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[2022] ZAECBHC 30
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M.M obo A.M v Member of the Executive Council for Health, Eastern Cape Province (530/2017) [2022] ZAECBHC 30 (5 October 2022)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
NOT REPORTABLE
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, BHISHO)
CASE
NO. 530/2017
In
the matter between:
M[....]1
M[....]2 OBO A[....]
Plaintiff
M[....]2
and
MEMBER
OF THE EXECUTIVE COUNCIL
FOR
HEALTH, EASTERN CAPE PROVINCE
Defendant
JUDGMENT IN RESPECT OF
QUANTUM
HARTLE J
[1]
In a prequel to the present trial before
me, Tokota J issued an order in the plaintiff's favour pursuant to a
trial on the merits
in which proceedings the issues of liability and
causation were separated from quantum.
[2]
The claim was one arising from the
negligence on the part of the hospital staff at the Frontier hospital
in the Eastern Cape in
the course of delivering the plaintiff’s
son on 8 September 2015, which resulted in the child suffering from
cerebral palsy.
[3]
The plaintiff’s wife (the child’s
mother) had instituted the proceedings both in her personal capacity
and on behalf
of her minor child in a representative capacity. She
however died on 9 December 2018. It appears from the judgment on the
merits
that the present plaintiff, who is the child’s father
and who was married to the initial plaintiff, applied on the date of
the hearing to be substituted in her place. At the time of the
application no formal amendment to the pleadings was made but counsel
appearing for the defendant had no objection to his substitution at
the time. The notice of substitution of the father that foreshadowed
the application dated 16 January 2019 heralded his indication to
substitute his late wife in his representative capacity instead
as
the father and natural guardian of the child who was then still
alive.
[4]
There was certainly no suggestion that he
would be pursuing his wife’s personal claim for general damages
after her death,
which entitlement by all accounts then fell away or
at least was not an issue before me in the quantum trial.
[5]
On the basis of the claims that were before
him, Tokota J found that the defendant’s employees had acted
negligently in handling
the mother’s labour and had failed in
their duty to prevent injury to the couple’s baby.
[6]
In consequence the following order issued
in respect of the merits:
“
1.
The defendant is liable to pay such damages as may be proved by the
plaintiff, in his representative
capacity and as the guardian on
behalf of his minor son, A[....] M[....]2, arising from the medical
negligence of the defendant’s
employees that occurred in
September 2015.”
[7]
The determination of quantum was postponed
sine die
.
[8]
Ironically, on the date that the merits
judgment was delivered, namely 15 December 2020, the child also died.
[9]
After his death, the plaintiff filed
amended particulars of claim.
[10]
In an introductory paragraph to the
particulars of claim it is alleged that he “institutes this
action in his representative
capacity as father and the
representative of the estate of the late A[....] M[....]2, a male
born on 08 September 2015, who died
on 15 December 2020.”
[11]
In paragraph 7 of the particulars of claim,
after adverting in the previous passage to the fact that Tokota J had
found that the
medical practitioners, nursing staff and employees who
has been involved in the rendering of medical services to the
deceased and
the child were liable to pay (Sic) the plaintiffs proven
or agreed damages, the plaintiff purported to recount certain
personal
consequences suffered by him as a result of the defendant’s
employees’ breach, alternatively negligence. His own negative
experiences had never been pleaded up to that point and evidently
presented a whole new claim. It further evidently set the stage
for
the plaintiff to lead the expert testimony of a clinical
psychologist, Mr. Ian Meyer, as to his suffering and the need as a
result to undergo psychotherapeutic intervention. The justification
for such need and the costing thereof were consequently also
foreshadowed in an expert notice and report filed by the plaintiff
qualifying Mr. Meyer in this respect.
[12]
No consequences to the child arising from
the established negligence of the hospital staff, relevant to a claim
for general damages
supposedly vesting in the deceased estate, were
pleaded at all.
[13]
In paragraph 8 of the particulars of claim
the plaintiff purported to claim general damages on the following
premise:
“
8.
General damages
As a result of the
Defendant’s breach of the agreement, alternatively negligence,
the plaintiff
in his personal and representative capacities
has suffered damages in the amount of R 500 000.00, which has been
calculated as follows below for General damages for emotional
shock
and trauma, pain and suffering.”
[14]
In the concluding prayer, it is repeated
that he claims payment of the sum of R 500 000.00 for general damages
“in his personal
and representative capacity”.
[15]
He also alleged an entitlement to
claim payment in the sum of R 300 000.00 for past medical expenses
purportedly incurred during
the lifetime of A[....], but this claim
was not persisted with or at least there was no suggestion that it
was one requiring the
court’s attention.
