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[2022] ZAECBHC 47
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N.M obo A.M v Member of the Executive Council For Health: Eastern Cape Province (Reasons) (629/2019) [2022] ZAECBHC 47 (2 December 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
(EASTERN
CAPE LOCAL DIVISION, BHISHO)
CASE
NO. 629/2019
NOT
REPORTABLE
In
the matter between:
NM
OBO (her son) AM
Plaintiff
and
MEMBER
OF THE EXECUTIVE COUNCIL
FOR
HEALTH: EASTERN CAPE PROVINCE
Defendant
(in re the negligence
of hospital staff at Stutterheim and Cecilia Makiwane Hospitals)
REASONS FOR QUANTUM
AWARD
HARTLE
J
[1]
On 10 August 2022 I granted an order in the following terms after a
quantum
hearing:
“
1.
The Defendant shall pay the Plaintiff in her personal capacity the
amount of R331 000.00
within 30 calendar days of this order.
2.
In the event that the Defendant fails to pay the amount referred to
in paragraph
1, within 30 days of the order, the Defendant shall be
liable to pay interest thereon at the prescribed rate of interest.
3.
The Defendant shall pay the Plaintiff in her representative capacity
for and
on behalf of
A[...]
(“the minor child”)
the amount of R24 045 233.00. The aforesaid amount is made up as
follows:
3.1 R2 000 000.00
for general damages;
3.2 R2 718 043.00
for future loss of earnings capacity;
3.3 R17 649 616.00
in respect of future hospital, medical and related expenses; and
3.4 R1 677 574.00 in
respect of the costs of the administration of the trust.
4.
It is recorded that the Plaintiff was granted and awarded an
interim
payment in terms of Rule 34A of R5 000 000.00 in terms of
the Court Order dated 4 June 2021 attached hereto as
“A”.
5.
The amount of R24 045 233.00 as set out in paragraph 3
above is
accordingly reduced to the amount R19 045 233.00.
6.
The Defendant shall accordingly pay to the Plaintiff in her
representative capacity for and on behalf of the minor child the
amount of R19 045 233.00.
7.
In the event that the Defendant fails to pay the amount referred
to
in paragraph 6, within 30 days of the order, the Defendant shall be
liable to pay interest thereon at the prescribed rate of
interest.
8.
The Defendant shall pay Plaintiff’s costs of suit (on
the High
Court scale) to date hereof, such costs to include:
8.1 the costs of counsel;
8.2 the costs attendant
upon the obtaining of payment of the full sums including any interest
referred to in paragraphs 1 and 6
above and including the costs
associated with the creation of the trust referred to herein; and
8.3 the costs incurred in
obtaining the medico-legal reports including supplementary reports,
addendums, actuarial reports and joint
minutes, as well as, where
necessary, the qualifying, attendance, reservation and preparation
fees of:
Rosslyn Rich (mobility
expert)
Mandy Read (Dietician)
Bianca Grey (Occupational
Therapy)
Grace Hughes
(Physiotherapy)
Nkanyiso Masondo
(Architect)
Dr Lofstedt (Dentist)
Dr Robert Campbell
(General Physician)
Rochelle Thanjan (Speech
Therapist)
Sue Anderson (Nursing)
G Shapiro (Industrial
psychologist)
Ian Meyer (Clinical
Psychologist)
Ivan Kramer (Actuary)
Robert Koch (Actuary)
Manala Actuaries
(Actuary)
9.
The Defendant shall pay interest on the aforesaid costs at the
current prescribed legal rate of interest from date of
allocatur
or agreement to date of payment thereof.
10.
The amounts referred to in paragraph 1, and any
interest referred to in paragraph 2; paragraph 6, and any interest
referred to in
paragraph 7, and all costs referred to in paragraph 8
shall be paid to the Plaintiff’s attorney Trust Account whose
account
details are as follows:
Enzo Meyers Attorneys
Trust Account
Bank: Absa (Frere
Square)
Account No: 4[...]
Code: 6[...]
11.
