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[2023] ZAECMHC 11
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A.S obo M.M v Member of the Executive Council for the Department of Health, Eastern Cape Province (605/2020) [2023] ZAECMHC 11 (2 March 2023)
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, MTHATHA
CASE NO: 605/2020
In
the matter between:
A[…]
S[…] obo M[…] M[…]
Plaintiff
and
THE
MEMBER OF THE EXECUTIVE
COUNCIL
FOR THE DEPARTMENT OF
HEALTH,
EASTERN CAPE PROVINCE
Defendant
JUDGMENT
Rugunanan
J
[1]
The plaintiff instituted action against the
defendant for damages that arose from the negligent treatment which
she and her minor
child M[…] M[…] suffered on 4 April
2016 during the course of plaintiff’s labour and birth of the
child. M[…]
suffered a prolonged partial hypoxic ischaemic
encephalopathy resulting in cerebral palsy with gross motor
impairment, bilateral
spasticity, and developmental delays. By order
of court dated 19 March 2021 the defendant was held liable for all
such damages
as the plaintiff may prove in her personal and
representative capacities which arose from the said negligent
treatment.
[2]
Where contextually appropriate, M[…]
will hereinafter be referred to by name or ‘the minor’ or
‘the child’.
[3]
This is a judgment on quantum in which the
damages component of the plaintiff’s claims have been set aside
for adjudication
in terms of an agreed order of this court granted on
12 October 2022. It is worth recapitulating the main provisions of
the order:
‘
1.
The plaintiff’s claim in respect of general damages, loss of
income, carers, architectural services and
transportation costs are
separated from all other issues pertaining to the quantum of the
plaintiff’s claim.
2.
The issues pertaining to general damages, loss of income, carers,
architectural services and transportation
costs are postponed for
hearing to 21 November 2022 at the instance of the defendant.
3.
The remaining issues pertaining to the quantum of plaintiff’s
claim are postponed sine die at the
instance of the defendant.’
[4]
At the commencement of the proceedings on
21 November 2022, plaintiff’s counsel indicated that her
personal claim for general
damages and the claim for general damages
on behalf of M[…] were settled by agreement, respectively for
the amounts of R400 000
and R2 000 000. Adverting to
paragraph 2 of the order, all claims on behalf of M[...] (i.e. loss
of income, carers, and
architectural services) were in dispute and
barring transportation costs (for a motor vehicle) the disputed
claims stood to be
adjudicated in these proceedings. Accordingly, the
claim for transportation costs was postponed sine die in accordance
with paragraph
3 of the above-mentioned order.
[5]
At the commencement of the trial two
bundles of documents were handed in at the instance of the
plaintiff, namely exhibit
bundle A and exhibit bundle B –
respectively the plaintiff’s expert reports and joint minutes,
the exhibits being applicable
to the adjudication of the component
heads of damages identified above.
[6]
I mention specifically exhibit J which is a
joint minute by the parties’ actuaries in which the agreed
quantification for
M[…]’s claim for loss of income
amounts to R5 192 700 calculated on the basis of the
average of two earnings
scenarios postulated by the plaintiff’s
earnings expert Dr Badenhorst, and R3 318 200
calculated on the scenario
proposed by the defendant’s earnings
expert Mr Gumede.
[7]
The
calculation of the claims for carers and architectural services are
presented in an actuarial calculation dated 17 November
2022 by
Independent Actuaries and Consultants (IAC)
[1]
per Annexure D4, item 124 (domestic assistance R91 241), item
127 (caregiver R9 192 706), and item 131 (architectural
services for renovations and construction work in the provision of
suitable accommodation, R1 714 247).
[8]
In addition to her own testimony, the
plaintiff led oral evidence from the following expert witnesses,
namely: Occupational Therapist
Ms Anneke Greef, Industrial
Psychologist Dr Lieselotte Badenhorst, Educational Psychologist Ms
Zethu Gumede, and Mr Lizo Macingwane,
an Architect. The experts
testifying for the defendant, were Industrial Psychologist Mr Sabelo
Gumede, Educational Psychologist
Mr Xolani Fakude, and Mr Sikhumbuzo
Mtembu, also an Architect.
[9]
Given the considerable scope and intricacy
of detail in the evidence traversed by the witnesses it is
acknowledged that no judgment
can ever be all embracing of the facts.
For this reason this judgment will not be burdened by a repetition of
gratuitous evidential
material except for traversing that which is
considered relevant for achieving a judiciously expedient outcome
with the benefit
of very helpful heads of argument presented by
plaintiff’s counsel, as also having listened to the submissions
made by counsel
for the defendant.
[10]
In expediting the conduct of the trial
neither of the parties disputed the experts’ academic
qualifications and experience
– the parties accepting that
their respective experts were competent to express the opinions
communicated in their reports,
subject of course to the court’s
determination as to their reasoning and the reliability of their
conclusions.
[11]
From a reading of the various reports and
evidence elicited, I understood that M[…]’s present
condition and limitations
are not in dispute, but with regard to the
claims on his behalf each of the parties placed store on conflicting
expert evidence.
From what appears in this judgment the
quantification of the claims for M[…] centres essentially on a
determination of an
appropriate contingency deduction against those
claims once it has been decided which of the conflicting expert
opinions is to
be preferred.
[12]
When
confronted by conflicting expert opinions it is incumbent on the
court to determine which of them to accept based on the reasoning
and
reliability of the expert witness. The extent to which an opinion is
founded on logical reasoning underscores this process.
[2]
[13]
The
opinion of an expert and the reasoning employed in arriving thereat
must be informed by a properly laid factual basis. Before
a court can
assess the value of an expert opinion, it must know the facts on
which it is based.
[3]
It follows
that the facts on which an expert bases their opinion must be proved
by admissible evidence.
[14]
Considering that the plaintiff was the only
factual witness, a summary of her evidence is set out at first
instance because it provides
an overview of the material which the
experts have had to work with regarding her family background and
living conditions.
[15]
The plaintiff stated that she consulted
with Ms Greef, Dr Badenhorst and Ms Gumede and apprised them of her
personal circumstances
and those of M[…].
[16]
She resides in Payne location in the
Mthatha area. She has no formal academic qualifications because she
had to forego completion
of her studies to work in the retail
surveying market to support her family. She currently takes care of
M[…] but wishes
to embark on further studies at university if
circumstances permit engaging the assistance of a carer. The child
has cerebral palsy
since birth and requires her attention and care on
a full-time basis. Had he been born a normal child, she would have
wanted him
to progress like any other child to obtain a university
education. This, she maintained, was a family aspiration that their
children
would attend university and obtain an appropriate tertiary
qualification such as a degree.
[17]
She is married to M[…]’s
father. He has an LLB degree and is an attorney. They have another
child born in 2005 currently
doing Grade 11 and progressing well.
[18]
Her mother has a Grade 12 certificate in
fashion design and her father has a degree in theology. She has two
sisters both of whom
have diploma qualifications. She also has a
brother who holds a certificate in mechanical engineering.
[19]
Her parents-in-law are attorneys by
profession – her father-in-law has an LLB degree and her
mother-in-law is in possession
of an LLM degree. All four of her
husband’s sibling sisters have academic qualifications. One of
them holds a B.Sc. degree,
the other has a Diploma in human
relations. The remaining two are professionally qualified – one
being a public prosecutor
with an LLB qualification, the other is an
attorney, also having an LLB qualification.
[20]
She recalled that the family home was
visited by two architects, one of them at the instance of the
defendant. He noted in his report
that ‘there is no sign of
people living at the home’. She disputed this. Indicating that
the premises were occupied,
she maintained that the place was fully
furnished when he visited. She also denied that the place is being
rented. She resides
in the house with her husband and children but it
is not adequate for tending the needs of M[…]. Although
electrified it
has no inside toilet or bathroom. The kitchen is not
big enough for a wheelchair and the rooms in the rest of the house
are too
small to allow for its ease of manoeuvrability. A
wheelchair-bound person would in any event be unable to access the
kitchen cupboards.
