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[2012] ZAFSHC 125
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Molete v MEC for Health, Free State (2155/09) [2012] ZAFSHC 125 (21 June 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 2155/09
In the matter between:-
MICHAEL MOLETE
…..................................................................
Plaintiff
and
MEMBER OF THE
EXECUTIVE COUNCIL
FOR HEALTH, FREE
STATE PROVINCE
…..........................
Defendant
_____________________________________________________
HEARD
ON:
2 MARCH 2012
_____________________________________________________
JUDGMENT
BY:
RAMPAI, J
_____________________________________________________
DELIVERED
ON:
21 JUNE 2012
_____________________________________________________
[1] The hearing of
evidence was completed on Friday, 2 March 2012. There was no
sufficient time for the parties to present their
closing legal
argument. The two counsels were not local advocates. I was about to
go on long leave. The parties were reluctant
to have the matter
postponed to a date during the third court session for argument.
[2] In view of the
aforegoing factors it was agreed to dispense with oral argument. I
was given the green light to use written heads
of argument instead.
The last dates on which such heads were to be filed by the defendant
and the plaintiff were 4 April 2012 and
30 April 2012, respectively
(
vide
court order 3 March 2012). The underlying purpose for
the filing of the written heads of argument was to expedite the
finalisation
of the matter. To this end I undertook to craft the
required judgment soon after 30 April 2012.
[3] The plaintiff’s
written heads of argument were filed on 19 April 2012. The
defendant’s written heads of argument
which were supposed to
have been filed on 4 April 2012 were still outstanding as on 14 May
2012, more than five weeks since they
became due. By then there was
no explanation whatsoever for the defendant’s default. At long
last the outstanding heads were
eventually filed on 25 May 2012. I
say no more.
[4] The plaintiff sues
the defendant for the payment of compensation in the sum of R21 000
000,00. He sues in his representative
capacity as the biological
father and natural guardian of his minor son, Moahlodi Daniel Molete.
The minor was born on 5 June 2001.
He was injured when he fell out of
a tree at Odendaalsrus on Christmas day, 25 December 2007.
[5] From the scene of the
accident the child was rushed to Thusanong Hospital, a public
hospital at Odendaalsrus, on 25 December
2007. He was not admitted.
He was not x-rayed. A doctor applied a plaster back slab to the
injured left arm and advised the plaintiff
to bring the injured child
back on 28 December 2007. The plaintiff did so. The plaster cast was
removed and the child was x-rayed
on 28 December 2007. He was
diagnosed with a fractured forearm. In spite of the angulation of the
forearm, no corrective surgical
procedure was performed. The child
was again sent back home. On 15 February 2008 the child was called
back as a result of the plaintiff’s
complaint to the department
of health. On his third visit to the hospital, Dr. Mahlatsi caused
the child’s left arm to be
x-rayed one more time. A dislocation
of the left elbow was diagnosed.
[6] The child was taken
to Bongani Hospital, a regional hospital in Welkom, on 7 March 2008.
There he was examined by Dr. Mohamed.
The elbow dislocation was
confirmed by the latter. The next day Dr. Mohamed referred the child
to Pelonomi Hospital in Bloemfontein.
On 14 March 2008 the child was
booked for surgery. Three days later he was admitted. An operation
was performed by Dr. Smith, an
orthopaedic surgeon.
[7] The defendant was
sued in his representative capacity by virtue of the provisions of
the
State Liability Act, 20 of 1957
. The plaintiff alleged that
during December 2007 certain medical doctors or nurses or both who
were employed by the defendant’s
department performed medical
services in a manner which was professionally negligent. The essence
of their alleged negligence,
the plaintiff averred, consisted of
their failure to properly diagnose a fracture of the child’s
left arm and dislocation
of his left elbow and to treat those
injuries accordingly.
[8] On 31 August 2010 the
defendant conceded the merits in favour of the plaintiff and admitted
fully liability on certain specified
grounds of professional medical
negligence.
[9] The version of the
plaintiff’s claim was narrated by the following five expert
witnesses:
Mr. J.R. Domingo, an
orthopaedic surgeon
Mr. F.G. de Kock , an
industrial psychologist
Ms J.C. Bainbridge, an
occupational therapist
Ms F.A. van Vuuren, an
educational psychologist and remedial therapist
Ms H.G. Hughes, a
registered physiotherapist
[10] The version of the
defendant was also narrated by five expert witnesses, namely:
Mr. B. Moodie, an
industrial psychologist
Ms L. Janse van Vuuren, a
physiotherapist (hospital chief)
Ms V.T. Alexander, an
occupational therapist
Prof. J.A. Shipley, head
of department of orthopaedics - UFS
Prof. R.Y. Seedat,
specialist ear-nose-throat
[11] The plaintiff sued
the defendant for damages under the following heads of compensation:
future loss of earning capacity, future
medical expenses and general
damages.
[12] In the first place,
I deal with the child’s claim for future loss of earning
capacity. This is but one segment of special
damages claimed. The
plaintiff claimed R10 million under this head. The inquiry requires
the leading of medical evidence concerning
the effects which the
medical negligence is likely to have on the child in the long run. Of
particular significance is the effect,
if any, of such professional
negligence on the child’s ability to earn an income in the
future.
