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[2024] ZAFSHC 142
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MEC for the Department of Health Free State Province v G.A.K obo M.A.K (2795/2015) [2024] ZAFSHC 142 (25 April 2024)
SAFLII
Note:
Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges
:
YES/NO
Circulate
to Magistrates: YES/NO
Case
no
:
2795/2015
In
the matter between
:
MEC
FOR THE DEPARTMENT OF HEALTH:
FREE
STATE
PROVINCE
Applicant
And
G
A K[…] obo
M
A
K[…]
Respondent
IN
RE:
G
A K[…] obo M A K[…]
Plaintiff
And
MEC
FOR THE DEPARTMENT OF HEALTH:
FREE
STATE
PROVINCE
Defendant
CORAM:
HEFER AJ
HEARD
ON:
15 FEBRUARY 2024
DELIVERED
ON:
25 APRIL 2024
[1]
This is an application for leave to appeal by the Applicant (the
Defendant in the main action) against an order
and reasons therefor
dated 21 November 2023, by Lekhoaba AJ.
[2]
The Respondent's
claim, in her representative capacity on behalf of the minor child,
M[…], is a claim for personal injury
arising from negligence
of the medical- and nursing staff at the Elizabeth Ross Hospital,
Free State Province.
[3]
The Plaintiff alleged
that as a result of prolonged labour and failure to timeously perform
a Caesarean section to deliver M[…],
the minor child suffered
a hypoxic-ischaemic incident due to asphyxia, meconium aspiration
syndrome and/or respiratory distress
syndrome causing her to sustain
severe brain damage as result of which she is suffering from cerebral
palsy. When the Plaintiff
later discovered the unfortunate situation
of her minor child, she instituted action for damages against the
Defendant.
[4]
Lekhoaba AJ was
called upon to adjudicate the general damages only, after the
Applicant had been held liable for 100% of the Plaintiff's
damages.
The Court held that the fair and reasonable amount for compensation
of the minor child in respect of general damages is
R2,400,000.00
(R2.4
million).
[5]
The Applicant
relies on several grounds in support of the application for leave to
appeal. In summary, the Applicant's grounds of
appeal relate to the
life expectancy of the minor child, who is almost 15 years of
age, who according to the expert evidence
before Court, has a
life-expectancy of age 27.7 or 29.6 years, in other words a further
approximately 14 years.
[6]
The relevant portion
of Lekhoaba AJ's judgment, reads as follows:
"[67]
The Court is
of the view that the submission by the Defendant's counsel that
life-expectancy had to be taken into account in respect
of general
damages is misplaced
.
[68]
The
Court
is of
the
view
that
life-expectancy
does
not
take
away
pain
and suffering
of the minor child in respect of the reasonable and fair amount to be
awarded
.
The
life-expectancy plays a role on the loss of earning capacity and this
Court has not been tasked to deal with the loss of earning.
[69]
The Court
agrees with Plaintiff’s submission that general damages must
bear a direct relationship to the personal suffering
of the minor
child.
[70]
The Court is
of the view that a fair and reasonable amount for compensation of the
minor child in respect of general damages is
R2,400,000.00 (Two
Million Four Hundred Rand)."
[7]
With reference to
certain authorities relied upon by Mr
Salie,
appearing
on behalf of the Applicant herein, it was submitted that the Court a
quo
has
erred in her award of R2,400,000.00 and that an award between
R1,800,000.00 and R2,000,000.00 is
in
line with the
present day awards for general damages to children suffering from
cerebral palsy.
[8]
In
the matter of
PM
obo TM v MEC for Health, Gauteng Provincial Government
[1]
the
Full Bench of the Gauteng High Court, confirmed the approach to be
followed by a Court of Appeal to a trial court's award of
damages,
namely:
"It
is settled law a trial Court has a wide discretion to award, what it
in the particular circumstances, considers to be fair
and adequate
compensation to the injured party for his bodily injuries and their
sequelae
.
It follows
that this court will not, in the absence of any misdirection or
irregularity, interfere with the trial Court's award
of damages
unless there is a substantial variation or a striking disparity
between the trial court's award and what this court
considers ought
to have been awarded, or unless this court thinks that no sound basis
exists for the award by the trial Court
.