[16]
The
defendant on the pleadings emphatically denied the plaintiff’s
personal claim or that she was liable to him in any amount,
putting
him to the proof thereof. With reference to paragraph 1.2 of the
final amended particulars of claim, apart from admitting
the obvious,
which is that the present plaintiff was indeed the father of the
child, the defendant in her plea denied the “balance”
leaving it up to the plaintiff to also prove that he was representing
the estate of his deceased child and what the nature of
its
claim, if any, was.
[1]
[17]
As an aside the Plaintiff was not formally
joined in the action in his capacity as representative of the late
child’s estate
which presents a different and distinct capacity
than the one in which he had substituted his late wife as a guardian
acting on
the child’s behalf while the latter was still alive.
Although it was not strenuously contested during the quantum trial
that
the plaintiff had been appointed as the executor of his son’s
estate, Mr. Kunju, who appeared on behalf of the defendant refuted
in
any event that there was a reason stated in the particulars of claim
for the plaintiff to have involved himself in the action
in this
capacity at all. During the course of the plaintiff’s
testimony, he also objected to the admission into evidence
of the
master’s letters of executorship issued to him authorizing him
to liquidate and distribute the child’s estate
on the basis
that this document had not been discovered during the pretrial
processes.
[18]
Prior to the trial proceeding before me the
matter went through its necessary pre-trial paces. In the party's
joint practice note
dated 5 April 2022, under the rubric of “Issues
for Determination”, the parties’ legal representatives
formulated
the trial issues requiring resolution as follows:
“
(a)
The quantification of the plaintiff’s damages in
her
personal and representative capacity with references to:
-
General damages for the plaintiff in his
personal capacity.
-
Past loss of income
-
Loss
of income as at the time of the death of the minor.”
[2]
(Emphasis added)
[19]
In the trial preparation checklist also
signed off on 5 April 2022, the same issues are listed for
determination by the trial court.
[20]
Preceding this, in the party's pretrial
minute dated 7 February 2022 the issues for determination were also
discussed and minuted
in the introductory paragraph as follows:
“
The
Plaintiff would like to record that the issues for determination have
been narrowed because of the death of the minor child,
and in view
thereof the heads of damages which are to be determined are as
follows:
1. 2.1
general damages for the Plaintiff in
his
personal capacity;
1. 2.2
past loss of income; and
1.2.3
loss of income as at the time of the death of the minor child.
Plaintiff:
agreed
Defendant:
agreed.”
[3]
(Emphasis added)
[21]
In paragraph 2 of the same conference
minute the issues for determination are similarly repeated as
follows:
“
The
issues for determination of the Plaintiff’s damages in respect
of
his
claim for general damages, loss of income and future medical
expenses.
The award for the damages
shall be argued based on comparative awards, future medical expenses
shall be based on the actuarial calculation
by the actuary.”
(Emphasis added)
[22]
In
the core bundle that was placed before me, the plaintiff ostensibly
relied on several expert reports, most of which pertain to
future
medical expenses and modalities that the child would have required
arising from the established negligence of the defendant’s
servants, but for his death.
[4]
Additionally, as indicated above, the plaintiff filed an expert
notice and report in respect of Mr. Meyer that presaged his testimony
in respect of the plaintiff’s purported personal claim that the
legal representatives appeared to agree would be the focus
at the
quantum hearing.
[5]
Nay a word
was said by the plaintiff (or at least not pertinently so) that he
was intent on pursuing a claim for general damages
for the child
nomine
officio
.
Perhaps if he had, the subject of his authority to represent the
estate may have generated a discussion around the defendant’s
view that there was nothing appearing from the pleadings that
suggested that such a pursuit was forthcoming or alternatively that
documentary proof that he represented the estate should be provided
and/or his legal standing in this regard proved. The defendant
might
also have volunteered her assessment that the plaintiff’s claim
in his personal capacity was unsustainable or that
there was an issue
with his pleadings, this despite the ostensible agreement between the
parties at the pretrial conference that
such a claim would form the
focus of the trial.
[23]
It was only much later, on the fourth day
of trial and at the stage of closing arguments, that a concession
came from Mr. McKelvey
who appeared for the plaintiff that the
latter’s supposed personal claim was not competent and had
certainly not been within
the contemplation of the judgment and order
of Tokota J. Indeed, it could not have been as it had not been
pleaded at that point
and was only conceived of after the child’s
death. He also fairly conceded that the plaintiff’s claim in
his representative
capacity no longer existed at the point of the
child’s death, and that the only claim that did, or could,
exist would have
been the claim in his official capacity as executor
or representative of the estate.
