Rens v MEC for Health: Northern Cape Provincial Department of Health (799/06) [2009] ZANCHC 10 (17 April 2009)

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[2009] ZANCHC 10
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Rens v MEC for Health: Northern Cape Provincial Department of Health (799/06) [2009] ZANCHC 10 (17 April 2009)

Reportable: Yes / No
Circulate to Judges: Yes
/ No
Circulate to Magistrates:
Yes / No
IN
THE HIGH COURT OF SOUTH AFRICA
[Northern
Cape
High
Court, Kimberley]
Case
no: 799/06
Dates
heard: 2008.09.22;
2009-02-24,25,26
Date
delivered: 2009-04-17
In
the matter of
:
ARTHUR
RENS
PLAINTIFF
versus
THE
MEC FOR HEALTH: NORTHERN CAPE
PROVINCIAL DEPARTMENT OF
HEALTH
DEFENDANT
Coram:
MAJIEDT
J
JUDGMENT
MAJIEDT J:
This
is an action for damages arising out of negligent treatment
administered to the Plaintiff at the Gordonia Hospital in Upington

in February
1998.
The Plaintiff was substituted in the course of the trial for the
erstwhile Plaintiff, namely Mrs Desiree Sophia Dopp, who
sued in her
representative capacity as the Plaintiff’s mother. The Plaintiff
now has full legal capacity, having attained
the age of majority
prior to the trial. Mr. Corbett appeared for the Plaintiff and Mr.
Nyangiwe for the Defendant.
The
Plaintiff was ten years old when he fractured his left arm
while
doing gymnastics at school. As a consequence of negligent treatment
administered to him at the aforementioned hospital
during February
1998, he underwent an above-elbow amputation of his left arm and
subsequent thereto a re-amputation through the
left shoulder.
The
Defendant has conceded that its employees, acting in the course and
scope of their employment for the Defendant, had acted
negligently
and the Defendant has assumed full liability for the amount of
damages which the Plaintiff was able to prove. The
matter proceeded
on the issue of the quantum of the Plaintiff’s damages only.
By
agreement between the parties I had directed at the commencement of
the hearing that no
actuarial
evidence would be adduced at this stage and that all that is
required from this Court would be to make the necessary
factual
findings on matters which remain in dispute. These would then be
furnished to the actuary for the calculation of the
claims for
future medical expenses and loss of earnings.
The Plaintiff claims the
amount of R13 105 400,00 which is made up as follows:
5.1
Past
hospital and medical expenses: R500.00
5.2 Future medical
expenses: R9 282 600.00
5.3 Past loss of earnings: R15
700.00
5.4 Future loss of earnings: I 007 100.00
5.5 General
damages: R800 000.00
The
Defendant has conceded that the assumptions made by the Plaintiff’s
actuary in the report dated 5 September 2008 are correct
and that
,
for purposes of the said actuarial calculations, the assumptions
which the actuary made and which relate to mortality, interest,

inflation and earnings, inflation and costs, retirement age and
taxation were correct and could be taken into account.
The
Plaintiff called a number of expert witnesses and he also testified
in the matter. Quite
disappointingly
the Defendant did not adduce any evidence and closed its case. This
is indicative of the manner in which the
Defendant has conducted the
litigation in this matter, something to which I shall allude again
later herein. It is neither necessary,
nor practicable, to set out
in full the evidence of the various expert witnesses adduced at the
hearing. Most of the evidence
remained unchallenged and I shall
therefore restrict myself to the germane portions of their
testimony.
The Plaintiff did not
persist with his claim for past medical expenses. With regard to
the rest of the claims I shall summarise
the evidence as it relates
to the different heads under which the damages had been claimed as
set out above.
Dr.
Versfeld, an orthopaedic surgeon, had examined the Plaintiff and had
also held a discussion with the Defendant’s orthopaedic
surgeon,
Dr. Du Plessis, to isolate the issues on which they agreed and
disagreed. In this regard they compiled a minute of
their
discussions which had been held on 20 February 2009 and which was
handed in as Exhibit C. Both Dr. Versfeld and Dr. Du
Plessis agreed
that the Plaintiff requires an appropriate prosthesis for his
physical needs. They also agreed that the Plaintiff
has scoliosis
(curvature of the spine). According to Dr. Versfeld in his oral
evidence, this scoliosis is as a consequence of
the imbalance which
the Plaintiff has due to the loss of the upper left limb. Both
orthopaedic surgeons agreed that provisions
should be made for
conservative treatment of this scoliosis and the resultant lower
back pain at a cost of R1800.00 per annum
in the future.
Dr.
Versfeld testified further that, after having examined the
Plaintiff, he found that the Plaintiff suffered from neck
symptoms
due to the imbalance created by the loss of the left upper limb. In
his view an amount of R1200.00 per annum should
be allowed for
future treatment of these neck symptoms.
Dr.
Shevel, a psychiatrist, testified about the psychological sequelae
of the Plaintiff’s injury and amputation. According
to him the
Plaintiff has
developed
significant psychological adjustment difficulties as a consequence
of the said amputation. He described the Plaintiff
as being
self-conscious, his self-confidence had decreased and he had tended
to isolate himself on a social level. His school
work suffered,
since he had become depressed during the course of high school and
he had struggled to concentrate, which ultimately
led to him
deciding to leave school. Dr. Shevel also indicated that the
Plaintiff has not fully come to terms emotionally with
the
amputation. He testified that the Plaintiff requires
anti-depressant medication for a period of 18 to 24 months at a cost

