from epilepsy, he can activate a switch on an augmentative
and alternative
communication (AAC) device, he does not crawl or
stand but does move on the floor by lifting his buttocks and
thrusting himself
in the direction of his feet in a linear and
circular direction, he is unable to ambulate or dress himself, he is
not tube fed,
he swallows safely and has no increased risk of
aspiration to the normal population, he is totally dependentt on
others to feed
him, he makes attempts to verbalise, his prognosis for
using an AAC device effectively is good, he has expressive non-verbal
communication
ability, his receptive language ability is appropriate
to his age, he has good general health and no breathing difficulties.
In
addition Strauss was asked to accept that Nico does consistently
and typically roll and lift his head in prone.
[159] In taking all of that into account, balancing the
positive and the negative, and with a conservative approach to Nico’s

ability to lift his head and roll, Strauss arrived at the conclusion
that an additional three years should be added to scenario
(d) of his
first estimate of Nico’s life expectancy. To illustrate why
Strauss’ approach was conservative and realistic,
I might add,
it is necessary to quote the following extract from his evidence:
‘
Now,
for two reasons I used a combined group consisting of levels four,
five, six, which is all the rolling items. One reason is
technical in
that the amount of data we have is not unlimited and if you use a
slightly broader range, as I just did there, you
get greater
stability in your estimates. You can’t keep cutting down the
requirements otherwise you end up with too few people.
The other
reason is that, as I mentioned earlier, I tried, to the best of my
ability, to form a group to compare the child to,
that matches him as
well as possible with respect to other variables. Now, in Nico’s
case there is discussion of his ability
to roll over both ways, some
people say he can. However, he is probably not as good at it as some
children in that – at least
there is some dispute over it and
also I understand his head lifting is not as clearly demonstrated
anyway as with some children.
So, I wanted to be a little bit
conservative, and so instead of using level six alone I was more
comfortable using levels four,
five and six combined. If I had used
level six alone the answer would probably have been a little higher
but it would have had
less statistical precision, so I can’t
guarantee how it would have come out.’
[160] The groups referred to in this passage are nine
graded levels of ability within the variable of head lifting and
rolling.
Strauss, in his ultimate estimate, did not accept that Nico
consistently and typically lifts his head in prone and rolls, but
made
adjustments to individualise the estimate and incorporate any
doubts raised about his ability to do so consistently and typically.
[161] On Strauss’ evidence the appellants
contended for a life expectancy of at least 34.6 additional years,
and the respondent
contended for a life expectancy of 23 additional
years. (For present purposes I leave out of consideration the
appellants’
contention that includes due regard to the
application of the Koch life tables and the evidence of Prof Hutton.)
[162] The respondent arrives at 23 additional years by
starting at scenario (a), 20.3 additional years, and adding to that
the 3
years that Strauss added as the balance of positive and
negative factors not initially taken into account. The respondent’s

starting point of 20.3 years implies that Nico does not lift his head
in prone and does not need gastrostomy feeding. Strauss’

assessment of an additional 3 years recognises that Nico has some
ability to lift his head in prone and roll.(V8p680) Adding the
3
years to the 20.3 years would imply adding two estimates based on
mutually exclusive assumptions. The respondent’s contention
of
23 additional years is illogical and untenable for the following
additional reasons. Strauss testified that if it is accepted
that
Nico does not roll or lift his head in prone, scenario (a) is too
pessimistic considering that Nico is quite high functioning
in other
regards if compared to similar persons who could not roll or lift
their heads in prone.
[163] During the initial stages of the trial the
respondent contended for a finding that Nico had an estimated life
expectancy of
26 additional years. This contention was based on the
evidence of Dr Campbell, a general practitioner who practises in the
field
of rehabilitative medicine. Campbell based his evidence on an
article published by Strauss. Although Strauss remarked that
Campbell’s
calculations, based on the article, were reasonable,
he pointed to two flaws which disqualify the conclusion. First,
Campbell based
his estimate on a specific article written by Strauss
which dealt with an age group of 15 year olds. Second, the article
was 10
years old and has since been refined and improved. In
addition, it has to be stated that Campbell is by no means an expert
in the
field and his estimate assumed that Nico requires gastrostomy
feeding, an assumption that the respondent is no longer relying on

for his current contention. Strauss’ calculation on the
assumption that gastrostomy feeding is indicated for Nico came to

23.8 additional years. During the final stages of the trial the
respondent supported this calculation, reduced to 23 years because

