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[2019] ZAGPPHC 363
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Booyse and Another v MEC, For Health, Gauteng Province (16233/13) [2019] ZAGPPHC 363 (19 July 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF SOUTH
AFRICA
(GAUTENG DIVISION, PRETORIA)
REPUBLIC OF SOUTH AFRICA
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED.
CASE
NO: 16233/13
In
the matter between:
LIZ-MARIE
BOOYSE
FIRST PLAINTIFF
JACOB
JACOBUS BOOYSE
SECOND PLAINTIFF
and
MEC
FOR HEALTH, GAUTENG PROVINCE
RESPONDENT
JUDGMENT
LUKHAIMANE
AJ:
1.
The
First and Second Plaintiffs instituted this action in their personal
and representative capacities against the respondent, owing
to the
negligence of certain staff members at the Tswane District hospital.
On 8 February 2010, their son JJ sustained a brain
injury that left
him with very little voluntary functional movement and he is
therefore. dependent on others for all activities
of daily living. At
the time of the trial, JJ was 10 years old. He has since passed away
on 1 April 2019, after the hearing but
before closing arguments. The
trial had only proceeded on the question of quantum of damages only,
as a finding had already been
made that the defendant is 100% liable
for the plaintiffs' proven or agreed damages in their personal and
representative capacities.
The initial claim was for an amount of R19
695 500 in the First Plaintiff's capacity as mother and natural
guardian of JJ. In addition,
she and the Second Plaintiff, JJ's
father, in their personal capacity, jointly claimed an amount of R796
000. The damages that
the First Plaintiff claims to have suffered in
her representative capacity as set out in the Plaintiff's Particulars
of Claim are
as follows:
-
Future medical and related
expenses
R14 065 000
-
Future loss of earnings
R2
040 000
-
General damages
R1 800 000
-
Cost of protecting
money
R1
790 500
2.
Damages
claimed in their personal capacities as set out in the particulars of
claim are as follows:
-
Past hospital, medical and related
expenses
R50 000
-
Future medical and related expenses
R50 000
-
Care giving beyond normal parenthood
R576 000
-
General damages (for shock and trauma)
R60 000
for each of the
Plaintiffs
R120 000
3.
Therefore
as can be gleaned from the claims above, these are for costs of
medical and related care for JJ and damages to the Plaintiffs'
in
their personal and representative capacities.
4.
Owing
to the fact that JJ has since passed away, the court is relieved of
the responsibility to decide on the following claims:
-
Future medical and related expenses for
JJ
-
Loss of earnings
-
Cost of protecting JJ's money; and
-
Care giving beyond normal parenthood for
the Plaintiffs
5.
The
court is further relieved of the need to make a ruling on Defendant's
first and second special defences, namely that instead
of being
directed to pay compensation in money, the Defendant be directed to
provide the medical services to JJ whenever they would
be required
and that instead of being directed to pay the loss of earnings in a
lumpsum, the Defendant be directed to pay those
amounts in
instalments from when this loss would eventuate, respectively.
6.
This
then leaves the issues to be decided upon as follows:
-
Past hospital, medical and related
expenses suffered by the Plaintiffs in their personal capacities
-
Future medical and related expenses
suffered by the Plaintiffs in their personal capacities.
-
General damages in respect of severe
psychological shock and trauma and loss of amenities of life of the
Plaintiffs in their personal
capacity.
-
General damages claimed by the First
Plaintiff in her representative capacity in respect of pain,
suffering and discomfort, loss
of amenities of life, permanent
disability, severe permanent psychological shock and trauma, lost
years of life and permanent disfigurement
suffered by JJ junior until
date of his demise.
7.
At
the outset it should be mentioned that the parties agreed on a life
expectancy of 17 years for JJ. Life expectancy refers to
the
additional years which a person is expected to live, as from the
person's age at the date of calculating the person's expected
additional years. A person's expected death age is arrived at by
adding the additional years to the person's age at the calculation
date (see
AD and Another v MEC for
Health and Development, Westem Cape Provincial Government
(27428/10)
[2016] ZAWCHC 181
(7 September 2016) at paragraph 87). This has a
bearing on the First Plaintiff's claim for general damages in her
representative
capacity.
8.
General Damages
8.1
The
Defendant's submissions in this respect are that their medical
evidence points to the fact that JJ was in a permanent vegetative
state and therefore is not entitled to an award of general damages.