[13] On behalf of the
plaintiff it was contended by Mr. Dutton that the child would suffer
substantial loss of the capacity to earn
income as a result of the
said negligence. In support of his claim under this segment, the
plaintiff relied on the expert evidence
of Mr. F.G. de Kock, an
industrial psychologist, Ms F.A. van Vuuren, an education
psychologist and remedial therapist, as well
as Ms J.C. Bainbridge,
an occupational therapist.
[14] The collective
thrust of the evidence tendered by those experts sought to establish
that the injury or rather the professional
negligence to make a
medically correct diagnosis of the full extent of the child’s
injury, would have an adverse impact on
his ability to compete for
work on the labour market in the future.
[15] On behalf of the
defendant it was contended by Ms Norman that the child would not
suffer as much severe loss of capacity to
earn income as a result of
the medical negligence associated with the misdiagnosis as the
plaintiff contended. In support of the
defendant’s contention
the expert opinion of Mr. B. Moodie, an industrial psychologist, in
particular was heavily relied
upon. So too was the opinion of Ms L.
van Vuuren and Ms V.T. Alexander. The cumulative essence of the
evidence given by the aforegoing
expert witnesses was intended to
establish that the child’s injury exacerbated, as it was, by
the medical negligence did
not radically compromise his ability to
earn income in the future as was suggested by his father, the
plaintiff.
[16] Before I proceed any
further, it is perhaps necessary to comment about the child. The
child, Moahlodi Daniel Molete, was born
on 5 June 2001. He was
delivered at full term after normal pregnancy. He was delivered by
way of a caesarean section. There was
nothing unusual about his
developmental milestones. He had no prior surgical history or
accident before the fateful day. He lived
at Odendaalsrus at all
times material to this dispute. He was the first child in a family of
two siblings. He began his school
career at the tender age of five
years and seven months at Icoseng Primary School at Kutloanong. In
2007 he was a grade 1 learner.
On Christmas day of the same year he
met his disaster while playing in a tree with a friend. He fell out
of a tree on a neighbouring
property. In that freak accident he
sustained a fractured left upper arm and a dislocated left elbow.
[17] He was medically
treated at three public hospitals. He went back to school in January
2008, his injuries notwithstanding. He
has never failed a grade at
school. Last year he was in grade 5. This year he is probably in
grade 6. His school performance seemingly
was not negatively affected
by the tree accident. He and his father were still living at
Odendaalsrus at the time of the hearing.
His mother and the younger
brother were living at Rustenburg where she was working. His father
has passed grade 10 and his mother
grade 12.
[18] Given the aforegoing
historical background, I consider it advisable to deal with the
evidence given by Ms F.A. van Vuuren,
the educational psychologist.
In a detailed educational assessment report the psychologist
thoroughly assessed the intellectual
strengths and deficits of the
child. She identified certain areas of major concern in the child’s
educational functioning.
When his knowledge and logic of mathematical
operations were put to the test, his abilities were found to be
wanting. As regards
numeracy his bonds were considered to be below
both age and grade level. Although he was in grade 5 at the time he
was assessed,
his bonds were, at best, at par with those of a grade 3
learner. The psychologist opined that underlying problems with
complex
listening and attention skills, adversely affected the
child’s performance on the test for arithmetical logic and
knowledge
of operations. She found that when the child was
scholastically tested, it became apparent that he had not mastered
simple arithmetical
bonds.
[19] Apart from the
child’s numeracy handicaps, the psychologist also found that he
suffered from inadequacies relative to
vocabulary, creative written
expression and reading comprehension. After administering
arithmetical test, the psychologist commented:
“
The results
of the educational screening confirm that he is not functioning at
grade level in literacy or numeracy skills although
decoding reading
skills are sound. The results are inconsistent with his school
reports which suggest that he is a competent pupil.”
[20] In assessing the
child’s intellectual disabilities and abilities, the education
psychologist made use of what is known
as TEST WISC-IV. Of importance
in the use of this particular testing tool was that it allowed a
pattern of latent strengths and
weaknesses of an individual to
emerge. Ms Van Vuuren identified the following deficits in the child:
limited expressive
understanding of word meanings, which negatively affects his
communication and would increasingly disadvantage
him in the higher
grades;
quite slow mental
processing speed on a whole range of tasks;
slight difficulties with
perceptual skills;
somewhat limited
reasoning abilities with noticeable gap between the actual level of
functioning and the potential level of functioning;
poor mathematical skills
despite the contrary first impression created by his school reports;
some problems with
complex attention as well as lack of sustainable concentration;
emotional factors and
symptoms of underlying anxiety and over-sensitivity.
[21] The strength of the
child included:
adequate copying skills;
sound non-verbal
inductive reasoning under optimal conditions;
responsiveness to
positive feedback and encouragement and capacity for concern and
empathy for others.
His visual memory for
designs was considered to be very good as was his auditory memory.
[22] The bright
pre-accident scenario suggested that the child had the potential to
progressively perform well on the scholastic
front. On the strength
of his available grade 1 track record it was expected that he would
become a learner of average intellectual
ability; that he would
reasonably cope in the mainstream class with the option of further
education and training either by short
course study or on the job
training.
