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[2019] ZAGPPHC 128
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C.M obo L v Thibedi and Another (7202/2008) [2019] ZAGPPHC 128 (24 April 2019)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NO: 7202/2008
In the matter between:
C[….] M[….]
obo L[….]
PLAINTIFF
AND
DR THIBEDI
FIRST DEFENDANT
BRIAN
HLONGWA
SECOND DEFENDANT
JUDGMENT
STRIJDOM AJ
INTRODUCTION
[1]
The plaintiff instituted a claim for damages against the defendants
on behalf of L[….]
(hereinafter referred to as the minor
child) as a result of injuries and scarring on his forehead which
emanated from the wrongful
insertion of a drip in his head.
[2]
At the time of the incident the minor child was approximately 3 weeks
old and was
admitted to hospital on 17 June 2004 on an initial
diagnoses of anaemia. His condition deteriated and he was
eventually diagnosed
with tuberculosis, Cytomegalovirus, Anaemia,
Ascites and HIV.
[3]
The drip that was inserted in the minor childs left temporal area of
his scalp became
septic and developed skin necrosis.
[4]
The defendants admitted 100% liability for the plaintiffs’
proven damages as
a result of the injury and scarring sustained
by the minor child.
[5]
The defendants also admitted liability and the costs of future
medical expenses in
the amount of R110 000,00.
[6]
What is therefore in issue is the amount of general damages and
whether the defendants
are liable for the minors loss of earning
capacity if any.
The
plaintiffs’ injuries
:
[7]
The neurosurgeons, Dr Lekgwara and Karan described the patients’
incident related
injury as follows:
“
Left
front-temporo-parietal skin necrosis as a result of intravenous line
(drip) infiltration or placement. We defer an opinion
to the
Plastic surgeon
.”
[8]
The Plaintiff appointed Dr Selahle, a plastic & reconstructive
surgeon who assisted
the minor childs’ injuries on 22 March
2017. He recorded the scars and deformities as follows:
8.1
Face\Scalp
-15x12cm scar with
irregular borders which involves the left side of the forehead and
Fronto-
-Temporal Scalp.
This scar has the following associated deformities.
8.2
Alopicia, which is involving:
-Left temporal and
frontal hairline
-7cm strip of frontal
scalp.
8.3
3 MM Elevation of the Left eyebrow.
-There is normal eye
movement.
-There is normal eyelid
(upper and lower) closure with no Lagopthalmos.
-The scar has no features
of scar hypertrophy but it is however cosmetically unsightly and
disfiguring.
[9]
Dr Selahle, a plastic and reconstructive surgeon suggested future
treatment and opined
as follows:
“
The writer is
of the opinion that the forehead portion of this scar will not be
satisfactorily improved by scar revision without
causing further left
eyebrow deformities, displacements and additional scar on the
forehead. The area of alopecia on the
frontal left scalp and
the left temporal hairline can be improved by using tissue expansion
of the hair-bearing scalp
.”
[10]
Dr Selahle also suggested tissue expansion and futher treatment with
an estimated cost of approximately
R102 800.00
[11]
Dr Sehahle concluded that although the scar has no features of scar
hypertrophy, it is
“
11.1
Cosmetically unsightly and disfiguring
11.2
conspicuous and difficult to conceal.
11.3
permanent with some prospects of scar improvement by scar revision
techniques
.”
[12]
The defendants also appointed a plastic surgeon, Dr Potgieter who
assessed the minor child on
1 April 2019.
12.1 he
recorded the scalp and face injury as;
“
5x4 hyper
pigmented hypertrophic scar at the left forehead”
12.2 he
recorded the impact of the injuries on the patients appearance,
function and psyche as follows:
“
L[….] is
most affected by his neurodevelopmental delay and right hemiplegia.
I defer to the relevant expert regarding
these issues. The
scars of his forehead bother him as well.”
Social
interactions
:
Decreased due to developmental delay, hemiplegia and forehead scars.
Work
:
Decreased due to development mental delay, hemiplegia and forehead
scars.
Sport& Recreation
:
Decreased due to development delay, hemiplegia and forehead scars,
Life Expectancy
:
Normal.
[13]
Dr Potgieter commented as follows: On the future prognosis of the
minor Childs injury:
“
Surgical
revision will improve the appearance of his scars, but the patient
will remain disfigured as a result of his injuries.
