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[2021] ZAGPPHC 208
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N.T.H v MEC for Health, Gauteng Province (57301/15) [2021] ZAGPPHC 208 (8 February 2021)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 57301/15
REPORTABLE:YES/NO
OF
INTEREST TO OTHER JUDGES:YES/NO
REVISED:YES/NO
In
the matter between:
N
T
H[…]
Plaintiff
and
MEC
FOR HEALTH, GAUTENG
PROVINCE
Defendant
JUDGMENT
WANLESS
AJ
Introduction
[1]
On the 27
th
of
March 2014, at Natalspruit Hospital, Gauteng, one N T H[…], an
adult female
(“the Plaintiff”)
gave birth to twins, namely a girl
(“N[...]”)
and a boy
(“N[...]”).
Tragically, N[...] died approximately 6 months later and his twin
sister, N[...], died on the 16
th
of July 2016 (aged [….]). The Plaintiff, acting both in her
personal capacity and in her representative capacity as the
duly
appointed executor of N[...]’s deceased estate, instituted this
action against the MEC FOR HEALTH, GAUTENG PROVINCE
(“the
Defendant”).
[2]
The trial in this matter commenced on the 18
th
of November 2019. At the outset, this court indicated that it would
be necessary to convene a Conference in terms of Rule 37(8)
in order
that,
inter alia
, the
numerous bundles of documents prepared for the hearing be entered as
exhibits; the issues and non-issues be clearly defined
and the
respective cases of both parties be outlined. In this manner, it was
hoped that the trial in this matter would proceed,
in an orderly
manner, to the benefit of all.
[3]
Despite the trial commencing on the 18
th
of November 2019 the aforesaid Rule 37(8) Conference was only held on
the 20
th
of
November 2019. The reason therefor (as is clear from the record) is
that the court accommodated the Plaintiff by allowing the
Plaintiff
to lead the
viva voce
evidence of two of the Plaintiff’s expert witnesses who were
only available to testify during the first three days that the
matter
had been set down for hearing. The minute of that Rule 37(8)
Conference is at pages 54 to 65 of Exhibit F (B). It is not
the
intention of this Court to burden this judgment unnecessarily by
setting out, in detail, the contents of the said minute. Rather,
the
contents thereof will be referred to, where applicable, later in this
judgment.
The
Plaintiff’s case
[4]
The Plaintiff’s case is that the employees of the Defendant
were negligent in failing to diagnose
and treat the progression of
hydrocephalus sustained by N[...] timeously. In addition thereto the
Plaintiff avers that the revised
ventricular-peritoneal shunt (“VP
shunt”), inserted in May 2015, became blocked and was never
revised. The aforegoing
caused N[...]’s death. In respect of
the Plaintiff herself the Plaintiff claims both special and general
damages arising
from the loss of her child. General damages are also
claimed on behalf of N[...].
The
Defendant’s case
[5]
In opposition to the Plaintiff’s claims the Defendant avers
that the cause of N[...]’s injuries
were the injuries she
suffered as a result of prematurity of birth. In particular, the
Defendant avers that the radiological and
physiological findings of
the minor subsequent to the 19
th
of August 2014 (being the date when the first VP shunt was inserted)
can all be attributed to the initial injuries sustained as
a result
of prematurity of birth. Finally, in the event that the Defendant is
found to be liable to compensate the Plaintiff in
respect of damages
in relation to either herself or N[...] the Defendant avers that
there should be an apportionment of those damages
arising from
contributory negligence on behalf of the Plaintiff.
The
Defendant’s Special Plea
[6]
In its Amended Plea dated 13 April 2018 the Defendant raised a
Special Plea that, in light of the fact that N[...]
had passed away
before
litis contestatio,
the claim in respect of her general damages could not be transmitted
to the Plaintiff
(Pages 30 to 32 of Exhibit
A).
At the trial in this matter it was
recorded that this Special Plea had been abandoned by the Defendant
.
In the premises, it was not necessary for this court to consider
same.
The
Plaintiff’s claim on behalf of N[...] in respect of general
damages arising from burns suffered by her whilst in the care
of the
Defendant
[7]
As part of the claim for general damages in respect of N[...]
the Plaintiff averred that she had suffered
extensive burns arising
from negligence on behalf of the Defendant’s employees as a
result of her being placed near, or very
close to, a heater whilst in
the care of the Defendant at hospital
(Sub-paragraph
6.5 of the Plaintiff’s Amended Particulars of Claim at page 100
of Exhibit A).
The Defendant conceded
liability therefor and the quantum of general damages in respect
thereof was settled between the parties.
This Court was requested to
make an order that the Defendant pay to the Plaintiff the sum of R100
000.00 in relation thereto. In
the event that this court awarded
general damages in addition thereto then this court would include the
said sum in the total amount
awarded. If not, a separate award would
be made in respect thereof.
Facts
which were common cause or not seriously in dispute
[8]
From,
inter alia
, the
available hospital records
(Exhibit L)
; minutes of the Rule 37 Conferences held between the parties
(Exhibit F(B))
,
together with the medico-legal reports of various experts
(Exhibits
C; C(A); C(B); D and D(A))
; joint minutes
compiled by certain experts
(Exhibit E
)
and the
viva voce
evidence of the witnesses who testified at the trial the following
facts were either common cause or not seriously disputed by
the
parties, namely:-
8.1
the Plaintiff’s only antenatal visit was on the 17
th
of February 2014 at the Goba Clinic;
8.2
N[...] and her twin brother were born, prematurely, on the […]
at Natalspruit Hospital, Gauteng;
8.3
prior to the birth of N[...] and her twin brother the Plaintiff was
HIV positive;
8.4
the Plaintiff’s twins (her first pregnancy) were born by normal
vaginal delivery due to a non-pulsating umbilical cord
prolapse which
may be classified as a medical emergency;
8.5
N[...]’s head circumference, at birth, was 28 cm and her weight
was 1.140kg;
8.6
N[...] was resuscitated at birth and the next day (the 28
th
of March 2014) she was diagnosed with respiratory distress;
8.7
she was also diagnosed, on the 28
th
of March 2014, with
grade III Hyaline Membrane Disease;
8.8
on the 29
th
of March 2014, N[...] was transported from
Natalspruit Hospital to the Far East Hospital for the purposes of
ventilation;
8.9
following her treatment at the Far East Hospital she was transported
back to the Natalspruit Hospital on the 3rd of April 2014;
8.10
during her short life N[...] was HIV negative;
8.11
no congenital abnormalities were noted at birth;
8.12
N[...] was discharged from hospital on or about the 3
rd
of
June 2014;
8.13
on the 5
th
of June 2014, N[...] was examined and found to
have “a bulging fontanel”. It appears that at this stage
she was diagnosed
with hydrocephalus;
8.14
N[...]’s ventricles were tapped whilst she was in the neonatal
intensive care unit of Natalspruit Hospital and prior
to the
insertion of a VP shunt. The tapping of ventricles is a therapeutic
measure of treating hydrocephalus where the insertion
of a VP shunt
is not ideal;
8.15
prior to N[...] having a CT scan of the brain she was diagnosed
with:-
8.15.1
Encephalopathy;
8.15.2
Periventricular Leukomalacia;
8.15.3
Grade III intraventricular haemorrhage;
8.15.4
Cystic lesions in the brain;
8.15.5
Extensive white matter injury of prematurity; and
8.15.6
Hydrocephalus;
8.16
on the 19
th
of June 2014 N[...] had a CT scan of the
brain;
8.17
on the 19
th
of August 2014 she underwent the insertion of
a VP shunt;
8.18
on the 10
th
of September 2014 and the 5
th
of
November 2014, N[...] attended at Chris Hani Baragwanath Hospital for
follow-up visits;
8.19
on the 11
th
of February 2015 the Plaintiff complained to
employees of the Defendant that N[...] was now blind;
8.20
N[...] was admitted to Natalspruit Hospital as a result of pneumonia
and mild respiratory distress on the 30
th
of March 2015;
8.21
on the 29
th
of April 2015, a further CT scan of the brain
showed that the VP shunt had become displaced;
8.22
on the 6
th
of May 2015 a revision of the VP shunt took
place at Chris Hani Baragwanath Hospital took place;
8.23
N[...] was once again discharged from the Natalspruit Hospital on the
13
th
of May 2015;
8.24
on the 5
th
of August 2015 and the 7
th
of
October 2015 N[...] attended at Chris Hani Baragwanath Hospital (as
an out-patient) for follow-up visits;
8.25
on the 28
th
of October 2015, N[...] was examined by Dr
Moja (Neurosurgeon). Following his examination of N[...] and the
results of an urgent
CT scan of her brain which suggested a blocked
shunt and extensive hydrocephalus, Dr Moja referred N[...] to the
Chris Hani Baragwanath
Hospital for an urgent shunt revision. This
was never done prior to N[...]’s death;
8.26
on the 5
th
of November 2015; the 12
th
of
November 2015; the 26
th
of November 2015; the 14
th
of January 2016; the 17
th
of March 2016 and the 14
th
of July 2016, N[...] attended at Chris Hani Baragwanath Hospital (as
an out-patient) for further follow-up visits;
8.27
N[...] died on the 16
th
of July 2016.