[23] The bleak post
accident scenario suggested that the child would not optimally
function as he progressed higher and higher in
his school career. It
was noted that there were factors retarding the level of his actual
functioning and limiting him from achieving
the potential level of
his innate intellect. It was found that there were neurological signs
–
vide
p. 9 exhibit “C” for Ms F.A. van
Vuuren’s complete assessment report.
[24] Ms J.C. Bainbridge,
the occupational therapist gave evidence. The purpose of her
assessment report was to describe the child’s
physical and
cognitive abilities and to determine the effects his injury related
disabilities would have on his functional performance
of tasks in his
work environment in particular.
[25] The occupational
therapist observed that the child was right hand dominant. He used
his right hand to hold a spoon for the
purpose of eating and
drinking. He bathed, dressed and toileted independently in spite of
his bodily injuries. He occasionally
wetted his bed at night.
Although his personal management appeared reasonably satisfactory,
certain difficulties relative to such
managements were observed. He
could not properly wring water out of a facecloth and he could not
carry a dish of water without
spilling. The occupational therapist
was of the opinion that the child’s difficulties evidenced that
he did not have adequate
strength in his left hand.
[26] The child spent his
leisure time playing with his friends. He has a lot of them. He
played street soccer. He liked playing
as a goal keeper. Although he
could put his arms up to catch a ball, he experienced pain in his
left elbow. He did not take part
in any organised sporting activities
at school before and after the disaster of falling out of a tree.
[27] Ms Bainbridge made
certain findings following her assessment of the child. She found
that he was right hand dominant; that
he had an obvious surgical scar
on his left upper arm; that the left arm strength was weaker than
that of his right arm; that he
demonstrated reduced endurance and
stamina in sustained heavy duty tasks; that his left arm had
restricted ranges of motion for
pronation and elbow extension; that
he resorted to compensatory mechanisms to make up for the deficiency
of pronation of the left
arm; that he displayed a grossly clumsy
approach to functional tasks of a fine motor nature requiring
bi-manual function and that
his below average scores suggested that
he had cognitive and perceptual deficits residual to concussion or
head injury.
[28] The formal testing
she carried out highlighted that the child visual motor integration
was weak; that certain aspects of his
visual perceptual processing
were weak; that his mathematical processing was weak; that his
writing speed was slow; that his upper
limp speed and dexterity were
retarded and that he physically presented with a postural asymmetry
about the shoulder girdle with
the left shoulder riding higher than
the right during bilateral upper limb physical activities. The left
upper limb, in other words,
the non-dominant limb has diminished
sensation. The loss of sensory abilities was detected on the lateral
aspect of the humerus
adjacent to and including the 18 centimetre
railroad operative scar. The lateral aspect of the elbow and the
forearm slightly reduced
the extension of the left elbow with a
residual flexion deformity, was noted.
[29] Concerning the
child’s future education, the occupational therapist commented:
“
His
assessment results suggest that he has underlying difficulties in
several core areas of function; the etiology of such difficulties
is
not clear and could well have predated his accident. Equally, were he
to be found to have had a concussional injure, (sic) core
areas of
fall out could be identified and/or attributed to such an injury.
Whatever the case, it is anticipated that Daniel will
have
difficulties negotiating his way through the more demanding
requirements of higher grades at school in which self directed
study
and increased volumes of work are inherent. Deference is made to the
Educational psychologist regarding his aptitude for
mainstream
schooling, and/or the necessity for remedial support in future years
at school. Future training options will be determined
by the level of
schooling attained; opportunities for skills training in which
bimanual tasks are (sic) inherent are likely to
be narrowed.”
[30] My take of the
aforesaid witness’ expert opinion was that the child’s
ability to do basic things such as shopping,
reading, lifting,
carrying or performing other functional activities integral to daily
human living, would worsen with the passage
of time. As a result of
his surprising low cognitive functioning and perceptual functioning
his scholastic and occupational opportunities
would be adversely
curtailed –
vide
p. 52 exhibit “C” for Ms
J.C. Bainbridge’s full report.
[31] Mr. Gideon de Kock
testified. The purpose of his industrial psychological assessment was
to evaluate the child’s psychological
functioning from an
industrial psychological perspective to determine the extent to which
the injuries he sustained may have affected
him educationally and
vocationally.
[32] The post morbid
scenario was examined. The industrial psychologist alluded to the
child’s severe injury of the left forearm.
The injury consisted
of a fracture of the ulna which was displaced and was associated with
the elbow dislocation of the head of
the radius. He now has a
permanent disability in the left elbow and forearm. There is now loss
of extension and of flexion in the
impaired arm.
[33] There is loss of
pronation. The loss of protation of the arm is permanent. Therefore,
the industrial psychologist was of the
firm opinion that such
permanent restriction of rotation would affect the child’s
employment choices in the future. According
to him the greatest
sequilae of the injury was loss of pronation. Such physical
limitation drastically prevented the child from
rotating his left
palm to face down.
[34] The psychologist
said that the child would find it physically difficult to execute
double-handed tasks where the left hand
is used a great deal. Playing
a goalkeeper, driving, using a computer or a typewriter are some of
the examples of double-handed
tasks that readily come to mind.
