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[2024] ZALMPPHC 16
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Mohlala v MEC for Health, Limpopo Province (5028/2017) [2024] ZALMPPHC 16 (26 February 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA;
LIMPOPO
DIVISION; POLOKWANE.
CASE
NO: 5028/2017
REPORTABLE:
YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
REVISED
Date
:26 February 2024
SEMENYA
AJP
In
the matter
between:
GELDY
TIISETSO MOHLALA:
PLAINTIFF
And
MEC
FOR HEALTH, LIMPOPO PROVINCE:
DEFENDANT
JUDGMENT
Heard
on
09 OCTOBER 2023.
The date and time for hand-down is deemed
to be
on the 26 February 2024
at
16:00.
This judgment
handed down electronically by circulation to the parties'
representatives by email and publication and release to
SAFLII.
CORAM:
SEMENYA AJP:
[1]
The plaintiff
in this action issued summons against the defendant in which
she claims
damages alleged to
have been
sustained by
her through
the
negligence
of
the
defendant's employees. It
is common
cause that the cause of action arose on the 6 May 2017 at Maphutha L
Malatji hospital (the hospital) in Phalaborwa. It
is further common
cause that the plaintiff attended the hospital for the purpose of the
delivery of her unborn baby when her breasts
and chest were burned.
[2]
The
defendant
initially
filed
a
plea
in
which
liability
was
denied.
However, the defendant later conceded 100% liability in respect of
the merits of the case. An order to that effect was made
by this
court. The parties agreed to separate the issue of merits and quantum
in terms of Rule 33(4) of the Uniform Rules of Court.
This agreement
too was made an order of court. The trial proceeded only on the issue
of quantum.
[3]
The plaintiff
and several expert witnesses testified. The plaintiff stated that she
was born on the 08 August 1996. On the 6 May
2017 she visited the
hospital to
deliver her
second baby.
The nurses at
the hospital
decided to call a
doctor
when
they
realised
that
her labour
was
prolonging.
The doctor
arrived and decided to deliver the baby by caesarean section after a
local anaesthesia was performed. During the course
of the operation
she complained that she is feeling cold. One of the nurses decided to
put a hot water bottle on her chest to make
her feel warm. She
thereafter told the medical staff that she was feeling pain on her
chest. She later found out that her chest
was burned by that hot
water bottle. She remained in hospital for three days during which
the blisters caused by the burns were
treated. She was told not to
breastfeed the baby.
She was
discharged after three days and went home. She returned to the
hospital when her injuries were becoming worse. She was admitted
for
two months.
[4]
The
plaintiff
further
testified
that
a
she
has
a
grade
12
which
she passed
with a
Diploma in
2026 as
her highest
level of
education. She
used to do
part time work after school and during weekends at a tavern when she
was still at school.
As at the date
of the incident she was working at that tavern on a fulltime basis.
Her job description entailed cooking, cleaning
and selling liquor to
patrons. She was earning a salary of R2500.00 per month.
She stated
that she consulted various specialists after the incident.
[5]
Plaintiff
testified further that she wanted to go back to work after giving
birth but could not because of the injuries. Her mother
who was
assisting her with her children passed away after the delivery of her
second child. She
wanted
to
further her
studies at
FET
College to
do
a
course
in
human
resource or marketing with the money her deceased father had put
aside for her education. She has used that money to buy formula
for
her baby as she could not breastfeed due to the injuries she
sustained. Her deceased mother was willing to take care of her
baby
while she was studying. After giving birth she did community work
programmes (CWP) where she was earning R840.00 per month.
She
experiences pain whenever she worked in a hot or warm environment.
She would put
a cloth between
her
breasts
to avoid
discomfort
or pain
caused
whenever the
two breasts
come into contact. She also experiences pain each time she bends
down.
[6]
During
cross-examination she stated that there are many people where she
stays who have better qualifications but who remains unemployed.
She
is
currently
unemployed and
she
is not
studying.
She was
still
waiting for
admission at FET college.