The
law
[9]
It is trite that, since the Plaintiff’s claim is framed in
delict, it is incumbent upon the Plaintiff to prove,
on a balance of
probabilities, the elements of negligence; causation and wrongfulness
(Oppelt v Department of Health Western Cape
2016 (1) SA 325
(CC) at paragraph 34).
[10]
In the matter of
Oppelt
the
Constitutional Court held that the failure of the employees of the
Department of Health, Western Cape, to transfer an injured
rugby
player sufficiently rapidly to an appropriate treatment facility was
negligent and that this negligence was the cause of
his permanent
paralysis. More particularly, at paragraph 83 of that judgment, the
Constitutional Court held:
“
Reasonable
healthcare practitioners in the position of the Respondent’s
employees, armed with the knowledge that Conradie
was the
Respondent’s specialised unit for spinal cord injuries in the
Western Cape, and the knowledge that patients who had
suffered spinal
cord injuries had to be treated urgently, would have transferred the
Applicant directly to Conradie. This was not
done. The inescapable
inference is that the Applicant was not treated with the reasonable
care and skill required of the Respondent’s
employees at
Wesfleur. The conduct of the Respondent’s employees, coupled
with their slavish adherence to transfer protocols,
was substantially
short of the standard of practice that a member of the public is
entitled to expect from a reasonably proficient
hospital and
reasonably proficient doctors. I am also satisfied that the
negligence of the Respondent’s employees led to
the Applicant’s
permanent paralysis.”
[11]
With regard to negligent omissions (as alleged in the present matter)
the requirement of wrongfulness was held, in the matter
of
Minister
of
Safety
&
Security v Van Duivenboden
2002 (6) SA
431
(SCA) at paragraph 12 (See also Sea Harvest Corporation (Pty) Ltd
v Duncan Dock Cold Storage (Pty) Ltd
2000 (1) SA 827
(SCA) at
paragraph 18)
to be:
“…
.the
negligent omission is unlawful only if it occurs in circumstances
that the law regards as sufficient to give rise to a legal
duty to
avoid negligently causing harm”.
[12]
Also, in the matter of
Oppelt
,
it was held
(at paragraph 51)
that:
“
The
criterion of wrongfulness ultimately depends on a judicial
determination of whether, assuming all the other elements of
delictual
liability are present, it would be reasonable to impose
liability on a defendant for the damages flowing from specific
conduct”.
[13]
Further, the Constitutional Court in
Oppelt’s
matter
, at paragraph 54,
held:
“
There
is no doubt that the legal convictions of the community demand that
hospitals and health care practioners must provide proficient
health
care services to members of the public. These convictions also demand
that those who fail to do so must incur liability.”
[14]
The standard against which a medical practioner is judged is that of
the reasonable medical practioner in the same circumstances
(Oppelt
(supra) at paragraph 71)
.
[15]
A successful delictual claim entails proof of a causal link between
the Defendant’s actions or omissions, on the one
hand, and the
harm suffered on the other hand
(Oppelt
(supra) at paragraph 35)
. This is in accord
with the well-established and accepted “but for” test for
factual causality
(International Shipping Co
(Pty) Ltd v Bentley
1990 (1) SA 680
(AD) at 700F-I; Simon & Co
(Pty) Ltd v Barclays National Bank Ltd
1984 (2) SA 888
(AD) at
915B-H; Minister of Police v Skosana
1977 (1) SA 31
(AD) at 35C-F).
[16]
In the matter of
Chapelkin & Another v Mini (103/2015)
[2016]
ZASCA 105
(14
July 2016), at paragraph 49,
the Supreme
Court of Appeal cited, with approval, an earlier decision of that
court, namely
ZA v Smith
2015 (4) SA 574
(SCA)
,where,
at
paragraph
30
, it was held:-
“
What
[the but-for test] essentially lays down is the enquiry – in
the case of an omission – as to whether, but for the
defendant’s wrongful and negligent failure to take reasonable
steps, the plaintiff’s loss would not have ensued. In
this
regard this court has said on more than one occasion that the
application of the “but-for test” is not based on
mathematics, pure science or philosophy. It is a matter of common
sense, based on the practical way in which the minds of ordinary
people work, against the background of everyday-life experiences. In
applying this common sense, practical test, a plaintiff therefore
has
to establish that it is more likely than not that, but for the
defendant’s wrongful and negligent conduct, his or her
harm
would not have ensued. The plaintiff is not required to establish the
causal link with certainty (see eg Minister of
Safety and
Security v Van Duivenboden (SCA)2002
(6)SA431(SCA);([2002]
3
All SA 741
;
[2002]
ZASCA 79)
para
25; Minister of Finance & others v Gore NO
2007
(1) SA 111
(SCA)
([2007]
1
All SA 309
;
[2006]
ZASCA 98)
para
33. See also Lee v Minister of Correctional Services
2013
(2) SA 144
(CC)
(2013
(2) BCLR 129
;
[2012]
ZACC 30)
para
41.)”
See
also: Mashongwa v Passenger Rail Agency of South Africa
2016 (3) SA
528
(CC) at paragraph 65.
[17]
Legal causation must be proved on a balance of probabilities
(Lee
v Minister for Correctional Services
2013 (2) SA 144
(CC) at
paragraph 39).
[18]
In the matter of
Michael & Another v Linksfield Park Clinic
(Pty) Ltd & Another
[2001] 1 All SA 384
(AD,
in
respect of the evaluation of expert evidence in cases involving
alleged medical negligence, the Appellate Division
(at paragraphs
36 to 39 inclusive)
stated the following:
“
[36]……
what is required in the evaluation of such evidence is to determine
whether and to what extent their opinions
advanced are founded on
logical reasoning. That is the thrust of the decision of the House of
Lords in the medical negligence case
of
Bolitho
v City and Hackney Health Authority
[1997]
UKHL 46
;
[1998]
AC 232
(H.L.(E.)
