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[2019] ZAECMHC 47
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Mtiki v Member of the Executive Council for the Department of Health (1306/13) [2019] ZAECMHC 47 (22 August 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE LOCAL DIVISION, MTHATHA]
[Not
Reportable]
CASE
NO: 1306/13
Heard
on: 14/08/19
Delivered on: 22/08/19
In
the matter between:
PHUMEZA
MTIKI
Plaintiff
and
MEMBER
OF THE EXECUTIVE COUNCIL
FOR
THE DEPARTMENT OF HEALTH
Defendant
JUDGMENT
NHLANGULELA
DJP
[1]
The motor vehicle in which the plaintiff was involved on 01 January
2010 has left
her with a residual deformity which is described as
kyphosis from T8-T11 of her spinal cord. That the cause of this
injury
was due to medical negligence on the part of the defendant’s
treating doctors is no longer in dispute, the defendant having
conceded only on 20 February 2019, at the door of this Court, that it
is liable to compensate the plaintiff for damages as aforesaid.
What now remains for determination by the court is the issue of the
amount of damages to be paid.
[2]
The issue of future medical expenses for the treatment of plaintiff’s
spinal
cord had been agreed at R350 000,00.
[3]
The Court having exercised its oversight duty was satisfied that the
concession of
liability and the agreement already reached with regard
to the future medical cost of addressing the plaintiff’s
residual
deformity was predicated on the correct legal bases.
There will be no need to revisit such bases in this judgment.
[4]
The issue which calls for determination by the Court pertains to the
general damages.
The Court has to decide which of the
R400 000,00 or R200 000,00 as suggested by the parties
respectively is a reasonable
amount to be awarded for the injuries
sustained by the plaintiff.
[5]
The court saddled with a duty to assess general damages must exercise
its own discretion
–
Sandler v Wholesale Coal Suppliers Ltd
1941 AD 194
at 199. Previous awards made by other courts in
similar situations as that obtaining in the present matter must be
taken
into account, but without a comparative analysis thereof being
used to hamstrung the exercise of the court’s discretion –
Protea Assurance Co Ltd v Lamb
1971 (1) SA 530
(AD) at
535H-536A. Recognition has to be given to the fact that awards
being made in recent times have been progressively
higher than they
were in the past owing to the value placed on individual freedoms and
opportunity and rising standards of living
–
RAF v Marunga
2003 (5) SA 164
(SCA) at 170F-G. But the court must ensure
that the award that it finally makes is not tantamount to an
enrichment Scheme
serving only to prejudice most defendants who are
already confronted with the ever increasing vulnerabilities of the
country’s
weak economy.
[6]
In this case on 01 January 2010 the plaintiff was a passenger in a
motor vehicle that
was involved in an accident. As a result she
sustained head injury and multiple fractures of her thoracic spine.
She
was admitted in Canzibe Hospital. The X-ray of her skull
was reported as normal. And there were no sequalae from the head
injury. The X-ray of the spine was assessed as showing
kyphosis. But the plaintiff was merely given analgesics
and
anti-inflammatories and discharged on the following day. The
backache persisted for about a year that required to plaintiff
to
visit the hospital continuously. The hospital clinic was unable
to diagnose the seriousness of the injuries. The
interventions
that followed in 2013 revealed that the chronic pain that the
plaintiff was suffering from was caused by fractures
of D7-D11, with
a marked wedge of D9. Although those fractures had healed,
there was a residual kyphotic deformity of 45
degrees with an
associated scoliotic deformity with lateral translation of the
vertebrae. To correct this would require an
osteotomy of the
spine and an associated fusion at the cost of approximately
R400 000,00.
[7]
The plaintiff’s condition is aggravated by physical inactivity
such as collecting
fire-wood or carrying water on her head. She
was forced to leave school ever since her involvement in the motor
vehicle accident
in 2010.
[8]
Both parties drew my attention to a variety of cases dealing with
damages awarded
in the past, but the majority of which bear little
similarities to the case at hand. I mention one case of
Guy
Ambrose v The Road Accident Fund
case no. 225/09 dated 01 June
2010 (ECHP) which I regard as being situated much closer to the
merits of this case. In that
case Mr Ambrose was awarded
general damages in the sum of R200 000,00 for back injuries,
having sustained of a compression
fracture of the 12
th
thoracic vertebra (T12) and a bilateral facet joint at the T12/L1.
The conversion of R200 000,00 in 2018 by 1,518 factor
per R1 of
the award would give a value of approximately R303 600,00.
Under our depressed economic conditions the CPI
would not have grown
by any significant rate in 2019.
[9]
In the light of the facts of this case and the available guidelines
as derived from the
case of
Ambrose,
I
am of the view that a sum of R350 000,00 is the appropriate
general damages to be awarded in favour of the plaintiff.
To
that figure must be added the agreed R350 000,00 for special
damages. The costs of suite will follow the result.
[10]
In the result the following order shall issue:
1.
The defendant is to pay to the plaintiff the sum of R700 000,00
(seven hundred
thousand rand) for damages, as a result of the
negligent treatment of the plaintiff by the defendant’s
employees at the Canzibe
Hospital, on the 1 January 2010.
2.
The defendant is to pay the aforesaid sum within sixty (60) days of
this order,
failing which the defendant shall pay interest on the
aforesaid sum until date of final payment.
3.
The defendant is to pay the plaintiff’s agreed or taxed High
Court costs
as between party and party, such costs to include, but
not limited to the travelling, accommodation and preparation costs of
the
plaintiff’s counsel.
4.
The plaintiff shall allow the defendant sixty (60) days to make
payment of the
taxed costs.
_________________________
________
______________
Z.
M. NHLANGULELA
DEPUTY
JUDGE PRESIDENT OF THE HIGH COURT
MTHATHA
Counsel
for the plaintiff : Adv.
S.Y. Malunga
Instructed
by
: T A Nkele & Sons
MTHATHA.
Counsel
for the defendant : Adv.
N. James
Instructed
by
: Norton Rose Fullbright South
Africa
c/o Smith Tabata
Attorneys
MTHATHA.