[7]
Dr Lovelace
Leonard Mashayamombe, a Specialist Psychologist, did psychiatrist
assessment on the plaintiff in the 4th
week of July
2018 and compiled a report filed by the plaintiff. He testified that
the purpose of the assessment was:
a)
to
determine how
the
plaintiff's
psychiatric
disorders
emerged and
how they developed within the last year from May 2017 to the date of
assessment;
b)
to identify
any clinically significant psychiatric disorders she may have
developed as long-terms complications of the burns she
sustained to
her breast during the index caesarean section;
c)
to identify
any clinically significant functional impairment the identified
psychiatric
disorder may be
exerting on
her social
function and
work productivity;
d)
to identify
the relevant psychotropic medication and any other psychiatric
intervention strategies indicated in the management of
the identified
psychiatric disorder;
e)
to determine
the medical costs involved in administering the relevant psychotropic
medication and in implementing the relevant psychiatric
intervention
strategies in the management of the identified psychiatric disorder;
and
f)
to
discuss
the
long-term
treatment
outcome
of
the
identified
psychiatric disorder.
[8]
Dr
Mashayamombe
stated that
the contracture formation on the
plaintiff's
breasts causes pains whenever she lies down because the breasts no
longer fall naturally. He further stated that the
appearance of her
breasts is of permanent disfigurement which she is conscious of and
is taking measures to conceal it. She is
no longer comfortable to
expose her breast to other people while
taking a
bath. She also
wears clothes that completely cover her breasts.
[9]
According to
Dr Mashayamombe,
the plaintiff
is further psychologically affected by her inability to breastfeed
her baby, which she
considers to
be an
opportunity
missed
to
bond
well
with
her
baby.
Her
breasts were
oozing pus and
serous fluid. She would not be
able to
take modelling
as
a
career.
[10]
On mental state examination, Dr Mashayamombe
observed that
the plaintiff's
mood was
depressed. She
spoke with
a
low volume of voice and her thoughts were pessimistic. She told him
that she is worried that her scars
would
scare
potential
lovers
away
when
they
discover
her
disfigurement. Her cognitive
function was nonetheless intact. On the functional impact of the
disorder, the doctor stated that the
plaintiff had a GAR score of
51-60 which means that she is able to do physical work though she
cannot lift heavy objects because
of the impact of the pain.
[11]
The doctor
testified that the plaintiff's standard of education makes her fall
in the semi-skilled category. She relies on manual
work. The
contractures induce pain and
contracting is
no longer
normal. He is
power is
limited. He describes the plaintiff's condition as life long and that
the pain is permanent.
According to
the doctor the chronic pain and the ugly is the source of the
plaintiff's permanent depressive mood.
[12]
Dr
Mashayamombe
agreed
with
counsel
for
the
defendant
during
cross-examination that he is not best placed to comment on the impact
of plaintiff's
disfigurement
on her employment ability as
well as
on the
impact of pain
which she may be feeling on her breasts. When asked to comment on the
observations made by the Plastic and Reconstructive
Surgeon (P&R)
appointed by the plaintiff, where the latter reports that the
plaintiff has no contractures and physical pain,
he responded by
saying that he is not a specialist
on
contractures and physical pain. He further stated that the plaintiff
did not tell
him that
she
intended
to
choose
modelling
as a career.
[13]
Maggy Ntebo
Kgaphola, an Occupational Therapist, assessed the plaintiff on
two occasions,
the 18 September 2017 and 19
February 2022.
She testified that during assessment she observed that the plaintiff
was unable to stand for prolonged periods. She
was also not
functional because of her depressed mood. She stated that although
the plaintiff meets the physical demands of a general
worker, the
work that she did pre and post injury, she is not suitable for the
position due to anxiety, low self-esteem, hypersensitivity
and lack
of confidence. She states that the plaintiff's sense of dignity and
self-worth has been affected by the injuries and the
resultant scars.
She opines that her condition makes her a vulnerable employee and
would need a sympathetic employer. She testified
that the plaintiff
should avoid jobs which require prolonged standing and walking in the
sun to avoid breast sticking together
due to sweat and hot
temperatures. She concludes that the plaintiff to be an unequal
competitor.