The Plaintiffs on the other hand contend that JJ was not in
a
permanent vegetative state. The legal position on this issue seems
settled in that, in instances of a brain injury, in order
for a claim
to be successful, the claimant must not be in a vegetative state (see
NK v MEC for Health, Gauteng
2018(4)
SA 454 SCA).
8.2
What
is left to be determined is whether on the facts, JJ was in a
permanent vegetative state.
8.3
Prof
Smuts, Associate Professor of Steve Biko Academic Hospital's
Paediatric Neurology Unit and registered paediatric neurologist,
testified that JJ had been under the care of their unit most of his
life and his condition had deteriorated over time. Prof Smuts'
evidence was based on a Quantum opinion report that she submitted for
the Defendant's use. She testified that JJ's clinical features
had
gradually changed over time and his epilepsy has become increasingly
difficult to control since 2016. She indicated that his
ability to
interact had deteriorated over time as he had previously always been
able to respond to one's voice and even smiled.
She indicated that at
the time of compiling the report, 01 October 2018, although his eyes
were open, he is hardly responding.
She records that there is an
occasional facial grimace, cry or "possible" smile.
8.4
The
issues around JJ's gross motor function and manual ability
classification are not in dispute.
8.5
Whilst
the Defendant would like the court to accept that JJ was in a
persistent vegetative state for some time prior to his death,
this
factor has never been pleaded, despite the pleadings being amended
twice which might explain why the Plaintiffs did not bother
to submit
any evidence to counter this given the extensive joint minutes
completed by various experts on behalf of both parties.
8.6
The
rest of Prof Smuts' evidence was aimed at future medical expenses and
is therefore not relevant. The medico legal analysis report
dated 17
March 2017, was not considered as it sought to ascribe JJ's condition
to something other than the Defendant's staffs negligence,
which
matter has been settled.
8.7
Plaintiffs'
evidence was that until JJ's passing, he was in a state of severe
spastic tetraplegia, extremely handicapped and totally
dependent on
care for every need. As per Prof Smuts' evidence, the parties are in
agreement with her assessment of JJ's gross motor
function and manual
ability classification. He had severe cortical blindness, was fed
through a PEG tube as he could not swallow
nor close his mouth and
had an IQ of less than 20. They also confirmed that he suffered from
epilepsy which became increasingly
difficult to control since
February 2016.
8.8
JJ junior's clinical features have
gradually changed over time. However Prof Smuts conceded that on 26
April 2018 he was not in
a vegetative state (see pg 247 par 20 record
Volume 3 2019·02-25- 2019-03-29).
8.9
Having regard to the video taken during
October 2018 it was clear that JJ was not in a vegetative state. From
the shower video "noises
of joy" could be heard and from
the motor car video it was clear that JJ junior was crying and from
the music video it was
clear that JJ junior ''was happy" (see pg
77 -79 record 2018-10-22).
8.10
When the Second Plaintiff resumed his
evidence on 25 March 2019, with reference to a visit by JJ junior to
his Springs residence
in December 2018 and March 2019, Second
Plaintiff testified "...
we
never have a dull moment with my son. He is always friendly; he is
always kind you can touch him he is always smiling. If you
play music
he will show reaction but he understand what I am playing for him
right now .....He will smile he knew where he was
at home with us'
(see pg 73 and 73 par 8 - 13 and par
25 Volume 1 record 2019-03-25 – 2019-03-29).
8.11
It is therefore clear form the evidence
of both parties that it cannot be conclusively said that JJ was in a
permanent / persistent
vegetative state. Therefore, on a balance of
probabilities, the court has to err on the side of caution and accept
that on the
evidence whatever his condition was, it was definitely
not a permanent / persistent vegetative state. In that respect, in
Marine
&
Trade Insurance Co ltd v Katz NO
1984(1) SA 98 (A) at 119 0-H,
Trollip JA pointed out that, In awards arising from brain injuries,
"although a person may not have
'full insight into her dire plight and full appreciation of her
grievous loss: there may be
a 'twilight' situation in which she is
not a so-called 'cabbage' and accordingly an award for general
damages would be appropriate.