The net balance remaining, after paying the costs set out in
paragraph 8 above,
and recovering all costs and expenses for which
the Plaintiff is liable, including her legal representatives' fees as
between attorney
and own client, shall be dealt with on the basis
that the Plaintiff’s attorneys shall transfer the said net
balance thereof
to the "
A[...] M[...] TRUST
" the
registration of which has been ordered by the Court in terms of the
Court Order dated 4 June 2021, as supplemented on
23 June 2021,
which earlier order is attached hereto as “A”.
12.
In the meantime, the aforesaid award shall be paid to the Plaintiff’s
attorneys to be invested in an interest-bearing account in terms of
section 86
(4) of the
Legal Practice Act, No. 28 of 2014
, and to make
payment of any reasonable expenses or disbursements for the benefit
of the minor child as a trustee would have been
able to do pursuant
to the objects of the envisaged Trust, and in due course to account
fully to the trustee appointed, of all
costs, fees, expenditure
and/or disbursements paid from the award once the Trust has been
registered and the balance of the award
is paid over.
13.
Paragraph 3 of the earlier order (Annexure “A”) is
amended by the
deletion of the trust account particulars of the
Plaintiff’s erstwhile attorneys and substituted by the account
details of
Enzo Meyers Attorneys as reflected in paragraph 10 above.”
[2]
The matter had taken a fortuitous turn towards the end of the hearing
that had resulted in an acceptance of what was fair in respect of all
heads of damages that remained to be determined, bar the issue
of
general damages.
[3]
Several important concessions were made during the trial that
conduced
to this state of affairs.
[4]
When the
parties ultimately argued before me, I was also presented with a
draft order that was a culmination of their joint effort
at resolving
the
minutiae
of the order’s terms. Mr. Dukada who appeared for the
defendant unfortunately (as is often the case in these matters)
held
no instructions to agree to any heads of damages but fairly made
concessions where these were necessary.
[1]
[5]
When the
trial initially commenced before me the defendant applied for a
postponement which I refused. The application had
been launched
in the week prior to the trial date on an urgent basis but the duty
judge stood the matter down to be dealt with
by the trial court.
The gist of the application was that because the defendant had raised
the public health care defence
in a “test case” pending
before this court, that it was appropriate for that matter to first
be determined as the anticipated
judgment would, as I understood Mr.
Dukada’s argument, have a considerable influence on the way the
department’s defence
in medical negligence actions is to be
conducted going forward.
[2]
[6]
I was however not persuaded that the judgment was “just around
the
corner” as was suggested to me by Mr. Dukada (indeed that
action has yet to be finalised), or that that finding could bind
any
other court pertaining to the public health care defence, since each
case obviously stands on its own merits. Moreover
the defendant
had simply failed to make out a case for a postponement and could not
persuade me that the trial prejudice to the
plaintiff would be
ameliorated by any costs order I might make.
[7]
The trial commenced the following morning with the focus on the
plaintiff’s
outlay of the child’s future medical costs
and the obvious impact to his life by his unfortunate impairment.
[8]
Several experts testified including Dr. Robert Campbell, a physical
rehabilitation
specialist, who assessed the child’s gross motor
function on level two. He expounded upon the impact to the
child of
his impairment, made suggestions regarding how these should
be remediated and reflected upon the costs that will necessarily be
incurred in pursuit of his treatment and modalities in a private care
institution. Dr. Campbell opined that the care recommended
and
required that the child would benefit from was not and has
historically not been available in the public health domain.
[9]
The plaintiff called Heather Hughes, a physiotherapist also working
in
the area of rehabilitation who honed in on the particular
modifications required for the child to enable him to manage in his
environment
from a gross motor perspective and the costs to
facilitate his needs and provide the necessary modalities
accordingly.
[10]
Susan Anderson, a professional nurse, similarly weighed in on the
cost to manage the child’s
case.
[11]
Mandy Reed testified regarding the dietary aspects of the child’s
care and the reasonable
costs to be incurred in this respect.
Rosalind Rich brought her expertise on the child’s needs and
costs from the point
of view of a mobility consultant; Ms. Bianca
Grey from the perspective of an occupational therapist; and Mr.