He will
still feel self-conscious in social situations, his clothing choices
will be limited and certain environmental circumstances,
such as
harsh sunlight will be uncomfortable. Consequently his scars
should be considered permanent disfigurement
.”
[14]
According to the joint minutes of the plastic surgeons it is clear
that the minor Childs’
disfigurement is permanent, and they are
ad idem that his future medical expenses will be approximately
R110 000.00.
General
Damages.
[15]
The general principles regarding the manner in which an award in
respect of general damages is to be
approached, can be summarised as
follows:
15.1 In
Southern
Insurance Association v Bailey N.O
[1]
the appellate Division (as it then was), said at page 113 H the
following regarding the way in which general damages should be
determined:
“
This Court has
never attempted to lay down the rules as to the way in which the
problem of an award of general damages should be
approached
.”
15.2
The accepted approach is the flexible one described in the often
quoted statement of Watermeyer JA in
Sandler
v Wholesale Coal Suppliers Ltd.
[2]
15.3
There is this no uniform approach to the determination of general
damages.
15.4 In
assessing the appropriate award to make, a Court should also consider
previous awards made in earlier
cases. One must however be
careful as the assessment of awards of general damages with reference
to awards made in previous
cases is with difficulty. The fact
of a particular case need to be looked as a whole and few cases are
directly comparable.
They are a useful guide to what other
courts have considered to be appropriate, but they have no higher
value than that.
15.5 In
considering previous awards it is right that a court should be alive
to the effect of the ravages of inflation
upon the value of money
during the interceding years. Inflation rates, however, no
matter how reliable, unlike previous awards
are merely guidelines as
to what an appropriate award in a particular case would be.
[3]
15.6
Any enquiry into damages for loss of earning capacity is of its
nature speculative because it involves a
prediction as to the future,
without the benefit of crystal balls, soothsayers, augurs or
oracles. All that the Court can
do is to make an estimate,
which is often a very rough estimate, of the present value of the
loss.
[4]
Comparable
case law
.
[16]
In my view the following matters are indicative of the nature and
value of the award that the
plaintiff would be entitled to:
16.1
Heynecke
v Visagie
[5]
.
In this matter the plaintiff was bitten by a dog in the area of the
left cheek. The damage to nerve ending resulted
in an inability
to raise the left eyebrow and close the eyelids tightly. He was
left with a persistent swelling in the injured
area with resultant
irritation of the eye and excessive weeping and left eye.
Although the scarring had improved and could
further be improved by
plastic surgery, severe irregular scarring remained as a serious
cosmetic blemish.” The award
for general damages of R2500
at the time translates to R64 000.00 in present value.
16.2
In
Visser v Visser
[6]
The Plaintiffs son was bitten four times in the face by a Labrador
and he sustained the following wounds: a large flap laceration
involving the middle section of this forehead above the right
eyebrow, a second laceration through the right eyebrow, a
deglazed wound on the right side of the cheek below the right lower
eyelid with tissue loss, a full thickness laceration to the
right
upper lip as well as lacerations in the neck which were down to the
platysma level. He was awarded general damages
in the amount of
R70 000.00 which amounts to R101 000,00 in 2019 according
to the QOD yearbook.
16.3
In
MTA obo MK v Road Accident Fund
.
[7]
The minor child sustained a visible ugly scar on her forehead on the
left side which qualifies for non-pecuniary loss due to it
being
visible and ugly and she therefore qualifies for compensation for the
scar sustained under general damages. The court
considered the
physical injury as well as loss of amenities of life as a
result of depression and was satisfied that
the amount of
R400 000,00 was a reasonable amount for general damages.
16.4
In
Mashigo v Road Accident Fund
.
[8]
The plaintiff sustained soft tissue injuries to her left wrist, left
knee, burn wounds to her arms and breast and was awarded R450 000.00
in respect of general damages
[17]
It was submitted by counsel for the defendant that an amount of
R100 000.00 to R150 000
.00 would be a reasonable
compensation for general damages. Counsel for the plaintiff
suggested an amount of R400 000.00.
[18]
On a consideration of all the facts in the present matter and awards
previously make in similar
matters, I have concluded that an award in
the amount of R450 000.00 would represent fair compensation.
Future
medical expenses
[19]
The only future medical expenses, according to the plastic and
reconstructive Surgeons would
be R110 000.00. It was
conceded by the counsel for the defendants that an amount of
R110 000.00 should be awarded
to the plaintiff for future
medical expenses.