Nico was older at that stage than when Strauss made the estimate. The
illogical variation in the respondent’s case is clearly
evident
and no more needs to be said about it.
[164] The high court’s conclusion on Nico’s
estimated life expectancy was put as follows:
‘
Irrespective
of my finding in regard to the agreement to use the 1984/1986 SA Life
Tables, the difference between the results obtained
from an
application of those life tables and the Koch tables will probably
have little impact on the estimated life expectancy,
when the
uncertainties and vagaries of the clinical assessments relating to
the ability to roll and lift head consistently and
typically, safe
and effective swallowing, risk of aspiration, nutritional status and
need for a PEG are taken into account. I gave
some consideration as
to whether [a] contingency should be applied only to the overall
monetary value of any head of award by,
for example, using the
plaintiff’s calculation of damages and then applying a
contingency. It is however well known that
depending on the number of
years of remaining life expectancy, a compound growth and increase
may be included. It therefore seems
to me that it is more appropriate
that a contingency be applied firstly in arriving at an anticipated
reasonable life expectancy.
Nico’s life expectancy thus
estimated on the available totality of the evidence duly weighed and
considered should in my
view be 30 years.’
[165] The judgment does not reveal
how the estimate is arrived at or how it relates to the accepted
evidence of Strauss. None of
the counsel was prepared to venture an
explanation in this regard. Shortcomings in the furnishing of reasons
for the assessment
of general damages, which are equally applicable
in the present instance, have elicited the following comments by this
court in
Road
Accident Fund v Marunga
2003
(5) SA 164
(SCA):
‘
Even
though courts have a wide discretion to determine general damages and
even though it cannot be described as an exercise in
exactitude, or
be arrived at according to known formulae, a trial court should at
the very least state the factors and circumstances
it considers
important in the assessment of damages. It should provide a reasoned
basis for arriving at its conclusions.’
34
[166] It is not suggested that the
high court should have allowed Strauss’ estimate necessarily to
become its own, but to
have motivated its deviation from Strauss’
accepted, logical, well reasoned conclusion.
35
In my view the assessment of Nico’s
life expectancy involves a highly specialised field of expertise in
which Strauss, in
the words of Wessels JA in
Coopers
(South Africa) (Pty) Ltd v Deutsche Gesellschaft Für
Schädlingsbekämpfung MBH
1976
(3) SA 352
(A) is ‘. . . better qualified to draw inferences
than the trier of fact’.
36
The evidence of Strauss clearly
revealed that the assessment of life expectancy is an example of an
instance ‘. . . where
the court is, by reason of a lack of
special knowledge and skill, not sufficiently informed to enable it
to undertake the task
of drawing properly reasoned inferences from
the facts established by the evidence’.
37
[167] The high court’s
conclusion raises more questions than it answers. It suggests that an
estimate of higher than 30 years
was arrived at from which a
contingency was deducted, presumably because of doubt. I assume for
current purposes that the reference
to a contingency in this context
is merely an inaccurate expression attached to the process of making
a ‘round estimate’
of life expectancy that seems fair and
reasonable.
38
The estimate arrived at, the
contingency deducted and the reasons for the deduction are not
disclosed. If the higher than 30 years
estimate arrived at is the
34.6 additional years testified to by Strauss the deduction made
ignores that Strauss in reaching 34.6
years was conservative and took
into account that Nico’s ability to roll and lift his head in
prone may not be consistent
and typical.
[168] Strauss repeatedly, and correctly so, said that it
is for the court to decide the facts which would indicate which
estimate
he calculated would be the best or appropriate guide to
follow. The factual findings had to be made on a balance of
probabilities
after an investigation of the available historical
facts. If that standard of proof was not met, the allegations had to
be rejected
as not having been proved. After a finding on a balance
of probabilities an estimate or assessment of Nico’s life
expectancy
had to be made and at that stage a consideration of
prospects, the likelihood of an event, possibilities, risks and doubt
come
into play.
[169] In
De
Klerk v ABSA Bank Ltd and others
2003
(4) SA 315
(SCA) Schutz JA, albeit in a different context, wrote on
the difference between the standard of proof when investigating
historical
facts that establish causation and making an estimation of
damages which does not require proof on a balance of probabilities
and
may involve taking the likelihood of uncertain future events into
account.
39
[170] The facts that the high court
had to investigate and that were in issue addressed the question
whether Nico needed gastrostomy
feeding and whether he consistently
and typically lifts his head in prone and rolls.
40
In order to decide whether Nico
requires gastrostomy feeding it is relevant to determine whether he
is under or malnourished, whether
he can swallow safely and whether
he aspirates. In relation to each and every one of these aspects the
parties started the trial
at extreme ends of the scale. The high
court’s conclusions on these matters read as follows:
‘
A
definitive diagnosis or finding on whether Nico’s swallowing is
safe and effective, whether he aspirates and whether he
is
malnourished and requires the fitment of a PEG, is simply impossible
on the present state of medical science and the impreciseness
of that
science. At best an approximation can be made on probabilities.’
‘
. . .
., I cannot conclude that there is not a real risk of aspiration in
Nico;’
‘
Nico
is probably malnourished and/or probably runs the risk of being
malnourished, . . . .’
‘
. . .
. that if Nico does not already require PEG feeding, but is able to
‘get by’ without it, that there is a very
real
possibility if not a probability that he will require PEG feeding in
the future.’
‘
On a
totality of the evidence it is difficult to make an unreserved
positive finding that Nico can consistently and typically roll
over.
Maybe, as is apparently common with persons with Nico’s type of
cerebral palsy, his ability differs from day to day.
If so, then
giving Nico the benefit of the doubt is probably fair with due
recognition of his rights, and that an adjustment be
made by applying
an appropriate contingency.’
‘
A
smaller question mark than that which applies to his ability to roll
over consistently and typically, appears to apply on the
totality of
the evidence to Nico’s ability to lift his head. That matter is
also best approached on the same basis as his
ability to roll
typically and consistently.’
[171] The wording adopted by the high
court reminds of the following remarks of the House of Lords in
Dingley v The Chief
Constable, Strathclyde Police
200
SC (HL) 77 at 89D-E, as quoted in
Michael
and another v Linksfield Park Clinic (Pty) Ltd and another
2001
(3) SA 1188
(SCA) para 40:
‘
(o)ne
cannot entirely discount the risk that by immersing himself in every
detail and by looking deeply into the minds of the experts,
a Judge
may be seduced into a position where he applies to the expert
evidence the standards which the expert himself will apply
to the
question whether a particular thesis has been proved or disproved –
instead of assessing, as a Judge must do, where
the balance of
probabilities lies on a review of the whole of the evidence.’
[172] In my view the high court failed to make factual
findings on a balance of probabilities and consequently allowed
unnecessary
doubt and uncertainties to influence the conclusion on
life expectancy.
[173] Nico has only ever been fed orally. His poor head
control, continuous tongue thrusting, drooling and poor control of
the bolus
in his mouth when feeding present constant challenges for
continued oral feeding. The experts on behalf of the appellant
generally
opined that despite all this Nico swallows safely. They
also stressed that he enjoys feeding and benefits from the social
interaction
that accompanies feeding. The experts on behalf of the
respondent generally opined that Nico’s swallow is not safe and
that
feeding him takes so much time and energy that gastrostomy
feeding is indicated. The experts were agreed that feeding therapy
would
improve his feeding.
[174] Ms Herbert, the speech and language therapist who
testified on behalf of the respondent, had the opportunity to observe
Nico
for a second time shortly before she gave her evidence in court.
She testified that since her first examination of Nico certain

necessary adjustments had been made to his feeding. He was properly
supported in a Shona buggy which made it easier for him to