of R250.00 per month and follow-up psychiatric consultations during
this period at a cost of R800.00 per consultation as well
as 30
sessions of psychotherapy at a cost of R1200.00 per session. It
seems to me that the period of 18 to 24 months should
be averaged
out at a period of 21 months and that the costs alluded to
hereinabove should consequently be for a period of 21
months.
Ms.
Bester, an occupational therapist, testified that the Plaintiff will
in future require occupational
therapy
comprising of one two-hour sessions per month for two years at a
cost of R450.00 per hour and thereafter a one-hour session
every
four months. She also testified that provision should be made for
the costs of travelling to and from these occupational
therapy
appointments at a cost of R450.00 per visit. She testified further
that the Plaintiff will in future require a domestic
assistant which
would cost approximately R2500.00 per month. When questioned by me,
she however conceded that this level of
remuneration was based upon
rates paid in the Cape Town area.
The
Defendant’s occupational therapist, Ms Delport, stated in her
report that the Plaintiff will need a domestic assistant in
future
at a cost of R1200.00 per month as well as the assistance of a
gardener at the costs of R650.00 per month. Ms Delport
is based in
Bloemfontein and these rates are more reliable for smaller centres
such as Upington. It seems to me that, although
Ms Delport did not
testify, the figures in her report appear to be accurate and
therefore an amount of R2 000.00 should
be awarded to Plaintiff
to cover the costs of his care through a domestic assistant and a
gardener in the future, as Mr. Corbett
has submitted on behalf of
the Plaintiff.
Ms
Bester also testified that the Plaintiff would in future require a
specially adapted motor vehicle and that the costs of adaptation

would amount to R10
000.00.
She also pointed out that he would require a vehicle with an
automatic, as opposed to a manual gearbox, given his
disability.
Her enquiries indicated that an automatic vehicle costs R30 000.00
more, at the cheapest level available in
the market.
In
her report, Ms Delport, the Defendant’s occupational therapist,
also recorded that the Plaintiff would require a specially
adapted
vehicle costing between R30 000.00 to R40 000.00 extra. I
agree with Mr. Corbett that an amount of R40 000.00
should
therefore be awarded to Plaintiff to cover these additional
transport costs, which costs will be incurred every five years
for a
new vehicle.
Mr.
Kritzinger, an orthotist and prosthetist, tes
tified
that he had fitted a myo-electric prosthetic arm to the Plaintiff
during the week of 17 to 21 November 2008. I interpose
to point out
that at the last adjournment, on 22 September 2008, I had ordered
that the Defendant should make an interim payment
in the sum of one
million Rand into the Plaintiff’s attorney’s trust account by no
later than 23 October 2008. This order
was complied with and part
of that sum of money was utilised for the fitting of this
myo-electric prosthetic arm. During testing
Mr. Kritzinger had
found the Plaintiff to be a suitable candidate for such a prosthetic
device. The reason why a myo-electric
device was fitted, as opposed
to a manual one, is because of the fact that the manual prosthesis
causes unbearable discomfort
to the extent that the prosthesis is
usually later discarded by the patient.
During
the course of the hearing on the first day, while he was testifying,
Mr. Kritzinger demonstrated on the Plaintiff the use
of the
prosthetic
arm. Mr. Kritzinger was able to demonstrate to the Court how the
Plaintiff was able to move individual fingers, wrist
and elbow of
this prosthetic arm. The elbow joint was manipulated through the
use of a switch operated by the Plaintiff with
his right hand. In
this regard Mr. Kritzinger testified that the Plaintiff requires a
more advanced elbow joint, known in the
market as an “
I-limb
elbow”,
which has recently become available on the market. This new device
would enable the Plaintiff to manipulate the elbow joint
without the
use of a switch, which would leave his right hand free when
manipulating the elbow joint. Mr. Kritzinger testified
further that
he had made enquiries in order to establish whether a myo-electric
prosthesis could be supplied and fitted by a
government health
institution. His enquiries confirmed that these institutions do not
have the necessary expertise or specialized
equipment to carry out
this type of prosthetic procedure. This evidence of Mr Kritzinger
relating to the non-availability of
myo-electric prosthetic devices
through the State health care system, was indeed confirmed by Mr.
Knight who also testified for
the Plaintiff. Mr. Knight is also an
orthotist and prosthetist and he is also the chairperson of the
South African Orthotic
and Prosthetic Association. Furthermore Mr.
Barkley, also an orthotist and prosthetist, testified on behalf of
the Plaintiff
and confirmed this particular aspect of Mr.
Kritzinger’s and Mr. Knight’s evidence. Mr. Barkley is a
successful tenderer
for the supply of prosthetic devices for the
government health care system in the Southern Cape. Mr. Knight
confirmed that he
had spoken to a Mr. Noordien who is the orthotist
and prosthetist in charge of the Orthotic and Prosthetic Centre at
Conradie
Hospital, which is a State institution. Mr. Noordien, had
confirmed to him that the State health care system does not have the