).
With the relevant
dicta
in
the speech of Lord Browne-Wilkinson we respectfully agree.
Summarised, they are to the following effect.
[37] The court
is not bound to absolve a defendant from liability for allegedly
negligent medical treatment or diagnosis just
because evidence of
expert opinion, albeit genuinely held, is that the treatment or
diagnosis in issue accorded with sound medical
practice. The court
must be satisfied that such opinion has a logical basis, in other
words that the expert has considered comparative
risks and benefits
and has reached “a defensible conclusion” (at 241 G - 242
B).
[38] If a body of professional opinion overlooks an
obvious risk which could have been guarded against it will not be
reasonable,
even if almost universally held (at 242 H).
[39] A
defendant can properly be held liable, despite the support of a body
of professional opinion sanctioning the conduct
in issue, if that
body of opinion is not capable of withstanding logical analysis and
is therefore not reasonable. However, it
will very seldom be right to
conclude that views genuinely held by a competent expert are
unreasonable. The assessment of medical
risks and benefits is a
matter of clinical judgment which the court would not normally be
able to make without expert evidence
and it would be wrong to decide
a case by simple preference where there are conflicting views on
either side, both capable of logical
support. Only where expert
opinion cannot be logically supported at all will it fail to provide
“the benchmark by reference
to which the defendant’s
conduct falls to be assessed” (at 243 A-E).”
See also:
Menday v Protea Assurance Co Ltd
1976 (1) SA 565
(E) at 569
The
Evidence
[19] No less
than ten (10) witnesses, nine (9) experts and one lay witness, gave
viva voce
evidence before this court. This judgment will not
be burdened unnecessarily by setting out, in detail, the evidence of
each of
these witnesses. Rather, their evidence will be referred to
where appropriate. In addition to a number of medico-legal reports
compiled by the aforesaid expert witnesses and other expert witnesses
who did not testify before this court, various joint minutes
were
prepared by certain experts who had been instructed by the parties.
Evidence
on behalf of the Plaintiff
[20]
In support of her case the Plaintiff led the oral testimony of five
(5) witnesses, four (4) experts and one (1) lay witness.
As will be
dealt with later in this judgment the Plaintiff did not testify.
[21]
The experts who testified on behalf of the Plaintiff were Dr Moja
(Neurosurgeon); Dr Maponya (Paediatrician); Dr Mashayamombe
(Psychiatrist) and Mr Mphuthi (Clinical Psychologist). The lay
witness called to give evidence on the Plaintiff’s behalf
was
Miss N[…] (N[...]’s paternal grandmother).
Evidence
on behalf of the Defendant
[22] The
Defendant led the
viva voce
evidence of four (4) experts,
namely Dr Weinstein (Radiologist); Dr Malebane (Obstetrician);
Professor Omar (Neurosurgeon) and
Dr Mathibha (Neonatologist). In
addition thereto, the Defendant called Dr Emeieole (Neurosurgeon) to
testify. This witness testified
in his capacity as an employee of the
Defendant and in light of the fact that he had treated N[...].
Assessment
of the evidence
[23]
In deciding whether any alleged omissions of the Defendant’s
employees wrongfully caused N[...]’s death, it appears
to this
court, in light of the evidence, that three principal issues arise
for this court’s consideration. Firstly, should
the Defendant’s
employees have diagnosed N[...]’s hydrocephalus earlier and
inserted the first VP shunt before they
did? Secondly, did the
employees of the Defendant fail to treat the hydrocephalus properly
by failing to realise that the VP shunt
was blocked and taking steps
to replace same, particularly after the referral of Dr Moja? Thirdly,
even if the said employees had
acted positively by
,
inter alia
, inserting the VP shunt earlier
and replacing the blocked VP shunt, would N[...]’s death have
been avoided?
The
alleged delay in diagnosing and treating N[...]’s hydrocephalus
[24]
The relevant time period in respect of this enquiry is from N[...]’s
birth to the date of the insertion of the VP shunt.
In the premises,
the facts and evidence pertaining to the period […] to 19
August 2014 should be considered.
[25]
It is true that a fairly considerable amount of time was taken up, at
trial, by evidence pertaining to,
inter alia
,
events which took place prior to the birth of the Plaintiff’s
twins and during the Plaintiff’s pregnancy. This related,
inter
alia
, to the gestational age of N[...] at
birth; the effect that this had on the severity of the injuries
sustained by her as a result
of premature birth and whether there was
any contributory negligence on behalf of the Plaintiff.
[26]
In this regard, it is the opinion of this court that events which
took place prior to the birth of N[...] and her twin brother;
the
precise gestational age of N[...] at birth (the Plaintiff having
contended this was 30 weeks whilst the Defendant averred that
it was
28 weeks); whether the Plaintiff should have attended the antenatal
clinic more often than she did and whether the treatment
rendered by
the Defendant’s employees at that clinic was adequate, are all
irrelevant. This is so, since not only is it common
cause in this
matter that the Defendant’s employees were, in no manner
whatsoever, responsible for the premature birth and
the injuries
sustained as a result thereof but, also, the nature of those
injuries, together with the reasonable treatment therefor,
are
largely common cause.
[27]
It is common cause that the birth of N[...] and her twin brother was
anything but straightforward. Not only did it involve
a multiple
birth (in itself an episode fraught with danger) but the birth was
correctly classified as a medical emergency. The
potential dangers
thereof; the fact that the twins were being born extremely premature
(which would have been clearly evident from
the ultrasound carried
out during the Plaintiff’s labour); a lowered Apgar score and
N[...]’s very light birth weight,
would all have been
indicators, to reasonable medical practitioners attending at the
birth, that it was highly probable N[...]
could sustain serious
injury as a direct result thereof. This, in turn, would have alerted
reasonable medical practioners responsible
for the care of N[...]
that she would require specialised medical attention and
intervention. The aforegoing is borne out not only
by certain steps
taken by the Defendant’s employees but, also, by certain
important events which took place following the
premature and
complicated birth of N[...].
[28]
It was common cause that N[...] was resuscitated at birth and
required oxygen. She was admitted to the neonatal intensive care
unit
at the hospital where she had been born. The next day she was
diagnosed with respiratory distress and grade III Hyaline Membrane
Disease. As a result thereof, N[...] was transported to the Far East
Hospital for the purposes of ventilation. She remained on
ventilation
for 4 days before being taken back to Natalspruit Hospital (neonatal
intensive care unit) on the 3
rd
of April 2014. Based on these facts, it would have been clear, at
this early stage, to a reasonable medical practioner, that N[...]
would have been in grave danger of suffering from hydrocephalus
resulting in brain damage and, potentially, death. The situation,
at
that stage, would have alerted a reasonable medical practioner to
take all reasonable steps to reach a sound diagnosis and,
thereafter,
to render proper medical treatment as was reasonably necessary in the
circumstances.
[29]
It became common cause during the trial in this matter, having regard
to,
inter alia
, the
circumstances pertaining to N[...]’s birth, that intracranial
ultrasounds should have been administered, at the very
latest, within
a couple of weeks of her birth. More particularly, it was the
undisputed evidence of Dr Maponya (Paediatrician)
that, as a matter
of routine and proper practice, intracranial ultrasounds are taken
for all infants born at, or earlier than,
32 weeks of gestation. This
is done during the first week of life and followed up in the second
and sixth weeks to diagnose haemorrhagic
lesions in the ventricles of
the brain
(“intraventricular
haemorrhage”);
detect cystic lesions
and predict the long-term outcome of a child born prematurely
.