[24]
Despite the lack of formal substitution or
joinder of the plaintiff
nomine officio
as executor of the estate, Mr. McKelvey
held out for the child’s claim for general damages which he
referred to as the “residual”
claim. He submitted (at
least before the concession referred to in paragraph [23]) that this
claim was distinguishable from the
plaintiff’s claim envisaged
in paragraph 7 of the particulars of claim which he had alleged was
being pursued in his personal
capacity. He pointed out that the claim
for general damages was stated to have been pursued in two distinct
capacities, firstly
in his personal capacity and secondly in his
representative capacity which was co-incidentally qualified in
paragraph 1 as including
the formal representation of his son’s
estate. He purported to suggest that it was open to interpretation
that the claim
in paragraph 8, for general damages, envisaged both
his own emotional shock and trauma as well as the pain and suffering
of his
deceased child which he was qualified to pursue
nomine
officio
. He further submitted that the
parties’ representatives in the pretrial procedures had clearly
had this in mind when agreeing
what the issues were for determination
by this court, although with respect this does not seem quite
apparent from the pre-trial
minutes, case management checklist or
joint practice note filed in the matter.
[25]
Mr. McKelvey submitted that the “estate
claim” was properly before me and had to be determined, he
suggested in the
estate’s favour, based on the expert testimony
of Dr. Campbell and Ms. Grace Hughes as well as the lay testimony of
the child’s
aunt, Ms. Mgwadleka as to the child’s
experience of pain - to the extent that he probably could appreciate
pain despite the
fact that his condition was classified as a grade 5
extreme level of cerebral palsy, and the loss of amenities suffered
by him,
ironically obviously more devastating as a result of that
very classification. (I do not intend to repeat their testimony here,
given the view I take herein.)
[26]
He
argued based on the limited detail that co-incidentally emerged
during the quantum hearing concerning the child’s experience
of
his very brief life that an award of R 500,000.00 would represent a
fair estimate of the child’s suffering under the rubric
of
general damages since he had endured substantial levels of pain,
suffering and disablement, with a devastating loss of the amenities
of life.
[6]
He submitted
further, despite no clear basis for this having been indicated in the
pleadings, that the child’s claim (which
unfortunately does not
suggest itself from the amended particulars of claim) would have
passed to his estate given that he had
died after
litis
contestatio
according to the established practice of recognizing such claims
despite the death of the litigant.
[7]
[27]
Mr. Kunju argued conversely that the
pleadings did not support the claim for general damages on behalf of
the estate that the plaintiff
purported to develop through the
evidence presented at the trial. He emphasized that the
sequelae
relied upon in the pleaded case bore only upon the plaintiff’s
personal claim that was belatedly abandoned. The claim for
past
medical expenses was also irrelevant. The defendant had gone no
further than meeting the pleaded case and in her plea was
justified
in calling upon the plaintiff to prove his case in which regard he
submitted the plaintiff had dismally failed.
[28]
Leaving aside the time and effort wasted on
the plaintiff’s personal claim, Mr. Kunju complained that the
testimony adduced
on the plaintiff’s behalf had gone far beyond
the ambit of the pleaded case and indeed what the parties had agreed
in the
rule 37 conference the issues were that had to be determined.
The expert reports filed had also not properly heralded the case that
surprisingly evolved concerning the estate’s purported
entitlement to general damages for pain and suffering and loss of
amenities of life suffered by the deceased child. If I accepted any
of this testimony, so his argument went, it would be to the
obvious
prejudice of the defendant who was neither obliged, nor ready, to
answer the plaintiff’s imagined so-called residual
claim.
[29]
In any event he did not believe, because of
the obvious extent of the cognitive damage suffered by the child as a
result of the
cerebral palsy, that the evidence established that he
would have subjectively appreciated the pain or that it was
appropriate to
order compensation in favour of the estate at all.
[30]
Although
I challenged Mr. Kunju quite extensively on the passive stance
adopted by the defendant in watching and waiting for the
plaintiff’s
case to fail,
[8]
a proper
introspection of the pleadings reveals their deficiency
inter
alia
to have establish a premise for the residual claim contended for by
Mr. McKelvey. Firstly, it was obvious that the present plaintiff
had
introduced a whole new claim in his personal capacity that had not
been there before and which he correctly abandoned, albeit
on the
fourth day of trial. Secondly, expect for the stand-alone reference
in paragraph 8 of the amended particulars of claim to
the conclusion
that he had suffered damages in a representative capacity as well,
there was nothing else in his pleaded case to
suggest that the
defendant might have to deal with another claim prosecuted on behalf
of the child’s estate and/or that she
would have to counter the
suggestion that the child had suffered appreciable pain or
compensable loss of amenities under the rubric
of general damages in
his own right as a transmissible claim to his estate. One also looks
in vain for the necessary formal substitution
or joinder of the
child’s father in his capacity as executor of his late child’s
estate. Further I take Mr. Kunju’s
point that the parties had
not agreed that such a claim in all its nuances would be the focus of
the trial though it appears that
the legal representatives were
somewhat confused by whose claim was to be determined and in what
capacity. Additionally, the expert
notices and reports do not speak
to that kind of causation (concerning the “estate claim”),
because it was not an issue
on the pleadings.