required diagnostic equipment, training or ability to supply a
myo-electric prosthesis. Mr. Barkley confirmed this particular

evidence.
Mr.
Kritzinger also testified that in future Plaintiff would require a
primary prosthesis to be replaced every five years and
a secondary
prosthesis to be replaced every ten years. This secondary
prosthesis is necessary to be used whilst the primary
prosthesis
undergoes re-fitting, maintenance and servicing. During such
periods of maintenance, servicing and refitting
,
the prosthesis would have to be sent to Cape Town, since this
requires specialised equipment and personnel. Plaintiff would
also,
according to Mr. Kritzinger, require a refit of the primary
prosthesis every two and a half years. This refit is necessary
as
it has to be compatible with the body changes of the Plaintiff over
the years from time to time. Plaintiff would also require
further
training on how to use the prosthesis and initially would require
five two-hour sessions and thereafter ten in-patient
intensive
training sessions. He would also require a replacement glove every
year, two replacement batteries every two and a
half years during
the period where a new prosthesis is not provided; maintenance of
both prostheses for 8 hours per annum and
servicing of both these
prostheses every five years. In this regard it was pointed out that
the first three years of the life
span of a new prosthesis is
covered by the warranty.
Although
initially I had doubts over whether a secondary prosthesis is really
necessary, I was
persuaded
by Mr. Kritzinger’s explanation during his evidence that it is
indeed a necessary item. Furthermore, Mr. Nyangiwe
for the
Defendant conceded that the Plaintiff does indeed require both these
prostheses as recommended by Mr. Kritzinger. I
am also satisfied
that it is reasonable to make provision for the immediate purchase
of a prosthesis with the revolutionary new
I-limb elbow which could
be used as a primary prosthesis, while the existing one could be
used as a secondary prosthesis until
its replacement is required.
I now
turn to consider the question of loss of earnings. In this regard,
the Plaintiff led the evidence of Ms Pretorius, an industrial

psychologist who had compiled a comprehensive report, which she had
amplified and elucidated during the course of her oral testimony.