concentrate on his feeding and helped him manage the feeding process
better. The consistency of the food he was being fed had been
adapted
and feeding strategies had been implemented that made it safer for
Nico to feed than before.
[175] Objective medical evidence was introduced that
Nico could swallow safely. The evidence was of a test that was
described as
an omnipaque swallow. The test involved feeding Nico a
liquid that made it possible to visually watch and record his
swallow. It
showed that Nico swallowed safely and that he did not
aspirate any of the liquid used in the test. This evidence was not
contested,
but three ancillary aspects about the evidence were
heavily criticized.
[176] First, that the test only represents a moment in
time and one safe swallow out of his lifetime. Obviously that is a
valid
consideration. The evidence could never be more than an
objective indication that on that one occasion Nico swallowed liquid,
the
most difficult substance to swallow safely, without aspirating
and at that moment illustrated the ability to swallow safely.
[177] Second, that Nico did in fact aspirate during a
second test performed immediately after the first one. The second
test was
aimed at testing Nico’s gastric emptying and upper
small bowel function in order to establish whether there were any
mechanical
causes for his vomiting. The test was performed in a
deplorable way. Nico refused to co-operate. Consequently he was
physically
held down and whilst wriggling, protesting and crying the
liquid was forced into him. It was not surprising that under those
circumstances
he aspirated. It was not initially noticed by the
experts involved in the test. That failure does not detract from the
logical
explanation for the aspiration. Aspiration under the
extraordinary circumstances of the second test does not detract from
the finding
in the first test and does not support a finding that
generally, during feeding, Nico aspirates.
[178] Third, that a better test could have been
performed that would have given a better indication whether Nico
swallows safely.
That may be perfectly correct, however, that
evidence was not introduced by any of the parties and the high court
had to assess
the probabilities on the evidence that was presented.
[179] During the first two years of Nico’s life he
had regular colds and bouts of flu that gave rise to respiratory and
chest
ailments. According to the first appellant that pattern ceased
as he got older. At the time of the trial he did not have a history

of aspiration pneumonia. Even though this evidence was contested by
statements from therapists and teachers that Nico’s past

absenteeism was explained by the first appellant as being due to
illness there was no evidence of a history of aspiration pneumonia.

Whatever ailments plagued him in the past, the evidence revealed his
recent medical history to be that of a generally healthy child.
[180] The balance of the evidence therefore shows that
Nico swallows safely. There is no evidence that he aspirates. The
high water
mark of Herbert’s evidence was that Nico is at risk
of aspiration. That may be so, but at the time of the trial there was

no evidence of aspiration or a history of aspiration.
[181] The first appellant reported that Nico vomits
erratically. Obviously he loses some nutrition when vomiting. No
witness was
able to explain the full implication of his vomiting. The
cause for the vomiting was also not identified. Dr Botha, the
specialist
paediatrician who gave evidence for the appellant,
testified that fitting a PEG would not necessarily prevent vomiting,
but could
induce or aggravate symptomatic reflux. This evidence was
not challenged or disputed.
[182] The undisputed, objective
evidence of Nico’s weight was that he weighed 12.09 kg at just
over 5 years old. On a weight
for age percentile chart provided by
Strauss for boys of Nico’s age and disability he was not far
below average.
41
Nico’s healthy brother, Gian,
is also a thin child and his weight to height ratio was similar to
Nico’s. When Dr Botha
examined Nico he requested a
haematological investigation which was essentially normal, but for an
iron deficiency that was, according
to the first appellant, easily
corrected through supplements. The first appellant also testified
that, prior to her being required
to take Nico for medico-legal
examinations, no medical practitioner had ever suggested to her that
Nico was under or malnourished.
The only time that it came up was
when the feeding therapists at Whizz Kidz, the school that Nico
attended, suggested gastrostomy
feeding as an option to consider.
[183] Many of the various expert
witnesses for the appellants and the respondent remarked that Nico
was thin and slight. The evidence
that he is malnourished came from
Campbell. Although Campbell, who is not a dietician, accepted that
Nico’s weight was at
least potentially of an acceptable level,
he performed a so-called triceps skin-fold measurement on Nico. He
consulted a non-witness
expert in the field and practised the test on
other patients before he measured Nico. He decided to use this test
and interpreted
his findings on the basis of articles he had read and
information he gathered since Botha’s evidence. The results of
his
measurements led him to the conclusion that Nico suffered from
chronic malnutrition. The issue of Nico’s nutritional state
at
no stage prior to Campbell’s evidence included any debate about
triceps skin-fold measurements. Not one of the other witnesses
was
given an opportunity to respond to that evidence.
42
On the basis of this test the high
court not only accepted Campbell’s evidence that Nico is
malnourished, but rejected Botha’s
evidence that he was not.
The high court seems to have gone even further and whilst motivating
the rejection of Botha’s evidence,
accepted that Nico was
marasmic:
‘
I do
not find this explanation [by Botha] particularly convincing and
remain disturbed by his initial assessment and description
of Nico
being ‘marasmic’, if in fact he was not. . . no
paediatrician, leave aside one allegedly experienced in the
treatment
of cerebral palsy children as Dr Botha said he is, would, at the
level of probability, lightly describe a child as ‘marasmic’

unless patently justified.’
43
No other witness described
Nico as marasmic, to the contrary, those who were faced with such an
allegation denied that he was.
[184] In my view the evidence on a balance of
probabilities show that Nico is thin, but within an acceptable range
for children
with his level of disability. His swallow is safe and he
does not aspirate. His vomiting is a neutral fact. On the
probabilities
he is not under or malnourished and does not require a
PEG.
[185] Much more could be said to support a finding that
the evidence shows that Nico’s disability does not require that
he
be fitted with a PEG. However, it was only necessary to focus on
this aspect to illustrate what the probabilities are and that the

high court should have made this finding. The respondent, having
conducted the trial on the basis that gastrostomy feeding is
indicated for Nico, conceded during argument that the respondent’s
case of 23 additional years of life expectancy is not dependant
on a
finding that gastrostomy feeding is indicated for Nico.
[186] There is no doubt that Nico can roll and lift his
head in prone. Various experts on both sides observed him doing just
that.
The issue at the trial was whether on a balance of probability,
not ‘an unreserved positive finding’, he can do so
consistently and typically. This is the standard that Strauss
controlled for in his study. It is a vague, subjective standard that

not even Strauss could satisfactorily explain. He did stress the
obvious, though, that the totality of the evidence should be taken