[31]
As an aside, before conceding that the
personal capacity claim of the plaintiff was ill conceived, Mr.
McKelvey had requested an
amendment to the pleadings but only to
rectify the misconception that
that
claim was not on the table by the insertion of the phrase “in
his personal capacity” in place of “in his representative
capacity as father”. This request was ultimately not persisted
with for obvious reasons, but unfortunately neither was there
any
formal supplementation forthcoming in respect of the supposed
residual claim in the name of the estate.
[32]
The unexpectedness of such a claim being in
the offing came to the fore when I questioned Dr. Campbell about the
lack of any information
regarding how the child had died, who had
cared for him after his mother had passed, what the quality of his
life was before his
death and how his situation had deteriorated. I
indicated the necessity of gaining a sense of how the cerebral palsy
condition
had impacted his life and his circumstances. This prompted
a late supplementation of the plaintiff’s case, without any
application
to join the plaintiff in his personal capacity as
executor and to amend the particulars of claim, to in effect
introduce
sequelae
that had not been pleaded or had come under the spotlight as it were
before.
[33]
I believe that Mr. Kunju’s objection
during the course of Dr. Campbell’s testimony to the
introduction of documentation
that had not been discovered during the
pretrial processes (in support of the supplemented estate case) was
also justified in these
strange circumstances where the plaintiff’s
case was self-evidently developing as the trial proceeded.
[34]
The
prejudice to the defendant by permitting the spontaneous
supplementation (without any formal application to amend) is obvious.
Mr. Kunju pointed to the fact that the defendant had most
significantly been denied the opportunity to lead expert evidence
especially
as to the extent to which the child was able to appreciate
pain or had full insight into his plight and an appreciation of his
loss as a result of his condition so as to put him in the “twilight
situation” envisaged in
NK
obo ZK v MEC Health
.
[9]
[35]
Even if it were so that the child may have
suffered appreciable pain, this case was not properly before me, and
it is not for me
to find the damages proven which the plaintiff
contended for up in the air and on behalf of an estate that was not
properly before
me.
[36]
As for the issue of costs, despite my
suggestion to Mr. Kunju on a number of occasions during the trial
that a certain mutuality
had been expected from the defendant to
ensure that the trial issues had been properly identified and
shortcomings pre-empted,
the ultimate responsibility fell to the
plaintiff to ensure that his pleadings were in order. The wasted
costs were further essentially
all attributable to the personal claim
of the plaintiff that was abandoned on the final day of the trial and
there is no question
in my mind that the plaintiff will have to bear
these wasted costs.
[37]
He could have been under no illusion, once
the quantum trial commenced, that his case was defective in the
respects complained of
since Mr. Kunju made his objections known
throughout the proceedings quite forcibly. It is a pity though that
those representing
the parties before the hearing commenced did not
apply their minds concerning what the real issues were that remained
to be determined
(
locus standi
remarkably been one of those), in the interests of shortening the
proceedings and the costs more effectively.
[38]
The issue of the costs of the separated
issue of quantum arising before the child’s death is an extant
issue that needs to
be addressed but possibly in a separate
application or by agreement between the estate and the defendant. Mr.
McKelvey fairly noted
that various expert reports were obtained in
order to establish the child’s claim for damages that the
child’s father,
and his mother before her death, both acting as
his guardian, would have been entitled to incur in order to prove the
quantum of
the established claims predicated on their success in the
merits trial. It is not unreasonable that these were incurred with
that
probable success in mind long before the date of delivery of the
judgment of Tokota J which coincided with the date of the death
of
the child since merits and quantum were being dealt with separately.
The fact that the child died when he did does not exonerate
the
defendant from having to pay the costs of obtaining such reports as
were necessary to quantify the child’s claims while
he was
still alive. Unless the parties agree, the taxing master will no
doubt filter which of these were reasonably commissioned,
necessary
and conduced to the anticipated proof of quantum predicated on the
plaintiff’s success on the merits that would
have been followed
by a quantum hearing in the ordinary course but for the child’s
death.