Her modus operandi was to list the standard of academic achievements
of Plaintiff’s parents and their siblings and also to
consider
their work history. It appeared from her investigations that the
majority of the Plaintiff’s immediate family had
completed grade
12 (the old standard ten) and two of the Plaintiff’s uncles on his
mother’s side had achieved quite well,
the one being employed at
Eskom and at present undergoing tertiary training and the other
employed at Checkers. The Plaintiff’s
father is a boilermaker by
training. The Plaintiff informed Ms Pretorius that he regretted
leaving school before completing
grade 12 and that he has a desire
to return to school to complete his education. In her opinion the
Plaintiff has the intellect
to complete grade 12, although it would
a major challenge for him, given is disability and his psychological
disadvantage. She
expressed the view that it would take the
Plaintiff up to six years to complete his schooling up to grade 12.
It appears that
the Plaintiff left school in the course of grade 9,
without completing same.
In
the course of predicting the Plaintiff’s
pre-morbid
career path, Ms Pretorius took into account the educational and
skills level of the families (on both his father’s
and mother’s
side), and it appeared that most family members had progressed to
high school and many, as I have stated, had
passed grade 12. She
also considered the positive work ethic in the family, the presence
of significant role models, such as
Plaintiff’s uncle Jeffrey who
is employed at Eskom and who intends financing Plaintiff’s younger
brother’s technical studies,
as well as Plaintiff’s level of
intelligence which was at least in the average range. She also took
into account the trend
of upward mobility of children as compared
with their parents as a general proposition. On a conspectus of all
these aforementioned
factors, Ms Pretorius came to the conclusion
that the Plaintiff could have reached a skilled position like that
of his father,
on a pre-morbid career path.
Ms Pretorius further
expressed the opinion that, had the Plaintiff not undergone the
amputation of his arm he would have followed
a career path as
follows:
22.1 He
would have completed grade 12 in 2007 (the date of 2006 in her report
is obviously a mistake);
22.2 He would have
entered the open labour market as an unskilled casual labourer
working for approximately two years at R80 to
R120 per day three to
five days per week;
22.3 In
2009 he would have progressed to a level of remuneration equivalent
to the well-known Paterson scale’s job grade A1 to
A3 for a period
of three to five years;
22.4 Thereafter
Ms Pretorius then predicted two scenarios. Scenario A assumes
the Plaintiff would have received in-service
training but remained at
an unskilled level and progressed to a level of earnings equivalent
to Paterson job grade B4/B5. I would
refer to this scenario as the
“
pessimistic
”
scenario.
22.5 In
terms of scenario B, referred to as the “
optimistic
scenario
”,
Ms Pretorius testified that the Plaintiff would then have progressed
as follows:
22.5.1 He
would have completed an in-service apprenticeship in a technical
field and would have passed a trade test in three to
five years,
during which period he would receive at least the prescribed minimum
wage, which for the four-year trade qualification
amounts to R575.10
per week in the first year, R630.90 in the second year, R713.25 in
the third year and R876.60 in the fourth
year;
22.5.2 After
having successfully passed his trade test in five years the Plaintiff
would have qualified as an artisan and he would
have earned an income
equivalent to the Paterson job grade C1/C2.
With
regard to the applicable remuneration figures, Ms Pretorius made
reference to the Quantum Year Book by Robert J Koch. The
Quantum
Year Book for 2009 is exhibit P before the Court. Utilising these
tables, it is apparent that the average remuneration
for Paterson
level A1 per year amounts to R75
500.00
per annum. The average package for Paterson level A2 is R87 500.00
per annum. The average package for Paterson
level A3 is R96 000.00
per annum. The remuneration representing the total package average
per year for Paterson level C1
is R228 000.00 per annum and for
level C2 is R272 000.00 per annum. The average between
Paterson levels C1 and C2
is therefore R250 000.00 per annum.
I
think Mr. Corbett is correct in his submission that a 15%
contingency
deduction is appropriate in this matter when one takes into account
the uncertainties concerning the Plaintiff’s
pre-morbid career
path and the normal vicissitudes of life. In my view the following
factors should be taken into account in
coming to this figure for a
contingency deduction in this matter:
24.1 That most of the
Plaintiff’s family members had achieved a matriculation
qualification.
24.2 That the Plaintiff’s
father had qualified as a boilermaker (artisan).
24.3 That two of
Plaintiff’s uncles had followed successful career paths (the one at
Eskom and the other at Checkers).
24.4 That
is generally accepted that children normally exceed the level of
achievement of their parents, particularly those from
previously
disadvantaged backgrounds (given the historical inequalities in our
country which are well documented).
24.5 That
Plaintiff has the requisite cognitive and intellectual ability to
obtain a tertiary qualification according to the relevant
experts.
24.6 That it is always
difficult to be precise when projecting a career path for a claimant
who sustained injuries during childhood.
24.7 That the Plaintiff
would have not have obtained formal qualification as an artisan and
instead would have received in-service
training and would have
progressed to the level of Paterson job grade B4/B5 instead of to the
level of C1/C2.
24.8 That the Plaintiff’s
level of earnings would not have increased as quickly as that
projected by Ms Pretorius.
24.9 That it is assumed
for purposes of the career path that Plaintiff’s earnings would not
have progressed beyond Patterson job
grade C1/C2, whereas it is quite
possible that he could have progressed up to C4/C5.
The
next aspect that requires consideration is Ms Pretorius’ testimony
regarding Plaintiff’s post-morbid career path. She
testified that
it would take at least six years for him to successfully complete
his schooling up until grade 12 level. She
also pointed out that he
has no work experience and suffers from depression and adjustment
problems. In the circumstances she
expressed the view that
Plaintiff would only obtain employment in a sheltered environment
with a sympathetic employer. He would
only be suited to sedentary
work with minimal physical demands. Even in a clerical position he
would be hampered by his disability.
I am in agreement with these
view expressed by Ms Pretorius.
Ms
Pretorius also expressed the opinion that should Plaintiff obtain
employment in a clerical position
,
his earnings would be in the region of Paterson job grade B1/B2.
According to the aforementioned exhibit P, the average package
for
level B1 is R106 500.00 per annum, while the average package
for B2 is R122 000.00 per annum.
Assuming
that the Plaintiff does indeed complete his schooling
,
it would take some time for him to find suitable employment. On
behalf of the Defendant Mr Nyangiwe conceded during argument
that it
could take up to ten years for Plaintiff to complete his schooling
and to complete some form of post-schooling qualification
whereafter
he would enter the formal employment market in a clerical position.
The
next aspect for consideration is
the
appropriate contingency deduction to be made for post-morbid
earnings. I am in agreement with Mr. Corbett for the Plaintiff
that
50% would be appropriate in the present matter taking into
consideration the following:
28.1 The strong
possibility that Plaintiff may not complete his schooling;
28.2 The fact that
Plaintiff may never obtain gainful employment;
28.3 That Plaintiff may
take longer to complete his schooling and tertiary qualification and
enter the formal job market;
28.4 Plaintiff’s
employment will always be insecure and he will be vulnerable to
losing such employment should he not be able
to cope with the
requirements of his work. There may therefore be long periods of
unemployment; and
28.5 Although Plaintiff
may obtain employment he will not earn at the level of Paterson job
grade B1/B2.
Mr. Nyangiwe has
submitted that a contingency deduction of 25% would be more apposite
in the circumstances. I disagree. While
the legislative protection
afforded to disabled employees by the Constitution and by the
Employment Equity Act, 55 of 1998
, must be taken into account, in my
view a 50% contingency deduction is far more realistic in the
circumstances.
I
consider
next the question of general damages. As a general rule, previous
awards in comparable cases are helpful, but are not binding
on me.
See in this regard inter alia:
Protea
Assurance Company Limited v Lamb
1971(1)
SA 530 (A) at 536 A-B. Potgieter JA put it thus:
“
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.”
With
the aforementioned dictum in mind, it is correct as Mr. Corbett for
the Plaintiff has submitted, that a tendency has developed
in our
Courts towards more generous awards for general damages. See:
Marunga
v The Road Accident Fund
2003(5)
SA 164 (SCA) at I. 27, 170 F. There, Navsa JA referred to
the following passage in
Wright
v Multilateral Motor Vehicle Accidents Fund
,
reported in
Corbett
and Honey The Quantum of Damages in Bodily and Fatal Injury Cases,
Vol. IV at E3-31. Broome DJP stated that:
“
I consider that
when having regard to previous awards one must recognise that there
is a tendency now for awards to be higher than
they were in the past.
I believe this to be a natural reflection of the changes in society,
in the recognition of greater individual
freedom and opportunity,
rising standards of living and the recognition that our awards in the
past have been significantly lower
than those in most other
countries.”
See
also in this regard:
De
Jongh v Du Pisanie and Another
2005(5)
SA 457 (SCA) at [65], 477 D-F. It is important to add the
cautionary rider, however, that this tendency of increase
in general
damages, is but one of the factors to be considered. See
De
Jongh v Du Pisanie N.O.
supra
at
[66], 477 I-J. See further generally in this regard the unreported
judgment which I had written in
Arthur
William Mark Harcourt NO v Road Accident Fund
,
case number 1285/98 delivered on 2 August 2000 at pars. 15.2 and
15.3. And see:
Road
Accident Fund v Van Rhyn
[2007]
3 All SA 659
(E) at par. [31].
I
will now consider comparable cases with regard to general damages.
I was firstly referred by Mr. Corbett to the well-known
case of
Blyth
v Van den Heever
1980(1)
SA 191 (A) at 224C and following; also reported in
Corbett
and Buchanan
The
Quantum of Damages in Bodily and Fatal Injury Cases,
Vol. III at page 38. In that matter the Plaintiff had
sustained fractures of the radius and ulna of the right arm followed