into account in order to capture the pattern of ability of the
particular child. He also indicated that his studies reveal that
if a
child is able to roll, he is also able to lift his head in prone.
Rolling in an abnormal fashion speaks to another issue and
is not an
indicator of whether it is done consistently and typically. Even
though this is the standard that Strauss controlled
for in his study
and was a major issue at the trial, it has to be stressed again that
in his estimate of Nico’s life expectancy
Strauss did not
accept that Nico meets that standard but that he has some ability to
lift his head in prone and roll.
[187] Most of the witnesses only examined Nico once.
There was therefore no uniform subjective assessment that could have
indicated
a pattern of Nico’s ability. The significance of a
finding on all the evidence that Nico met this standard was
diminished
by two aspects. First, Herbert and Campbell, witnesses for
the respondent, conceded that Nico could consistently and typically
roll and lift his head in prone. Second, Strauss remained alive to
the lack of consensus about Nico’s ability and factored
it into
his calculation. He did not base his calculation only on the group in
his study that could consistently and typically roll
and lift their
heads in prone, but devised a group, a process he described as
‘something of an art form’, from his
studies that best
represented Nico. In so doing he took three groups into account
which, in his opinion, best captures Nico’s
situation.
[188] The doubt and uncertainty that seemed to have
remained with the high court was unfounded. The rejection of Strauss’
estimate of 34.6 additional years is not rational. There are no
dubious factors that were not taken into account by Strauss in his

estimate of 34.6 additional years. Nico’s life expectance
should have been estimated at the rounded figure of 35 additional

years.
[189] On the issue of estimating
Nico’s life expectancy the appellants also tendered the
evidence of Professor Pharoah, emeritus
professor of public health at
the University of Liverpool, and Professor Hutton, professor in
medical statistics, who cooperated
on a study in the United Kingdom
to determine life expectancy of cerebral palsied children.
44
Hutton based her calculations on four
variables, mental ability, manual ability, ambulatory ability and
visual ability. Each variable
was broken down into several levels.
Nico’s disability was assessed and related to specific levels
within the variables.
Hutton calculated the mean of Nico’s
residual life expectancy between 52 and 37,3 years.
HUTTON and PHAROAH
[190] The high court did not have regard to the evidence
of Pharoah and Hutton when it made an assessment of Nico’s life
expectancy.
The reasons given include that the database of Pharoah
and Hutton is less precise and less reliable. I find it unnecessary
to decide
whether that conclusion is right or wrong, for the reasons
that follow.
[191] Strauss and Hutton controlled for different
criteria in their studies. Strauss in his experience found that
cognitive ability
does not have a significant impact on life
expectancy unless it amounts to severe mental retardation. Hutton on
the other hand
adopted mental ability as one of the four main
criteria in her study. The independent calculations of these two
experts resulted
in significantly different conclusions. Expert
evidence is to be accepted by a court when it is logical and well
reasoned. Neither
of the experts provided the logical reasoning that
would adequately motivate crossing the gap between the two sets of
conclusions
by simply calculating an average of the two.
[192] In my view the high court is
not to be faulted for accepting the evidence and guidance of Strauss
and not that of Pharoah
and Hutton. There is a salutary lesson in
this outcome. It illustrates the risk to a litigant of calling more
than one expert on
the same issue. A leaf should be taken out of the
book of the English Civil Procedure Rules 1998 which empowers a court
to restrict
expert evidence to one expert per issue and sometimes to
a single joint expert for both parties.
45
MEDICAL INFLATION
[193] For purposes of the actuarial calculation of
Nico’s compensation the parties agreed at a pre-trial
conference that consumer
price inflation is to be taken to be 6,5 per
cent per year. A dispute arose between the parties about an admission
by the respondent
of the medical inflation rate to be applied in the
actuarial calculations in relation to items that attract medical
inflation.
It is unnecessary for purposes of this judgment to resolve
that misunderstanding, but sufficient to state that the respondent
agreed
that the medical inflation rate at the time the admission was
made, was 3.5 per cent per year above the consumer price inflation

rate. An economist, Mr Schüssler, testified on behalf of the
appellant that 3.9 per cent per year above consumer price inflation

would be an appropriate rate for the calculation of items that
attract medical inflation. The respondent’s economist, Mr

Twine, who did not give evidence at the trial, but whose report was
filed, supported the approach of Schüssler but at the
slightly
lower rate of 3.5 per cent per year. Dr Koch, an actuary, who gave
evidence for the appellant, was called to support his
extrapolation
of life tables from the SA life tables in an attempt to produce a set
of non-racial tables that focuses on income
as an easier accessible
economic indicator. During his cross examination Koch confirmed an
extract from
The Quantum Yearbook 2007
,
a publication which he authored, in which he stated under the heading
‘Capitalisation’ that ‘. . . medical costs

projected over a long future period should be capitalised at a real
rate of about 2.5 per cent per year. . . ’.
[194] The high court did not apply a medical inflation
rate, despite it having been well canvassed during the trial.
Referring to
the capitalisation rate in
Quantum
Yearbook 2007
, this is how the high court
dealt with this issue:
‘
It
seems to me, that such a rate which appears to receive general
support amongst actuaries, is more reasonable in the circumstances
of
this case rather than the differential of between 3,9% and 3,99%
suggested by Mr Schüssler. The defendant had indicated
a
willingness to accept a medical inflation rate of 1% above normal
inflation and his calculations had been done on that basis.
That
seems to me to be too conservative. It seems to me that the most
reasonable approach would be to allow for a 2,5per cent
capitalization rate as suggested by Dr Koch in his Quantum Year Book
2007.’
[195] Subsequent to the judgment the actuary who was
instructed to do the calculation of Nico’s compensation
requested the
presiding judge to clarify whether a medical inflation
rate or a capitalisation rate of 2.5 per cent per year was to be
applied.
The response was the following:
‘
As
regards the adjustment of medical costs projected over the future, I
accept that there is a difference between a differential
between the
consumer price inflation rate and the medical inflation rate, and a
rate of capitalisation. In my judgment I abandoned
the notion of
working with a differential above the normal inflation rate, in
favour of a capitalisation rate.’
[196] There is a clear misdirection in the finding by
the high court. The issue at the trial pertained to the appropriate
medical
inflation rate to apply to the actuarial calculations. The
respondent gratuitously, apparently during argument, conceded that
the
high court was at liberty to apply a medical inflation rate of 1
per cent above consumer price inflation. The concession was regarded