[14]
The plaintiff
relies on the report of Professor E Ndobe, a Plastic and
Reconstructive
Surgeon,
appointed
by
the
defendant.
In
his
report,
Dr
Ndobe
notes that there is large hyperpigmented on the scars on both breasts
and sternum. The scars are unsightly and ugly resulting
in poor
self-esteem. He further states that breasts are a sign of femininity
and sexual organ and that the scars have affected
the plaintiff's
self-esteem severely to the extent that she cannot undress in public
in fronts of friends and family. She further
states that the
plaintiff is not comfortable to undress in front of her partner and
has stopped swimming as a result of the scars.
In summary, Dr Ndobe
states that this is a severe and permanent
cosmetic
disfigurement on
a highly
sensitive part of
a woman's
body, with severe traumatic and psychological implications.
[15]
Ms Sebapu, of
Occupational Therapists filed a report and testified on behalf of the
defendant. She assessed the plaintiff on the
30 May 2021. According
to Ms Sebapu, the plaintiff demonstrated the ability to do light and
medium work with the bilateral weight
handling. She opines that with
therapy,
the
plaintiff is
expected to
be able to
manage sedentary, light and medium weights with better comfort.
[16]
Ms
J White and
Ms Tjale,
Industrial
Psychologists, gave oral
evidence and
filed joint minutes. They agree that, the plaintiff had a Grade 12
level of education
as at the date
of the incident.
Her father had
left money
for
her tertiary
education. Her mother, who assisted her in taking care of the
children passed away. Ms Tjale is of the opinion that
if the
incident did
not occur, the plaintiff would have returned to work three to four
months post maternity to continue with her
work as a general
worker with similar earnings, until she found a better paying job. Ms
White is of the opinion that the plaintiff
would have remained
unemployed after giving birth in order to look after her child. She
would have returned to her job of a cook
and cleaner. She considers
that she would not have been able to work after the death of her
mother as she would have had to look
after her children.
Ms white
takes the
unemployment
rate among the
youth in
South Africa
as another impediment to the plaintiff remaining in employment. She
further states that the onset of covid-19 would
have significantly
limited her chances of securing employment.
[17]
Post-incident,
Ms Tjale is of the opinion that the plaintiff can no longer reach her
pre-incident career postulations. She recommends
that the difference
between pre and post career postulations should be used as basis to
determine loss of earnings. Ms White is
of the opinion that the
plaintiff will be able
to continue in
the work she
was doing pre-incident and the CWP work that she did post-incident.
She suggests that her loss of earnings
should
be
calculated
using
he
actual
post-incident
reported
earnings, career progress as
per the
pre-incident
postulations and
normal
increases. On
the basis of
the
reports
by other witnesses, Ms
White notes
that the psychological state in which the plaintiff finds herself due
to the incident
has a
direct impact
on
her
earnings in
a
market environment. She suggests a significantly higher contingency
deduction in view of the clinical psychologist's report that
the
death of her parents has contributed to condition she finds herself
in.
[18]
It is trite
that a court has a wide discretion to determine an award of general
damages which is fair and reasonable, having regard
to all the
circumstances of the case and the prevailing attitudes of the
community
Tuch
and Others v Myersonand Others
2010 (2) SA 462
(SCA).
During
argument,
counsel
for
the
plaintiff
contended
that
an
amount
of
R 2000 000.00
will constitute a fair and reasonable compensation on the plaintiff's
general damages. Counsel for the defendant on
the other hand, argued
that an award of R200 000.00 should be made by this court to
compensate the plaintiff for pain and suffering.
[19]
Counsel for
the defendant referred this court to comparable cases of
Buys
and Another v Lennox Residential Hotel 1978 (2G2) QOD 836
in
which the plaintiff, who was newly married, sustained burns on the
lower part of the body as a result of hot water tap falling
off while
she was in a hotel
bath. 35%
of her
body was
covered with
second degree
burns. Some of the scars were visible. She could not wear dresses and
skirts as she had to cover the scars by wearing
trousers. She was
awarded an amount of R6000.00 which translate into R252 962. 24 in
today's
monetary
value.
