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[2008] ZANCHC 43
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Dopp NO v MEC Health, Northern Cape (799/06) [2008] ZANCHC 43 (22 September 2008)
5
IN THE HIGH COURT
OF SOUTH AFRICA
(Northern Cape
Division)
Case
no: 799/06
Date heard: 2008-09-22
Date
delivered: 2008-09-22
In the matter of
:
DOPP, DS
N.O. PLAINTIFF
versus
MEC HEALTH,
NORTHERN CAPE DEFENDANT
EX TEMPORE
JUDGMENT
The
Plaintiff’s
minor son, Arthur Rens, 10 years old at the time, had to undergo an
above elbow amputation through his left shoulder
as a consequence of
the admitted negligence of the Defendant’s employees, acting as
such in the course of their employment
with Defendant at the Gordonia
Hospital in Upington, during February 1998.
The Defendant has conceded the merits
and the matter is before me on the quantum of Plaintiff’s
damagesclaim.
The Defendant seeks a postponement of
the matter, since his expert reports are not ready. The Plaintiff is
ready to proceed to
trial and its witnesses, including expert
witnesses, have been reserved accordingly.
I must agree with Mr Corbett, for the
Plaintiff, that the grounds advanced for the postponement are
somewhat flimsy. Having said
that, I am of the view that justice and
fairness dictate that I grant the application.
I have great empathy with Arthur who,
through no fault of his own, has suffered the devastating loss of an
upper limb. The various
expert reports filed by the Plaintiff attest
to the severe trauma which Arthur has suffered in all aspects of his
life. His future
employability has been reduced to almost nil. The
psychological and physical sequelae are almost self-evident, but are
nevertheless
lucidly detailed in the expert reports.
For a decade this young man has had
to make do without the use of an upper limb. Again, I reiterate, it
should be noted, through
absolutely no fault of his own.
This Court cannot be dispassionately
removed from his plight. An interim payment is highly desirable in
these circumstances. Mr
Nyangiwe for the Defendant has been able to
procure a commitment from the Head of the Provincial Department of
Health, Dr Sibeko,
that the Defendant would be willing to make an
interim payment of R100 000 and also to pay the costs of the
postponement.
While I appreciate this commitment, which is in writing
and placed on the Court file and while I am indebted to the efforts
of Mr
Nyangiwe and his attorney in this regard, I am of the view that
the amount offered is wholly inadequate.
A motorised prosthesis will,
according to the renowned orthotist and posthetist, Mr Kritzinger,
cost R417 688,55. Plaintiff’s
claim for future medical
expenses amounts of R9 282 600,00 future loss of earnings
R3 007 100,00 and general
damages R800 000,00.
It is clear therefore that the
Defendant, who has conceded liability in full, will have to make a
substantial payment herein.
I do not intend specifying what the
interim payment is to be allocated to, but would require Plaintiff’s
attorney to hold
the payment in his trust account, to allocate
payments from there and to account fully at the next hearing for the
amount spent
at that time.
I issue the following order:
1. The matter is postponed to 24-27
February 2009, a date which has been arranged with the Registrar.
2. The Defendant is to pay the costs
occasioned by the postponement on the scale as between attorney and
own client.
3. The Defendant is ordered to pay
into the Plaintiff’s attorney’s trust account as an
interim payment the sum of one
million Rand (R1 000 000,00)
within one month hereof, i.e. by no later than 23 October 2008.
4. The aforementioned amount is to be
retained in the said trust account and is to be utilised only in
respect of the Plaintiff’s
and Arthur Rens’ expenses and
a full, detailed account is to be made in respect of such expenditure
to the Court at the date
of the next hearing.
5. This ex tempore judgment is to be transcribed and
placed on the Court file.
SA MAJIEDT
JUDGE
2008-09-22