It was further the undisputed evidence of this expert witness that
these ultrasounds are done so that following the aforesaid diagnosis
the situation can be managed promptly in order to prevent
hydrocephalus which, in turn, will lead to cerebral palsy and all of
the complications associated therewith.
[30]
Significantly, there is nothing in the hospital records
(Exhibit
L)
to indicate that, prior to the CT scan
taken on the 19
th
of June 2014, any intracranial ultrasounds were carried out in
respect of N[...]. Just as importantly the Defendant did not
place any evidence before this court to suggest otherwise. In the
premises, this court holds, on a balance of probabilities, that
the
employees of the Defendant failed to administer intracranial
ultrasounds in respect of N[...] before the 19
th
of June 2014 (nearly 3 months after the birth of N[...]) when a
CT scan was taken of N[...]’s brain.
[31]
It is also important to note that it is common cause in
this matter that, at the same time when N[...] was in the
neonatal
intensive care unit at Natalspruit Hospital, prior to her discharge
from that hospital on the 3
rd
of June 2014 and the CT scan on the 19
th
of June 2014, N[...]’s ventricles were tapped. As noted earlier
in this judgment, it is also common cause that the tapping
of
ventricles is a therapeutic measure of treating hydrocephalus where
the insertion of a VP shunt is not ideal. In simple terms,
tapping is
a substitute for a VP shunt until a shunt is inserted. So, the fact
that tapping took place, is indicative of the fact
that N[...] had
suffered an intraventricular haemorrhage. If this is so, it is
inconceivable as to why no ultrasounds were carried
out before the CT
scan and that the said scan was only carried out on the 19
th
of June 2014. Even more puzzling, is the fact that it was also common
cause between the parties that
prior
to N[...] having a CT scan of the brain she had already been
diagnosed with encephalopathy; periventricular leukomalacia; grade
III intraventricular haemorrhage; cystic lesions in the brain;
extensive white matter injury of prematurity and hydrocephalus.
[32]
It is true (and this is also common cause) that it is not desirable
to insert a VP shunt in respect of a child until the child
weighs at
least 1.5kg. In this regard, it is indicated in the hospital records
(the contents of which were admitted by both parties
to be correct)
that N[...] reached that weight on the 30
th
of May 2014. Accordingly, at that date, had an ultrasound been taken
before then, a shunt may well have been inserted into the
brain of
N[...]. Instead, the VP shunt was only inserted on the 19
th
of August 2014. This is just short of 5 months following the birth of
N[...] and exactly 2 months following the CT scan which clearly
showed hydrocephalus (the reason the shunt was inserted).
[33]
Having regard to the aforegoing, this court holds, on a balance of
probabilities, that the employees of the Defendant were
negligent in
delaying the diagnosis and treatment of N[...]’s hydrocephalus
prior to the insertion of the VP shunt on the
19
th
of August 2014. Reasonable medical practitioners in the position of
the Defendant’s employees, would not only have diagnosed
N[...]’s condition earlier than they did but would also have
ensured that the VP shunt was inserted earlier than the 19
th
of August 2014.
Did
the employees of the Defendant fail to treat the hydrocephalus
properly by failing to realise that the VP shunt was blocked
and
taking steps to replace same, particularly after the referral of Dr
Moja?
[34]
Once again the answer to the above is to be found in the facts which
were either common cause at the commencement of the trial
or became
so during the trial in light of,
inter alia
,
the testimony of the various expert witnesses. The relevant time
period in respect of this enquiry is from when the VP shunt was
first
inserted (19 August 2014) to the date of N[...]’s death (16
July 2016).
[35]
Following the insertion of the shunt on 19 August 2014 the Plaintiff
took N[...] to the Chris Hani Baragwanath Hospital for
follow-up
visits on the 10
th
of September 2014 and the 5
th
of November 2014. On the 11
th
of February 2015 the Plaintiff complained to employees of the
Defendant that N[...] was blind. It is common cause that whilst the
Defendant cannot be held liable for the blindness suffered by N[...]
(this being as a result of the damage to the brain arising
from,
inter alia
, the
premature birth and the
sequellae
thereof) such is a common feature of hydrocephalus.
[36]
Shortly thereafter, on the 30
th
of March 2015, N[...] was once again admitted into the care of the
Defendant at Natalspruit Hospital, suffering from pneumonia
and
respiratory distress. Upon physical examination, it was recorded that
N[...] now had a bulging fontanelle and spastic limbs.
It is common
cause that a bulging fontanelle is as a result of trapped cerebral
fluid on the brain which causes the fontanelle
to bulge. Moreover, it
is common cause that, apart from this fluid putting pressure on the
brain, a bulging fontanelle is a classic
indicator of hydrocephalus,
since the ventricles of the brain are blocked, thereby causing the
said fluid to remain, rather than
drain away. This, in turn, causes
damage to vital tissue of the brain. It is further common cause that
spastic limbs are a classic
symptom of hydrocephalus giving rise to
cerebral palsy.
[37]
It was also noted, on the 30
th
of March 2015, that N[...]’s head circumference had increased
to 48cm (from the 28cm recorded at birth). This, in accordance
with
the accepted chart used in matters of this nature, was above the 97
th
percentile. The larger the head circumference in relation to the age
and gender of the patient the higher the reading on the chart.
At the
same time, the higher the percentile the greater the extent of the
hydrocephalus (and corresponding danger to the health
of the
patient). It is a well-known and accepted fact that a swollen head is
probably the best indicator of the onset of hydrocephalus.
On the
22
nd
of April 2015
the hospital records reflect that the Plaintiff complained that
N[...]’s head was getting bigger. Upon measuring,
it was found
that her head circumference was now 51 cm (an increase of 3cm since
the 30
th
of March
2015) which, obviously, still fell within the 97
th
percentile.
[38]
As a result of the aforegoing, a CT scan of the brain was performed
on the 29
th
of
April 2015. This showed that the VP shunt had been displaced and was
no longer functioning properly in that it was not draining
fluid from
the brain. This gave rise to the revision of the shunt, at Chris Hani
Baragwanath Hospital, on the 6
th
of May 2015. On the 13
th
of May 2015, N[...] was once again discharged from Natalspruit
Hospital. Despite the aforegoing, when N[...] was seen at a follow-up
appointment on the 5
th
of August 2015 at Chris Baragwanath Hospital it was noted that
N[...]’s head circumference had continued to increase and
was,
at that stage, 56 cm (an increase of a further 5cm in a period of 3
months).
[39]
On the 28
th
of
October 2015 the Plaintiff took N[...] to see Dr Moja (Neurosurgeon).
When Dr Moja examined N[...], her head circumference had
reached 58cm
(a further increase of 2cm in a period of time just short of 3
months). As a result thereof Dr Moja ordered an urgent
CT scan of
N[...]’s brain. The report in respect thereof suggested that
the VP shunt was blocked and that N[...] was now
suffering from
extensive hydrocephalus. In the premises, Dr Moja urgently referred
N[...] to Chris Hani Baragwanath Hospital for
a further shunt
revision. As set out below, this revision was never carried out and
N[...] died, approximately 8 months later,
on the 16
th
of July 2016.
[40]
On the 5
th
of
November 2015, N[...] was taken to Chris Hani Baragwanath Hospital.