[35] The child also
displayed pronounced cognitive deficits. It could not be conclusively
determined whether the aetiology of such
deficits was emotional or
neurological in nature. Mr. De Kock aligned himself with the expert
opinion that the child was likely
to progressively struggle in the
higher grades of his school career and that he was unlikely to
achieve the same result but for
the trauma. Since the accident had
happened experts were of the opinion that he was unlikely to pass
matric. In the future he would
thus be destined to compete at the
unskilled level of the open labour market.
[36] On the one hand his
physical shortcomings were seen as an obstacle likely to narrow the
scope of his future career choices
to limited jobs of a light duty
nature to those of medium duty nature at the unskilled level of the
open labour market. He would
therefore be physically unable to choose
and perform jobs of a heavy duty nature. On the other hand his
intellectual shortcomings
were regarded as obstructions likely to
narrow the scope of his future career choices in much the same way to
limited jobs of a
light duty nature to those of medium duty nature at
the same unskilled level in the open labour market.
[37] In view of the
aforesaid physical difficulties as well as cognitive difficulties,
the future of the child appeared bleak from
the occupational
perspective. Implicit in those distinctive types of difficulties
taken together, is that he would not be able
to compete with his
peers on the physical grounds at the unskilled level of the open
labour market and also that he would not be
able to compete, on
cognitive grounds, at the skilled level of the open labour market. He
would therefore have to walk a tight-rope
post-morbidly.
[38] I have already
alluded to the opinion of the industrial psychologist to the effect
that the child would have limited scope
of vocations to choose from
in the future. Due to such narrow choice of suitable jobs, the expert
witness was of the opinion that
a higher than normal contingency rate
for unemployment should be applied in quantifying the claim. The
witness expressed the opinion
that the child would probably be
impelled to retire early at approximately the age of 58 years. His
retirement would be expected
to be preceded by a gradual decline in
the capacity to cope with the demands of unskilled employment. The
envisaged early retirement
and the deterioration of his capacity to
work would be associated with significant reduction in his future
earnings.
[39] Now the ante morbid
scenario. Had it not been for the accident, the child would have
successfully completed grade 12 level
of formal education, according
to the expert witnesses. In that scenario he would be able to
favourably compete at either the unskilled
level or semi-skilled
level in the open labour market. He would be able to remain in
gainful employment until the normal retirement
age of 65 years. There
were no pitfalls, such as early retirement or deterioration in his
capacity to work, looming on the horizon.
His future capacity to earn
an income and his future prospects to gain progressive promotions
were not in jeopardy. In a nutshell
in the previous pre-morbid state
the future was bright in contrast to the currently bleak post-morbid
state of affairs.
[40] The witness’
forecast was that, after achieving matric, the child would probably
have embarked on a two year post matric
course of study at a further
education and training college. He would have completed matric as
earlier stated. The industrial psychologist
made a decrimental
contingency allowance that the child would probably have been
unemployed for a certain period of time subsequent
to the completion
of his college study. During such an initial post college period, he
would be looking for a job.
[41] The industrial
psychologist also made an incremental contingency allowance in the
child’s future income earning capacity
in staggered series of
steps from the third to the seventh year of the child’s gainful
employment. The adjustment to the
prospective earning would apply or
kick in as the child progressively rose up the employment ladder
during the course of his vocational
lifespan. The witness predicted
that the child’s last promotion would have been at the age of
55 years and that he would
have remained at that salary ceiling until
he retired at the age of 65.
[42] The industrial
psychologist’s further evidence was that he applied the figures
as set out in the actuarial manual known
as Robert Koch:
Quantum
Year Book 2011
to quantify the child’s future loss of
income earning capacity. He explained that he made provision for the
child’s
future employment either in the corporate sector or in
the non-corporate sector. The evidence of the industrial psychologist
considered
together with the actuarial assessment report by Dr. R.J.
Koch basically boiled down to this: During the entire course of his
working
life the child stood a reasonable chance of earning R885 504,
00 or R1 717 204,00 if he were employed in the non-corporate sector
or the corporate sector respectively.
[43] Obviously it could
not be determined with absolute certainty in which sector the minor
would have earned his livelihood in
the future. The correct approach
to be adopted in these circumstances is to use a figure midway the
two extremes: the high estimate
is the corporate sector on the one
hand and the low estimate is the non-corporate on the other side.
Applying such a method brings
me to the reasonable assumption that
the child as a future worker stood a chance of earning a sum of R1
301 354,00 had the accident
not occurred.
[44] This then disposes
of the one component of the claim in respect of future loss of
earning capacity.
[45] In the second place
I deal with the child’s claim for future medical expenses. This
too is another segment of special
damages. The plaintiff claimed R10
million under this head. Here the inquiry again required the leading
of medical evidence concerning
the prospective financial loss which
the child is likely to incur on account of his injury and the
long-term impact of the costs
of his future medical treatment on his
financial resources.