Loss
of earning Capacity
[20]
It was argued by counsel for the defendants that the plaintiff failed
to tender evidence that
the minor child’s capacity to be
employed is diminished due to inter alia the scarring on the head of
the minor child.
[21]
It is common cause that the plaintiff did not obtain any expert
reports regarding the minor child’s
loss of earning capacity.
[22]
On the material before me, I cannot find that the minor child’s
capacity to be employed
is diminished due to the scarring on his
head.
[23]
In all the circumstances I am of the view that the plaintiff is
entitled to be compensated in
the amount of:
1.
R450 000.00 in respect of general damages.
2.
R110 000.00 in respect of future medical expenses.
[24]
Accordingly, I make the following Order:
1.
The
defendant to pay an amount of R560 000,00 (Five hundred and
sixty thousand rand) (comprising of the amount of R450 000,00
for general damages and R110 000,00 for the future medical
expenses) to the plaintiff as full and final settlement in respect
of
the plaintiff’s claim on behalf of her minor child, for general
damages, future medical expenses and loss of income, instituted
due
to the injuries sustained as a result of the incorrect insertion of a
drip on 26 July 2008.
2.
The
aforesaid capital amount in paragraph 1 will not bear interest unless
the defendant fails to effect payment thereof (or any
part thereof)
within 30 (Thirty) calendar days of this order, in which event the
capital amount r outstanding amount will bear
interest at the rate of
10% per annum calculated from and including the date of this order up
to and including the date of payment
thereof.
3.
The
defendant shall pay the plaintiff’s taxed or agreed party and
party costs on the High Court scale, which costs shall include
the
following:
3.1
The
reasonable taxable costs, as allowed by the Taxing Master, of
obtaining the medico-legal reports, addendum reports (if any)
and
joint minutes of the following experts of the plaintiff relating to
the issue of quantum:
-
Dr.
Lekgwara – Neurosurgeon
-
Dr Sehalabe
– Plastic surgeon
3.2 The
costs consequent to the employment of senior junior counsel by the
plaintiff including
the costs of all previous reserved costs order.
4.
The
amount and costs stipulated in paragraph 1 and 3 above, shall be paid
into the following trust account of the plaintiff’s
attorney:
Account
name:
Shabangu B Attorneys & Associates
Account
number:
[….]
Bank:
STANDARD BANK
Branch
code:
010045
Reference:
3276/07/MV/JCS
5.
The
following provisions will apply regarding the determination of
payment of the plaintiff’s abovementioned taxed or agreed
costs:
5.1
the
plaintiff shall timeously serve the notice of taxation on the
defendant’s attorneys of record;
5.2
the
plaintiff’s attorney shall allow the defendant 30 (thirty)
calendar days to make payment of the taxed costs from date
of
settlement or taxation thereof;
5.3
should
payment of the plaintiff’s taxed or agreed costs not be
effected timeously, the plaintiff will be entitled to recover
interest at the rate of 10%, calculated from the 31
st
calendar day after the date of the Taxing Master’s allocator,
up to the date of final payment.
6.
It is
recorded that there is a contingency fee agreement, which complies
with the provisions of the Act in this matter. A
copy of the
agreement as well as the affidavits of the client and attorney is
handed up.
[7]
Draft order marked “X” made order of court.
JJ STRIJDOM
ACTING
JUDGE OF THE HIGH COURT
Date
of hearing:
15 April 2019
Judgment
delivered: 24 April 2019
Counsel
for Plaintiff: Adv J Barnardt
Attorney
for Plaintiff: Shabangu B
Attorneys & associates
Counsel
for Defendant: Adv Shangisa SL
Attorney
for Defendant: The State Attorney
[1]
1984 (1) SA 98 (AD).
[2]
1940(1) AD 194 at 199.
[3]
AA Onderlinge Assurance Assosiasie BPK v Sodoms 1980(3) SA 134 (A).
[4]
Southern Insurance Association v Bailey NO 1984(1) SA 98 (AD)at 113
G to 114D.
[5]
1980(3)G4) QOD 102 (W).
[6]
2012(4) SA 74 (KZD), 2012(6G4 QOD (W).
[7]
(4484/2016) (2018) ZAGPJHC (18 June 2018)
[8]
.(2120/2014)
(2018) MZAGPPHC 539 (13 June 2018)