"
8.12
Although a trial court should not
slavishly follow previous awards, one can have regard to them in
getting a general sense of appropriate
range
(Protea
Assurance Code Ltd v Lamb
1971(1) SA
530 (A) at 536) and in doing so one should have regard to changes in
the purchasing power money
(SA Eagle
Insurance Co Ltd v Harley
1990(4) SA
833 (A) at 8410;
Minister of Safety
and Secun1y v Seymour
2006(6) SA 320
(SCA) para 16 - 17). As was said by Nicholas JA in Southern Insurance
Association Ltd v Bailey NO 1979(4) SA 961
(A) at 983 A-G
"this
coutt has not adopted a runctional' determination as to howgeneral
damages should be awarded. It has consistently prefe«ed
a
flexible approach, determined by the broadest general considerations,
depending on what is fair in all the circumstances of the
case. We do
not have to determine what the award will be used for
-
its purpose or function. What we must
consider is the child's loss of amenities of life and his pain and
suffering
8.13
In
S obo
S v MEG Health Gauteng
[2015]
ZAGPPHC 605, another CP case, Lauw J awarded R1.8 million as general
damages (R2 220 802.00 in current 2019 value). The child's
life
expectancy was 19 years.
8.14
The mere fact that JJ junior passed on,
does not "exclude" his right to claim general damages. Prof
Cooper testified that
"life
expectancy is best based on speculative factors, but one try to reach
what would probably be most appropriate guess in
trying to establish
what his life expectancy is
...
The
definition is that if we took a hundred people with the same
condition today, at what point would 50 of them still be alive
and
that is defined as life expectancy
...
What it does not say is that let us
say that is 10 years from now, some of those may die in a week's time
and some of them may live
to another 20 or 30 years"
(see
pg 343 par 15 25 record Volume 4 2019-03-25 – 2019-03-29).
8.15
Not much of JJ's life remained and the
gross total of general damages had been suffered. An award for
interim payment in the amount
of R1 500 000.00 was ordered by this
Honourable Court dated 29 October 2018. The Plaintiffs argued that
the amount of the interim
payment of R1 500 000.00 be regarded as
compensation for JJ junior's compensation for general damages and
that no further amount
be payable as compensation for JJ junior's
claim for general damages.
8.16
Having had regard to the above, this
court is inclined to agree with the Plaintiffs that an amount of R1
500 000.00 is fair and
reasonable compensation for JJ's claim for
general damages.
8.17
In their personal capacities, the
Plaintiffs also claim damages for past hospital, medical and related
expenses in the amount of
R50 000.00, future medical and related
expenses in the amount of R50 000.00, compensation for care-giving
services rendered beyond
the scope of normal parenthood in the amount
of R576 000.00, and general damages for shock and trauma in the
amount of R120 000.00.
8.18
Whilst all these claims are founded on a
different basis as advanced by the Defendant, the Defendant suggests
that evidence should
have been led on each of these claims.
Plaintiffs on the other hand seek to rely on agreements reached in
the joint minutes that
resulted in there being no need to advance
evidence on some of the issues.
8.19
Therefore, it is prudent that before
dealing with the merits of each claim, I deal with the status of
joint minutes.
8.20
This matter was settled by the Supreme
Court of Appeal's majority judgement in
Bee
v RAF
2018 (4) SA 366
(SCA) where it
was stated at paragraphs 66 and 73 as follows:
“...
the joint minute will correctly
be understood as limiting the issues on which evidence is needed. If
a litigant for any reason does
not wish to be found by the limitation
a fair warning must be given. In the absence of repudiation (i.e.
fair warning), the other
litigant is entitled to run the case on the
basis that the matters agreed between the experts are not in issue."
“
Unless the trial court itself were
for any reason dissatisfied with the agreement and alerted the
parties to the need to adduce
evidence on the agreed material, the
trial court would, I think be bound, and certainly entitled, to
accept the matters agreed
by the experts.”
9.
Past hospital, medical and related
expenses
9.1
It
was agreed by the parties in a telephonic and email addendum minute
between the occupational therapists that JJ be admitted to
Little
Gems (refer to paragraph 4.22, page 74 of the paginated papers, Index
vi, Bundle 3).
"4.22
On discussion and consideration of the facilities and needs for JJ,
we agree that
Little Gems, (in Linksfield) is a suitable option for
JJ to reside in. This centre offers a suitable child to care
giver ratio.
JJ is given one-to-one care... The cost is R15000 per
month plus R100 per month for nappies."
9.2
JJ
was admitted from December 2018 until his passing on 1 April 2019.
Therefore a total of R60 000 was expended for past hospital,
medical
and related expenses.
10.