Vincent Masondo from
that of an architect.
[12]
Several further reports concerning the child and his medical
requirements were handed in
by consent. The plaintiff herself
testified as did Mr. Ian Meyer, psychologist, who traversed the
emotional and psychological
impact to her by the fact that her child
was born with cerebral palsy and the disruption to her life as a
result.
[13]
Actuarial reports were also entered into evidence by consent.
[14]
The testimony adduced on behalf of the plaintiff largely went
unchallenged and the defendant
herself led absolutely no evidence to
counter the careful exposition by her of what was relevant to
establish the quantum or to
underpin her public health care defence.
[15]
When it came to closing arguments Mr. McKelvey applied for an
amendment to the plaintiff’s
particulars of claim to bring them
in line with the testimony that had been adduced in the plaintiff’s
favour. This
was met with an unreasonable objection on behalf
of the defendant which I dismissed. However, because the
parties’
differences went to the fundamental issue of the
child’s life expectancy, I accepted Mr. Dukada’s argument
that the
defendant stood to be prejudiced unless I granted her a
brief postponement to allow her expert (Dr. André Botha) to
consult
with the child on the issue of his life expectancy and thus
to respond to the amendment which I had allowed.
[16]
When the matter came before me again the parties had reached
agreement regarding a much
reduced life expectancy of 55.5 years and
there was a fresh engagement between them concerning the plaintiff’s
adjusted claims
in recognition of this important concession.
[17]
In particular the actuarial calculations were refreshed and formed
the basis for the accepted
life expectancy of the child.
[18]
Counsel resolved where it was necessary to draw stark lines of
difference, which was basically
only in respect of the issue of what
quantum ought to be awarded for general damages. For the rest,
as they were obliged
to, both, where necessary, properly made
concessions as to what was fair.
[19]
Mr. McKelvey had suggested that an award of R2 000 000.00
in respect of general
damages was apposite. Mr. Dukada argued
conversely that an award of R1 800 000.00 should be made.
I opted
for the former amount as representing the most reasonable
estimate of these damages in the plaintiff’s representative
capacity.
[20]
The defendant’s attorney, presumably because a presence was not
maintained on the
Zoom hearing platform, requested reasons for my
order.
[21]
I do not intend to provide reasons concerning the issues the parties
agreed upon or which
were conceded by counsel before me. Indeed
this would amount to an unnecessary drain on my resources that are
already under
considerable pressure.
[22]
The state attorney is expected in terms of the provisions of
section
2
(2) (b) of the
State Liability Act No. 20 of 1957
to both request
written instructions from the head of department and to provide
further legal advice to him/her on the merits of
the action where
proceedings to recover these have been instituted, in other words,
early on in the litigation. (One would
have expected,
therefore, that the defendant’s legal representative in this
instance would have been thoroughly steeped in
the matter, engaged in
trial, and able to promote and facilitate a settlement because this
eventuality must have been specifically
anticipated.)
[23]
In addition parties involved in litigation, especially the state
attorney by virtue of
the above provisions and in terms of
established court and case management practices, are obliged to
endeavour as far as possible
to resolve issues (or aspects of their
cases) that are amenable to resolution without trial and/or narrow
the issues as far as
can be done or to curtail the need for oral
evidence to be adduced, all in the name of efficient, costs effective
litigation, and
the exclusion of the court’s resources that can
be put to better use.
[24]
Rule 36
(9A) also obliges the parties to explore common ground
between experts as much as possible.
[25]
It therefore strikes me as odd, where counsel at least were
ad
idem
regarding practically all aspects bar a narrow difference of
opinion in respect of the quantum for general damages, that the
defendant’s
legal representative should have asked for reasons
for my order.
[26]
I mention coincidentally that it was also evidently quite
embarrassing for Mr. Dukada to
have come to court with no
instructions from the defendant concerning what damages in her view
ought reasonably to have been awarded
to the plaintiff. Her
attorney should at the very least have involved himself in the trial
and kept his finger on the pulse
of what was going on.