by the high court to be too conservative. This leaves the impression
that the high court intended to apply a medical inflation
rate of
more than 1 per cent but less than 3.5 per cent above the agreed
consumer price inflation. By then ‘opting’
for a 2.5 per
cent capitalisation rate, the high court in fact applied a medical
inflation rate of 0.4756 per cent above consumer
price inflation, a
more conservative rate than the one conceded by the respondent and
regarded by the high court as too conservative.
[197] Apart from one question about capitalisation asked
by respondent’s counsel of Koch during cross examination, the
application
of a capitalisation rate was not canvassed during the
trial. Koch’s own explanation for his preference to use a 2.5
per cent
capitalisation rate does not address any of the issues
during the trial. He said:
‘
It is
an opinion, which I know isn’t shared by some people, but
certainly that is the approach I take to calculations and
it is
partly coloured by my sense of a need to avoid litigation and to have
a standard approach to things.’
Schüssler was never given the opportunity to
respond to Koch’s application of a capitalisation rate and Koch
was not
given the opportunity to take into account that the parties
reached a separate agreement to apply a rate of investment return of

9.675 per cent to the award made.
[198] On the unchallenged evidence a rate of 3.5 per
cent above the consumer price inflation should have been applied to
items that
attract medical inflation.
LIFE TABLES
[199] As with most things in this matter, the
appropriate life tables to be applied to the assessment of Nico’s
life expectancy
were also in issue. The high court applied the SA
white male tables. The appellant contends for the application of the
Koch life
tables which adds between 2 to 4 years to the various
scenarios calculated by Strauss. Koch’s attempt to remove race
from
the SA life tables is obviously attractive, but the evidence of
the assumptions made to compile his life tables does not, in this

case, succeed to illustrate their reliability. Although the 1984/1986
SA life tables are out of date, they are still the best available.
In
the circumstances it seems eminently reasonable to have used the
white male tables to exclude any racial component from the

calculation. Consequently the dispute about whether the appellant
agreed to the application of the SA life tables only to the actuarial

calculation or also to the assessment of life expectancy is
irrelevant.
CAREGIVERS
[200] There is no dispute that Nico would require full
time care for the rest of his life. The number of caregivers per day,
their
level of skill, their remuneration, the level of compliance
with the Basic Conditions of Employment Act 75 of 1997 (BCEA), and
their continuous training, were in dispute. There is agreement that
their salaries would attract a yearly inflationary increase
of 7 per
cent.
[201] The respondent did not argue in this court that
there would be no obligation on Nico to comply with the BCEA. It was,
however,
argued that:
‘
The
provisions of the [BCEA] can be complied with if appellants make a
small contribution to the care of Nico. This will be to the
advantage
of both appellants and child. It will strengthen the bond between
them. It can, with respect, never be argued that the
delict committed
by respondent resulted in there being no further duty on appellants
to care for Nico.’
The further submission that Nico could in future apply
for exemption from the appropriate minister from compliance with the
conditions
of the BCEA does not deserve any consideration. There is
no obligation on the appellants to seek ministerial approval and
there
would be no obligation on the minister to exercise a discretion
in favour of the appellants. As such it is a collateral issue that

does not affect the assessment of Nico’s damages.
[202] The submission that the parents should contribute
to Nico’s case found favour with the high court. It decided
that:
‘
With
the provision of the three caregivers and the consideration that the
plaintiffs can and should assist, there is in my view
no need to
provide for the costs of relief caregivers.’
[203] I should state at the outset of
this discussion that the kind of contribution suggested by the
respondent and accepted by
the high court had nothing to do with
monetary contribution which the parents would in any event have
incurred if Nico was not
injured. The suggestion is that the parents
should physically assist as caregivers because of Nico’s
injured condition. This
is a clear misdirection. The bond between
Nico and his parents and their duty of care towards him is an aspect
that is very separate
and distinct from the duty to provide
caregiving that arose for the respondent when he inflicted injury on
Nico. The need for the
respondent to provide for full-time caregiving
for Nico was recognised by the high court. The need that the
provision for caregivers
should comply with the BCEA is an incidence
of that duty care.
46
The parental duty of care does not
alleviate or aggravate the respondent’s obligation to
compensate Nico.
[204] Apart from the fact that the legal proposition
which was accepted by the high court is unsound, the evidence does
not support
the finding. During the trial the suggestion was made to
the expert witnesses that Nico should from time to time be fed, taken
to the toilet, bathed, or played with by his mother, curiously not
his father, whilst the caregiver is on duty in order to accommodate

the statutory breaks that the caregiver would be entitled to. This
suggestion was never put to the first appellant. In the judgment
it
was taken a step further. The need for relief caregivers contended
for by the appellants to accommodate the statutory entitlement
of the
three full-time caregivers to time off for holidays and sick leave
was devolved onto Nico’s parents to the exclusive
benefit of
the respondent. Their ability to act as relief caregivers whilst
other caregivers are on statutory breaks or holidays
were never
investigated. Relevant undisputed evidence that was not taken into
account was that Nico’s parents are both actively
involved in
the running of a demanding, full-time business.
[205] The findings affected by the misdirection pertain
to the refusal to provide for relief caregivers. Provision should
have been
made for relief caregivers broadly in terms of the model
presented by the appellants. The total amount of hours per year that
a
relief caregiver would be required on the appellants’
calculation is 2 426. That is made up by adding 1 872 hours for
weekend
time off (36 hours x 52 weeks = 1 872) to 21 days vacation
leave for three caregivers of 554 hours (21 days x 8.8 hours per day

x 3 caregivers = 554). It is to be taken into account that the BCEA
prescribes a higher rate of remuneration for work during weekends,

therefore all of the 2 426 hours should be calculated at the rate
allowed for the higher level caregivers (R3500 per month) which
works
out to an hourly rate of R18.07. Although the assessment of damages
does not involve meticulous calculation the need to comply
with the
provisions of the BCEA has to be taken into account when making an
award for caregivers.
[206] The high court made some accommodation for the
finer provisions of the BCEA by calculating the compensation for the
permanent
caregivers over a 14 month year. Once an adjustment is made
for the provision of relief caregivers the approach by the high court