[39]
For obvious reasons the issue of these is
not before me and the estate’s interests not represented or
covered under the general
assertion in par 1.2 of the particulars of
claim that the plaintiff is the representative of the child’s
estate. That is
a different matter.
[40]
Mr. Kunju was opposed to the costs of these
reports being recovered but in the context of them being irrelevant
in the abortive
or putative trial before me.
[41]
The interests of the estate (properly
represented) should however not be compromised by this anomaly.
[42]
In the result I issue the following order:
1.
The plaintiff’s claim in his
personal capacity, and in his purported capacity as executor of the
estate of late child, are
dismissed with costs.
2.
The issue of the costs of the separated
issue of quantum arising before the child’s death is postponed
sine die
.
B HARTLE
JUDGE OF THE HIGH
COURT
DATE OF
HEARING:
9, 10, 11
&12 May 2022
DATE OF
JUDGMENT:
5 October 2022*
*Judgment delivered at
10h30 on this date by email to the parties.
APPEARANCES
:
For the plaintiff: Mr.
C McKelvey instructed by Enzo Meyers Attorneys, East London (ref. Mr.
Meyers).
For the defendant: Mr.
V Kunju SC instructed by The State Attorney, East London (Mr.
Mgujulwa).
[1]
The
duly appointed executor is the legal representative of the deceased
estate and any proceedings by and against it must be in
the name of
the executor acting in his official capacity. (See
Du
Toit v Vermeulen
1972 (3) SA 848
(A)). The general rule is that it is for the party
instituting proceedings to allege and prove its
locus
standi
,
and the onus of establishing it, rests on that party. It ought to
appear
ex
facie
from the founding papers/particulars of claim that the parties have
the necessary legal standing. (See
Mars
Inc. v Candy World (Pty)
Ltd
[1990] ZASCA 149
;
1991 (1) SA 567
(A) at 575,
Kommissaris
v Binnelandse Inkomste v Van der Heever
1993
(3) SA 1051
(SCA) at par 10.)
[2]
The agreeing parties were seemingly referring to the mother of the
child. It is hard to discern exactly what they had in mind
at the
time since she had long since passed; her personal claim was
evidently not being persisted with; and the present plaintiff
had
already been substituted, at least in his capacity as guardian in
respect of the child who by then had also passed.
[3]
This “agreement” is equally confounding. It may however
have created the perception that the defendant accepted the
premise
for a personal claim by the father. Evidently no thought was given
to the further capacity in which the plaintiff was
purporting to act
on behalf of the estate or what claims, if any, vested in the
estate.
[4]
I
surmise that these were included to motivate the plaintiff’s
entitlement
nomine
officio
to the costs of prosecuting the matter in respect of the separated
issue of quantum.
[5]
In recognition that the plaintiff’s claim in his personal
capacity was abandoned (see paragraph [23] above), counsel
acknowledged that the costs of qualifying Mr. Meyer could certainly
not be recovered.
[6]
Mr.
McKelvey in this regard relied upon the judgments of
NK
obo ZK v MEC for Health, Gauteng
2018 4) SA 454
(SCA);
C
S (obo T G S) v MEC for Health, Gauteng
(274/2009) GPPHC (6 August 2015);
Mngomeni
v MEC for Health, Eastern Cape
(1972/2014)
ECLD (Mthatha) (20 June 2017);
MSM
obo KSM v MEC: Health Gauteng
2020
(2) SA 567
(GJ); and
N
T Hlubi v MEC for Health, Gauteng Province
(57301/2015) (8 February 2021).
[7]
Mr.
McKelvey referred to the matter of
Jankowiak
and Another v Parity Insurance Co Ltd
1963 (2) SA 286
(W) in which the court held – “I have
therefore come to the conclusion that,
litis
contestatio
having taken place before the death of the deceased, the claim for
general damages was transmitted to the estate of the deceased”.
See also
Potgieter
v Rondalia Assurance Corporation of SA Ltd
1970
(1) SA 705
(N);
Government
of the Republic of South Africa v Ngubane
1972 (2) SA 601
(A) at 608 H;
Potgieter
v Sustein (Edms) Bpk
1990
(2) SA 15
(T) and Minister of Justice and Correctional Services v
Estate Stransham-Ford (531/2015)
2016 ZASCA 197
(6 December 2016) at
par [19].
[8]
See
in this regard my comments made in
Tyibilika
v MEC for Health, Eastern Cape Province
(579/2013) [2021] ZAECBHC 38 (30 November 2021) at par [7].
[9]
(216/2017)
[2018] ZASCA 13
;
2018 (4) SA 454
(SCA) (15 March 2018).