[27]
Be that as it may I will account below for my decision regarding the
extent of the award
of general damages, nothing else having been
contentious between the parties.
[28]
I stress further that the order which I granted was premised on no
oral evidence having
been adduced by the defendant at all at the
trial and no real challenge having been directed at any of the
evidence adduced by
the plaintiff.
[29]
The essential facts underlying the award of general damages were the
following:
29.1
The child (7 years at the time of trial) irreversibly suffers from
spastic and dystonic cerebral palsy.
This spacity entails
awkward abnormal movements of his whole body but is worse on his left
side, especially in his left arm and
right leg.
29.2 He
is mentally and physically compromised and permanently disabled.
29.3 He
cannot play like other able-bodied children, although he can walk
independently, albeit clumsily.
He frequently falls though when
mobilising on his own due to neurological impairment.
29.4
His inability to communicate leaves him highly vulnerable and unable
to cope in an ordinary community environment,
such as for, example, a
mainstream school, which restricts his ability to participate in
ordinary day-to-day life.
29.5
His differences make it hard to communicate and commune with people,
though he enjoys engaging with other
children, which leaves him
bereft of the ordinary pleasures of life and community.
29.6 He
has poor dentition.
29.7 He
has suffered a profound loss of amenities of life.
29.8
According to the evidence, he has some appreciation for his
condition. He gets frustrated for example
when he cannot use
his left hand.
29.9
His life expectancy has been curtailed. He is expected to live
only to the age of approximately 55.5
years.
29.10 He is totally
dependent on others for his daily living and must be supervised at
all times.
29.11 He is
unemployable.
29.12 At the age of
30 his condition is likely to deteriorate.
[30]
As was
submitted by Mr. McKelvey who appeared for the plaintiff, this matter
involved substantial levels of pain, suffering and
disablement, with
a devastating loss of the amenities of life for the child. He
relied on the judgments of
NK
obo ZK v MEC for Health, Gauteng
[3]
,
C S (obo
TGS) v MEC for Health, Gauteng
[4]
,
Mngomeni
v MEC for Health : Eastern Cape
[5]
and M
SM
obo KBM v MEC : Health Gauteng
[6]
in support of his contention that an award R2 million for general
damages was justified in all the circumstances.
[31]
It is trite that an award of general damages must bear a direct
relationship to the personal
suffering of the child and is intended
for his/her personal benefit.
[32]
Willis JA
in
NK
obo ZK v MEC for Health, Gauteng
[7]
stated the following regarding the approach to be adopted in the
determination of general damages in actions such as these:
“
[
9]
As was said by Nicholas JA in
Southern
Insurance Association Ltd v Bailey NO
,
[8]
this court has not adopted a ‘functional’ determination
as to how general damages should be awarded. It has consistently
preferred a flexible approach, determined by the broadest general
considerations, depending on what is fair in all the circumstances
of
the case. We do not have to determine what the award will be used for
– its purpose or function. What we must consider
is the child’s
loss of amenities of life and his pain and suffering.
[33]
In
AD
and Another v MEC for Health and Social Development, Western Cape
Provincial Government
[9]
Rogers J, at paragraph [618], stated the following regarding the
determination of general damages:
“
Money cannot
compensate IDT [the disabled child] for everything he has lost. It
does, however, have the power to enable those caring
for him to try
things which may alleviate his pain and suffering and to provide him
with some pleasures in substitution for those
which are now closed to
him. These might include certain of the treatments which I have not
felt able to allow as quantifiable
future medical costs …”
[34]
Mr.
McKelvey by way of comparison and to guide this court referred to the
awards made in
Singh
v Ebrahim
,
[10]
C S obo
TGS v MEC for Health Gauteng
,
[11]
PM obo
TM v MEC for Health, Gauteng Provincial Government,
[12]
Mngomeni
obo Zangwe v MEC for Health, Eastern Cape Division
,
[13]
Megalane
NO v RAF
,
[14]
Matlakala
NO v MEC for Health, Gauteng Provincial Government
,
[15]
NK
obo ZK v MEC for Health, Gauteng
,
[16]
MP obo
SP v MEC for Health, Eastern Cape Province
.