Her head circumference was recorded as 57.5cm. Once again,
on the
12
th
of November
2015, N[...] was taken to Chris Hani Baragwanath Hospital. On this
occasion the hospital records reflect that she had
hydrocephalus and
a shunt
in situ
which
was not working. Her head circumference was recorded to be 58cm.
N[...]’s next visit to Chris Hani Baragwanath Hospital
took
place on the 26
th
of November 2015. Her head circumference was recorded to be 58cm.
Significantly, the hospital records reflect that there were no
beds
available in the hospital and that the Plaintiff should return with
N[...] in January 2016.
[41]
In accordance therewith the Plaintiff once again visited the Chris
Hani Baragwanath Hospital with N[...] on the 14
th
of January 2016. At this visit N[...]’s head circumference was
measured at 54cm. The next visit to Chris Hani Baragwanath
Hospital
was on the 17
th
of
March 2016. N[...]’s head circumference was measured at 58cm.
The hospital records reflect that N[...] had hydrocephalus;
a shunt
had been inserted during August 2014; N[...]’s head
circumference had not increased during the past 4 months, remaining
at 58cm and that there was no need to carry out a shunt revision. The
Plaintiff was advised to return to Chris Hani Baragwanath
Hospital on
the 23
rd
of June
2016 (in 3 months) for a further follow-up visit. The final recorded
visit by N[...] to Chris Hani Baragwanath Hospital
was the 14
th
of July 2016 where her head circumference was recorded to have
increased by a further 1cm, namely, 59cm. The Plaintiff was advised
to return to Chris Hani Baragwanath Hospital with N[...] (in 5
months) on the 29
th
of December 2016. Tragically, this was an appointment N[...] would be
unable to keep. She died 2 days later on the 16
th
of July 2016.
[42]
As noted earlier in this judgment the fact that N[...] became blind
was not as a result of any negligence on behalf of the
Defendant’s
employees. Nevertheless, the fact that (as agreed in the joint minute
of Dr Letsoalo and Professor Makunyane,
Ophthalmologists) her
blindness was secondary to severe hydrocephalus, should have alerted
those employees to the fact that, despite
the insertion of the VP
shunt some 6 months earlier (because of hydrocephalus) there could
well be a problem with the shunt which
should be investigated by
,
inter alia
, a CT scan. This was only done
some 2 months later when it was discovered that the shunt had become
displaced, giving rise to a
revision thereof.
[43]
From the 19th of August 2014 to the 16
th
of July 2016, not only did N[...], upon physical examination by the
Defendant’s employees, exhibit various classic symptoms
of
hydrocephalus but these symptoms became progressively worse,
indicating the onset of severe hydrocephalus. The nature of the
symptoms have been dealt with in detail above. It should have been
abundantly clear that the VP shunt was blocked (or at the very
least,
not functioning properly) from,
inter alia,
the increasing circumference of N[...]’s head. Coupled to this
was the fact that the shunt had previously become displaced
necessitating a revision thereof. Any doubt that a further revision
was urgently required would have been dispelled by the urgent
referral of N[...] to Chris Hani Baragwanath Hospital by Dr Moja
shortly after the 28
th
of October 2015 and the radiological report which suggested that the
shunt was blocked. On behalf of the Defendant, it was suggested,
by
both Dr Weinstein and Professor Omar, that the Defendant did not have
the capacity (sufficient beds or Neurosurgeons) to attend
to the
blocked shunt. However, it was correctly conceded, by both of these
witnesses, that the procedure could have been carried
out if it was
classified as an emergency. As dealt with above the blocked shunt was
never replaced, despite numerous visits by
N[...] to Chris Hani
Baragwanath Hospital during the period following the referral by Dr
Moja until her death (a period of some
eight and a half months).
[44]
In light of the aforegoing, this court holds that the Defendant’s
employees failed to properly treat the hydrocephalus
by failing to
realise that the VP shunt was blocked and taking steps to replace
same, particularly after the referral of Dr Moja.
Even
if the Defendant’s employees had acted positively by,
inter
alia
, inserting the VP shunt
earlier and replacing the blocked VP shunt, would N[...]’s
death have been avoided?
[45]
It became clear during the trial in this matter that part of the
Defendant’s defence to the Plaintiff’s claims
that N[...]
died as a result of the Defendant’s employees negligence (in
addition to the defence that her death was caused
by her premature
birth), was that the insertion of the VP shunt was for palliative and
not therapeutic reasons. In other words
the VP shunt had been
inserted solely to prevent the swelling of her head from increasing
thereby not only making N[...] more comfortable
but also making it
easier for the Plaintiff to take care of her daughter. It was
therefore the Defendant’s case that a functioning
VP shunt
would not have prevented the death of N[...].
[46]
The principal protagonist of this theory was Dr Weinstein
(Radiologist). At the time of trial this witness was a long-time
employee of the Defendant (for more than 20 years). During the course
of his lengthy testimony before this court he continually
evaded
questions, was argumentative and speculative. Whilst being forced to
concede that the ultimate decision in respect of the
treatment of
N[...] fell outside his field of expertise (radiology) and within the
expertise of other suitably qualified experts
(with particular
reference to the Paediatrician (Dr Maponya) and the Neurosurgeon (Dr
Moja) who testified on behalf of the Plaintiff),
he continually
expressed opinions which fell within the fields of those expert
witnesses. Importantly, he attempted to draw inferences
from the
available medical records which would support the defence of the
Defendant, absolving the Defendant’s employees
from any
negligence. These inferences were not, on a balance of probabilities,
the only inferences that could be drawn therefrom
(or from the facts
which were common cause between the parties in this matter).
Importantly, this witness was not involved in the
treatment of N[...]
and had no personal knowledge thereof. It follows therefrom that this
court did not find Dr Weinstein to be
a reliable witness upon whom
this court could rely. In any event, the evidence of this witness
ultimately took the matter (and
in particular the defence proffered
by the Defendant) no further.
[47]
Professor Omar (Neurosurgeon), like Dr Weinstein, was, at the time of
trial, employed by the Defendant. More particularly,
he was head of
Neurosurgery in Gauteng. As was the case with Dr Weinstein, this
witness had not treated N[...]. His testimony dealt
mainly with the
treatment of hydrocephalus in general. Moreover, it appeared to this
court that the principal reason why he was
called to give
viva
voce
evidence before this court on behalf of
the Defendant was in respect of the alleged lack of facilities in
Gauteng hospitals under
the control of the Defendant. In the
premises, notwithstanding the considerable expertise and experience
of this witness, his testimony
before this court offered little or no
assistance to the court in deciding the present matter. Importantly,
his evidence failed
to support the defence of the Defendant that the
Defendant’s employees were devoid of any negligence when it
came to the
proper treatment of N[...].
[48]
In stark contrast to Dr Weinstein and Professor Omar, Dr Moja
(Neurosurgeon) was not only an independent witness (it being
confirmed by Defendant’s Counsel that he was not acting on a
contingency basis) but he had also physically examined N[...]
and (on
the basis of a CT scan to the brain), recommended to the Defendant’s
employees that they carry out an urgent revision
of the VP shunt
which appeared to be blocked. The really important evidence which
this expert witness provided to this court was
in relation to the
therapeutic intervention of a fully functional VP shunt and the
prognosis of N[...] had she had the benefit
thereof.
