N.C obo E.C v Member of the Executive Council for the Health, Free State (823/2019) [2022] ZAFSHC 22 (8 February 2022)

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[2022] ZAFSHC 22
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N.C obo E.C v Member of the Executive Council for the Health, Free State (823/2019) [2022] ZAFSHC 22 (8 February 2022)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been redacted
from this document in compliance with the law and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case number: 949/17
In the matter
between:
N[….]
C[….] obo E[….]
C[….]
Plaintiff/Applicant
and
THE MEMBER OF
THE EXECUTIVE COUNCIL
Defendant/Respondent
FOR THE
HEALTH, FREE STATE
HEARD
ON:
28
OCTOBER 2021
JUDGMENT
BY:
DANISO, J
DELIVERED
ON:
This
judgment was handed down electronically by circulation to the
parties' representatives by email and by release to SAFLII. The
date
and time for hand-down is deemed to be 12H00 on 08 February 2022.
[1]
In this opposed application, an interim payment in the amount of
R5 000 000.00
(five million rand) is sought by the
applicant in her personal and also in her capacity as a mother and
natural guardian of EC (“the
minor child”) for damages arising
from a permanent brain injury the minor child sustained during birth.
[2]
It is common cause that on 15 February 2010 the applicant gave birth
to her minor child
at the Katlego Virginia hospital and that due to
the negligence of the medical practitioners (the defendant’s
employees) who assisted
with the labour and the delivery the minor
child suffered a brain injury which rendered him cerebral palsied.
The applicant’s action
[1]
in
that regard was defended but later settled on 1 June 2021 on the
basis that the respondent conceded 80% liability in respect of
the
merits. The amount of damages to be awarded to the applicant and the
minor child is yet to be determined.
[3]
Rule 34A provides as follows:
“
34A
Interim Payments
(1)
In
an action for damages for personal injuries or the death of a person,
the plaintiff may, at any time after the expiry of the period
for the
delivery of the notice of intention to defend, apply to the court for
an order requiring the defendant to make an interim
payment in
respect of his claim for medical costs and loss of income arising
from his physical disability or the death of a person.
(2)
Subject
to the provisions of rule 6 the affidavit in support of the
application shall contain the amount of damages claimed and the
grounds for the application, and all documentary proof or certified
copies thereof on which the applicant relies shall accompany
the
affidavit.
(3)
Notwithstanding
the grant or refusal of an application for an interim payment,
further such applications may be brought on good cause
shown.
(4)
If
at the hearing of such an application, the court is satisfied that-
(a)
the defendant against whom the order is sought has in writing
admitted liability for the plaintiff's damages; or
(b)
the plaintiff has obtained judgment against the respondent for
damages to be determined, the court may, if it thinks fit
but
subject to the provisions of subrule (5), order the respondent to
make an interim payment of such amount as it thinks just, which
amount shall not exceed a reasonable proportion of the damages which
in the opinion of the court are likely to be recovered by the
plaintiff taking into account any contributory negligence, set off or
counterclaim.
(5)
No order shall be made under subrule (4) unless it appears to the
court that the defendant is insured in respect of the plaintiff's
claim or that he has the means at his disposal to enable him to make
such a payment...”
[4]
It is the applicant’s case that the progress of this claim has been
hampered by the
respondent’s failure to file its experts reports
with the result that the trial on quantum has been postponed
sine
die.
Part of the award is urgently required in order to provide
the minor child with the specialized medical care and treatment
necessary
to improve and enhance the quality of his life and to also
prevent the deterioration of his medical condition.
[5]
According to the expert reports filed by Dr Robert Campbell, Ms.
Grace Hughes, Ms Sue
Anderson and Mr Gregory Shapiro (the medical
doctor, physiotherapist, professional nurse and industrial
psychologist) attached to
the founding affidavit the minor child
suffered a permanent brain injury which involves both spastic and
dystonic cerebral palsy.
[2]
The
condition is irreversible and long-lasting. It can only be managed by
a structured medical care which must be commenced soonest
to prevent
further complications and to optimise the quality his life.
[6]
The applicant contends that it would be in the best interests of the
minor child that
he receives the said medical care and that the
amount that would be fair, reasonable, equitable for the required
medical costs at
this stage would be R5 000 000.00 payable
within 30 days of the service of this order on the defendant.
[7]
The application is opposed on various grounds, namely, that the
applicant has not complied with the provisions
of sub-rule (2) in
that she seeks an interim payment for past medical expenses without
having attached any proof of the expenses
allegedly incurred, the
applicant is not entitled to a part payment of future medical
expenses where the respondent would be relying
on a defence of
“
public
healthcare
”
which essentially allows the respondent to make an undertaking