[17]
All of these precedents are readily available in the Quantum
Yearbook, if not on SAFLII.
[35]
In all
these matters the awards, translated to present day values, equate to
approximately R2 million for general damages and involve
more or less
the same general suffering of a cerebral palsy patient.
[18]
[36]
Mr. Dukada
submitted that an award of R1.8 million was more than adequate for
general damages. He contended that the cases
relied on by Mr.
McKelvey appeared to be “of more severity” compared to
the case of the child. Whilst I am in agreement
the cases raised by
him do present more severe scenarios, the awards in those cases
however have current day values of closer to
R2.5 million.
[19]
[37]
Most of the awards relied upon by Mr. McKelvey in this current year
exceed R2 million,
which I believed to be an imminently fair award
for general damages and in consonance with awards in more or less
similar cases.
[38]
In the result I issued the order which I did.
B
HARTLE
JUDGE
OF THE HIGH COURT
DATE
OF HEARING:
8
August 2022
DATE
OF ORDER:
10
August 2022
DATE
OF REQUEST
FOR
REASONS:
17
August 2022
DATE OF REASONS:
2 December 2022
Appearances
:
For
the Plaintiff : Mr. C McKelvey instructed by Enzo Meyers Attorneys,
East London (ref. Mr. Meyers).
For
the Defendant : Mr. P Dukada instructed by The State, East London
(ref. Mr. Mgujulwa).
[1]
See
the comments of my colleague Brooks J in
BM
v MEC for the Department of Health
,
EC
[2020] JOL 48528
(ECM) regarding the obligation on the health
department to responsibly and honourably litigate with public funds
(at para [25]).
The court criticised the defendant and her
department for their lack of engagement in trials of this nature
which leads to a
frustration of the court processes one way or
another (at para [26]); their refusal to accept the guidance of
their own experts
and legal team (para [29]); the “glaringly
obvious failure on the part of the defendant to address the
procedures associated
with the assessment of an appropriate quantum
award”(at para [29]); the lack of knowledge by them of the
conduct of litigation
(at para [39]); and the lack of any mandate to
settle (at para [44]). These concerns certainly came to the
fore in the
hearing before me.
[2]
The
matter concerned is
Thandiswa
Nohila v MEC for Health, Eastern Cape
(Bhisho High Court case number 36/2017) which action is presently
pending before my colleague Griffiths J.
[3]
2018
(4) SA 454 (SCA).
[4]
Case
No. 27452/2009 [2015] ZAGPPHC (12 August 2015).
[5]
Case No.
1972/2014
ECLD (Mthatha) (20 June 2017).
[6]
2020
(2) SA 567 (GJ).
[7]
S
upra
.
[8]
Southern
Insurance Association Ltd v Bailey NO
1984
(1) SA 98
(A)
at
119D-H.
[9]
(
27428/10)
[2016] ZAWCHC 181
(7 September 2016).
[10]
[2010]
ZASCA 145
(26 November 2010).
[11]
(27452/2009)
[2015] ZAGPPHC (12 August 2015).
[12]
(A5093/2014)
[2017] ZAGPJHC 346 (7 March 2017).
[13]
(1972/2014) (20 June 2017) (unreported).
[14]
[2006]
5 QOD A4 – 10 (W).
[15]
[2015]
ZAGPJHC 223.
[16]
(
216/2017)
[2018] ZASCA 13
(15 March 2018).
[17]
(121/2016)
(22 May 2018).
[18]
See
NK
obo ZK supra
at para [13] regarding the court’s observation that the
consonance of awards, and their predictability and reliability
are
intrinsic to the rule of law and that these principles, apart from
other considerations, facilitate the settlement of disputes
as to
quantum. I would suggest that this is especially more so in
the arena of cerebral palsy where experience has grown
pragmatically.
[19]
For
NK
obo ZK supra; C S obo TGS supra
(R2 502 000.00);
PM
obo TM supra
(R2 329 000.00);
Matlakala
NO supra
(R2 085
00.00); and
MSM
obo KBM supra
(R2 304 000.00).