Future hospital, medical and related
expenses
10.1
The Plaintiffs claim an amount of R63
501.00 for future hospital, medical and related expenses. The
Defendant is of the view that
there was no evidence that those
expenses were incurred, In addition, the Defendant avers that with
the passing away of JJ, expenses
for this purpose will no longer be
required, therefore the claim should be denied.
10.2
Again, if reference is had to the joint
minutes dated 17 October 2018, the Educational Therapists agreed as
follows:
"We agree that the parents should
receive counselling and support in dealing with a cerebral palsy
child and in doing what
is in the best interest of the child. With
the client's diminishing life expectancy the parents might also
benefit from counselling
as his health is deteriorating, whilst
considering Prof Smuts findings and opinion. It is suggested that
initially the parents
receive 12 sessions counselling at R1 000 a
session and that provision is made for 6 sessions annually with a 10%
increase."
10.3
With JJ's passing on 1 April 2019, it is
so that the extent of this claim should be revised downwards.
Considering the fact that
he passed away, aged 10, during the trial,
the circumstances are such that counselling for the Plaintiffs is
warranted. Therefore,
the Plaintiffs should receive the initial 12
sessions of counselling at R1 000 per session and a further 6
sessions per annum for
two more years, with a 10% increase.
10.4
Therefore an amount of R25 860 is
awarded in this regard.
11.
General damages for the Plaintiffs in
their personal capacities
11.1 The
Defendant's submission in this regard is that the Plaintiffs'
psychologist, Ms Karen
Adams confirmed that neither Plaintiff suffers
from any psychiatric condition and that whilst they might have
endured grief and
sorrow that such grief and inevitable bereavement
is not actionable
Collins v
Administrator,
94G-I Cape
1995 (4)
SA 73
(C).
11.2
It is so that Ms Adams testified
that both Plaintiffs do not exhibit sufficient symptoms to warrant a
psychiatric diagnosis,
however that they exhibit symptoms associated
with the presence of depression. Evidence was led indicating that the
relationship
between the First and Second Plaintiffs ended as a
result of the inability to deal with JJ's condition especially on the
part of
the First Plaintiff. The Second Plaintiff's life ceased to
exist outside of taking care of JJ. He testified to feeding him,
bathing
him and taking him to hospital on a regular basis. He was
also at pains to let him stay in a facility as he was burdened with
guilt.
11.3
It is so that as society, we tend to
denigrate or look down upon disease of the mind, especially
depression. This is more so when
the persons exhibiting such symptoms
are ordinary folk just getting by.
11.4
In
Delisile
Mbhele v MEC for Health for the Gauteng Province, (SCA case number
355/2015
[2016] ZASCA 166)
,
an
amount of R100 000 was awarded in 2016 against the MEC for Health in
Gauteng as compensation for emotional shock. In this instance,
there
was no medical evidence of lasting trauma, unresolved mourning or
chronic bereavement. At paragraph 19 of the judgement,
Judges Tshipi
et Mocumie JJA state as follows:
"However, although no medical evidence
was presented, there can be no doubt that the appellant experienced
severe shock, grief
and depression as set out in para 4.6 of the
stated case: 'The death of her ''baby" left her feeling empty.
For months after
the death of the baby she shut herself behind closed
doors and did not wish to socialise with family and friends
....
The death of the ''baby" came as
a shock as she had made preparations for its birth and in expectation
thereof had already
bought a lot of clothes, toys and other
utensils.... She has since the death of Tebogo given birth to a child
she named Siyabonga.
She lost interest in her work and squandered her
money. As a result, for months she suffered from depression."
11.5
The
Plaintiffs are claiming an amount of R60 000 each. The court finds
the amount reasonable under the circumstances and awards
such to
Plaintiffs.
12.
It is ordered as follows:
12.1
The
Defendant is ordered to pay the capital amount of R205 860.00 (Two
hundred and five thousand eight hundred sixty only), within
30
(thirty) days of date of this order served on the Defendant's
attorneys, to the Plaintiffs' attorneys of record, trust account
details:
ACCOUNT HOLDER
: ADEL VAN
DER WALT INC
BANK
: ABSA BANK
TRUST ACCOUNT No
: [….]
BRANCH
: MENLYN
BRANCH CODE
: 632 005
REFERENCE
:
AS2131
as payment for damages to the First and Second
Plaintiffs in respect of the First and Second Plaintiffs claim in
their personal
capacity relating to First and Second Plaintiffs claim
for General Damages and First and Second Plaintiff's claim for
Special Damages
(future medical costs).