[46] On behalf of the
plaintiff, Mr. Dutton argued that the child would suffer substantial
prospective financial loss in the form
of future medical expenses as
a result of the injury. In support of his claim under this head the
plaintiff relied on the expert
evidence of the following three
witnesses:
Dr. J.T. Domingo, an
orthopaedic surgeon
Ms J.C. Bainbridge, an
occupational therapist
Ms G. Hughes, a
physiotherapist
and the expert opinion of
the following two doctors whose reports were admitted as per exhibit
“e”.
Dr. L. Dumas, a plastic
and reconstructive surgeon
Dr. R.J. Koch, an
actuary.
[47] According to Dr.
Domingo, the plaintiff complained that the child had a long surgical
scar on the left arm; that there was
loss of movement of the left
elbow; that the child endured occasional pain and that the child was
scared to normally use the left
arm. The doctor then physically
examined the movement of the elbow and the hands. As regards the
elbows he discovered that the
left elbow could not extend at all. The
measured reading of its extension movement was zero. As regards the
hands he discovered
that the left hand could not pronate at all. The
measured reading of its pronation movement was zero. However, the
supination movement
thereof was normal. The range of its movement was
measured as 0º to 90 º.
[48] When a person’s
hand is placed, say on a desk at a 90 º with a thumb pointing
upwards, is turned in such a way that
its palm faces downwards on a
desk, its inwards movement from 0 º to 90 º is termed
pronation. However, when a person’s
hand is placed in the same
perpendicular position on a desk, but is turned away from the body so
that its palm faces upwards on
a desk, its outwards movement from the
upright position to a horizontal position is termed supination.
[49] Dr. Domingo
investigated the aforesaid physical restrictions of the child’s
left arm movement and found that the child
had sustained a severe
injury of the left arm. The injury consisted of a fracture of the
ulna which was displaced and was associated
with a dislocation of the
head of the radius – medically described as monteggia fracture
dislocation.
[50] The plaintiff’s
experts were agreed that the child would require future medical
treatment. Their various inputs concerning
estimates of probable
future medical expenses were used by Dr. R.J. Koch to quantify the
child’s future medical expenses.
In doing so, the actuary also
took into account the medical opinions by the defendant’s
witness, Dr. Shipley, the orthopaedic
surgeon. In the final analysis
the actuary came to the conclusion that the total figure of R871
583,00 represented a fairly reasonable
estimate of the future medical
expenses. The assumptions he made about the rates of mortality,
interest and inflation were apparent
from the actuarial assessment
report –
vide
p. 128 exhibit “C”.
[51] Ms Gowa, the
defendant’s expert witness, recommended that provision be made
for a washing machine. The costs thereof
she estimated at R3000,00.
It was the witness’ opinion that the functional duration
thereof would be five years. According
to Dr. Koch the child’s
life expectancy was 55 years. Therefore, the plaintiff calculated the
total costs of the washing
machine(s) as follows: R3 000,00 x 5 years
x 11 years (sic) = R33 000,00. That brought the total sum claimed for
the future medical
expenses to R904 583,00, being the sum of R33
000,00 + R871 583,00.
[52] I have to make two
comments on the total sum claimed for future medical expenses. The
first is that no contingencies were taken
into account in the
actuarial assessment report. The second is that the method used in
the separate costing of the washing machine
was flawed.
[53]
The pre-morbid projections by the experts were that Moahlodi was
destined to obtain matric pass at the end of his secondary
school
career. His mother has achieved that milestone. His father came close
to attaining that same goal. The boy had innate intellectually
potential to reach that goal (accosting to the expert witnesses). Not
so long ago Majiedt J, as he then was, correctly observed
that its is
a generally accepted phenomenon that children normally surpass
educational levels achieved by their parents, in particular
parents
from the previously oppressed backgrounds –
vide
ARTHUR
RENS
v MEC FOR HEALTH: NORTHERN CAPE PROVINCIAL DEPARTMENT OF HEALTH
Case No 799 (2006) par. [24] delivered 2009.04.17.
[54] Despite his
encouraging post-morbid school performance, credible and reliable
evidence by the educational psychologist, Ms
F.A. van Vuuren,
indicated that there was a pathological trauma, not associated with
the accident, which inhibits his cognitive
functioning. That alone
would impair his chances to pass matric. Dr. Domingo said at some
stage in the future the wheel would fall
off and the school
performance would drop quite remarkably.
[55] Ms Norman submitted
that a 15% decremental contingency would be appropriate in the
matter. I do appreciate that there are uncertainties
concerning the
child’s pre-morbid career path. However, I do no accept that,
on the facts, such uncertainties taken into
account together with
normal vicissitudes of life warranted such a high rate of
contingency. It is always difficult to be precise
when projecting
what the future possibly holds for a claimant injured so early in his
childhood. In my discretion, I would allow
a conservative of 7,5%.
[56] As regards the
second comment, the mathematical method used did not take into
account the fact that the child was already over
five and a half
years at the time of the misdiagnosis and that he was already ten and
a half years old at the time he was actuarially
assessed. The methods
used erroneously suggested that the child was entitled, from birth,
to look up to the defendant for the provision
of a washing machine.
Certainly he had no such entitlement before the misdiagnosis.
