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[2016] ZAGPPHC 409
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Vilakazi v MEC of the Department of Health, Mpumalanga (21185/2008) [2016] ZAGPPHC 409 (10 June 2016)
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IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE NO.: 21185/2008
10/6/2016
Not reportable
Not of interest to other
judges
Revised.
In the matter between:
T P
VILAKAZI Plaintiff
and
THE MEC OF THE DEPARTMENT
OF HEALTH,
MPUMALANGA
Defendant
JUDGMENT
VAN DER WESTHUIZEN, A J
1. The plaintiff claimed
damages form the defendant in respect of herself and her minor
daughter arising from negligent treatment
provided to the minor child
soon after the latter's birth at the Witbank Hospital during January
2007.
2. This matter has some
history.
3. The defendant
initially defended the action. On 28 September 2009, the defendant
accepted liability to pay 100% of the plaintiff's
proven,
alternatively agreed damages suffered, in terms of a draft order that
was made an order of court on that day. The said
order provided that
the issue of quantum to be postponed
sine die.
4. On 5 October 2011,
this court made an
interim
award in the amount of R100 000.00
and which was payable on or before 30 November 2011. I am told that
no payment in respect of
the
interim
award has been made to
date.
5. This court struck out
the defendant's defence on 15 August 2014.
6. This matter was
enrolled for trial on 6 June 2016, however it stood down to 7 June
2016 to enable counsel for the plaintiff to
ascertain whether the
defendant would participate in the present trial. I am told that the
attorneys had indicated that the plaintiff
should proceed by way of
default.
7. Plaintiff was
represented at the trial by senior and junior counsel. Such
representation is warranted.
8. As part of the
plaintiff’s case, counsel for plaintiff handed into court
certain affidavit evidence by experts in support
of their respective
reports that were already before court. These related to the reports
by:
(a) Lida Moller, an
Educational Therapist;
(b) Dr J P M
Pienaar, a Plastic Surgeon;
(c) Dr Engelbrecht,
an Orthopaedic Surgeon;
(d) Dr DA Shevel, a
Psychiatrist;
(e) Carin Mohr, an
Occupational therapist; and
(f) C du
Plessis, an Actuary.
9. These aforementioned
affidavits confirmed the findings contained in the reports prepared
by the deponents. Some experts had filed
supplementary affidavits
that dealt with updated information. I accept these affidavits into
evidence.
10. Counsel for the
plaintiff further handed in affidavits by teachers of the minor child
in respect of problems encountered by
the minor child due to her
limitations as a result of the circumstances surrounding her birth
and the subsequent incident that
occurred at the Witbank Hospital
soon after birth. These affidavits were by:
(a) Ms T S Mpila, a
grade 2 teacher at […] Primary School, Bethal;
(b) Ms P P Y
Mashinini, a grade 1 teacher at […] Primary School, Bethal;
and
(c) Ms P A Nkosi,
head of the department of the foundation phase at […] Primary
School, Bethal.
11. The affidavits by the
respective teachers of the minor child and that of the head of the
department foundation phase paint a
bleak picture of the future of
the minor child. It is clear from those affidavits that the
minor child has severe learning
inabilities that impact tremendously
on her ability to progress at school.
12. The plaintiff led the
viva voce
evidence of the following witnesses:
(a) Ms L Möller,
an Educational Therapist;
(b) Mr W J Wessels,
an Industrial Psychologist; and
(c) Ms E Bester, an
Occupational Therapist.
The evidence of the
minor's mother, the plaintiff, was also led.
13. In the particulars of
claim two claims are set out. Claim 1 relates to damages that the
minor child suffers as a direct result
of the incident that occurred
during January/February 2007. The second claim relates to the
plaintiff in her personal capacity
as a result of the incident during
January/February 2007.
14. Counsel for plaintiff
requested that the matter only proceed in respect of the claim
relating to the minor child, the other
claim, claim 2 to stand over
for adjudication at a later stage.
15. The circumstances
that led to the claim for damages in respect of the minor child can
be summarised as follows:
(a) The plaintiff
was admitted to the Witbank Hospital on 15 January 2007 and on the
same day she gave birth to the minor
child;
(b) The minor child
was born prematurely at 28 weeks and was incubated;
(c) During the
period 15 January 2007 to 9 March 2009, the personnel and employees
of the Witbank Hospital generally took
care of the plaintiff and the
minor child, administered medication and intravenous feeding to the
minor child, applied a tourniquet
to the leg of the minor child when
administering a Iatrogenic intravenous feeding in the neonatal
intensive care unit of the hospital;
(d) The application
of the tourniquet was by way of a surgical glove;
(e) During the
night of 3 to 4 February 2007, the tourniquet was left on the minor's
right leg
(f) The
failure to remove the tourniquet on that occasion, resulted in the
blood supply to the lower leg being cut off
and thereby causing
permanent damage to the body tissue of the minor's leg;
(g) The sequelae of
the aforesaid failure to timeously remove the tourniquet resulted in
permanent scarring and an inability
to utilise the leg properly in a
normal and natural manner.