The passages are narrow and the doorways cannot be
widened. A full-time carer on a 24/7 basis cannot be accommodated in
the existing
structure. Although there is a yard outside, it is
unsuitable for parking a vehicle. Her husband does not have a motor
vehicle
and if she has to go somewhere she has to get a vehicle to
enable her to travel with M[…]. For the most she has to carry
him wherever she goes and it is not possible to use public transport
with his disability. Moreover, there is no wheelchair access
into the
house because it has a stepped entrance. The house has no storage
facility to accommodate specialised equipment and accoutrements
for
M[…]. She acknowledged that she is not an architect but
maintained that there is sufficient yard space that can be used
for
putting up a building. Overall the house is very old and its walls
are cracked. She conceded that she has no expertise in home
maintenance but her assessment was that anyone is capable of making
an assessment that the building is dilapidated.
[21]
It
would perhaps be convenient to comment on the merits of the plaintiff
as a witness before proceeding to deal with the expert
evidence on
the claims in issue. Though not a formal requirement of law
[4]
her evidence regarding the academic and professional qualifications
of various family members is uncorroborated. While firmly of
the view
that her evidence necessitated that her cross-examination ought to
have been conducted rigorously, I nonetheless held
an impartial
impression of her. She testified fairly straightforwardly and without
contradiction. Given that she is the person
who has the closest
relationship or bond with Mpho her evidence – largely
undisputed in cross-examination – assumes
weight where it
provided insight into her living conditions and her family background
as a measure for his potential had he been
born a normal child.
[22]
I turn to deal with the claims in issue.
Loss of income
[23]
It is common cause that M[…] is
currently functionally unemployable due to the incident at birth and
what falls to be determined
is his premorbid income earning
potential.
[24]
Beginning with the evidence of Ms Gumede,
she compiled a psychological assessment report on 23 August 2021
supplemented by an addendum
dated 28 September 2022. With focus
directed at the child’s family educational and socio-economic
background she postulated
that, intellectually, he would have
developed normally and functioned within the above average to
superior range of intelligence.
Had the incident at birth not
occurred the child would have been employable in the open labour
market as a skilled professional
person. He would have progressed
through the mainstream school system, matriculating and then
proceeding to obtain at least a 3
year university degree as a
tertiary qualification. A university degree would equal his father’s
academic achievement though
it is probable that he would have done
better and exceeded the level attained by his father.
[25]
Ms Gumede’s evidence is encapsulated
in the following summation extracted from her addendum report:
‘
The
child’s premorbid estimate of at least average ability is
consistent with the ability to acquire requisite knowledge,
skills
and values age appropriately; it is also consistent with functioning
at a level where he could have progressed through the
mainstream
school system, matriculated and proceeded to obtain a tertiary
qualification, at least a 3 year university degree. However,
it is
probable that he could have done better and surpass the level of his
father achieving a university degree or better than
his father.
[26]
On the latter aspect Ms Gumede acknowledged
that her previous assessment was underweighted because her prediction
therein offered
no indication that the child would excel beyond his
father. She goes on to state that:
‘
Had
the incident at birth not occurred, M[…] would have coped with
the mainstream school system up to Grade 12, and thereafter
proceeded
to tertiary institution. He would then have been employable in the
open labour market as a skilled professional person.’
[27]
Dr Badenhorst supplemented her initial
report of 27 August 2021 with an addendum dated 14 October 2022 –
the last mentioned
necessitated by Ms Gumede’s addendum.
Commenting on M[…]’s pre-incident earnings/employability
potential and
given that the incident occurred at birth, Dr
Badenhorst makes the observation that it is extremely difficult to
ascertain the
child’s educational potential, his career path
and earnings capacity prior to the birth incident, except for taking
his family
background and the opinion of the educational psychologist
into account. She postulates two generic earnings scenarios. Shorn of
technical detail and vocational nomenclature these entail:
·
Scenario 1: Completion of matric thereafter
attaining a university degree (benchmarked as National Qualifications
Framework level
7 (NQF 7).
·
Scenario 2: Completion of matric thereafter
attaining a university degree (benchmarked as NQF 7 and above). Put
differently, this
scenario contemplates attaining a basic degree plus
a further tertiary qualification.
[28]
The earnings progression common to both
scenarios commences upon completion of university studies at the end
of 2036 and is charted
according to the Paterson job grading scale
commencing at level A1/A2 (lower quartile basic salary R95 000
to R111 000
per annum), proceeding after 2 to 3 years with
earnings at level B4/B5 (lower quartile basic salary R218 000 to
R254 000).
In scenario 1 there is a further progression to level
D1+ at age 45/55 until retirement at age 65 (median salary
R1 006 000).
In Scenario 2 earnings at level B4/B5 are
achieved but a further progression to level D3/D5 (median
salary R1 411 000
to R1 691 000) is foreshadowed at age
45/55 until retirement at age 65. Both scenarios are subject to
inflationary increases
until retirement.
[29]
Having charted these scenarios and
progression of earnings, Dr Badenhorst defers to actuarial
calculations. In her view a conservative
outcome would be a
calculation based on the average income of the two scenarios. I
mention that M[…]’s earnings progression
factors a life
expectancy of 43 years according to paediatrician Dr Kara (Exhibit I
paragraphs 2.1.3 to 2.1.4).
[30]
The attempt in cross-examination to have Dr
Badenhorst concede that M[…] would be placed at Paterson scale
B1 on the basis
that he would have passed grade 12 and subsequently
attained a diploma, was rebuffed – the witness
maintaining (and
correctly in my view) that she could not supplant
the views expressed by Ms Gumede regarding the child’s
pre-morbid intellectual
development.
[31]
At
the instance of the defendant, Mr Fakude prepared a report dated
20 April 2022.
[5]
He
explicitly acknowledges that the child’s family educational
background rendered it likely that M[…] would have
received
good support and role modelling and that he would have been expected
to study through matric and tertiary education. Postulating
developmental milestones based on normality with an assumed low
average to average range of intellectual ability he opines that
the
child would have progressed through primary and senior mainstream
education, and given the educational profile of the family,
it is
probable that he would have passed Grade 12 and achieved a diploma
level of education at a tertiary institution.
[32]
In deferring to this hypothesis, Mr Sabelo
Gumede opines that had the child been born in a normal way, he would
have likely finished
Grade 12 in 2033. M[…]’s subsequent
progression would have entailed attaining a diploma and entering the
semi-skilled
open labour market at Paterson level BI earning a median
salary thereafter proceeding to a higher semi-skilled level B3 (also
earning
a median salary) eventually achieving a median earnings
position graded at B5, and ultimately reaching (at age 45) a skilled
position
at level C1 attracting upper median earnings with
inflationary adjustments until age 65.
[33]
It
is obvious from the above-mentioned summary of the evidence that the
forecasts by the parties’ earnings experts are pillared
on the
views expressed by the respective educational psychologists to whom
they defer. The assumption by Mr Fakude of a low average
to average
range of intellectual ability is at odds with the recognised standard
of logical reasoning
[6]
where
there are no facts to support his assumption. Under cross-examination
he was unable to justify his assumed position. It does
not gain
traction in the light of an overall acknowledgement in the experts’
reports (including his own) of a strong family
background of high
achievers in a stable family environment having a strong educational
ethos. The plaintiff’s (unchallenged)
evidence establishes this
as a fact.
[34]
It is therefore my view that the assumption
is misdirected and renders the postulations by Mr Fakude and Mr
Gumede irrelevant, unreliable
and inadmissible. Due to the anomaly in
Mr Fakude’s reasoning, Mr Gumede was hard-pressed to make
several concessions; notably,
that it can in general be expected that
a child will outperform or exceed the achievements of its parents,
and that in the event
of it being found that M[…] would in all
likelihood have obtained a degree qualification the predictions in
his report would
fall away since his report was constructed on the
findings by Mr Fakude who proposed a diploma for the child.
[35]
Despite having noted their inflexibility
during cross-examination I do not intend subjecting Mr Fakude and Mr
Gumede to any trenchant
criticism. Their experience of the courtroom
is unknown, and where they may have appeared to have faltered I can
perhaps attribute
this to the wearying length of the trial and
possibly the finer aspects of the evidence which at times befogged
the main issues.
My sense is that no practical purpose would be
served by traversing the minutiae of the evidence elicited during
their evidence-in-chief
and in cross-examination – this will
divert attention from a proper appreciation of the key issues which I
think have been
succinctly set out in the hereinabove abridgement of
the material contained in the reports that were dealt with in oral
evidence.
[36]
In
the final analysis the evidence by Ms Gumede and Dr Badenhorst
assumes weight and is preferred. It is underpinned by a properly
laid
factual foundation and is relevant and reliable.
[7]
It does not involve considerations of their credibility, but rather
an examination of their opinions prefaced on the essential
reasoning
employed by each of them.
[8]
Carers / domestic
services and accommodation requirements
[37]
Ms
Greeff prepared a report dated 16 August 2021
[9]
supplemented by a further report on 29 September 2022. She concluded
a joint minute with her opposing counterpart for the defendant
Ms
Cheryl Rooy on 8 November 2022.
[10]
[38]
The joint minute makes it plain that M[…]
needs a caregiver on a full-time basis. In addition he requires the
assistance
of a part-time domestic worker. There is also agreement
that he will require: lifelong occupational therapy intervention;
lifelong
access to therapeutic equipment inclusive of wheelchairs
(appropriate positioning devices) as well as a shower/bath chair;
splinting;
transportation to attend related interventions for his
cerebral palsy condition; accessible accommodation; lifelong
caregiving;
lifelong case management; and specialised education.
[39]
Ms Greeff’s evidence traversed issues
relating to the qualifications, competence level and skill of a
caregiver (specialising
in the needs of children with cerebral palsy)
as also the monthly cost of the caregiver inclusive of transportation
fees. She stated
that the caregiver must be of a ‘high calibre’
– a layperson would not be up to the task for the reason that
M[…] is unable to do anything for himself and requires a high
level of active care (i.e. being busy with him) and passive
care
(i.e. being in the room and watching over him). The costing for the
caregiver is indicated in a quotation from Mfudumalo Healthcare
which
she testified has its head office in Johannesburg and though not
having fixed offices in Mthatha the establishment does render
specialised caregiving services in the area. In addition, Ms Greeff
testified that she is a case manager in a number of matters
in the
Mthatha region and is, as such, aware of the rates or charges of
caregivers in the locality.
[40]
The costing of the caregiver and domestic
services required for M[…] are set out in her report/s which
she confirmed in oral
evidence. As per items 124 and 127 of the
calculation by actuaries IAC, the sum of the caregiver and domestic
services amounts
to R9 283 949. Although, seemingly, in
cross-examination, an attempt was made to demonstrate that the
recommendations
by Ms Greeff are unfeasible in the sense that they
are either exorbitant or unreasonable, it is startling that no
attempt was made
to lead countervailing evidence on behalf of the
defendant. In particular, evidence of the cost of caregiving agencies
which Ms
Rooy had recommended as operating in the Mthatha area was
not introduced to contradict Ms Greeff to justify a truncated award
(if
that is what cross-examination was intended to achieve). In any
event, her answer to the agencies recommended by Ms Rooy was that
they care only for elderly folk and have no expertise in the care of
children with cerebral palsy.
[41]
A further aspect of Ms Greeff’s
evidence relates to her recommendation that M[…] should reside
in accommodation that
meets the South African Bureau of Standards
(SABS) criteria for disabled individuals. In principle there is
agreement thereover
in the joint minutes but the parting shot is that
each expert postulates differing accommodation requirements.
[42]
In her report, Ms Greeff recommends the
following accommodation requirements: access to running water and
related reticulation;
a bedroom with additional area for the
caregiver and with sufficient space for a therapy mat and stimulation
equipment; a basic
wet room area with a detachable showerhead; a
storage area for additional equipment; ramps to all exits and
entrances to the house;
a levelled entrance to the house with
continuous floor and nonslip floor coverings; access to the house and
garage and walkways
around the house should be concreted or suitably
paved; a garage to allow for parking of a dedicated vehicle; and a
social area
inside the house as well as outside (covered). These
recommendations were yet again not meaningfully disputed nor was
countervailing
evidence tendered. Whether they overlapped with Ms
Rooy’s recommendations or whether they are what the plaintiff
herself
intends to effect once compensation is forthcoming, was not
properly queried.
[43]
In
argument is was submitted that Ms Greeff’s evidence stood
uncontested and should be accepted. My own observation is that
she
testified on subject matter for which she was appropriately qualified
and experienced. Her evidence is therefore relevant.