by sepsis and an undiagnosed ischemia. He had sustained these
injuries after having fallen from a horse. Plaintiff had been
left
with an arm which was described by the trial judge as “
a
shrunken clawlike appendage of extremely limited functional value
”.
Apart from the initial operation in the form of an open reduction
of fractures with the insertion of a metal plate, the
Plaintiff had
undergone two further operations to eliminate sepsis. There was a
distinct possibility that he would have to undergo
a further future
operation to amputate the limb and to fit an artificial arm. The
Plaintiff, who was 20 at the time of the accident,
was awarded
R20 000.00 in respect of his claim for general damages during
1979. Converted to the present value by applying
the consumer price
index, that amount is worth R507 000.00 in today’s monetary
terms.
I was
also referred to
Cheney
v Eagle Star Insurance Company Limited, Corbett and Buchanan
,
supra,
Vol. I
at page 224 where the Plaintiff had undergone an amputation of his
left arm just below the shoulder. He suffered
from phantom pains
and his body posture was distorted. The Plaintiff’s hearing and
sense of taste and smell has also been
affected. He was a
middle-aged man at the time of the accident and he was awarded
£13 000.00 for general damages,
which in today’s
monetary terms is worth R684 000.00.
Finally
Mr. Corbett referred me to
King
v Geldenhuys
,
Corbett
and Buchanan
,
supra
,
Vol. II at 379 where the Plaintiff was attacked by two dogs as a
result of which his right arm had to be amputated. His left
arm was
also bitten. The Court, referring to the decision in
Blyth
v Van den Heever
supra
,
awarded the Plaintiff R45 000.00 in 1983, which is worth
R538 000.00 in today’s monetary terms.
In
Pheko
v Maine
(1995),
Corbett
and Honey
,
supra
,
Vol IV at D2-1, the Plaintiff had sustained multiple injuries,
including an amputation of his left arm, some 12 cm below
the
shoulder joint. An amount of R50 000.00 was awarded for
general damages, equivalent to R132 000.00 in today’s