[49]
Dr Moja found that N[...]’s breathing difficulties and
hypoxia (well documented and dealt with earlier in this
judgment)
would have led to secondary hypoxic-ischaemic brain injury and
periventricular germinal matrix brain haemorrhages. It
would
therefore be reasonable to conclude that N[...] would have sustained
some degree of neurological impairment as a result of
her
hypoxic-ischaemic brain injury and intraparenchymal haemorrhages
(germinal matrix haemorrhage). In his expert opinion the severity
of
N[...]’s hypoxic-ischaemic could be classified as mild to
moderate. This classification was due,
inter alia
, to the
following, namely:-
(a)
a moderate encephalopathy is characterised by lethargy, decreased
spontaneous motor activity, hypotonia, irregular breathing
and
seizures;
(b)
a severe encephalopathy is characterised by a stupor/coma; no
spontaneous limb movements; flaccid tone; apnoeic episodes and
seizures;
(c)
the hospital records on the 7
th
of April 2014 (11 days post-delivery) reflect that N[...] was “
alert”
and “
moving all 4 limbs”.
There is no record of seizures; coma; lethargy or limb weakness to
suggest a moderate to severe encephalopathy.
[50]
It was therefore the opinion of this expert witness that as at the
7
th
of April 2014,
N[...] had a reasonably fair neurological prognosis from the mild to
moderate hypoxic-ischaemic encephalopathy.
Pertaining to the
relevance of a germinal matrix haemorrhage and hydrocephalus, it was
Dr Moja’s further testimony that N[...]
developed a grade III
to IV germinal matric haemorrhage, intraventricular haemorrhage and
hydrocephalus. The significance of the
said grading, according to
this expert witness, was that with a Grade III, there is a 80% chance
of survival and a 55% risk of
progressive ventricular distension in
survivors. With a grade IV, there is a 50% chance of survival and a
80% risk of progressive
ventricular distension in survivors.
[51]
In the premises, even on a worst case scenario (grade IV), N[...] had
a 50% chance of survival. According to Dr Moja she fell
within the
50% survival group. Obviously, her chances of survival would increase
to 80% as one moved to a grade III classification
(as dealt with
above). However, as testified to by Dr Moja, her continued chances of
survival would be on the condition that the
high risk of progressive
hydrocephalus (ranging from 55% to 80%) is recognised and adequately
treated. The hydrocephalus must be
diagnosed early and treated
appropriately to prevent progressive neurological deterioration from
the progressive ventricular enlargement.
Therefore, a delay in the
diagnosis and treatment of the associated hydrocephalus would lead to
a progressive neurological decline
and, ultimately, death.
[52]
The evidence of Dr Moja was not seriously challenged by any of the
expert witnesses who testified before this court on behalf
of the
Defendant. In this regard, apart from the testimony of Dr Weinstein
and Professor Omar, dealt with earlier in this judgment,
the
Defendant relied on the evidence of Dr Malebane (Obstetrician); Dr
Mathibha (Neonatologist) and Dr Emeieole (Neurosurgeon).
In light of
the facts which were common cause or not seriously in dispute in this
matter, the evidence of Dr Malebane and Dr Mathibha
do not really
take the matter much further. As already dealt with in this judgment,
facts pertaining both to what took place during
the Plaintiff’s
pregnancy and/or at the time of delivery are largely irrelevant.
Likewise, the precise gestational age of
N[...] at birth and whether
this was 28 or 30 weeks, cannot (once again in light of the proven
facts) support the Defendant’s
contention that the death of
N[...] can be explained by the effects of her premature birth.
Regarding the testimony of Dr Emeieole,
it is true that this witness
was the Neurosurgeon who examined N[...] on two occasions as an
out-patient at Chris Hani Baragwanath
Hospital. However, it was clear
from the nature of his testimony before this court that
(unsurprisingly) he had no independent
recollection of the said
examinations having taken place and his findings in respect thereof.
His evidence was confined to notes
he had made in the hospital
records; those made by the nursing staff during those examinations
and other recordals in the hospital
records made by employees of the
Defendant. As such, his evidence only served to confirm those facts
which were common cause. Ultimately,
the evidence of these three
witnesses not only failed to add to those facts which were common
cause and could be accepted by this
court but failed, in any manner
whatsoever, to disturb the balance of probabilities based on those
facts.
[53]
This court has no hesitation, whatsoever, in accepting the expert
evidence of Dr Moja. In this regard, not only was his evidence
based
squarely on the proven facts but it was rendered in a forthright and
logical manner. Further, there were no contradictions
therein, either
during his testimony or when he was cross-examined. Dr Moja was an
impressive witness whose testimony remained
largely undisputed. On
the other hand, as dealt with earlier in this judgment, the same
cannot be said in respect of the evidence
of the Defendant’s
remaining expert witnesses, namely Dr Weinstein and Professor Omar.
In the premises, this court rejects
the evidence of these witnesses
insofar as same may possibly be seen to contradict that of Dr Moja or
any other of the Plaintiff’s
expert witnesses.
[54]
Having regard to all of the aforegoing, this court holds that, on a
balance of probabilities, the employees of the Defendant
were
negligent in failing to treat the hydrocephalus properly by failing
to realize that the VP shunt was blocked and taking steps
to replace
same, particularly after the referral of Dr Moja.
Finding
in respect of the merits
[55]
From the aforegoing, it is clear that the employees of the Defendant
were negligent in their diagnosis of N[...]’s true
condition
and by failing to properly render medical treatment to her. These
omissions constituted negligence in that reasonable
medical
practioners, in the position of the Defendant’s employees,
would not only have reached an earlier and proper diagnosis
of that
medical condition but would have taken proper and reasonable steps to
treat that condition. In other words, the Defendant’s
employees
failed to render to N[...] the necessary medical treatment with the
requisite care and skill which other medical practioners,
in the same
position, would have done
(Oppelt (supra) at
paragraph 71
).
[56]
With regard to wrongfulness, it was never contended, on behalf of the
Defendant (correctly so), that if the Plaintiff proved
the elements
of negligence and causation the omissions of the Defendant’s
employees were not wrongful. Clearly, the negligent
omissions by the
Defendant’s employees in the present matter more than satisfy
the accepted guidelines as set out,
inter
alia
, in the decisions of
Minister
of
Safety
&
Security v Van Duivenboden (supra); Sea
Harvest Corporation (Pty) Ltd v Duncan Dock Cold Storage (Pty) Ltd
(supra) and Oppelt (supra).
[57]
The only remaining element for the Plaintiff to prove in order to
succeed in her claim against the Defendant is that of causation.
But
for the negligence of the Defendant’s employees would N[...]
have died when she did? Once again, this court must rely
on the
evidence of Dr Moja. In particular, as dealt with earlier in this
judgment, it was the expert opinion of this witness that
had N[...]’s
medical condition been diagnosed earlier and had she received proper
medical treatment at an earlier stage,
her chances of survival would,
statistically, have been between 50% and 80%. At the same time,
whilst it is clear that N[...]’s
premature birth was the cause
of permanent damage and deficits which would plague N[...] throughout
her life, it cannot be said,
on the proven facts, that same caused
her death. In the premises, this court holds that the Plaintiff has
proved, on a balance
of probabilities that the negligence of the
Defendant’s employees caused N[...]’s death. Having
proved all of the essentials
of a delictual claim the Plaintiff is
entitled to be compensated by the Defendant in respect of her special
and general damages
and in respect of general damages suffered by
N[...].