AA Mutual
Insurance Association Ltd v Maqula
1978 (1) SA 805
(A), at 809 8 -
D
.
Also Singh v
Ebrahim (413/09)
[2010] ZASCA 145
par. 148".
[9]
Mr
Van
Rooyen,
appearing
on behalf of the Respondent, has drawn attention to the fact that in
none of the authorities relied upon by the Applicant,
it was
specifically stated that the award for general damages was directly
linked to the life-expectancy of the patient. He further
argued that
it is of course imperative that life-expectancy be considered in
matters of this nature. It is an essential element
to determine
damages, more particularly future medical expenses and
loss
of
earnings.
These
heads
of
damages
are
meticulously
calculated
by actuaries
with specific reference to the life-expectancy.
[10]
With
these submissions, I must agree. In the
PM-
matter
referred to, the Court indeed stated that the issue of the particular
child's life-expectancy, which the expert witnesses
differed upon,
"
...
is
of considerable importance because of the effect it has on the
calculation of much of the appellant's damages claims".
Upon
scrutiny of the judgment of the Full Bench, the Court of Appeal
indeed held that its assessment of life-expectancy differs
from that
of the Court a
quo
with
an additional four years. It appears further from the judgment that
the life expectancy of the minor child was indeed
taken into
consideration in respect of the claim for future medical and related
expenses and that the Full Bench took into consideration
the minor
child's diminished life-expectancy of 22 years in the award relating
to the loss of earnings and the contingencies applicable
thereto. The
Court also, in this regard referring to the trial court's large
contingency deduction of 50%, again referred to the
diminished
life-expectancy which was assessed and in awarding damages for loss
of earnings by Koen J in
Singh
and Another v Ebrahim
[2]
.
[11]
In respect of
general damages, the Full Bench referred to the fact that the minor
child was permanently disabled and had a diminished
life-expectancy.
But unlike in regards to the award of future loss of earnings, the
number of years in respect of life-expectancy
was not taken into
consideration. It appears that the Full Bench merely took into
consideration the fact of diminished life-expectancy
in regards to
the calculation of the amount of general damages.
[12]
In
AD
and 18 v MEC for Health and Social Development, Western Cape
[3]
,
which
involved an athetoid cerebral-palsied boy who was almost 8 years old
at the time of trial, Rogers J awarded an amount of general
damages
equivalent in 2014 to the amount of R2,575,493.00. The boy was
described as severely mentally retarded, with a life-expectancy
which
does not appear from the reported judgment.
[13]
In
NP
(obo SP) v MEC for Health, Eastern Cape Province
[4]
,
involved
a cerebral-palsied boy who was 13 years old at the time of trial. He
was incontinent, unable to stand without assistance
and able only to
roll or crawl and had severally affected speech. His cognitive
functions were however at a higher level. His life-expectancy
does
not appear from the judgment and Brooks J awarded the 2014 equivalent
amount of R2,633,066.00.
[14]
In
the matter of
Du
Bois v Motor Vehicle Accident Fund
[5]
,
Stratford
J (as he then was)
,
took
into consideration the principle outlined in
Sandler
v Wholesale Coal Suppliers Ltd
[6]
,
as
follows:
"
The
law attends to the pure wrong done to a suffered who has received
personal injuries in an accident by compensating him in money
,
yet
there are no scales by which pain and suffering can be measured
,
and
there is no relationship between pain and money which makes it
possible to express the one in terms of the other with any approach
to certainty
.
The
amount to be awarded as compensation can only be determined by the
broadest general considerations and the figure arrived at
must
necessarily be uncertain
,
depend
i
ng
upon the Judge's view of what is fair in all the
circumstances
of
the case
."
[7]
(own
emphasis)
[15]
Stratford J
continued as follows
:
"The
award which I am about to make does not emanate from my first
establishing what I would have awarded the claimant for
general
damages had she lived till 57 or 58 years of age
,
that is 27
years from the date of collision instead of 5 years and 6 months
therefrom
.
I
did not arrive at my award by dividing that amount by 5 because the
claimant only lived for approximately
one fifth of
the 27 years
.
The award
arrived at is what I think is fair in all the circumstances
of this case.