adequately takes care of those finer provisions of the BCEA and
should not be interfered with.
CONTINGENCIES
[207] An adjustment to an award for
damages for contingencies is within the subjective discretion of the
trial judge. A court on
appeal ‘will not interfere with such
determination by a trial Court and substitute its own estimates,
unless the learned
trial Judge misdirected himself in some material
respect, or our own estimates and his are strikingly disparate, or we
are otherwise
firmly convinced that his estimates are wrong’.
47
[208] Both parties contend for a fresh approach to the
contingency deductions made by the high court. The appellants submit
that
the 15 per cent contingency deducted from the assessment of
Nico’s future loss of earnings are unsubstantiated, as the
positive
and negative factors affecting this award are, at the very
least, balanced. The appellants’ argument is attractive. It
does
seem that the high court adopted a conservative approach to the
assessment of Nico’s life expectancy as well as in the
assumptions
made for the calculation of his future earnings. However,
in view of the adjustment to Nico’s life expectancy there is no

basis for interference.
[209] The respondent contends that the 15 per cent
deduction in relation to future loss of income is appropriate, but
not the 10
per cent reduction in respect of future medical and
hospital expenses. In relation to the latter the respondent proposes
that a
varied approach to the sub-categories of damages should
replace the discretion exercised by the high court. The respondent
proposes
20 per cent reduction from the award for various therapies,
25 per cent reduction from the award for a case manager, 30 per cent

reduction from the award for psychotherapy, 50 per cent reduction
from the award for an electrically powered wheelchair and 15
per cent
reduction from the award for caregivers. The appellant also proposes
an approach that is refined to applying varying percentages
for
individual items of medical treatment and equipment.
[210] The approach suggested by the parties in relation
to future medical and hospital expenses is exacting and contrary to
the
general approach adopted when contingencies are taken into
account. With the exception of items which the high court included in

the contingency deduction pertaining to future medical costs contrary
to the agreement between the parties that no contingency
deduction
should apply (psychiatric, urological and epileptic treatment), there
is no basis on which this court could conclude
that the discretion of
the high court should be interfered with.
FUTURE MEDICAL and HOSPITAL EXPENCES
[211] Both parties also took the opportunity presented
by the appeal to try and persuade this court to tinker with the
minutiae
of the award for future medical expenses. This court was
invited to adjust rates and tariffs awarded for specific assistive
devices
and treatment, the frequency and duration of therapies and
treatment, the frequency of replacement of equipment and the like. It

is not the function of a court on appeal to adjust the minutiae of a
damages award and the invitation should be resisted. In relation
to
one item this court would amend the award as it was agreed at the
trial that an allowance would be made in the award for an
Unwin
restraint system and this was inadvertently left out of the award by
the high court. Although there was no appeal in relation
to this item
the respondent was amenable to this court correcting the mistake.
What should have been allowed was R5 900 every 8
years from the age
of thirteen for the rest of Nico’s life with the application of
medical inflation.
BIAS
[212] The appellants raised, as a
ground of appeal, that the trial judge, in their perception, was
biased against them. It was argued
that the perceived bias affected
the exercise of the discretion relating to the application of
contingencies, to costs and the
assessment of quantum. The appellants
rely on no additional evidence for their alleged perception than the
record itself. In the
heads of argument the basis for the perception
was put no higher than ‘. . . a disconcerting inclination to
favour arguments
and submissions by the defendant’s counsel in
the face of evidence to the contrary. . . .’ The existence of
an inclination
is not necessarily easy to assess, but more
importantly, is largely irrelevant unless it manifests in the reasons
and ultimate
decision by the trial court.
48
Whether the misdirections identified
in this judgment occurred as a result of bias on the part of the
trial judge or not is unnecessary
to answer. The existence of a
misdirection entitles this court to reassess the evidence and
interfere to the extent of the misdirection.
If bias was found to
have existed this court would have been similarly entitled to
reassess the evidence unless the proceedings
were vitiated. Each and
every aspect that the appellants have relied upon as a misdirection
by the trial judge has been scrutinised
and interfered with if found
to have been validly raised. Beyond that it is of no value to further
delve into the issue.
COSTS
[213] At the end of the trial the high court concluded
that the appellants’ counsel caused the costs of four days of
trial
to have been unnecessarily incurred. The high court concluded
that the respondent should not have to pay those costs and that it

would also have been unfair for Nico to be burdened with those costs.
The appellants were ordered to pay those costs in their personal

capacities. In my view that order is wholly unjustified and should be
set aside.
[214] The trial of this matter was conducted in an
elaborate way. This is apparent from the multitude of issues that
remained in
dispute to the bitter end, the number of witnesses called
and the nature of the cross-examination on both sides. Both parties
were
to blame for that state of affairs as was rightly remarked by
the high court:
‘
I have
already during the trial commented on the obviously tense
relationship between some of the representatives of the parties,

which unfortunately at times resulted in a strained atmosphere and
tension in the court proceedings, to the detriment of a speedy
and
efficient resolution of the disputes between the parties. I
unfortunately gained the distinct impression that plaintiffs’

senior counsel was to blame for many of those incidents, but I put it
no higher than that for the purpose of this judgment. The
result was
regrettably a most unfortunate state of affairs. However, having
considered the arguments by both parties fully, I do
not believe, in
the exercise of my discretion on the issue of costs, subject to
certain qualification to which I shall refer below,
that a minute
analysis of every dispute, the alleged reticence on the part of the
defendant to make concessions or offers of possible
settlement, and
the like, is warranted. On an overall conspectus I do not consider
that the proper exercise of my discretion and
the greater interest in
the proper administration of justice warrant any deviation from the
normal principle as to cost orders,
save in the respects to which I
shall refer below. Litigation is by its very nature adversarial.’
[215] The above conclusion represents a fair assessment
of the overall situation and had the high court stopped at that,
there would
have been no need to interfere with the costs order.
However, the high court proceeded to comment on appellants’
counsel’s
‘inordinate, very tiresome and protracted’
cross-examination of Ms McFarlane and Campbell and concluded that it
prolonged
the trial by ‘probably at least three days’.
Another day was added for an unfounded objection by appellants’
counsel that was argued for a full day.
[216] Campbell, whose cross-examination lasted six and a
half days, was a long-winded witness who seldom, if ever, answered
questions
directly or tersely. On several occasions he was requested
by the high court to confine his answers to the questions asked. His

