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[2015] ZAGPPHC 605
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C.S obo T.G.S v MEC for Health, Gauteng (27452/2009) [2015] ZAGPPHC 605 (12 August 2015)
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REPUBLIC
OF SOUTH AFRICA
IN
THE GAUTENG DIVISION OF THE HIGH COURT, PRETORIA
CASE
NO: 27452/2009
DATES
HEARD: 3/8, 5/8, 6/8/2015
In
the matter between:
C
S. (obo T G S.)
Plaintiff
and
THE
MEC FOR HEALTH, GAUTENG
Defendant
JUDGMENT
J
W LOUW, J
[1]
The plaintiff in his capacity as father and natural guardian of T. G.
S. ([.....]) instituted action against the defendant for
damages
arising from the fact that T. was born with brain damage at the
Kalafong hospital on [….]. It was alleged
that T’s
brain damage was caused by negligence on the part of employees of the
Gauteng Department of Health before, during
and after T’s
delivery.
[2]
The defendant initially denied liability, but the parties
subsequently settled the merits of the claim on the basis that the
defendant accepted liability for 50% of T’s proven damages.
What remained to be decided is the quantum of the damages.
[3]
The plaintiff claimed damages under six headings:
·
Past
medical expenditure
·
Past
caregiving
·
Future
hospital, medical and related expenditure
·
Loss
of income
·
General
damages
·
Costs
of protecting the award.
[4]
By the time the trial commenced, the parties had managed to settle
the first, second, fourth and sixth heads of damages.
The
matter stood down with the leave of the court to afford the parties
the opportunity of settling the remaining issues.
When the
matter recommenced, everything had been settled save for general
damages.
[5]
T was born with cerebral palsy. The injuries from which he
suffers are the following:
·
Severe
brain damage resulting in severe motor and cognitive impairment in
the form of quadriplegia complicated by contractures.
The
condition is permanent.
·
Muscular
scoliosis deformity which has to be surgically addressed.
·
A
permanently dislocated hip. Because he cannot walk, there is no
need of repairing it.
·
A
claw type deformity of the right hand.
·
Ventricoloperitoneal
shunts, of which he has had three.
·
His
hearing has been severely affected.
·
He
is not able to speak.
·
He
has radically reduced vision.
·
He
has a pulmonological disability resulting in frequent ear infections.
·
He
faces a number of surgical procedures in future, including
orthopaedic, gastro-enterological, neurosurgical and dental.
[6]
The experts are agreed that T has no insight into his condition, but
he does suffer pain, discomfort and frustration.
He has been
permanently disabled and disfigured and has suffered a permanent loss
of the enjoyment of the amenities of life.
His life expectancy
has been substantially reduced. He is presently eleven years
old and the parties are in agreement that
he is expected to live
another nineteen years.
[7]
Adv. Mullins SC, who appeared for the plaintiff with Adv. Van der
Westhuizen, submitted that the award for general damages should
be
the sum of R1 800 000.00. He relied for the
submission on the awards made in
Sgatya
v Road Accident Fund,
[1]
Megalane NO v The Road accident Fund,
[2]
Zarrabi v The Road Accident Fund,
[3]
Bonesse v Road Accident Fund
[4]
and
Singh
and Another v Ebrahim (1),
[5]
in
all cases adjusted to present day values.
[8]
In
Protea
Assurance Co. Limited v Lamb
[6]
Potgieter
JA said the following:
[7]
“
The
further question that arises is to what extent, if any, this Court
should be guided in its assessment of general damages by
awards in
previous decided cases. In the case of Sigournay v. Gillbanks,
1960
(2) SA 552 (AD)
at
p. 556, SCHREINER, J.A., is reported to have said:
"Nothing
like a hard and fast rule or definite standard is to be found in a
matter so closely linked with the particular circumstances
of each
case, but some guidance is to be derived from the notion that
fairness to both parties is likely to be served by a large
measure of
continuity in size of awards, where the circumstances are broadly
similar. As was said by INNES, C.J., in Hulley v.
Cox,
1923 AD 234
at
p. 246, a comparison with other cases though never decisive is
instructive. I respectfully agree in this connection with the
statement of ORMEROD, L.J., in Scott v. Musial,
(1959) 3 W.L.R. 437
at p. 446, that there emerges 'a general idea of the sort of figure
which, by experience, is regarded as reasonable in the circumstances
of a particular case' to which general idea a Court of appeal should
give regard."
In
the case of Capital Insurance Co. Ltd. v. Richter,
1963
(4) SA 901
(AD)
at
pp. 907 in fine, 908, WESSELS, J.A., said:
"I
am of the opinion that there is no justification for the recognition
by this Court of any hard and fast rule of general
application (such
as was contended for by appellant's counsel), requiring a trial Court
(or this Court on appeal) to proceed to
a consideration of past
awards in vaguely comparable cases. Comparison can only be usefully
undertaken where the circumstances
are clearly shown to be broadly
similar in all material respects. To give any wider degree of
recognition to a rule of this nature
would render the difficult task
of determining the quantum of damages even more burdensome and liable
to error than is already
the case without any real advantage to the
Court or the litigants."
In
the case of Marine Trade Insurance Co. Ltd. v. Goliath,
1968
(4) SA 329
(AD)
F
at p. 333H, VAN BLERK, J.A., said:
"In
Sigournay v Gillbanks,
1960
(2) SA 552
(AD)
at
p. 556B, the opinion was expressed that regard should be given to a
general idea of the sort of figure which by experience is
regarded as
reasonable in the circumstances of a particular case. This suggests
that a court need merely draw on its own experience
and does not
require to be reminded of earlier awards by the citation of an array
of decisions."