"
[16]
In summary of
this aspect
,
upon a
scrutiny of the authorities relied upon by the parties, it appears
that the facts that an injured person does have a diminished
life-expectancy, was taken into account as such, but the remaining
number of years in respect
of such person
did not play a role in determining
the amount
of
general damages to be awarded. The principle of which amount is fair
in the circumstances
is still
paramount.
[17]
It
is now accepted that the Superior Courts Act raised the bar for
granting leave to appeal. Bertelsmann J in
Mont
Chevaux Trust v Goosen
[8]
held
as follows:
"It
is clear that
the threshold for granting leave to appeal against the judgment of a
High Court has been raised in the new act. The
former test whether
leave to appeal should be granted was a reasonable prospect that
another court
might
come to a
different conclusion, see Van Heerden v Cronwright and Others
1985
(2) SA 342
(C) at 343 H
.
The user of
the word
would
in
the
new statute
indicates
a measure of certainty
that another could will differ from the court whose judgment is
sought to be appealed against."
[18]
In
the matter of
RSN
v RAF
[9]
,
the
Full Bench again confirmed that a Court of Appeal must consider
whether there is a striking disparity between an award by a
Court a
quo
and
what the Court of Appeal considers to be an appropriate award. If it
is found that there is indeed such a striking disparity,
then the
Court of Appeal must give consideration to a more appropriate award.
[19]
I
have considered the comparable authorities relied upon by both
parties in this application for leave to appeal. In
Kriel
NO obo S v MEC for Health, Gauteng Provincial Government
[10]
where
a minor child had a life-expectancy of 43.5 years, the Court awarded
R2,000,000.00 in respect of damages;
in
ZK
v MEC for Health, Gauteng Provincial Government
[11]
,
an
award of R1,800,000.00 was made for general damages in 2018;
in
CS
(obo TGS) v MEC for Health, Gauteng
[12]
,
an
award of general damages in the sum of R1,800,000.00 was made in
respect of a child whose life-expectancy was reduced to 30 years,
in
2015 (the equivalent thereof in 2024 is R2,728,558.00);
in
AG
and 18 v MEC for Health and Social Development, Western Cape
[13]
,
the
equivalent award in 2024 was R2,575,493.00;
in
MK
v MEC for Health, Gauteng
[14]
the
present equivalent award in the amount of R2,525,230
.
00
was made and in the matter of
NP
(obo SP) v MEC for Health, Eastern Cape Province
(supra)
the
equivalent award in the amount of R2,633,066.00 was made.
[20]
Taking into
account those authorities it cannot be held that there is a striking
disparity between what the Court
a
quo
found
and what a Court of Appeal might find
.
In view
thereof, the Applicant has not succeeded in showing that a Court of
Appeal
would
come to a different conclusion as that of the Court
a
quo
in
regards to the amount of general damages awarded. The application for
leave to appeal should therefore fail.
Order:
Therefore,
I make the following order:
The
application for leave to appeal is dismissed with costs.
HEFER
AJ
Appearances
on behalf of the Applicant:
Adv
M Salie SC
Assisted
by
:
Adv
K
Nhlapo-Merabe
Instructed
by:
State
Attorneys
Bloemfontein
On
behalf of Respondent:
Adv
M van Rooyen
Instructed
by:
Webbers
Attorneys
Bloemfontein
[1]
(A5093
/
2014)
[2017]
ZAGPJHC
346 (7 March 2017)
[2]
(8027
/
2004)
[2008] ZAKZHC 112
(30
July
2008)
[3]
2016
(7A4)
QOD
32
(WCC)
[4]
2018
(8A4
)
QOD
87
(EC)
[5]
199
2
(4
)
SA
368
(
TPD
)
[6]
1941
AD 1
94
[7]
p
.
37
4E
-G
[8]
2014
JDR
235
(LCC)
at
par. [6]
[9]
(A137
/
2018)
[2023] ZAGPPHC 641
(31
July
2023)
[10]
(9407
/
2017)
[2020]
ZAGPJHC
273
(14
November
2014)
[11]
2018
ZASCA
13
;
2018
(7A4) QOD 80 (SCA)
[12]
2015
SAGPPHC
605;
2018
(7A4) QOD
104
(GNP)
[13]
2016
(7A4) QOD 32 (WCC)
[14]
2018
(4) SA 454
(SCA)