evidence was tendered in opposition to that of at least Botha and
Strauss, whilst he was not qualified to express an opinion in
their
respective fields of expertise. Nonetheless, he was allowed to
express his opinion and ultimately much of his evidence was
relied on
by the high court despite that his evidence on the skin-fold test was
never put to any other witness.
[217] Strauss took Nico’s above average cognitive
functioning into account as a positive factor in the upward
adjustment of
Nico’s life expectancy. Ms Bubb, an educational
psychologist, provided the evidence for the appellants that
established this
fact. The respondent’s counsel spent more than
a day cross-examining Bubb, primarily challenging her finding that
Nico is
intellectually functioning on a level between average to high
average, despite his brain injury. In addition, the respondent called

the evidence of Ms Hardy, a psychologist that specialises in the
field of neuro-psychology, also to challenge Bubb’s conclusion

and put forward the view that Nico is moderately mentally retarded.
During her evidence, which lasted for more than three days,
she
essentially conceded that she does not cling to her categorisation of
Nico.
[218] The challenge of Bubb’s evidence and the
presentation of Hardy’s evidence amounts to a great deal of
time wasted
not only because of Hardy’s concession, but also
because Strauss, in his first report, that was available to the
respondent
before the trial commenced, remarked as follows:
‘
It may
be appropriate to comment here on Nico’s cognitive and
communicative function. His cognitive function appears to be
better
than average among children with comparable physical disabilities. On
the other hand, unlike some of these children, he
has no speech.
These factors may balance out. In any event, they are much less
significant factors for life expectancy than the
functional skills
considered above.’
[219] This remark by Strauss was never challenged and
his upward adjustment of Nico’s life expectancy by three years
representing
the balance between positive and negative factors, in
which he included a consideration that Nico has a better than average
cognitive
function, was accepted. Strauss gave evidence on 19 April
2007 and Hardy was called on 15 May 2007.
[220] The above aspects serve to illustrate that the
high court’s initial conclusions about the way in which this
trial was
conducted by both sides were fair and warranted. To have
thereafter singled out appellants’ counsel and visit four days’

costs on the appellants in their personal capacities, is grossly
unfair. That costs order is to be reversed, those costs to follow
the
event.
[221] I have read what my brother Conradie JA has
written and concluded on the respondent’s tender in paras
[79]-[94] of his
judgment. I respectfully agree with him in that
regard, as well as with the ultimate effect on the tender of the
amended award,
as set out in para [117] of his judgment.
[222] I furthermore agree with his conclusions on the
small amendments to be allowed and the costs in relation to witnesses
Brown
and Wiersma.
[223] In paras [97] to [102] of his judgment, Conradie
JA deals with that part of the cross appeal that relates to the 7.5
per cent
trustee’s fees. I agree with his reasoning and
conclusion in the said paragraphs.
[224] If mine was the majority judgment the only
difference it would have made to the order in para [120] of the
judgment of Conradie
JA is that the award to Nico and the 7.5 per
cent calculated thereon would have increased to reflect the increase
in life expectancy
of 5 years to 35 years of age.
_________________
S SNYDERS
JUDGE OF APPEAL
APPEARANCES:
For
appellant: W P de Waal SC (with him W Munro)
Instructed by Joseph’s Incorporated, Johannesburg,
Mcintyre & van der Post, Bloemfontein.
For
respondent: P P Delport SC
Instructed
by Macrobert Incorporated, Pretoria,
Claude
Reid Incorporated, Bloemfontein.
1
What
precisely this loss is has remained controversial.
2
In
describing the rolling criteria used in the construction of what Dr
Strauss described as the ‘scenario that assumes the
ability to
roll, which was the most optimistic of the three’ he used the
expression consistently only once and that in
regard to the ability
to roll from front to back but not vice versa. However, it is highly
improbable that the consistency criterium
applied only to this one
indicator of mobility and not to the others.
3
Matters
such as Nico’s weight, his rolling and head lifting, and
absence of epilepsy. When asked by counsel whether he confirms
the
report, he replied that that was the information he had received and
understands.
4
The
appellants did not contend for anything less. In their delineation
of the issues on appeal, they state as one of the issues
Nico’s
gross motor skills assessed in terms of the ability to roll and the
lift the head consistently and typically.
5
For
one who had only seen Nico once, it was a bold conclusion for Dr
Campbell to have drawn.
6
If
Nico’s ability to roll over differed from day to day, it was
not a consistent or typical phenomenon. Giving Nico the
‘benefit
of the doubt’ when there was in reality no doubt, erred on the
generous side of fair..
7
Before
being amended the particulars of claim included a claim for medical
expenses for the insertion of a PEG.
8
Of
Table 1.
9
Agreement
on the rates of investment return and the inflation rate had to be
reached to give the actuary something to work on.
It should not be
thought that an agreement for this purposes meant that there was
consensus that the rates would remain the same.
10
This
is a generous assumption. An employee only becomes entitled to leave
at the end of a leave cycle and if, as witnesses have
feared the
staff turnover will be high, some of them may never become entitled
to leave. This is one of the factors that makes
the judge’s
decision on the contingency deduction acceptable.
11
See
Van Rensburg v A A Mutual Insurance Co Ltd
1969 (4) SA 360
(E).
12
Rule
34 (6) reads, ‘A plaintiff or party referred to in subrule (3)
may within 15 days after the receipt of the notice referred
to in
subrule (5), or thereafter with the written consent of the defendant
or third party or order of court, on such conditions
as may be
considered to be fair, accept any offer or tender . . .’
13
2007(3)
SA 582 (CC).
14
Relying
on
BTR Industries South Africa (Pty) Ltd & other v Metal and
Allied Workers’ Union & another
[1992] ZASCA 85
;
1992 (3) SA 673
(A) at
690A–695B.
15
Placing
reliance on
R v Silber
1952 (2) SA 475
(A) at 481C-H.
16
S
v Basson
supra para [24].
17
Sachs
J, remarked a t para 15: ‘The ambit of the provisions is
undoubtedly wide. The comprehensive and emphatic language
of s 28
indicates that just as law enforcement must always be
gender-sensitive, so must it always be child-sensitive; that