And
at p. 334B:
"In
theory it may sound well that regard should be had to previous awards
in comparable cases but in practice, as was pointed
out by this Court
in London Assurance v. Cope, 1963 (1) P.H. J6, the difficulty is to
find comparable cases. Moreover, to ascertain
whether particular
cases are similar in material respects the facts in regard to the
degree of pain suffered by the claimant in
each particular case and
the amenities of life of which he was deprived must be known before a
comparison is justified. This would
entail at least a study of the
full judgment in each case. Mere knowledge of the nature of the
injuries would not be sufficient."
The
above quoted passages from decisions of this Court indicate that, to
the limited extent and subject to the qualifications therein
set
forth, the trial Court or the Court of Appeal, as the case may be,
may pay regard to comparable cases. It should be emphasised,
however,
that this process of comparison does not take the form of a
meticulous examination of awards made in other cases in order
to fix
the amount of compensation; nor should the process be allowed so to
dominate the enquiry as to become a fetter upon the
Court's general
discretion in such matters. Comparable cases, when available, should
rather be used to afford some guidance, in
a general way,
towards assisting the Court in arriving at an award which is not
substantially out of general accord with previous
awards in broadly
similar cases, regard being had to all the factors which are
considered to be relevant in the assessment of general
damages. At
the same time it may be permissible, in an appropriate case, to test
any assessment arrived at upon this basis by reference
to the general
pattern of previous awards in cases where the injuries and their
sequelae may have been either more serious or less
than those in the
case under consideration.”
[9]
Particular reliance was placed by Mr. Mullins on the judgment in
Singh
which,
he submitted, was directly comparable with the facts in the present
matter. The award in
Singh,
made
on 20 March 2008, was R1 200 000.00. Adjusted for
inflation, the award as at August 2015 would, according to
the
calculation of the parties’ joint actuaries, be approximately
R1 808 000.00. It was therefore submitted
on behalf
of the plaintiff that the award for general damages should be the sum
of R1 800 000.00.
[10]
The life expectancy of T and that of the minor Nico in
Singh
are
virtually the same (a total of 30 years in the case of T and 29 years
in the case of Nico). The
sequelae
from
which they suffer are broadly similar. Certain of the
sequelae
in
the case of Nico are, however, less serious than in the case of T.
It appears from the judgment of Koen J that Nico had
quadriparetic
dyskinetic cerebral palsy with elements of truncal hypotonia.
He had elements of spasticity and was fully dependent
on the care of
others. He had sensation and cognition and it appeared an
understanding of events around him. The matter
went on appeal
to the Supreme Court of Appeal
[8]
and in the judgment of Snyders JA it is mentioned
[9]
that Nico did not suffer from mental retardation and that (unlike in
the case of T) his quadriplegia was predominantly dyskinetic
as
opposed to spastic, that he did not suffer from epilepsy, that he
made attempts to verbalise, that he had expressive non-verbal
communication ability and that his receptive language ability was
appropriate to his age. The court did not question the
amount
awarded for general damages by the court
a
quo.
[11]
Adv. Cassim SC, who appeared with Adv. Mpshe and Adv. Tsele for the
defendant, submitted that
Singh
’s
case was distinguishable from the present matter because of the
differences in the condition of T and that of Nico to which
I have
referred. She nevertheless submitted that an amount of
R600 000.00 would be a reasonable award for general damages.
[12]
An award of R600 000.00 would not be in line with any of the
judgments to which I have referred and would, in my view,
be
inappropriate. The amount of R1 800 000.00 suggested
by Mr Mullins is based on what was awarded in
Singh
,
adjusted for inflation to present day value. I am mindful of
the judgment of the Appellate Division in
AA
Onderlinge Assuransie Assosiasie Beperk v Sodoms
[10]
in which it was stated that, generally, it is not advisable to make
an adjustment for the depreciated value of money by slavishly
applying the figures of the Consumer Price Index as that would unduly
limit the court’s discretion to
determine
the
quantum
of general damages. In the present matter,
however, the
sequelae
from which T suffers are more serious
than
those
suffered by Nico. Adjusting the amount of the award in Nico’s
case would therefore not unduly benefit T.
I am accordingly of
the view that an award of R1 800 000.00 for T’s
general damages is appropriate and justified
in all the
circumstances.
[13]
In the result, an order is granted in terms of the draft order
prepared on behalf of the plaintiff which I have marked “X”.
The amount of
R7 634 984.91
to be paid by the defendant in terms of the order represents 50% of
the total of the plaintiff’s claim,
including 50% of the award
of R1 800 000.00 in respect of general damages.
Counsel
for the plaintiff: Adv. J F Mullins SC; Adv. A van der
Westhuizen.
Instructed
by Ilzé Eichstädt Attorneys.
Counsel
for defendant: Adv. N Cassim SC; Adv. H Mpshe; Adv. R J Tshele
Instructed
by: The State Attorney, Pretoria.
[1]
(2001) 5 QOD A2-1 (E)
[2]
2006 (5A4) QOD 10 (W)
[3]
2006 (5B4) QOD 231 (T)
[4]
2014 (7A3) QOD 1 (ECP)
[5]
[2010 ] 3 All SA 187 (D)
[6]
1971 (1) SA 530 (A)
[7]
At 535A-H
[8]
[2010] ZASCA 145
(26 November 2010)
[9]
At para [158]
[10]
1980 (3) SA 134
(AD) at 141G-H