monetary value.
In
Smith
v Road Accident Fund
(2003),
Corbett
and Honey
,
supra,
Vol V at D2-1, the Plaintiff’s injuries comprised
inter
alia
of a traumatic amputation of the left upper arm and a partial
fracture of the right skull. He was five years old at the time.

R250 000.00 was awarded for general damages, equivalent to
R378 000.00 in today’s monetary value.
In the present matter
the salient facts with regard to the amount to be determined in
respect of general damages are the following:
36.1 The
Plaintiff was only 10 years old when he sustained these injuries and
had to undergo an amputation of his left arm.
3
6.2 The
principal of the primary school which the Plaintiff had attended at
that time in Upington, described the Plaintiff as follows
in a letter
dated 15 February 2008:
“
Hy het sy
skoolloopbaan by hierdie skool begin. Ek ken hom redelik goed, omdat
hy een van my leerder
s
was wat goed in sport en gimnastiek gevaar het. Ek was ook sy LO
(liggaamsopleiding) opvoeder in die laerskool. Nadat hy sy
linkerarm
verloor het, het sy hele lewe verander en hy moes geweldige
aanpassings maak waarvoor hy nie op daardie stadium gereed
was nie.
Dit het ‘n groot impak gehad op sy toekoms. Hierdie impak was
geweldig en dit het sy lewe negatief beïnvloed,
omdat hy nie
meer aan sy drome kon werk nie.”
3
6.3 Plaintiff
himself gave evidence during the trial and he described the impact
which this incident has had on his life. It can
only be described as
a devastating change of fortune for the worse in this young man’s
life. He was effectively robbed of his
childhood and had undergone
an extremely traumatic experience at a very tender age. As is
apparent from the letter of the principal,
supra
,
he had been a budding sportsman and gymnast and he was one of the
learners from whom much was expected.
3
6.4 The
Plaintiff is self-conscious about his disability and has lost
self-esteem. He has had to endure life and make the best
of his
circumstances without a prosthetic limb for a period in excess of 10
years (i.e. until the myo-electric prosthesis was fitted
by Mr.
Kritzinger as described above).
Taking
into account the facts and circumstances of this matter and having
regard to the comparable cases referred to earlier,
I am of the view
that an amount of R600 000.00 would be fair and reasonable in
respect of the Plaintiff’s claim for general
damages.
With
regard to costs it is clear that the Plaintiff has had to procure
the services of expert witnesses who had to attend the
trial and
their reasonable and necessary
and
qualifying expenses should be paid by the Defendant. I disagree
with Mr. Corbett in his submission that the Plaintiff was
justified
in obtaining the services of counsel and an attorney from Cape Town
and that their costs of travel and accommodation
should consequently
be allowed on taxation. This is a luxury which I am not prepared to
grant to the Plaintiff.
One
final matter that remains is the fact that I had broached with Mr.
Corbett the possibility of the
setting
up of an
inter
vivos
trust
for the Plaintiff so that the substantial proceeds of the award
could be paid into such a trust to be administered for the
benefit
of the Plaintiff. The Plaintiff having attained the age of majority
and being of sound mind, does not need a curator
bonis. I am of the
view however, that it would only be proper and in the Plaintiff’s
best interests that the proceeds of the
award be paid into such an
inter
vivos
trust. This proposal has found favour with Mr. Corbett and his
attorney and had been explained fully by me at the end of the

hearing to the Plaintiff and his mother who had attended the
proceedings throughout. The proposal was also supported by the

Defendant. Mr. Nyangiwe has contended that the parties should bear
the costs of the administration of the trust in equal parts.
I
cannot uphold this contention. I see no reason why the Defendant,
whose employees have caused Plaintiff’s present predicament,