16. Dr P Engelbrecht, an
Orthopaedic Surgeon, indicates and recommends in his report future
medical procedures that are necessary
to be undertaken as a result of
the aforesaid incident. He has set out the cost of such medical
procedures.
17. The various experts
agree that the result of the aforesaid incident, the minor child
suffers severe physical impairment. The
experts are also agreed that
the said physical impairment exacerbates the inevitable impairment
resulting from the premature birth
of the minor child.
18. The minor child is
thus not only physically disabled, but
inter alia
also suffers
cognitive disabilities. The combined result, so say the experts,
impacts negatively on the progress of the minor child
in her
education, her natural development, her social interaction and her
prospects of enjoying employment later.
19. The effect of the
foregoing, according to the experts, requires that the minor child be
placed in a special school where she
would be privy to assistance in
respect of her impaired learning ability and where she would enjoy
further assistance relating
to her development. The New Hope School
in Pretoria has been identified as a recommended placement. The minor
child would be accommodated
in the hostel facilities of the school
for logistical and other related reasons. She presently resides with
her mother in Bethal,
Mpumalanga.
20. However, the experts
are further agreed, that the minor child requires additional
assistance in addressing her impaired learning
abilities. Such
additional assistance would require the appointment of a tutor
I
au pair.
The experts are agreed that the minor's mother is not
capable of assisting the minor child in this regard.
21. The experts are
agreed and recommend that provision is made for the appointment of an
Occupational Therapist to assist the minor
child from time to time in
monitoring her physical impairment.
22. As the minor child is
incapable to attend to any financial matters of her own, she is
presently 9 years of age, and would in
future not be able to attend
thereto, the experts recommend that a trust be established where a
trustee could attend to her financial
matters and to assist in
arranging the various medical procedures that are recommended
as and when such are required.
23. I agree that it is
necessary to place the minor child in a special school such as the
New Hope School in Pretoria and that she
be accommodated in the
hostel facilities. I further agree that the minor child suffers such
impairment as a result of the incident
that an Occupational Therapist
be appointed as and when required to monitor the progress of the
minor child. I also agree that
it is necessary to appoint a tutor
I
au pair
to assist as recommended.
24. It is clear from the
evidence before me that the mother of the minor child would not be
capable to assist the minor child in
attending to the minor child's
financial matters. It would be in the interest of the minor child
that a trust be established and
a trustee to be appointed to address
the matters as indicated in the reports. In that regard, Mr Constant
Wilsnach, an attorney,
has indicated that he is willing to be
appointed as trustee. I am of the view that the duration of the trust
should be life long.
Should it be required that the trust be
terminated prior to the death of the minor child, an application in
that regard is to be
made to the High Court. A draft Trust Deed has
been provided. I am satisfied with the terms thereof.
25. I have before me a
number of Actuarial reports compiled in respect of the relevant
rubrics relating to damages. There are updates
and others deal with
additional issues that have arisen since the initial report was
prepared. These are of great assistance in
determining the amounts to
which the plaintiff is entitled.
26. Mr Geach submitted in
respect of the contingencies relating to the loss of earnings that
are to be considered, that 17.5% would
be reasonable and fair. I
agree.
27. He also submitted,
with reference to comparable awards made in the past, that an amount
of R350 000.00 in respect of general
damages would be reasonable in
the circumstances surrounding this matter. I agree.
28. It follows that the
plaintiff in her representative capacity as mother and natural
guardian of the minor child is entitled to
the amount of R4 109
273.00 made up as follows:
(a) Loss of
earnings R676
000.00 less 17.50%: R 558 195.00
(b) General
damages: R
350 000.00
(c) Future medical
and related expenses: R2
472 550.00
Subtotal:
R3 380 745.00
Minus interim payment:
R 100 000.00
Plus trust costs (life
long):
R 828 528.00
Total:
R4 109 273.00
I grant the order as
contained in the draft order prepared by counsel for the plaintiff,
duly completed by me, marked XYZ and attached
to this judgment.
On behalf of
Plaintiff: B P
Geach SC
L
J Visser
Instructed by:
Salome
Le Roux Attorneys
On behalf of Defendant:
No appearance
Instructed by: