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[2021] ZAGPJHC 807
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Pietersen v MEC for Health, Province of Gauteng (38145/10) [2021] ZAGPJHC 807 (2 August 2021)
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HIGH
COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
Case
No:
38145/10
REPORTABLE:
Electronic reporting only.
OF
INTEREST TO OTHER JUDGES: No.
REVISED:
Yes
In
the matter between:
MARIAM
PIETERSEN
Plaintiff
and
MEC
FOR HEALTH, PROVINCE OF
GAUTENG
Defendant
Case
Summary
: Medical Negligence – Quantum of Damages.
General
damages - negligent administration of the drug Tegretol
caused
Stevens-Johnson syndrome with associated practical complete loss of
sight, reduced hearing in the left ear, impaired senses
of smell and
taste, disfigurement, post-traumatic stress disorder, major
depressive disorder and change in personality.
Loss
of earnings – plaintiff and her husband decided she would no
longer work in order to look after their school going daughter
on a
full-time basis – whether probable scenario is that she would
have remained unemployed for the remainder of her life
despite the
negligent medical treatment.
JUDGMENT
MEYER
J
[1]
This is a delictual claim for damages instituted by the plaintiff,
Mrs Mariam Pietersen,
against the defendant, the Member of the
Executive Committee for the Department of Health, Gauteng, as a
result of the negligent
medical treatment she received from medical
doctors at the Helen Joseph Hospital, Johannesburg. They have been
treating her since
2005 when she experienced her first episode of an
epileptic seizure. She was treated with Epanutin and Epilim from
which she had
an allergic reaction. A medical doctor at Helen Joseph
Hospital negligently prescribed the drug Tegretol to her,
inter
alia
resulting in her developing Stevens-Johnson syndrome, which
was diagnosed on 11 September 2007, with associated blindness that,
in the plaintiff’s case, was caused by an allergic reaction to
the Tegretol drug (the negligent act). Stevens-Johnson is a
rare but
very serious disorder of the skin and mucous membranes. The plaintiff
was 39 years of age at the time of the negligent
act.
[2]
It is common cause that the defendant is vicariously liable for 100%
of the plaintiff’s
proven damages as a result of the negligent
medical treatment she received, liability having been settled on 17
November 2014.
The plaintiff claims damages in the total amount of
R23 million for general damages, loss of earnings and future medical
costs,
assistive devices including a dwelling that will be suitable
to her special needs.
[3]
The parties have agreed on a stated case and the expert reports and
joint minutes
filed to be admitted into evidence without the need to
hear
viva voce
evidence from such expert witnesses with regard
to the issues to be determined in terms of the stated case. They
agreed to call
their industrial psychologists to give
viva voce
evidence on the basis for the calculation of the plaintiff’s
loss or lack of loss of earnings as set out in their respective
medico-legal reports and in their joint minutes. The plaintiff and
her husband testified, and the industrial psychologist, Dr Mohapi
Malaka, gave expert
viva voce
evidence on her behalf. The
defendant called the industrial psychologist, Ms Prudence Ngoavko, to
give
viva voce
evidence on its behalf.
[4]
The parties held round-table discussions on 26 June 2021 and 7 July
2021 regarding
the matter on my directions, after the trial had been
concluded 18 June 2021. On 26 June 2021, the plaintiff made an offer
to the
defendant to settle her claim for R10 488 860. The parties
reached agreement on the plaintiff’s future medical expenses,
assistive devices and adjusted living space to cater for the
plaintiff’s special needs as contained in the joint minutes of
the occupational therapists and the architects’ reports. They
obtained a revised actuarial calculation in accordance with
the joint
minutes and reports and agreed that a total amount of R5 062 100
would be a fair and reasonable amount of compensation
for the
plaintiff’s medical expenses, assistive devices and adjusted
living space.
[5]
The parties also agreed to obtain a new actuarial calculation of the
plaintiff’s
loss of earnings at a reduced retirement age of 60
years. They have also applied contingency deductions of 20% and 30%
to the past
loss and future loss of income, which they agree is a
fair assessment in the circumstances. This brings the total loss of
earnings
to a calculation of R1 926 760. The parties filed
further joint submissions, setting out their further agreements and
authorities on the plaintiff’s claim for general damages,
including those of foreign jurisdictions. They also filed an agreed
draft order, leaving only the total amount of the award blank in
paragraph 1 thereof. The only disputes between the parties that
still
require determination are the amount of general damages to be awarded
to the plaintiff and whether the probable scenario
is that she would
have remained unemployed for the remainder of her life despite the
incident.