similar to that in section 17(4)(a) of the Road Accident Fund Act
[3]
(“The RAF Act”) instead of a cash payment and the applicant has
also failed to prove that the respondent is insured in respect
of the
applicant’s claim and that it has means at its disposal to make
such a payment as provided for in sub-rule (5).
[8]
It is the respondent’s case that this application has nothing to do
with the minor child’s need for
medical treatment but everything to
do with money and this is due to the fact that the minor child can
access the medical care and
treatment required for free at public
health facilities as they have done before the incident. The
applicant has not provided any
proof that such medical care is not
available at any of the public health facilities. The applicant must
stop wasting time with these
applications and finalize the claim.
There is no need for the interim payment the application ought to be
dismissed with costs.
[9]
The respondent’s contentions have no merit. It is a gross
distortion of facts that the applicant is
seeking an interim payment
for medical costs and loss already incurred the founding affidavit
(paragraphs 14 and 22) clearly sets
out that the interim payment is
required for medical care and treatment that the minor child requires
and as proof thereof the applicant
has referred to the expert
documentary evidence duly attached therein.
[10]
There is nothing untoward about the applicant’s claim for interim
payment in respect of future medical expenses.
The respondent’s
reliance on section 17 (4) (a) and 17(6) of the RAF Act is
misconstrued. Claims under the Road Accident Fund Act
are
sui
generis
. It was in any event conceded by the respondent that this
provision does not apply to medical negligence claims.
[11]   As
regards sub-rule (5), the respondent’s financial management is
regulated by the Public Finance Management Act
[4]
(as amended) therefore there is nothing peculiar about the respondent
not being insured. The respondent’s bare allegations pertaining
to
its inability to satisfy the applicant’s claim
do
not constitute proof of the respondent’s lack of means. The duty is
on the respondent to allege and prove its inability to pay
the claim.
[12]   In
its callous averments that the minor child should obtain the required
treatment from public health facilities
as “before the incident,”
finalize the matter and stop wasting time by launching interim
payment applications, the respondent
eschews the fact that “
before
the incident
” the applicant did not and had no reason to
require such medical care and treatment as the minor was only born
during the incident
which resulted in him sustaining the brain
injury. The respondent also ignores the fact that the delay in the
finalization of the
matter is attributed to its non-compliance with
the rules of court by failing to file its expert notices.
[13]   It
is indeed correct that the final amount to be awarded to the
applicant is not yet determined however, at this
stage this court is
not required to embark on a quantification of the claim. As correctly
pointed out by the applicant, having regard
to the extent of the
brain injury sustained by the minor child and its sequelae it is
highly unlikely that the amount of R5 000 000.00
would
exceed the amount of R
31 789 970.00
claimed by the applicant.
[14]   In
terms of Rule 34A the applicant is entitled to an interim payment in
respect of her claim for medical costs. I
accordingly find that the
applicant has made out the case she seeks in the notice of motion.
[15]   On
the available facts (paragraph 19 at 19.1 to 19.2.2. of the
applicant’s particulars of claim) it has been established
that the
minor child is incapable of managing his affairs including the award
therefore in terms of section 28(2) of the Constitution
[5]
I
deem it appropriate that a
curator
bonis
ought
to be appointed to manage the award.
Costs
[16]   I
have found no reasons militating against the rule that costs follow
the result of the application. According to
the applicant the
application was opposed on unmeritorious grounds the respondent must
accordingly pay the costs on a punitive scale.
[17]   I’m
in agreement with the applicant’s contention that the opposition
was unnecessary considering the defences
raised by the respondent.
I’m however not persuaded that the respondent’s actions are
so
reprehensible to warrant a
punitive cost order.
[18]   In
the result I make the following order:
(1)
In
terms of Rule 34A of the Uniform Rules of Court the respondent is
ordered to pay the applicant an interim payment of R5 000 000.00
within 30 days from the date of this order by depositing it into the
account of a
curator
bonis
.
(2)
The
applicant is granted leave to apply on the same papers (supplemented,
if necessary) for the appointment of a
curator
bonis.
(3)
The
respondent shall pay the
costs on
party and party scale. Such costs to include the costs of counsel.
NS DANISO, J
APPEARANCES:
Counsel
on behalf of the plaintiff/applicant:
Adv. C Cremen
Instructed
by:

Nonxuba Inc.
C/O Webbers
Attorneys
BLOEMFONTEIN
Counsel
on behalf of the defendant/respondent:

Adv. Hellens SC
Instructed
by:

The State Attorney
BLOEMFONTEIN
[1]
Summons
were issued on 24 February 2017 for R31 789 970.00.
[2]
Pages
15 to 156 of the paginated papers are the expert reports and their
confirmatory affidavits.
[3]
Act
56 of 1996.
[4]
Act
1 of 1999.
[5]
The
Constitution of the Republic of South Africa Act No, 108 of 1996.