In
Nconywa v
Cantor 1983 (3G2) QOD 475 (SE) a
child
of 12 years of age sustained 15% burns on her leg, which caused her
to be hospitalised for two months. She had to undergo
four
operations, including a succession of three skin graft operations.
The court made an award of R7000.00 which is the equivalent
of R280
927. 92 in today's monetary value.
[20]
In
Oosthuizen
V
Homegas
(Pty)
Ltd
1992
(3)
SA
466
(0),
the
plaintiff sustained serious burns on his face, head, hands left arm
and body during a gas explosion that took place at his workplace.
His
lungs were affected with resultant oedema and effusion. He was
awarded an amount of R 45 000.00 for general damages
in
the form of
shock, pain and
suffering.
According to
counsel for
the plaintiff
this
amount
to R419.00 according to 2023 Robert Koch Quantum Yearbook.
[21]
I had the
opportunity to see the scars caused by the burns on the plaintiff's
chest and breast on the photos attached to Dr Ndobe's
report. I agree
with Dr Ndobe's opinion regarding the impact of the burns and the
scars on the plaintiff's self- esteem. However,
I am of the view that
the injuries sustained by the plaintiff in Oosthuizen are more severe
and exposed to anyone's sight than
those sustained by the plaintiff
in this case.
[22]
Counsel
for the
defendant
contends that, based on
the cases
that
she
had referred this
court to, as well as expert
reports,
an amount
of R200 000.00
will constitute a reasonable compensation for general damages
suffered by the plaintiff. I do not agree with this
submission. The
plaintiff suffered pain while she was undergoing caesarean section.
All she could do was to alert the
medical staff
that she was
feeling pain.
It was only after her relative took a photo of her chest that she
could realise the extent of the nature and injuries.
She could not
breastfeed her baby because of the painful blisters on her breast.
Her scars are unsightly. On the other hand, I
am of the view that an
amount of R2000 000.00 would be too excessive considering the nature
of the injuries in comparison to other
previous awards. I am of the
view that an award of R400 000.00 (Four Hundred Thousand Rands) would
constitute a fair and reasonable
compensation.
[23]
On loss of
earnings,
the
plaintiff
is
relying
on
calculations
made by Munro
and the defendant on those made by Manala. Counsel for the plaintiff
contends that this court should accept the calculations
made by Munro
in
that
they are updated to Quantum Yearbook:2023, as compared to
that of
Manala, which
was
calculated
in
2022.
Munro provided
this
court
with four scenarios, three of which are based on the report compiled
by Ms Tjale. Scenario 4 is based on the report compiled
by Ms White.
The calculations in scenario 1 was made on the assumption that the
plaintiff would have been able to obtain a certificate.
The total
loss arrived at was R10 348 400
.
Scenario 2 was
calculated on the assumption that the plaintiff would have remained
with a Grade 12 qualification but that she would
have been able to
secure a corporate type of job. The total loss of earnings in this
scenario is calculated at R6 344 100. The
calculations in scenario 3
was made on the assumption that the plaintiff would remain with a
Grade 12 qualification, would secure
a non-corporate type of job
(semi-skilled). The total loss is calculated at R3 627 800
.
The
calculations in scenario 4 are based on Ms White's report on the
assumption that she will remain a semi-skilled worker. Manala,
on the
other hand, calculated total loss to be R2 076 987.00
.
[24]
Ms Tjale and
Ms White agree that higher than normal contingencies should be
applied in this case. Counsel for the plaintiff argues
that scenario
2 provide the most suitable compensation in the circumstances of this
case. She has no objection to a higher contingency
as recommended by
experts. It is trite that provision for contingencies falls squarely
within the subjective discretion of the
court on what is fair and
reasonable.
-Southern
Insurance
Ass Ltd
v
Bailey
1984
(1) SA
98
(A).
I agree
with the experts that a higher contingency has to be applied to the
amount arrived at in scenario 2. This court will take
into
consideration the rising level of employment in the country and that
the plaintiff was likely to remain unemployed, more so
due to her
level of education. The plaintiff was two years out of school when
the incident happened and has already delivered two
babies. Her level
of education, namely Grade 12, was not solely caused by the incident
in that she decided to work than to further
her studies even though
money was available for her education. I will further consider the
evidence that she has not been rendered
unemployable.