[6]
In their stated case the parties rely
inter alia
on the
plaintiff’s updated medico-legal reports from a specialist
physician, Dr Dlakane, a specialist neurologist, Dr Lezanne
Wynand-Ndlovu, and a specialist psychiatrist, Dr ZAE Motala. Dr
Wynand-Ndlovu reports that the plaintiff is suffering from
Stevens-Johnson
syndrome, which resulted
inter alia
in a loss
of vision, hyper pigmented lesions on the face, torso and extremities
on examination. Dr Wynand-Ndlovu is of the opinion
that the plaintiff
is left with lasting physical and neurophysiological manifestations
as a direct result of the Stevens-Johnson
syndrome. The clinical
manifestations which Dr Wynand-Ndlovu has mentioned have impeded the
plaintiff’s ability to be independent.
Dr Wynand-Ndlovu is of
the opinion that the plaintiff would encounter immense difficulty
competing for employment in the open labour
market.
[7]
Dr Motala diagnosed the plaintiff as suffering from post-traumatic
stress disorder
and a major depressive disorder. She also suffered
from Stevens-Johnson syndrome associated with scarring of the skin,
visual impairment,
loss of sensation around the mouth, impaired sense
of taste and marked impairment in functioning. Dr Motala is of the
opinion that
the plaintiff’s condition is chronic and that the
likelihood of recovery is slim.
[8]
Dr Dlakane states that the plaintiff on examination was quite
emotional with a labile
mood. She was considerably overweight with a
weight of 110 kg. Dr Dlakane noted that the most glaring of the
findings was related
to the plaintiff’s eyes. She has no
eyelids with an opacification of the left eye. The right eye had some
kind of a prosthetic
lens from which she could partially see, at that
time. She also had healed scars on her face and chest. Her disease
has adversely
affected her mental health and relationship with her
husband. She feels she is no longer attractive and has become a
burden to
him. She is also being mocked by the children in her
neighbourhood, being called a ‘monster’. She also now
suffers
from depression, which worsens the prognosis for her physical
illnesses creating a vicious circle.
[9]
In their stated case the parties also agree that the joint minutes
and medico-legal
reports compiled by those experts may be accepted
into evidence without calling the authors thereof for purposes of
their stated
case. The ophthalmologists, Dr U Kunzmann and Dr S
Kassen, agree that the plaintiff’s condition of visual
impairment is related
to severe ocular complications resulting from
her Stevens-Johnson syndrome and that the offending medication which
precipitated
the allergic reaction was the oral ingestion of
Tegretol. She underwent a successful keratoprosthetics procedure to
the right eye
in 2016. The procedure provided her with temporary
visual improvement. She developed complications in the right eye in
2019, which
necessitated the evisceration procedure of her right eye.
She currently does not have an eye on the right side. Dr Kunzmann
found
that the plaintiff has light perception in the left eye while
Dr Kassen found that she is legally blind.
[10]
In their joint minutes the parties’ industrial psychologists,
Dr Mohapi Malaka and Ms Prudence
Ngoako, agree that post-incident the
plaintiff cannot participate in the open labour market. They,
however, disagree on her pre-incident
earning capacity. This issue
has subsequently been resolved between the parties. Furthermore, the
plaintiff was unemployed at the
time of the incident and the
industrial psychologists disagree whether the probable scenario is
that she would have remained unemployed
for the remainder of her life
despite the incident.
[11]
General damages:
In
Sandler
v Wholesale Coal Supplies Limited
1941 AD 194
at 199, Watermeyer JA said that-
‘
[I]t
must be recognized that though the law attempts to repair the wrong
done to a sufferer who has received personal injuries in
an accident
by compensating him in money, yet there are no scales by which pain
and suffering can be measured, and there is no
relationship between
pain and money, which makes it possible to express the one in terms
of the other with any approach to certainty.
The amount to be awarded
as compensation can only be determined by the broadest general
considerations and the figure arrived at
must necessarily be
uncertain, depending upon the judge's view of what is fair, in all
the circumstances of the case.’
[12]
I also respectfully agree with the Rogers J in
AD
and IB v MEC for Health and Social Development, Western Cape
Provincial Government
2016
(7A4) QOD 32 (WCC) that-
‘
[m]oney
cannot compensate AD 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. ‘
[13]
It is trite
that
awards
in previous cases can only offer broad and general guidelines in view
of the differences that inevitably arise in each case.
The process of
comparison is not a meticulous examination of awards and should not
interfere upon the court's general discretion
(See, for
example,
Protea
Assurance v Lamb
1971
(1) SA 530
(A) at 535H-536A). In
AA
Onderlinge Assuransie Assosiasie Bpk v Sodoms
1980
(313) QOD 105 (A), Botha AJ said-
‘
.
. . dat dit in die algemeen nie gerade is nie om ‘n aanpassing
vir die verminderde waarde van geld te maak deur die slaafse
navolging van syfers wat in die Verbruikersindeks voorkom nie. Dit
kan die beweegruimte van ‘n verhoorhof by die vasstelling
van
die quantum van algemene skadevergoeding te veel aan bande lê.’
And
in
Erdmann v Santam Insurance Co Ltd
1985 (312) QOD
516 (C) at 525, Fagan J said this:
‘
I
am aware that the facts in the cases quoted differ from those in the
present case. I am aware that, even if the facts were similar,
the
awards in those cases are not to be slavishly followed but are
guidelines only. I am aware of the warnings against rigid application
of the consumer price indices in comparing earlier awards.’
I
n
De
Jongh v Du Pisanie NO
2005
(5) SA 457
(SCA) para 60, after noting that the tendency towards
increased awards in respect of general damages in recent times was
readily
perceptible, the Supreme Court of Appeal reaffirmed
conservatism as one of the multiple factors to be taken into account
in awarding
general damages.
[14]
Humans have five basic senses: touch, sight, hearing, smell
and taste. As a direct result of having developed Stevens-Johnson
syndrome
due to the negligent administration of the drug Tegretol to
the plaintiff, she lost her sight completely, has reduced hearing in
the left ear and impaired senses of smell and taste. These rank as
serious disabilities, especially the plaintiff’s complete
loss
of sight. The plaintiff is greatly disfigured, especially in her
face: she has no right eye; she has sutured eyelids with
inward
eyelashes that cause her irritation; her nostrils have crusty
secretions; she has loss of sensation around the mouth; and
she has
hyper-pigmented lesions in the face, torso and extremities. The long
term
sequelae
of her toxic epidermal necrolysis are yet to
become apparent. She suffers from post-traumatic stress disorder and
major depressive
disorder. She has suicidal ideation. The plaintiff
experiences a change in personality, she feels ugly and useless,
becomes emotional,
is irritable and short tempered. She has become
reclusive, avoids family and former friends. She used to go to church
and sing
in the church choir, which she since the incident no longer
does. She believes she is being stared at because of her appearance.
She was once called a ‘monster’ by a child laughing at
her. When he testified, her husband said this:
‘
Ít
is like I lost my wife. We cannot talk or have conversations and she
would become too emotional.’
The plaintiff’s
pain and suffering, disfigurement, disability and loss of amenities
of life are ongoing. I have itemised the
prejudicial effects which
weigh most with me.
[15]
In respect of blindness counsel referred me to: (a)
Van
der Merwe v Premier of Mpumalanga
2005 (513) QOD 1
(T),
where
Claassen J awarded R700 000 general damages in circumstances
where the premature birth of a baby girl resulted in a condition
known as ‘Retinopathy of Prematurity’, which was not
diagnosed and treated early enough by the personnel of the Rob
Ferreira Hospital in Nelspruit, causing her blindness from birth; and
to (b)
Kloppers
v Rondalia Assurance Corporation of SA Ltd
1972
(213) QOD 289 (W), where Claassen J awarded R25 000 general
damages in circumstances where a boy aged seven at the time
of the
trial suffered total blindness for all practical purposes as a result
of a brain injury sustained in an accident as well
as
inter
alia
a
grave change of personality, 25% chance of epilepsy, severe mental
distress, anxiety and depression. The court took into account
that
the boy’s suffering was likely to last for the next 60 years
because of his age. These cases, of course, differ from
the present
case. The plaintiff
in
casu
enjoyed sight for more than 40 years. But the principle to be
extracted from them, as well as some of the foreign case law to which
counsel referred me, is the significance of the loss of senses,
particularly the loss of smell and taste, and that the loss of
sight
is a serious injury. I do not think any useful purpose could be
served to analyse the other cases to which I have been referred
in
respect of the other conditions from which the plaintiff suffers as a
result of the negligent act. It is, as far as I can see,
practically
impossible to find a case comparable to the present one.