[57] There was no
evidence that since the accident the child had been dependent on a
washing machine acquired at the expense of
his parents. As a matter
of fact the plaintiff did not claim anything from the defendant for
past medical expenses. That would
be the precise effect if the
plaintiff’s claim were to be allowed for the entire period of
55 years in respect of the costs
of the washing machine. In my view
the correct formula for calculating the costs of the washing machine
and of replacing it at
regular five year intervals from now and
throughout the child’s remaining portion of his expected
lifespan is as follows:
55 – 10 years divided by 5 intervals
multiplied by R3 000,00 equals R27 000,00. To sum up. The
mathematical end result is:
R904 583 – R33 000 + (R27 000) x
92,5% = R831 189. This disposes of the child’s claim in respect
of future medical
expenses.
[58]
In the third and final place, I deal with the child’s claim for
general damages. The plaintiff claimed R10 million under
this head.
Here decided caselaw is a useful source of reference. I am mindful of
the general principles that comparison with earlier
cases though not
decisive is nonetheless instructive –
HULLEY
v COX
1923 AD 234
on p. 246; that
comparative analysis of awards can only be undertaken where the
circumstances of a matter at hand and those of
an earlier decided
case, are clearly shown to be broadly similar in all material
respects –
CAPITAL ASSURANCE CO
LTD v RICHTER
1963 (4) SA 901
(AD)
on p. 908; that regard should be given to a general idea of the sort
of a figure which, by experience, is generally regarded
as reasonable
in the circumstances of a particular case –
SIGOURNAY
v GILLBANKS
1960 (2) SA 552
(AD) at
556B and that a court needs merely to draw on its own experience and
does not require to be reminded of earlier awards
by the citation of
an array of earlier decided cases -
MARINE AND TRADE
INSURANCE CO LTD v GOLIATH
1968 (4) SA 329
(A).
[59] The accident
occurred on 25 December 2007. The plaintiff’s son was then five
and a half years old. He was a school beginner
at the time. He
sustained a fracture of the left ulna and a dislocation of the head
of the radius at the elbow. The orthopaedic
surgeon, Dr. J.R.
Domingo, considered the injury to be a severe one.
[60] The evidence was
that as a result of the major injury, the child endured much pain and
suffering. After the accident he was
immediately rushed to Thusanong
Hospital. He was attended to by the trauma physician on call. He was
conscious but in a confused
state. The extent of the injury was not
properly ascertained. The areas of the pain were not x-rayed because
the x-ray machine
was in a state of disrepair according to the
hospital staff. Although he received no adequate treatment, his
injured arm was partially
placed in a support slab. He was not
admitted. Instead he was then sent home and advised to return to the
hospital in three days
time.
[61] Three days later, on
28 December 2007 to be exact, the child returned to the hospital. He
endured a horrible pain while at
home waiting for his next return to
the hospital, according to the history obtained from his father. The
support slab was removed.
The arm was then x-rayed. The radiographs
revealed that the arm was fractured and the elbow dislocated. The
whole arm was encased
in a plaster of paris by a doctor. The arm
immobilisation treatment entailed the application of a kind of a cast
around the arm
which was then stabilised by means of a sling which
connected the arm to the neck to hold it in a firm position. That
done the
child was again sent home and advised to return to the
hospital after four weeks. During that period the arm was kept in
that uncomfortable
position for a month before the first surgical
operation was performed.
[62] While the arm
remained in a plaster, the child had to walk, sit lie and sleep in a
guided manner. So immobilised, he could
not freely move or sleep. He
initially suffered acute pain and endured considerable physical
discomfort as the displaced radial
head was prominent. It pressed
against the hard plaster.
[63] On 28 January 2008
the plaintiff once more took his son back to Thusanong Hospital. He
was still in pains. The child was seen
by another doctor. The first
treating doctor had left the hospital by then. The child complained
that he endured a great deal of
pain all the time since his previous
visit to the hospital. The second doctor removed the plaster of
paris. It was evident, even
to the plaintiff, that his son’s
left arm was crooked. The doctor caused the child to be x-rayed
again. The radiographs revealed
that the arm-bone was indeed angled.
The child was left out of the plaster, advised to go home and to
start using the arm as normal
again. The plaintiff was not happy at
all about the second doctor’s advice. He lodged a complaint
with the department of
health through his lawyer.
[64] The hospital
superintendent, Dr. Mahlatsi, subsequently called the plaintiff and
secured an appointment. The superintendent
examined the x-rays and
determined that the left elbow was dislocated. He took the child to
Bongani Hospital in Welkom where the
senior doctor in charge, Dr.
Mohamed, saw the child, examined the forearm, diagnosed a fracture
and dislocation of the left forearm
and elbow and at once referred
him to Pelonomi Hospital in Bloemfontein.
[65] On 7 March 2008
radiographs taken showed a mal-united fracture of the ulna and a
dislocation of the radius. A week later the
child was booked for an
operation. Three days later, on 17 March 2008, Dr. Smith, an
orthopaedic surgeon, did an extensive surgical
procedure to correct
the problem of the forearm. The fractured forearm and the dislocated
elbow were surgically exposed. A section
of the fractured bone was
removed from the distal radius and the dislocated elbow was
re-aligned. Some wires were inserted in the
forearm in such a way
that the fractured forearm and the dislocated elbow were internally
supported and stabilised. The operation,
like most surgical
procedures, must have been painful.