[58]
On the issue of contributory negligence, as pleaded by the Defendant,
there is no real evidence before this court that the
Plaintiff
contributed, in any manner whatsoever, to the damages sustained by
her either in her personal capacity or on behalf of
N[...]’s
deceased estate. In this regard, the Defendant relies primarily (if
not solely) on the alleged failure of the Plaintiff
to attend
sufficient antenatal visits during her pregnancy and, thereafter,
failing to attend certain pre-arranged appointments
at the
Defendant’s various hospitals. With regard to the former, this
court has already dealt with the fact that what transpired
prior to
N[...]’s birth has little or no bearing on the ultimate
decision to be made in this matter. Arising therefrom, any
failure by
the Plaintiff to attend more antenatal appointments at the clinic
than she did, should not be taken into account when
considering
whether any negligence can be apportioned to the Plaintiff. Regarding
the latter, the Defendant failed to place before
this court any real
evidence that the Plaintiff consistently missed appointments to
consult with the Defendant’s employees
which may have
contributed to N[...] failing to receive the necessary medical
attention. Indeed, the proven and common cause
facts paint a
very different picture of the Plaintiff as a mother. Not only did the
Plaintiff ensure that N[...] kept the majority
of appointments but,
on more than one occasion, took N[...] to see the Defendant’s
employees before the designated date.
In addition thereto, the
Plaintiff was proactive in attempting to seek proper medical care for
her daughter. This is clear from,
inter alia
,
the fact that the Plaintiff complained to the Defendant’s
employees in respect of N[...]’s blindness and, most
importantly,
sought the assistance of Dr Moja in respect of the
deterioration in N[...]’s medical condition. In the premises,
this court
holds that there was no contributory negligence on the
part of the Plaintiff in this matter.
Ad
the quantum of the Plaintiff’s damages
The
Plaintiff’s claim for general and special damages in her
personal capacity
[59]
It was submitted, on behalf of the Defendant, that the Plaintiff had
forfeited her claim in respect of general damages when
she elected
not to testify. In support of this submission the Defendant relied on
the decision of
M v MEC for Health, Eastern
Cape (699/17)
(2018) ZASCA 141
(1 October 2018).
This matter was an appeal to the Supreme Court of Appeal in respect
of a decision of Nhlangulela DJP in the Eastern Cape Division
of the
High Court of South Africa. In the court of first instance that court
was asked only to decide the issue of delictual liability.
Hence,
whilst it is true that the Plaintiff in that matter did not testify,
it cannot assist, in any manner whatsoever, the Defendant’s
argument that when deciding the quantum of damages to be awarded to a
successful Plaintiff, a Plaintiff who elects not to testify
should
forfeit any right to claim damages.
[60]
In respect of the Plaintiff’s election not to testify before
this court, it is fairly trite that, when quantifying
the amount of
damages to be awarded, a court may, where applicable, draw an adverse
inference against a Plaintiff who makes such
an election. In the
present matter, it is common cause that the Plaintiff attended the
proceedings yet declined to testify. Dr
Mashayamombe (Psychiatrist)
testified that, in light of,
inter alia
,
her severe depressive mood disorder, she would be unable to testify
before this court. This was not seriously disputed on behalf
of the
Defendant during cross-examination. In addition thereto, cognisance
should also be had of the evidence of Mr Mphuthi (Clinical
Psychologist) who testified that the Plaintiff was suffering from a
moderate to severe post-traumatic stress disorder (“PTSD”)
marked by depression and diminished psychosocial and
psychophysiological functioning and capacity. Taking all of the
aforegoing
into account, it is the finding of this court that it
would be reasonable to expect the Plaintiff in the present matter not
to
testify and that no adverse inference should be drawn against her
for failing to do so. In any event, any lacunae which may exist
in
the evidence placed before this court in respect of the Plaintiff’s
claim for damages (both in respect of herself in her
personal
capacity and on behalf of N[...]’s estate), was more than
compensated for by both the expert evidence led at trial
(including
the collateral evidence relied upon by those expert witnesses) and
the
viva voce
evidence
of Miss N[…] (N[...]’s paternal grandmother)
General
damages
[61]
Evidence pertaining to what the Plaintiff was forced to endure as a
result of the deterioration of N[...]’s medical condition;
the
onset of hydrocephalus with the devastating sequellae thereof and the
trauma suffered by the Plaintiff in losing a second child,
was placed
before this court by Miss N[…]; Dr Mashayamombe and Mr
Mphuthi. In her Amended Particulars of Claim the Plaintiff,
in her
personal capacity, claimed general damages for emotional shock and
trauma, together with the loss of the enjoyment of the
amenities of
life, as a globular sum, in the amount of R1 500 000.00. At
the conclusion of the trial in this matter and
during the course of
argument, it was submitted, on behalf of the Plaintiff, that an
appropriate award in respect of the Plaintiff’s
general damages
would be the sum of R500 000.00.
[62]
Miss N[…] testified to the drastic changes to the Plaintiff
before and after the death of N[...]. Importantly, she also
testified
to the extremely difficult time that the Plaintiff experienced during
the […] that N[...] was alive. In this regard,
not only did
N[...] constantly require the Plaintiff’s attention but she was
always crying. The aforegoing and the effect
that this had on the
Plaintiff was described by Mr Mphuthi as the “burden of
injury”. Miss N[…] impressed this
court as an honest
witness. She described how, after the death of N[...], the Plaintiff
was distraught; highly emotional and cried
often. At a stage, N[...]
could not eat properly, as a result of which it became necessary for
the Plaintiff to force food down
her daughter’s throat. When
N[...] cried and cried the Plaintiff would cry too. According to this
witness the Plaintiff was
devastated by N[...]’s death. She
could not accept what had happened. The witness further testified
that she encouraged the
Plaintiff to return to school to complete her
studies. However, the Plaintiff dropped out of school and has never
returned thereto.
[63]
In addition to his diagnosis of PTSD (dealt with above), Mr Mphuthi
diagnosed the Plaintiff as suffering from severe depression.
This
diagnosis was confirmed by Dr Mashayamombe when he testified. He also
testified to the fact that, in 2019, the Plaintiff presented
with the
following psychiatric symptoms, namely a marked depressed mood;
marked generalised body tiredness; inability to cope with
domestic
chores; low self-esteem and an inability to be in the presence of
children who were born in the same year as N[...]. It
was true that
the Plaintiff had been diagnosed as HIV positive a month before the
birth of the twins and that the Plaintiff had
suffered the loss of
another child when N[...]’s twin brother died. These were
contributing factors to the Plaintiff’s
condition but,
according to Dr Mashayamombe, the deterioration of N[...]’s
medical condition and her death were the stressors
which had
ultimately given rise to her severe depression and PTSD.
[64]
Plaintiff’s Counsel referred this court to the matter of
Maart
v Minister of
Police
(3049/2011) [2013] ZAECPEHC 19 (9 April 2013)
where a Plaintiff was awarded damages in the sum of R200 000.00
for the emotional shock suffered when her child died as a
result of
being shot in the back of the head by the police. The present day
value of that award is R279 222.00. The court
was also referred
to the matter of
Walters v Minister of Safety
and Security (7397/2001)
[2012]
ZAKZDHC 19 (12 April 2012).
In this matter
the Plaintiff’s husband hanged himself in the police cells. The
Plaintiff was awarded the sum of R185 000.00
in respect of
general damages which has a present day value of R272 519.00.
[65]
It is trite that
whilst the consideration of past awards for similar claims in respect
of general damages will assist a court in
assessing same, it is also
accepted that our courts should not slavishly follow same. This is
true since every case is, in one
way or another, unique and possesses
its own particular set of facts and circumstances. Moreover, it is
trite that when a court
considers the issue of general damages, it
should take into account all the facts and circumstances of that
particular case and
has a wide discretion to award what it considers
to be fair and adequate compensation to the injured party.