[16]
I realise that
money
cannot compensate the plaintiff for everything she has experienced
and lost. But,
guided
by the past awards and applying the principles to which I have
referred, I am of the view that an amount of R3 000 000
represents
a
fair and reasonable amount to be awarded as compensation for the
plaintiff’s general damages in all the circumstances of
this
case
.
[17]
I now turn to the question whether the probable scenario is that the
plaintiff would have remained
unemployed for the remainder of her
life despite the incident. The plaintiff was born on 16 January 1969
in Kliptown, Johannesburg.
She has a standard 6 (grade 8) level of
education. She started her career in the security industry in 1988,
as a security guard
for Springbok Security. Her duties were to check
parcels at the doors of grocery shops, such as Checkers or OK
Bazaars. In 1989
she worked at Adcock Ingram for a year. Her duties
were to put clips onto drips. The plaintiff and her husband, Mr
Pietersen, lived
together since 1990 and they got married on 9 April
1991. One daughter was born from their marriage during 1991. The
plaintiff
was employed at Witspos Post Office, Mondeor in the
capacity of a mail processor for 6 months during 1997. When their
daughter
was 7 years of age and in grade 1 at school, the plaintiff
and her husband agreed that she would no longer work in order to look
after their daughter, because the area where they then resided in
Cumming Road, Eldorado Park was, in their view, not safe for
their
daughter. The plaintiff’s unchallenged evidence is that when
their daughter was at school, however, she and her brother
were
selling clothes and ice cream. She also did hairdressing from home.
The plaintiff testified that she earned approximately
R5 000.00
per month in doing so. At the time of the incident in 2007, the
plaintiff was still looking after their child on
a full time basis
and not formally employed. Their child thereafter left school with a
standard 9 level of education.
[18]
Dr Malaka is of the opinion that, but for the incident, the plaintiff
would have had the opportunity
to obtain and retain employment. He is
of the view that, although the plaintiff was not formally employed at
the time of the incident,
she had the potential and prospects of
returning to formal employment; she was not unemployable, only
unemployed at the choice
of her and her husband in order to look
after their child while she was undergoing her schooling. Whether or
not a mother, such
as the plaintiff, would return to formal
employment during or after their children’s schooling, in the
view of Dr Malakla,
depends on various ‘pull and push factors’.
A mother or housewife at home may save the family more or less than
she
would otherwise have earned in full-time employment (a factor
pulling the mother to stay home). On the other hand, the financial
needs of a family or a husband who loses his employment, are factors
that may ‘push’ a mother and housewife back to
formal
employment. What counted in the plaintiff’s favour should she
have elected to re-enter formal employment, according
to Dr Malaka,
is that she was never dismissed or retrenched, but resigned her
employment positions for reasons of her own. The
only factor that
could have diminished her prospects of employment as a semi-skilled
employee, in the opinion of Dr Malaka, is
the age factor.
[19]
Ms Ngoaka is of the opinion that it is highly unlikely that the
plaintiff would have returned
to formal employment,
inter alia
given her low level of education, limited work experience and
having been unemployed for ten years prior to the incident. The
plaintiff
would at her age, in the opinion of Ms Ngoaka, always have
found it difficult to compete with younger more experienced job
seekers
in the open labour market. Ms Ngoaka, however, concedes under
cross-examination that pre-incident the plaintiff was employable,
but
post-incident she was rendered unemployable as well as that her
prospects of employment were better before the incident than
thereafter.
[20]
Expert evidence must be evaluated in accordance with the principles
enunciated by the Supreme
Court of Appeal
inter alia
in
Michael and Another v Linksfield Park Clinic (Pty) Ltd and Another
2001 (3) SA 1188
(SCA) at pp 1200 – 1201 paras [34] –
[40], namely ‘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.’ The opinion
advanced by Dr
Malaka, in my view, is to be preferred; it is founded
on logical reasoning and accords with the probabilities. The
plaintiff remained
economically active even though not formally
employed in order to personally care for their only child who was
school going. It
is a matter of common knowledge that many mothers
who elect to leave their formal employment and care for their
children before
and while they are school going, elect to return and
find formal employment once their children had left school. Dr Malaka
informed
me that he was unaware of any statistical data on the
percentage of women who return to formal employment once their
children have
left school.