[66] The child was
discharged from the Pelonomi Hospital on 19 March 2008 with the pins,
screws and wires still
in situ
. Seemingly the forearm was once
again placed in a plaster of paris. He went home to recuperate. He
also returned to school. The
child’s healing was a gradual,
painful and uncomfortable process. He visited the hospital a few
times for scheduled checkups.
On 5 August 2008 he returned to
Pelonomi Hospital. The wires were removed under ketamine sedation.
There was no evidence as to
exactly when the plaster was removed.
Between those dates he obviously endured some pain and suffering.
[67] After the removal of
the wires, the child had to undergo intensive physiotherapy. There
was evidence gleamed from the hospital
records which indicated that
he attended three physiotherapy sessions at Pelonomi Hospital between
8 September 2008 and 1 October
2008, both dates exclusive. The elbow
joint was manipulated in various ways in an endeavour to strengthen
the joint muscles and
to improve the drastically reduced pronation of
the left hand associated with the left forearm fracture and elbow
dislocation.
The experts were agreed that such treatment was often
vigorous and that it could be quite a painful exercise at each
session. He
finally returned to school and the community with a
disabled elbow. Now he is a physically disabled child.
[68] On 14 October 2008
the child was x-rayed for the last time at Pelonomi Hospital. The
comments of Dr. R.D. Scott on the radiographs
were that the ulna
osteotomy had united with slight radial angulation. The head of the
radius was 30% sublaxed.
[69] Dr. Domingo finally
commented that the child now has permanent disability in the left
forearm and elbow. The impairment manifested
itself in the loss of
extension and flexion. He commented:
“
More
significantly there is total loss of pronation of the forearm i.e.
the child cannot rotate the forearm such that the hand can
be placed
flat facing downwards e.g. on a table surface. In order to do this
the child has to use secondary motions at the shoulder
joint to place
the upper limb in this position. This loss of rotation is life long.”
[70] Although the
corrective procedure substantially alleviated the pain, it could not
be hailed as a tremendous success. The constructive
procedure was
belatedly performed, for reasons already alluded to, with the result
that a rotational deformity developed. The particular
surgical
procedure greatly improved the impaired forearm and elbow, but did
not completely restore the original flexibility of
the elbow and
normal pre-morbid functioning of the arm as a whole. The last
radiological picture taken, revealed an irregular and
permanent
impairment of the elbow joint and symptoms of mild osteoarthritis.
There was a 30% chance that such condition would develop.
The medical
evidence was that such condition would deteriorate with the passage
of time. Empirical evidence tended to show that
such a condition was
often characterised by frequent pain and suffering.
[71] There was persuasive
evidence that as a result of the injury, the child was so disabled
that he was deprived of certain amenities
of life, such as playing
soccer as a goalkeeper, a kind of recreation in which he showed early
interest, using a computer, using
a typewriter or manually doing his
own washing or becoming a policeman, his preferred career of choice
at this formative stage
of his life.
[72] The aforegoing is a
resumé of the factors I took into account in coming to an
estimate of damages. The limitation of
rotation has left him with
permanently impaired arm. While the defendant was not to blame for
the injury
per se
sustained by the child, the gross negligence
of the first treating doctor coupled with the ordinary negligence of
the second treating
doctor, both of whom were in the employ of the
defendant, were entirely responsible for the permanently rotational
deformity which
developed and all the adverse sequelae associated
with such permanent injury.
[73] It is my considered
opinion that, in the light of all the aforesaid factors, an award of
R400 000,00 would be a fairly reasonable
general compensation for all
the amenities lost, surgical disfigurement, rotational deformity,
discomfort, pain and suffering –
vide
MQUTWA
v ROAD ACCIDENT FUND
2011 (6D5) QOD 10 (ECG).
[74] In that case the
minor patient, Malizo, was involved in a road accident on 5 August
2002. He was 11 years of age at the time.
He sustained a compound
fracture of the left hand. Almost eight years later on 7 May 2010
when he was 17 years of age the court
made the award of R250 000,00
in his favour.
[75] In the present
matter, we now know that the minor patient, Moahlodi, was injured on
25 December 2007; that he was twice misdiagnosed;
that he was half
Malizo’s age at the time; that he sustained a monteggia
fracture of the left forearm and not hand; and that
he is currently
12 years of age when the award is made.
[76] These then are the
comparative features which set the two patients poles apart. The most
significant feature which distinguishes
the matter from that case is
the age factor. Moahlodi met the crippling disaster much earlier than
Malizo did. He will, therefore,
theoretically endure the physical
disability, the cosmetic deformity, loss of amenities, sporadic
discomfort, occasional pain and
suffering, plus the emotional
distress associated with all these for almost an entire lifetime.
Unlike Malizo, Moahlodi no longer
has a normal lifespan. Having
contextualised the two claims, I am of the view that a monetary
differential of R150 000,00 is justifiable
in this matter.
[77] There is no evidence
to sustain the plaintiff’s claim of R21 million. This much Mr.
Dutton conceded during the hearing.