[66]
No amount of monetary compensation will ever be enough to alleviate a
parent’s loss of a child, This is so,
particularly where that
child is young, like N[...]. Nevertheless, this court must attempt to
do so. Insofar as the previous awards
referred to by the Plaintiff
above are relevant, it is the opinion of this court that the general
damages suffered by the Plaintiff
should be in excess thereof. Taking
all of the aforegoing factors into account, it is the opinion of this
court that an appropriate
award in respect of the Plaintiff’s
general damagers would be the sum of R400 000.00.
Special
damages
[67]
The Plaintiff’s claim under this head of damages consists of
future medical treatment and medication. Both Mr Mphuthi
and Dr
Mashayamombe made reference thereto in their respective medico-legal
reports (confirmed when they gave
viva voce
evidence before this court). In addition thereto, an actuarial
calculation was carried out by one Loots (Actuary) in order to
quantify this claim. Neither the necessary treatment and medication,
nor the manner in which the said calculation was carried out
(the
report of the Actuary being admitted into the evidence by consent),
were seriously disputed by the Defendant. This court accordingly
accepts that the Plaintiff should be awarded the sum of R136 000,00
as set out in Exhibit Q.
The
Plaintiff’s claim for general damages in her capacity as the
executor of N[...]’s deceased estate
[68]
The sequellae of the injuries sustained by N[...] and how these
manifested themselves visibly, have been dealt with thoroughly
in
this judgment. As stated earlier, Miss N[…] testified that
N[...] cried continually. The only other witness to testify
in
respect of N[...]’s general damages was Mr Mphuthi. In this
regard, he told this court that when he examined N[...] (not
long
before she died) she was in a semi-vegetative state and essentially
non-responsive. In the premises, he was unable to be of
any real
assistance in determining the general damages suffered by her.
However, this witness confirmed that prior to N[...] reaching
this
semi-vegetative state she would have been responsive. As such, she
would have been susceptible to,
inter alia
,
pain and suffering; incapacity and the loss of amenities of life.
Support for this finding may be found in the fact that the Defendant
has agreed to pay R100 000.00 in respect of N[...]’s
general damages when she sustained extensive burns whilst being
cared
for by the Defendant’s employees.
[69]
The degree of impairment suffered by N[...] was severe. This court
was not referred to any previous awards made by our courts
where a
minor child suffered similar sequellae but died prior to the court
having to decide the quantum of general damages. As
dealt with
earlier in this judgment, an amount of R1 000 000.00 was
originally claimed in respect thereof. This was reduced
to the sum of
R700 000.00 in the Plaintiff’s Heads of Argument. Finally,
it was submitted, on behalf of the Plaintiff,
that R500 000.00
would be an appropriate award in respect thereof.
[70]
Having regard to all of the aforegoing, this court holds that the
reasonable amount which should be awarded in respect of N[...]’s
general damages is the sum of R500 000.00. To this must be added
(by consent) an additional sum of R100 000.00 in respect
of
general damages for the extensive burns suffered by N[...] as a
result of the further negligence of the Defendant’s employees.
In the premises, this court awards to the Plaintiff the total sum of
R600 000.00 in respect of N[...]’s general damages.
Costs
[71]
At the completion of the trial in this matter, Plaintiff’s
legal representatives provided this court with a Draft Order
and
sought an order in terms thereof. Included therein is
,
inter alia
, an extensive and detailed order
in relation to costs. For various reasons this court has elected not
to make an order in terms
of the said Draft Order. The order of this
court is set out hereunder.
[72]
In the first instance, there is no reason why the court should
deviate from the general rule that the successful party be entitled
to recover his or her costs. Following thereon the Defendant should
be ordered to pay the Plaintiff’s costs. In determining
those
costs, it was submitted that the Defendant should be ordered to pay
the costs of two Counsel. In this regard, the Plaintiff
elected not
to employ the services of Senior Counsel. Rather, the Plaintiff was
represented throughout the trial by two Junior
Counsel. Having regard
to,
inter alia,
the
complexity of the matter; the amount of evidence placed before the
court at trial and the extensive amount of documents which
made up
the various exhibits in the matter, this court is satisfied that the
Plaintiff was entitled to employ the services of two
Junior Counsel.
Order
[73]
The court makes the following order, namely: -
1.
The Defendant pay to
the Plaintiff, in her personal capacity, the sum of R536 000.00;
2.
The Defendant pay to
the Plaintiff, in her capacity as the executor of N[...]’s
deceased estate, the sum of R600 000.00;
3.
Interest on the amounts
as set out in paragraphs 1 and 2 hereof
a
tempore
more
,
calculated from the date of judgment to date of final payment;
4.
The Defendant pay the
Plaintiff’s costs, such to include the costs of two Counsel and
the costs of Counsels’ consultations
with the experts set out
in paragraph 5 hereof;
5.
The Defendant pay the
costs of the following experts, namely:-
5.1
Dr Segwapa (Plastic
Surgeon)-report and any addendums thereto;
5.2
Joint Minute of Dr
Segwapa and Dr Berkowitz (Plastic Surgeons);
5.3
Dr Moja
(Neurosurgeon)-report and any addendums thereto; reservation costs;
qualifying costs and attendance costs;
5.4
Dr Letsoalo
(Opthamologist)- report and any addendums thereto; Joint Minute of Mr
Mphuthi and Dr Bubb (Clinical Psychologists);
5.5
Joint Minute of Dr
Letsoalo and Dr Makunyane (Opthamologists);
5.6
Mr Mphuthi (Clinical
Psychologist)-report and any addendums thereto; reservation costs;
qualifying costs and attendance costs;
5.7
Dr Masindi (Educational
Psychologist)-report and any addendums thereto;
5.8
Dr Ndzungu
(Occupational Therapist)-report and any addendums thereto;
5.9
Dr Lowane-Mayayise
(Industrial Psychologist)- report and any addendums thereto;
5.10
Potgieter (Actuary)-
report and any addendums thereto;
5.11
Dr Burgin (Obstetrician
& Gynaecologist)- report and any addendums thereto;
5.12
Joint Minute of Dr
Burgin and Dr Malebane (Obstetricians & Gynaecologists) ;
5.13
Dr Jogi (Radiologist)-
report and any addendums thereto;
5.14
Joint Minute of Dr Jogi
and Dr Weinstein (Radiologists);
5.15
Dr Maponya
(Paediatrician)- report and any addendums thereto; reservation costs;
qualifying costs and attendance costs;
5.16
Joint Minute (unsigned)
of Dr Maponya (Paediatrician) and Dr Mathivha (Neonatologist);
5.17
Dr Mashayamombe
(Psychiatrist)- report and any addendums thereto; reservation costs;
qualifying costs and attendance costs;
5.18
Loots (Actuary)- report
and any addendums thereto.
BC
WANLESS
ACTING
JUDGE OF THE GAUTENG DIVISION, PRETORIA
Heard
on
:11 September 2020
For
the Plaintiff:
Advocate DP Mogagabe
dpmogagabe@gmail.com
083 353 5979
Advocate
FJ Kokela
felikokela@gmail.com
(no cellular telephone
number provided)
Instructed
by
: Kokela Attorneys
Mrs L Kokela
kokelaattorneys@gmail.com
072 036 5862
For
the Defendant
: Advocate l Adams
luzelle@rsabar.com
071 221 3411
Instructed
by
: State Attorney (Pretoria)
Mr A Masenamela
mmasenamela@justice.gov,za
076 942
0213
Date
of Judgment
: 8 February 2021