statutes must be interpreted and the common law developed in a
manner which favours protecting and advancing the interests of
children; and that courts must function in a manner which at all
times shows due respect for children’s rights.’
18
Cameron
J at paras 25 to 27 stated the following:
‘
It
is evident that this provision draws upon and reflects the
Convention on the Rights of the Child. Amongst other things s 28

protects children against the undue exercise of authority. The
rights the provision secures are not interpretive guides. They
are
not merely advisory. Nor are they exhortatory. They constitute a
real restraint on Parliament. And they are an enforceable
precept
determining how officials and judicial officers should treat
children.
The
Constitution draws this sharp distinction between children and
adults not out of sentimental considerations, but for practical

reasons relating to children’s greater physical and
psychological vulnerability. Children’s bodies are generally

frailer, and their ability to make choices generally more
constricted, than those of adults. They are less able to protect

themselves, more needful of protection, and less resourceful in
self-maintenance than adults. These considerations take acute effect

when society imposes criminal responsibility and passes sentence on
child offenders. Not only are children less physically and

psychologically mature than adults: they are more vulnerable to
influence and pressure from others. And, most vitally, they are

generally more capable of rehabilitation than adults.’
19
At
para 22.
20
Minister
of Welfare and Population Development v Fitzpatrick and others
[2000] ZACC 6
;
2000 (3) SA 422
(CC) para 17;
De Reuck v Director of Public
Prosecutions, Witwatersrand Local Division and others
[2003] ZACC 19
;
2003 (2)
SACR 445
(CC) para 55.
21
Wolman
and others v Wolman
1963 (2) SA 452
(A) at 459A-D.
22
Southern
Insurance Association Ltd v Bailey NO
1984 (1) SA 98
(A) at
113F;
Gallie NO v National Employers General Insurance Co Ltd
1992 (2) SA 731
(C) at 736F;
Hulley v Cox
1923 AD 234
at
244.
23
Bay
Passenger Transport Ltd v Franzen
1975 (1) SA 269
(A) at
274F-275D.
24
Van
der Berg v Coopers & Lybrand Trust (Pty) Ltd
[2000] ZASCA 77
;
2001 (2) SA 242
(SCA) at 260G-H.
25
Rail
Commuters Action Group and others v Transnet Ltd t/a Metrorail and
others
[2004] ZACC 20
;
2005 (2) SA 359
(CC) paras 39 to 43;
Weber-Stephen
Products Co v Alrite Engineering (Pty) Ltd and others
[1992] ZASCA 2
;
1992 (2)
SA 489
(A) at 507C-D.
26
Colman
v Dunbar
1933 AD 141
at 161-162;
Simpson v Selfmed Medical
Scheme and another
1995 (3) SA 816
(A) at 825A-B.
27
It
is unfair to reject a witness’ evidence on an aspect that he
or she was not given an opportunity to respond to.
President of
the Republic of South Africa and others v South African Rugby
Football Union and others
2000 (1) SA 1
(CC) paras 61 to 63.
28
Road
Accident Fund v Mothupi
2000 (4) SA 38
(SCA) para 30.
29
Desai
v NBS Bank Ltd
1998 (3) SA 245
(N) at 250H-I.
30
This
ratio has consistently been followed. See
Reyneke v Mutual and
Federal Insurance Co Ltd
1991 (3) SA 412
(W) at 430A;
Du Bois
v Motor Vehicle Accident Fund
1992 (4) SA 368
(T) at 371A-D;
Road Accident Fund v Mtati
2005 (6) SA 215
(SCA) para 39.
31
Legal
Insurance Company Ltd v Botes
1963 (1) SA 608
(A) at 614B-G.
32
AA
Mutual Insurance Association Ltd v Maqula
1978 (1) SA 805
(A) at
809 B-D.
33
Michael
and another v Linksfield Park Clinic (Pty) Ltd and another
2001
(3) SA 1188
(SCA) at 1200E, 1200 I and 1201B.
34
See
para 33.
35
See
Holtzhauzen v Roodt
1997 (4) SA 766
(W) at 771H-773C for a
convenient summary of the reasons for and approach to expert
evidence.
36
At
370G.
37
Coopers
at 370F.
38
Bailey
at 113H.
39
See
paras 28 and 29.
40
The
gastrostomy feeding device was referred to as a PEG during the
trial, an acronym for percutaneous endoscopic gastrostomy.
41
Interestingly,
according to Strauss’ analysis Nico’s weight at this
level required no adjustment for life expectancy,
but for the moment
the investigation is about weight as an indicator of under or
malnourishment in order to decide whether PEG
feeding is indicated.
42
See
note 11 above.
43
I
deliberately refrain from discussing whether the high court’s
conclusion that Botha described Nico as marasmic is correct
or
whether the rejection of Botha’s evidence amounted to a
misdirection or not, as it is not necessary for purposes of
this
judgment. It has to be said, however, that the remark ‘. . . .
leave aside one allegedly experienced in the treatment
of cerebral
palsy children as Dr Botha said he is . . . .’ was uncalled
for. Botha is undoubtedly an expert in the field
of paediatrics and
his expertise was never challenged during the trial.
44
The
databases on which the study was conducted is regarded to be, after
Strauss’s Californian database, the most reliable
in the
world.
45
Civil
Procedure Rules 1998 rule 35.4(3A) reads: ‘Where a claim has
been allocated to the small claims track or the fast
track, if
permission is given for expert evidence, it will normally be given
for evidence from only one expert on a particular
issue.’ Rule
35.7(1) reads: ‘Where two or more parties wish to submit
expert evidence on a particular issue, the
court may direct that the
evidence on that issue is to be given by a single joint expert.’
46
Dhlamini
v Government of The Republic of South Africa,
Corbett and
Buchanan
The Quantum of Damages in Bodily and Fatal Injury Cases
Vol III 554 at 585.
47
Shield
Insurance Co Ltd v Booysen
1979 (3) SA 953
(A) at 965G-H.
48
Take
and Save Trading CC v Standard Bank of SA Ltd
2004 (4) SA 1
(SCA) paras 4 and 5.