I am cognisant
that her evidence was uncontested but in holding this view I have
borne in mind the admonishment that a court should
guard against a
subtle displacement of its value judgment with that of the expert
witness.
[11]
Architectural services
[44]
In
the amended particulars of claim, the claim under this head is
included in future hospital, medical and related expenses, various
modalities of therapy and special adaptive aids and devices for M[…]
and is for the renovation and construction of suitable
accommodation
recommended in the architectural report, of Mr Macingwane and
calculated in the amount of R1 714 247 by
actuaries IAC per
item 131.
[12]
His
recommendations are in line with SABS standards and are compliant
with the proposals by Ms Greeff.
[45]
Mr
Lizo Macingwane and Mr Sikhumbuzo Mtembu both had the opportunity to
visit the plaintiff’s homestead in Payne location.
Their
respective positions are divergent as is evidenced in their
respective reports dated 14 October 2021
[13]
and 28 September 2022
[14]
, as
well as a joint minute dated 6 October 2022. Whereas Mr Macingwane
recommends renovation and construction (quantified as above)
Mr
Mthembu testified that he recommends a low-cost proposal on the basis
that ‘alterations’ to the existing house are
possible at
a cost of R255 000 for accommodating the needs of Mpho as
opposed to a new building for augmenting the standard
of living of
the family.
[46]
Mr Mthembu testified that in preparing his
report and in formulating his recommendations he had regard to the
occupational therapy
reports by Ms Greeff and Ms Rooy. While it is
clear that he does not find favour with the recommendations by Ms
Greeff, the anomaly
in his evidence is that Ms Rooy was never called
upon to testify to validate her recommendations. The position adopted
by him therefore
is informed by his idiosyncratic view of what he
believes would suffice to satisfy the needs of a child with cerebral
palsy. The
disconnect between his evidence and that of an experienced
and competently qualified professional (Ms Greeff) to express a
view on the specific needs of a handicapped child such as Mpho, is
glaring. It is inconsistent with the standard of logical reasoning
and detracts from assuming relevance. My observations in this regard
renders it unnecessary to deal in any particular depth with
the
contents of Mr Mthembu’s report.
[47]
In a report initially prepared on 3 March
2022 it bears mentioning that Mr Mthembu agreed with Mr
Macingwane’s contention
that alterations to the existing house
would be unfeasible and that the costs of building a new house ought
to be allowed for.
In cross-examination he was correctly criticised
as having clearly departed from a report that complies with
occupational therapy
requirements to a report that does not. That
this, as he testified, is attributed to ownership in the property not
being vested
in M[…]’s parents is an illogicality that
defies comprehension. In my view if the quantum of the claim was to
be assailed
on this basis, a properly mounted a challenge to
ownership ought to have been foreshadowed in the defendant’s
pleadings with
recourse to the discovery processes provided for in
the uniform rules of court and a scrupulous cross-examination of the
plaintiff.
[48]
To conclude, I am unable to place any store
on the evidence of Mr Mthembu. Mr Macingwane confirmed the contents
of his report which
for the sake of brevity ought to be read as if
incorporated herein. His evidence assumes relevance firstly, because
his observation
of the state or condition of the property which he
detailed in his report is to a large extent consistent with the
plaintiff’s
testimony; and secondly, for the reason that his
recommendations are not out of kilter with those of Ms Greeff.
Contingencies
[49]
The
calculations arrived at for the claims abovementioned must
necessarily be subject to a deduction for general contingencies.
Contingencies cover a wide range of considerations that vary from
case to case. The usual considerations include life’s unknown
future hazards though not all contingencies or vicissitudes of life
are negative or harmful. A trial court has a wide discretion
for
determining contingencies for the reason that they are arbitrary and
highly subjective.
[15]
Hence,
the percentage of a contingency deduction cannot be assessed on a
calculated basis and will inevitably depend upon the judicial
officer’s impression of the case.
[50]
In
claims for loss of income it has become customary for the court to
apply the so-called ‘sliding scale’ to contingencies,
which entails a deduction by half a percent for every year to
retirement.