She retains
the physical ability to do her pre-incident type of jobs with
limitations. A contingency deduction of 30% would be
fair and
reasonable.
[25]
On future
medical expenses, counsel for the defendant contends that there is no
evidence that the plaintiff would require future
medical expenses
for the
injuries she
sustained. She
submits that
the correct
order would be that she should present medical bills to the defendant
for payment after consultation. Counsel for the
plaintiff argues that
the defendant had agreed to make payment of R400 000.00 as
part payment,
which was never paid. She contends that there is no guarantee that
the defendant will pay the bill should an order
to that effect be
made.
[26]
I agree with
counsel for the plaintiff
in as far as
the need to make an order with regard to future medical costs in view
of the manner in which she has been psychologically
affected by the
incident. The amount of R300 000.00 will be fair towards contribution
to medical costs.
[27]
In the result
the draft order marked "X" is made an order of court
M.V
SEMENYA
ACTING
JUDGE PRESIDENT OF THE
HIGH
COURT; LIMPOPO DIVISION
APPEARANCES:
COUNSEL
FOR THE PLAINTIFF
:
ADV. LM Montsho-Moloiasne
&
Adv. M Raphahlelo
INSTRUCTED
BY
:
NM Mabunda Attorneys
COUNSEL
FOR THE DEFENDANT
:
ADV. Monene & N Sikhwivilu
INSTRUCTED
BY
:
State Attorneys.
X
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION,
POLOKWANE)
26.02.2024
Case
No:
5028/2017
BEFORE
THE HONOURABLE
SEMENY
A.AJP
DATE:
26 FEBRUARY
2024
In
the matter between:
GELDY
TIISETSO
MOHLALA
And
Member
of Executive COUNCIL:
DEPERTMENT
OF HEALTH
LIMPOPO
PROVINCE
DRAFT
ORDER
Having
read the documents of the records and heard Counsel for the parties;
IT
IS
ORDERD
THAT:
1.
The Defendant
shall pay
the
sum of
R4
441 270.00:
Four
Million
Four
Hundred
and
Forty-one
Thousand
Five
Hundred
and
Seventy Rand.
in full and
final of the
plaintiff's claim and the said amount is payable in to the following
bank account:
Account
Holder
N.M.
Mabunda Attorneys
Bank
Name
First
National Bank
Branch
Code
261449
Account
Number
6[…]
Type
of Account
Trust
Account
REF
NMM/01/MH
2.
The above
costs will also be paid into the above trust account, which costs
shall include the following:
2.1.
the costs of
two Counsel including traveling for 07
th
June
and 09
th
of
October 2023;
2.2.
the Defendant
shall pay the Plaintiff 's costs on high court scale to date hereof
which shall include, the fees of two Counsel including
perusal
,
preparation,
drafting of heads of argument and full day fee for court appearance
on 07
th
and
08
th
June
2023, 04
th
and
05
th
September
and 09
th
October
2023.
2.3.
the reasonable
taxable fees for consultation and preparation for trial, qualifying
and reservation fees (if any) and on proof thereof
as well as the
costs of the reports, addendums including joint minutes of:
2.3.1.
Dr N Du
Plessis -
Plastic
and Reconstructive Surgeon;
2.3.2.
Dr L
Mashayamombe -
Specialist
Psychiatrist;
2.3.3.
Ms N
Kgaphola -
Occupational
Therapist;
2.3.4.
Mr T.T.
Manzini -
Clinical
Psychologist;
2.3.5.
Ms T Tjale
-
Industrial
Psychologist; and
2.3.6.
Munro
Consulting Actuaries.
BY
ORDER OF COURT
REGISTRAR
Counsel
for
Plaintiff
L.M.
Montsho- Moloisane SC
Adv.
M Raphahlelo
Instructed
by: N.M. Mabunda
Counsel
for Defendant
Instructed
by: State Attorney