[21]
I am of the view that the contingency deductions of 20% and 30%,
which the parties by agreement
applied to the plaintiff’s past
loss and future loss of income are, in all the circumstances of this
case, fair and reasonable.
The plaintiff’s total loss of
earnings, as agreed to by the parties, is therefore calculated in the
amount of R1 926 760.
[22]
The order I propose to make, therefore, is a total award of R9 988
860, being an award of R3 000
000 in respect of the plaintiff’s
general damages, an award of R5 062 100 in respect of her
medical expenses, assistive
devices and adjusted living space, and an
award of R1 926 760 in respect of her total loss of
earnings. The defendant
has made an interim payment to the plaintiff
in the amount of R1 000 000.00, which amount must be
deducted from the total
award amount.
[23]
In the result the following order is made:
1.
The defendant shall pay to the plaintiff the total amount of
R R8
988 860 on or before the 31
st
of August 2021 into the
following account:
Name of account
holder
: Masewawatla Attorney
Type of
account
: Trust Account
Bank
: ABSA
Account
number
: [....]
Branch
code
: 632005
Branch
: Gandhi Square
Deposit
ref
: Mariam Pietersen
2.
The defendant shall pay the plaintiff’s taxed and/or agreed
party-and-party costs on the High Court scale, within 30 (thirty
working days) after settlement and/or taxation of the legal costs,
which costs shall specifically include the costs of:
2.1
all medico-legal reports, actuarial and addendum reports as prepared
for purposes of trial and
furnished to the defendant’s
attorneys as well as all reports in the plaintiff’s bundles,
including but not limited
to the following:
2.1.1
Dr Siphokazi Dlakane (Specialist Physician)
2.1.2
Dr Lezanne Wynand-Ndlovu (Specialist Neurologist)
2.1.3
Dr Ulrich Kunzmann (Specialist Ophthalmologist)
2.1.4
Ms Daphney Mathebula (Occupational Therapist)
2.1.5
Dr Mohapi Malaka (Industrial Psychologist)
2.1.6
Ms Sipho Njobe (Architect)
2.1.7
Dr Z.A.E Motala (Specialist Psychiatrist)
2.1.8
Mr Charl du Plessis (Munro Actuaries)
2.1.9
Mrs Lufuno Modipa (Neuropsychologist)
2.1.10 Dr Colin
Schamroth (Specialist Cardiologist)
2.1.11 Mrs Ndileka
Ramaifo (Occupational Therapist)
2.1.12 Dr K.J.P
Lubuya (Opthalmologist)
2.1.13 Dr R.D Jobo
(Specialist Physician)
2.1.14 Dr Eduard
Sevenster (Ophthalmologist)
2.1.15 Dr A.P
Rossouw (Neurologist)
2.2
the reasonable and taxable preparation, qualifying and reservation
fees for trial, of the above
listed experts;
2.3
the reasonable costs incurred by the plaintiff in attending at the
medico-legal examinations of
the experts;
2.4
the plaintiff’s costs in the preparation of and uploading of
the matter to CaseLines and
the time spent in the preparation of
trial bundles on the CaseLines;
2.5
the plaintiff’s counsels’ fees for the preparation and
drafting of the heads of argument;
2.6
the trial fees of the plaintiff’s counsel on trial from the
14
th
to the 18
th
June 2021, inclusive of
preparation, roundtable meetings and consultation fees.
3.
The plaintiff shall file a notice of intention to tax a Bill
of Costs
together with her proposed Bill of Costs on the defendant’s
attorneys of record prior to enrolling the Bill of Costs
for taxation
and shall comply with the Rules of Court and time periods specified
therein for the taxation of legal costs.
P.A.
MEYER
JUDGE
OF THE HIGH COURT
Judgment:
02 August 2021
Heard:
14, 15, 17 and 18 June 2021
Plaintiff’s
Counsel:
Adv PG Malindi
SC (assisted by Adv TA Mofokeng)
Instructed
by:
Masewawatla Attorneys, Johannesburg
Defendant’s
Counsel:
Adv R Mkhabela
Instructed
by:
State Attorney, Johannesburg