[16]
In argument
the parties advanced differing contentions as to the percentage
deduction to be applied – the plaintiff contending
for
so-called nominal contingencies ranging from 5% to 15% or at best
17.5% and the defendant on the other hand contending for
25% applied
across the board to all heads of damages.
[17]
While I have given consideration to the cases referred by the
parties’ counsel, I see no impediment to applying the ‘sliding
scale’ formula, in a case such as the present where the minor
child has a life expectancy of 43 years. My sense is that it
provides
a rational basis
[18]
on which
the court can base its assessment without imposing precedential
limitations on the court’s discretion – and
it seems
eminently sensible to apply this formula across the board to all
heads of damages.
[51]
Before setting out the quantified damages
hereafter I pause to mention that it is common cause that M[…]’s
award ought
to be protected. Consequently an amount of 7.5% of the
capital amount to be awarded to the plaintiff on behalf of Mpho shall
be
in respect of the costs for the establishment, registration and
administration of a Trust.
[52]
That said, the full award of M[…]’s
damages is set out as follows with contingency adjustments rounded
off to 20% where
applicable:
General
damages R2 000 000
Loss of income
(R5 192 700 less 20%)
R4 154 160
Caregiver and domestic
services
(R9 283 947
less 20%)
R7 427 158
Architectural services
(R1 714 247 less 20%)
R1 371 398
Total
R14 952 716
Add
7.5%
R1 121 454
Grand
total
R16 074 170
The order
[53]
In the result the following order issues:
1.
The defendant shall pay to the plaintiff
the agreed amount of R400 000.00 in her personal capacity, as an
for damages, together
with interest thereon at the prevailing legal
rate from a date 30 days after the grant of this order to date of
payment thereof.
2.
The defendant shall pay to the plaintiff,
in her representative capacity as mother and natural guardian of M[…]
M[…],
the sum of
R16 074 171.00
together with interest thereon at the prevailing legal rate from a
date 30 days after the granting of this
order to date of payment
thereof, which amount is made up as follows:
General
damages
R2 000 000
Loss of income
(R5 192 700 less 20%)
R4 154 160
Caregiver and domestic
services
(R9 283 947
less 20%)
R7 427 158
Architectural services
(R1 714 247 less 20%)
R1 371 398
Total
R14 952 716
Add
7.5%
R1 121 454
Grand
total
R16 074 170
3.
It is recorded that the above amount
includes the costs associated with the establishment, registration,
administration and management
of a Trust to be established for the
benefit of M[…] M[…].
4.
The claim for transportation costs is
postponed sine die for determination with the remaining issues
pertaining to quantum as contemplated
in the order of this court
granted on 12 October 2022.
5.
The amounts referred to in paragraphs 1 and
2 above, together with all interest payable thereon, shall be paid
into the trust account
of the plaintiff’s attorneys, M Dayimani
Inc., with the following details:
Account
Name: M
Dayimani Inc. Trust Account
Bank:
[…]
Account
Number: 6[….]
Branch Code:
2[….]
6.
The defendant is further ordered to pay the
plaintiff’s costs of suit, together with all reserved costs, if
any, together
with interest thereon at the legal rate from the date
of
allocatur
or agreement to date of payment, which costs shall furthermore
include:
6.1
The costs of two counsel were utilised;
6.2
The reasonable travelling and accommodation costs of plaintiff’s
legal representatives
attending court, pre-trial conferences and
consultations with witnesses;
6.3
The reasonable costs of the preparation for consultations, pre-trial
conferences and
trial;
6.4
The costs for the preparation of heads of argument;
6.5
The costs of the hearing of the matter including counsels’ day
fees on the various
hearing dates;
6.6
The reasonable travelling costs, reservation and appearance fees, if
any, together
with the costs of consultations and the preparation of
their reports and joint minutes, if any, and the qualifying fees, if
any,
of the expert witnesses in respect of the separated issues in
respect of whom the plaintiff filed rule 36 (9) (a) and (b) notices.