12.2
The
Defendant is ordered to pay the capital amount R1 500 000.00 (one
million five hundred thousand rand only) as payment for damages
to
the First Plaintiff in respect of First Plaintiffs claim in her
representative capacity on behalf of Johannes Jacobus Jonker
("the
minor''). It is noted that the amount of R1 500 000.00 (one million
five hundred thousand rand only) was paid by the
Defendant to the
Plaintiffs attorney of record's trust account as interim payment in
terms of a Court Order dated 29 October 2018.
No further payment is
to be made by the Defendant in this regard.
The aforesaid amounts will not bear interest
unless the Defendant fails to effect payment thereof or either
thereof within thirty
calendar days of the date of this order, in
which event such capital amount or amounts will bear interest at the
statutory
mora
rate in accordance with the provisions of the
Prescribed Rate of Interest At, 55 of 1975, as amended by the
Judicial Matters Amendment
Act, 24 of 2015, and which rate of
interest will be referred to herein after as" the
mora
rate,
calculated from and including the 31
st
(thirty first) day
after date of this order to and including the date of payment
thereof.
12.3
The
Defendant is ordered to pay the Plaintiffs taxed or agreed party to
party costs, including the following costs for the following
days
Monday, 22 October 2018; Tuesday, 23 October 2018; Monday, 29 October
2018; and Monday, 25 March 2019; 26 March 2019; 27 March
2019; 28
March 2019 and 29 March 2019:
12.4
The costs of
employing two counsel;
12.5
The
costs of t
he obtaining by the
Plaintiffs of the reports and addendum reports of the following
experts and of giving Rule 36(9)(a)&(b)
Notice thereof:
12.5.1
Ms Karen Adams
12.5.2
Mr D Rademeyer;
12.5.3
Ms P Coetsee;
12.5.4
Mr C Mattheus;
12.5.5
Dr MM Lipper;t
12.5.6
Ms F Coetzee;
12.5.6
Dr Lofstedt;
12.5.7
Mr CJ Koen;
12.5.8
Ms CJ Nel;
12.5.9
Dr EM Moshokoa;
12.5.10
Dr BH Pienaar;
12.5.11
Ms E Els;
12.5.12
MS M du Plooy;
12.5.13
Dr D Potgieter;
12.5.14
Capital Radiologists;
12.5.15
Arch Actuarial Consultants
12.6
The reasonable preparation/qualifying
and reservation fees (if any) of the experts referred to in paragraph
3.5 above, including
the costs of consultants (if any) with the
Plaintiffs legal team;
12.7
The costs of obtaining the various
expert joint minutes;
12.8
The costs of obtaining the various
actuarial calculations;
12.9
The reasonable travelling costs of Mr D
Rademeyer;
12.10
The reasonable travelling costs of
attending the medico-legal examinations subject to the discretion of
the Taxing Master;
12.11
The costs of making up and distributing
the various bundles;
12.12
The costs of drafting the heads of
argument.
12.13
The following witnesses are declared to
be necessary witnesses, namely:
12.13.1
Mr JJ Jonker (Second Plaintiff);
12.13.2
Dr Moshokoa;
12.13.3
Dr Pienaar;
12.13.4
Dr Lofstedt; and
12.13.5
Ms K Adams
12.14
The following provisions will apply with
regards to the determining of the aforementioned taxed or agreed
party and party costs:
12.14.1
The
Plaintiffs' attorneys of record shall serve the Notice of Taxation on
the Defendant's attorneys of record;
12.14.2
The Defendant shall be allowed 30
(thirty) calendar days from the date of settlement or taxation within
which to effect payment
of the agreed or taxed costs; and
12.14.3
Should payment not be effected within
the aforementioned period, the Plaintiffs will be entitled to recover
interest on the taxed
or agreed costs at the
mora
rate calculated from and including
the 31st {thirty first) day after the date of settlement of the costs
or of taxation, to and
including the date of final payment thereof.
12.14.4
A contingency fee agreement in terms of
the Contingency Fee Act, 1977 (Act No 66 of 1977), was entered into
between the Plaintiffs
and Adele van der Walt Inc.
MA
LUKHAIMANE
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Appearances:
On
behalf of the applicant
: Adele van der Walt Inc
Instructed
by
: Adv Salie Joubert SC
Adv
Hilgard Botma
On
behalf of the respondent
: The State Attorney of Pretoria
Instructed
by
: Adv Vas Soni SC
Date
of hearing
: 12 June 2019
Date
of judgment
: 19 July 2019