should not bear all such costs.
Mr.
Corbett has furnished me with the Cape Law Society’s guidelines in
respect of non-
litigious
matters
effective from September 2002. This has some bearing on the costs
allowed for the administering of the trust by a firm
of attorneys as
proposed by Mr. Corbett. Having practised in Cape Town as an
advocate for a number of years, I know the firm
which is proposed
very well and I am satisfied that they will properly administer the
trust to be established and registered
with the Master of this
Court.
I conclude by expressing
by extreme displeasure at the manner in which the Defendant has
conducted this litigation.
41.1 Having
conceded the merits on 31/10/2007, the Defendant was not ready for
trial on 22/9/2008 and the matter had to be postponed.
I made a
punitive order on the scale as between attorney and own client
against the Defendant for the costs occasioned by the
postponement.
I also made an order for interim payment of R1 000 000.00
(one million Rand) to be made to the Plaintiff
to alleviate his
suffering to some extent.
41.2 During
the hearing from 24/2/2009 to 26/2/2009, the Defendant had no expert
witnesses present, challenged the Plaintiff’s
experts’ testimony
only superficially and perfunctorily and then, to my utter
astonishment, simply closed its case without adducing
any evidence
whatsoever. This type of conduct smacks of an uncaring and
unsympathetic attitude towards the Plaintiff’s plight
which I can
only deprecate in the strongest terms. In a constitutional
dispensation founded on values such as human dignity and
the
advancement of human rights and freedom, one would expect better from
a State department.
I
consequ
ently
issue the following order:
42.1 That
Defendant pay to Plaintiff an amount of R600 000,00 in respect
of general damages;
42.2 That
the amount to be awarded to the Plaintiff in respect of future and
medical and related expenses be calculated by the actuary
based upon
the following assumptions:
42.2.1 the
effects of inflation will be 8 percent per annum as per par. 4.4 of
the actuarial report of Plaintiff’s actuary
dated 5 September 2009
(“the actuarial report”);
42.2.2 payment of
anti-depressant medication costing R250,00 per month for 21 months;
42.2.3 psychiatric
monitoring while on anti-depressant medication, costing R800,00 per
session, one session every 3 months
for 21 months;
42.2.4 psychotherapy,
costing R1 200,00 per session, for 30 sessions;
42.2.5 conservative
management of the lower back costing R1 800,00 per annum;
42.2.6 conservative
management of the neck costing R1 200,00 per annum;
42.2.7 occupational
therapy costing R450,00 per hour, one 2 hour session once per month
for 2 years, thereafter one 1 hour
session every 4 months;
42.2.8 occupational
therapist’s travel time assumed at 1 hour per visit costing R400,00
per hour;
42.2.9 occupational
therapist’s travel costs assumed to be R4,00 per kilometre at 60
kilometres per session;
42.2.10 care
costing R2 000,00 per month calculated over 14 months per annum
to allow for an annual bonus and replacement
during annual leave;
42.2.11 transport
costs including adaptation and purchase of automatic vehicle costing
R40 000,00 required every 5 years;
42.2.12 a primary
prosthesis costing R1 008 708,54 to be replaced every 5
years;
42.2.13 a
secondary prosthesis, costing R1 008 708,54, to be
purchased in 10 years time, and replaced every 10 years
thereafter;
42.2.14 the refit
of the primary prosthesis costing R98 671,59 required every 5
years, starting 2½ years from date
hereof;
42.2.15 initial
training costing R1 209,59 per hour, five sessions of 2 hours
each;
42.2.16 occupational
training, costing R1 710,00 per session, 10 sessions required;
42.2.17 glove
replacement, costing R2 892,50 required every year, starting 1
year from date hereof;
42.2.18 replacement
battery, costing R12 008,90, one set required every 5 years,
starting 2½ years from date hereof;
42.2.19 maintenance,
costing R1 345,18, 8 hours required per annum for each
prosthesis;
42.2.20 servicing,
costing R19 800,00, required every 5 years, starting 2½
years from date hereof;
42.2.21 that a
contingency deduction of 5 percent be made against the cost of future
medical expenses;
42.2.22 costs of
the administration of the trust to be established (as described
hereinbelow) calculated on the basis set out
in clauses 2.3.1 and
2.3.2 of The Cape Law Society Fee Guidelines, Non-litigious
Guideline, ie. at the rate of 1 percent of
the capital amount
paid over to the trust and 7 percent on income to be received by the
trust.
42.3 That
an amount be awarded to Plaintiff for loss of earnings to be
calculated by the actuary subject to the following assumptions:
42.3.1 those set
out in paragraph 4 of the actuarial report dated 5 September 2008
relating to mortality, interest, inflation
and earnings, inflation
and costs, retirement age and taxation;
42.3.2 that
Plaintiff’s pre-morbid career path would have been as follows:
42.3.2.1 completes
grade 12 in 2006;
42.3.2.2 enters the
open labour market in 2007 as an unskilled casual labourer working
for 2 years at R80,00 to R120,00 per day,
3 to 5 days per week
(2007-2008);
42.3.2.3 progresses to
Paterson job grade A1 to A3 for 3 to 5 years at an average
remuneration package of R85 000,00 per annum
(2009 to 2011/2013);
42.3.2.4 completes
in-service apprenticeship in a technical field in 5 years, earnings
in the first year being R575,10 per week;
the second year R630,90;
the third year R713,25; the fourth year R876,60 and the fifth year
R876,60;
42.3.2.5 qualifies as
an artisan and earns at Paterson job grades C1/C2 at an average
remuneration package of R250 000,00 per
annum; and
42.3.2.6 income
remains at this level for the remainder of his career until normal
retirement age of 65 years.
42.3.3 From the
value of pre-morbid earnings is to be deducted 15 percent to take
account of contingencies.
42.3.4 The
Plaintiff’s post-morbid career path will be as follows:
42.3.4.1 completes
schooling within 6 years, i.e. by the end of 2014;
42.3.4.2 undergoes
further training and seeks employment for the following 4 years i.e.
until the end of 2019;
42.3.4.3 enters
employment at a level of Paterson job grade B1/B2 and earns an
average remuneration package of R115 500,00 per annum
; and
42.3.4.4 remains at
that level until retirement at the age of 65 years.
42.3.5 A
contingency deduction of 50 percent is to be made against the value
of post-morbid earnings.
42.4 From the capital
amounts awarded to Plaintiff is to be deducted the interim payment of
R1 000 000,00 (one million Rand)
already received by Plaintiff
from Defendant.
42.5 The amounts
referred to in paragraphs 1, 2 and 3 above are to be paid into
the trust account of Messrs Malcolm Lyons Brivik
Inc. at First
National Bank (branch: RNB Private bank) branch code: 202709, account
number: 62006429949.
42.6 The Plaintiff’s
attorneys shall, after paying and recovering all costs and expenses
for which the Plaintiff is liable, including
their fees as between
attorney and own client, pay the net balance of the sum awarded to
them to attorneys Bernard Vukich Potash
and Getz for the purposes set
out hereinbelow, the sum so paid to be called “
the
trust fund
”.
42.7 Attorneys Bernard
Vukish Potash and Getz shall cause to be executed and registered by
the Master of the High Court in Kimberley,
a deed of trust
incorporating the provisions normally appearing in an
inter
vivos
trust deed prepared by them with the following specific provisions:
42.8 Attorneys
Bernard Vukish Potash and Getz or their successors in practice shall
be the trustees, with the power of assumption;
42.9 the
trustees shall be exempt from furnishing security;
42.10 the
trustees shall hold and administer the trust fund for the benefit of
Arthur Rens;
42.11 the
trustees shall apply the nett income of the trust fund and if that at
any time it is not adequate for the purpose,
the capital thereof, for
the maintenance (including, without derogating from the meaning of
the term, the medical, dental and similar
treatments and advice,
reasonable pleasures, entertainment, general upkeep, welfare benefits
and education, the acquisition or
provision of residential facilities
or a residence and a motor vehicle for him. The income not used as
aforesaid shall accumulate
to the capital;
42.12  the
trust shall terminate on the death of Arthur Rens;
42.13 on
termination of the trust: if Arthur Rens leave a valid will, the
trust fund shall be paid in accordance with the provisions
of the
will as if they had formed part of his estate;
42.14 if
Arthur Rens leaves no will and leaves a surviving spouse and/or
descendants, the trust fund shall be paid to them.
If any
beneficiary is a minor, his or her share of the trust shall be paid
in trust in accordance with the provisions of the trust
deed;
42.15 if
Arthur Rens leaves no will and also no surviving spouse or
descendants, the trust fund shall be paid in accordance
with the laws
of intestate succession; and
42.16 the
name of the trust shall be the “ARTHUR RENS TRUST”.
42.17 The
Defendant is to pay the Plaintiff’s taxed or agreed party and party
costs on the High Court scale, which costs
shall include the costs of
counsel, and the reasonable and qualifying expenses of the following
expert witnesses:
42.17.1 Dr G A
Versfeld;
42.17.2 Mr S
Kritzinger;
42.17.3 Dr D Shevel;
42.17.4 Ms E Bester;
42.17.5 Ms M
Pretorius;
42.17.6 Mary
Cartwright Consultants CC; and
42.17.7 Mr R Knight.
It is noted that part
of the amount of R1 000 000.00 (one million Rand) paid as
an interim payment, has already been utilised
for a portion of the
aforementioned legal fees and medical experts’ fees.
42.18 The expert
witnesses referred to in paragraph 17 above are declared necessary
witnesses, as are the Plaintiff and Mr
Barkley.
42.19 A copy of
this judgment is to be transmitted by the Registrar of this Court to
the Defendant (the MEC for Health, Northern
Cape) and to the Head of
the Department of Health, Northern Cape.
_____________
SA MAJIEDT
JUDGE
ADV
PA CORBETT
APPEARED FOR THE PLAINTIFF AS INSTRUCTED BY
DUNCAN
AND ROTHMAN
ADV
XS NYANGIWE
APPEARED FOR THE DEFENDANT AS INSTRUCTED BY
THE
STATE ATTORNEY