7. It is ordered
that the net balance remaining after paying and recovering all costs
and expenses for which the plaintiff
is liable, including her fees as
between attorney and own client, will be dealt with as follows:
7.1
M Dayimani Inc. Attorneys are directed to cause a Deed of Trust, to
be named the M[…]
M[…] TRUST to be registered by the
Master of the High Court incorporating the provisions normally to be
found in an
inter vivos
trust within 6 (six) months of date of
this order, or such longer period as the Master may on application
direct, with the following
additional provisions;
7.2
The Trustee to be appointed, or the successor in title, will, if
possible, be a corporate
Trustee and shall have the powers of
assumption;
7.3
In the event of it not being possible to appoint a corporate Trustee,
the Trustees
to be appointed, or there successor in title, will, in
so far as is reasonably possible, consist of 3 (three) Trustees,
being the
plaintiff, a chartered accountant and an attorney, and
shall have the powers of assumption;
7.4
It shall be left in the discretion of the Master of the High Court
whether the trustees
shall be exempt from furnishing security;
7.5
The Trustees shall hold and administer the trust fund for the benefit
of M[…]
M[…];
7.6
The Trustees shall apply the net income of the trust fund for the
maintenance and
benefit of M[…] M[…] and, if at any
time it is not adequate for the purpose, the capital thereof;
7.7
The Trust shall terminate on the death of M[…] M[…],
alternatively in
accordance with the Trust Deed;
7.8
The provisions of this paragraph shall, in accordance with the
provisions of the Trust
Property Control Act 57 of 1988, as amended,
be subject to the approval of the Master of the High Court;
8.
This order must be served by the plaintiff’s attorney on the
Master of the High Court.
____________________________
M. S. RUGUNANAN
JUDGE OF THE HIGH
COURT
APPEARANCES:
For
the Plaintiff:
A.
D. Schoeman SC and L. L. Sambudla
Instructed
by M. Dayimani Inc.
Plaintiff’s
Attorneys
Mthatha
(Ref:
MD/vs/00308)
Tel:
047-532 3178 or 047-531 1983
For
the Defendant:
N.
James
Instructed
by
The
Office of The State Attorney
Mthatha
(Ref:
X Hanise 331/20-AH)
Tel:
047-502 9900
Dates heard: 21,
22, 23, 24 and 25 November 2022, and 5 December 2022.
Date
delivered: 02 March 2023.
[1]
Exhibit bundle A.
[2]
AD and
another v MEC for Health and Social Development, Western Cape
Provincial Government
[2016]
ZAWCHC 116
para 39.
[3]
Twine
and another v Naidoo and another
[2018] 1 All SA 297
(GJ) at 304f. In
Madela
v MEC for Health, Kwazulu-Natal
ZAKZDHC
[2021] 18 para [50] it was put thus: ‘The facts on which the
expert witness expresses an opinion must be capable
of being
reconciled with all other evidence in the case. For an opinion to be
underpinned by proper reasoning, it must be based
on correct facts.
Incorrect facts militate against proper reasoning and the correct
analysis of the facts is paramount for proper
reasoning, failing
which the court will not be able to properly assess the cogency of
that opinion. An expert opinion which lacks
proper reasoning is not
helpful to the court.’
[4]
Schwikkard Van Der Merwe,
Principles
of Evidence
,
Juta 4
th
ed at 570.
[5]
Exhibit bundle F.
[6]
Michael
and Another v Linksfield Park Clinic (Pty) Ltd and Another
2001 (3) SA 1188
(SCA) at 1200I.
[7]
Twine
and another v Naidoo and another supra
at 303e.
[8]
Michael
and Another v Linksfield Park Clinic (Pty) Ltd and Another
2001 (3) SA 1188
(SCA) at 1200E.
[9]
Exhibit bundle A.
[10]
Exhibit bundle B.
[11]
Holtzhauzen
v Roodt
[1997] 3 All SA 551
W at 557i.
[12]
Amended particulars of claim paragraphs 24.1, 25 and 25.10.
[13]
Exhibit bundle A.
[14]
Exhibit L.
[15]
Road
Accident Fund v Kerridge
[2018] ZASCA 151
paras 42 and 43.
[16]
Road
Accident Fund v Guedes
2006 (5) SA 583
(SCA) at 588B-C.
[17]
As in
Madela
v MEC for Health, Kwazulu-Natal
supra.
[18]
SJ obo
SJ v Road Accident Fund
[2022] ZAECBHC 41 paras 10-12.