At the end of the trial the
respective submissions of the counsels, as regards the three quantum
issues before the parties, were
as follows:
As regards future loss of
capacity to earn income, future medical expenses and general damages,
Mr. Dutton scaled down and proposed
R1 301 354,00, R904 583,00 and
R500 000,00 respectively totalling R2 705 937,00 wereas Ms Norman
proposed R285 070,00, R750 000,00
and R250 000,00 respectively
totalling R1 285 070,00. The parties were therefore R1 420 867,00
apart. Eventually this is what the
dispute was all about. To sum up,
in my judgment the proven issues came down to these figures: R1 301
354,00, R831 189,00 and R400
000,00. This then disposes of the three
issues.
[78] Before I hand down
the order I have to comment briefly about a few aspects of the case.
[79] The collective crux
of the evidence tendered by the defendant’s credible and
reliable witnesses was that the child did
not suffer any head
injuries; (Mr. Moodie and Ms Gowa’s evidence) that he was not
totally dependent; that he was still able
to independently execute
basic self-care activities (Ms Alexander’s evidence and Prof.
Shipley’s) and that his nose
bleeding was unrelated to his fall
out of the tree (Prof. Seedat). By and large the dispute between the
parties as regards quantum
was more apparent than real. This explains
why I did not extensively deal with the evidence of the defendant’s
witnesses.
[80] The evidence of Mr.
Moodie, the industrial psychologist, could not be seriously
criticised. His evidence which concerned the
child’s future
loss of earning capacity was credible and reliable in many respects.
The only critique was that his approach
was incomplete. For instance,
he did not plot the minor’s future career progression
post-accident by reference to salary
scales, figures and the likes.
[81] Ms Jansen van Vuuren
and Ms Alexander correctly testified that in spite of the accident
and the injury, the child still continued
progressing well at school.
However the further evidence that the injury would not have an
adverse impact on the child’s
school performance in the future,
was in sharp contras to that of Ms Van Vuuren. The educational
psychologist’s opinion was
that cognitively the child would not
be able to get matric. She was more qualified to express an opinion
on matters educational
than the physiotherapist. Moreover she was an
excellent witness. She enormously impressed me. To the extent that
the evidence of
the two physiotherapists deflected from hers, hers
must be preferred.
[82]
There remains one more aspect. The plaintiff has succeeded and
therefore is entitled to the costs. The costs must follow success.
Since there is an application for the appointment of curators which I
still have to adjudicate, it is necessary to bear the costs
thereof
in mind. In
REYNEKE NO v MUTUAL & FEDERAL INSURAN
CE
CO LTD
1992 (2) SA 417
(T) the
court held per Van Dijkhorst J that in an action for damages for
bodily injuries which have necessitated the appointment
of a curator
bonis
to
the injured party, the costs of the application for the appointment
of a curator
bonis
as
well as the costs of the administration by the curator
bonis
of the injured party’s affairs and the
curator’s remuneration should be quantified and included in the
total award of
damages. The learned judge stated that there was no
reason why such costs should not form part of the total award in
cases where
the appointment of a curator
bonis
is a necessary result of the injury sustained by
the claimant. If the appointment of a curator
bonis
is an unavoidable result of the injuries, then the
costs of such curator by which costs the damages will be diminished,
must be
taken into account in the award. Otherwise the award would
not amount to fair compensation. I agree and I intend making an award
to that effect.
[83] Accordingly I make
the following order:
83.1 The defendant shall
pay to the Master of the High Court, Bloemfontein the sum of R2 532
534,00 as compensation for the minor
Moahlodi Daniel Molete, which
award is to be paid into a trust account and invested in the
Guardian’s Fund on his behalf
until such time as the court
orders otherwise.
83.2 The defendant shall
also pay interest on the capital amount of the award at a rate of
15,5% per annum from the 1
st
Augustus 2012.
83.3 The party and party
costs of the action including the costs relative to the application
for the appointment of a
curator litis
and the application for
the appointment of
curator bonis
, should such application
become necessary as well as the remuneration of the proposed
curator
bonis
to the aforesaid minor, shall be borne and paid by the
defendant.
83.4 The defendant shall
also be liable to pay the costs and the qualifying fees of the
following expert witnesses, together with
interest thereon at a rate
of 15,5% per annum from the 14
th
day after the formal
taxation of the plaintiff’s bill of costs, Dr J.R. Domingo, an
orthopaedic surgeon, Mr. F.J. de Kok
an industrial psychologist, Ms
J.C. Bainbridge an occupational therapist, Mr. F.A. van Vuuren and
educational psychologist and
remedial therapist, Ms H.D. Huge the
registered physiotherapist, Dr. R. J. Koch an actuary, Dr. A. J.
Dumas a plastic and reconstructive
surgeon subject to the
proviso
stated below.
83.5 The plaintiff shall
not be entitled to recover from the defendant any costs or
disbursements incurred in respect of the affidavits
of Ms J.C.
Bainbridge and Ms F.A. van Vuuren that were made in support of the
answering affidavit.
_________________
obo M.H. RAMPAI, J
On
behalf of applicant: Adv. T.V. Norman SC
Instructed
by:
The
State Attorney
BLOEMFONTEIN
On
behalf of respondent: Adv. I.T Dutton
Instructed
by:
Nonxuba
Inc
BLOEMFONTEIN
/sp