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[2024] ZALMPPHC 28
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Lebogo v Department of Health and Social Development Limpopo Provincial Government (2432/2015) [2024] ZALMPPHC 28 (13 March 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO:
2432/2015
In
the matter
between:
THABANG
MICHAEL
LEBOGO
PLAINTIFF
and
THE
MEC:DEPARTMENT OF HEALTH AND
SOCIAL
DEVELOPMENT, LIMPOPO
PROVINCIAL
GOVERNMENT
DEFENDANT
JUDGMENT
NAUDE-ODENDAAL
J:
[1] The
Plaintiff instituted a claim against the Defendant for payment of
delictual damages, which the Plaintiff
alleges he suffered as a
result of the negligence of the employees, nurses and doctors, at the
Seshego Hospital.
[2] The
background facts are briefly that the Plaintiff, Mr. Lebogo, 27 years
old at the time, was taken
by ambulance and admitted as a patient at
Seshego Hospital at approximately 13h01.
[3] The
Plaintiff was vomiting, had severe abdominal pain, and he was
confused and weak. The Plaintiff was
admitted and was given an
injection to sedate him, which caused him to sleep. The Plaintiff
woke up on 6 November 2014 having sustained
2
nd
degree
burn wounds over his body with no idea of how this happened to him.
[4] The
initial diagnosis made was Hepatitis B, drug induced. At the time of
his discharge his final diagnosis,
according to the hospital records
was Hepatitis B, HIV positive, 2
nd
degree burn wounds,
drug induced.
[5] The
only issue in dispute is, whether the burn wounds the Plaintiff
sustained, were as a result of the
employees of the Defendant's,
negligence.
Plaintiff's
Case:
First
Witness: The Plaintiff's Mother, Mrs. Lebogo
[6] Mrs.
Lebogo, in summary, testified that the Plaintiff is her son. He lives
with her. The Plaintiff experienced
abdominal pain and was vomiting.
They called an ambulance and he was taken to hospital. Mrs. Lebogo
and her sister, Mrs. Boshomane,
accompanied the Plaintiff to the
hospital. The Plaintiff was admitted at hospital. He did not want to
stay at hospital alone. He
was then given an injection to sedate him
and went to sleep.
[7] Mrs.
Lebogo testified further that the following morning, even before
visiting hours, she received a
call from Mrs. Ledwaba, a nurse, at
the hospital. Mrs. Ledwaba requested Mrs. Lebogo to come to the
hospital. Upon Mrs. Lebogo's
arrival at the hospital she was taken to
Mrs. Ledwaba. Mrs. Ledwaba informed her that the Plaintiff got
injured and was burned.
[8] Mrs.
Lebogo was taken to the Plaintiff. She found the Plaintiff to be in
another ward than the previous
day. He was covered in bandages and
had a cut/scar above his left eye and also on his chin. His hands,
chest and waist area, going
down to his buttocks, were covered in
bandages, as well as one of his legs. Mrs. Lebogo could just not
recall whether it was the
Plaintiff's right or left leg that was
covered.
[9] Mrs.
Lebogo asked for an explanation and was then taken to the
Superintendent of the Hospital by Mrs.
Ledwaba and a one Mrs. Nkwana.
The Superintendent told Mrs. Lebogo, in the presence of Mrs.
Boshomane, that he will not know who
was on duty and how the
Plaintiff got burned. He did not explain - he merely hit on the table
with his fist and told Mrs. Lebogo
that she can approach her
attorneys.
[10] According
to Mrs. Lebogo, the Plaintiff was not using any drugs.
[11] Under
cross-examination the Counsel for the defence attempted to put a
defense to Mrs. Lebogo on behalf
of the Defendants to the effect that
the Plaintiff was not used to using a shower as there was no shower
at their home, furthermore
that the Plaintiffs sedation wore off
earlier than expected because of his drug use. According to the
Defendant's version, the
Plaintiff woke up at around 03h00 am the
morning and went to the bathroom to take a shower, the Plaintiff
fainted in the shower
and burned himself.
[12] Mrs.
Lebogo denied that the Plaintiff took any drugs, she furthermore,
under cross examination,
testified that the hospital did not
have any hot water during 2014. Mrs. Lebogo testified that the
Plaintiffs sister gave birth
earlier the year, there was no hot water
at the hospital and the baby had to be bathed at home. According to
the evidence, the
hospital used Urns to heat up the water for the
patients and would then poor water from the Urn into a bowl with
which the patients
would be washed.
[13] The
version of the Defendant put tot Mrs. Lebogo, was that the Plaintiff
woke up at 03h00am, he went
to the bathroom, opened the shower and
burned himself. When the nurses heard the screams, they rushed to him
to assist him. He
resisted. They removed him from the shower, he
slipped and fell on the wet floor. Mrs. Lebogo however did not accept
this version,
she also said that she cannot say what happened there
because she was not there.
[14] It
was further put to Mrs. Lebogo that the Defendant and/or its
employees or medical staff, were not
negligent and in fact rather
attempted to assist the Plaintiff. This was denied by Mrs. Lebogo.
Mrs. Lebogo said that if that was
not the case, why would they then
assist the Plaintiff to apply for a grant.
Second
Witness: Mrs. Boshomane: The Plaintiff's Aunt.
[15] Mrs.
Boshomane testified that she accompanied Mrs. Lebogo to the hospital
on the 6
th
of November 2014. When they entered the
hospital on 6 November 2014, they (Mrs. Lebogo and herself) were
informed that the Plaintiff
was burned. They were taken to the
Plaintiff. He was alone in a room and covered in bandages. According
to Mrs. Boshomane,
they asked the
personnel, including the Superintendent at the hospital, what burned
the Plaintiff to which they
all responded that they did not know.
Mrs. Boshomane testified that the Superintendent hit on the table
with his fist and told
Mr. Lebogo that she could go to her lawyers.
[16] Mrs.
Boshomane testified that when her sister's child gave birth earlier
in 2014, there was no hot water.
She also testified that the
Plaintiff informed them that when they changed his bandages, they had
to warm-up water in an Urn in
order to have hot water.
[17] Mrs.
Boshomane also testified that she had a miscarriage and was admitted
in the same hospital about
a month earlier, and also whilst she was
in hospital, there was no hot water. They wanted to know what and how
the Plaintiff got
burned. She testified that if it was indeed the
shower, as per the Defendant's version, the Plaintiffs entire body
should have
been burned from head to toe and he would have been
burned on his face and shoulders as well. Mrs. Boshomane stated that
if the
hospital was not negligent, the Plaintiff would not have
gotten burned.
Third
Witness: The Plaintiff
[18] The
Plaintiff testified that he was born in 1987. On the 5
th
of November 2014 he fell ill, he had abdominal pain and was vomiting.
He thought he had bile. He did not take any drugs, but smoked
cigarettes. He was taken to hospital by an ambulance. Upon arrival at
the hospital he was pushed in a wheelchair into the hospital
and was
admitted. Upon his admission, he was injected with a sedative which
made him sleep. He didn't have anything with him, except
the clothes
he was wearing, when he was admitted. After he received the sedative,
he fell asleep and could not remember anything.
When he regained his
consciousness, he found that he was covered in bandages.
[19] The
Plaintiff testified that he was burned on his back going down to his
buttocks, his right hand and
arm, his left hand and arm and also his
right leg. He had a cut/abrasion on his chin and above his left eye
which left a scar.
The Plaintiff testified that he had to take liquid
foods through a syringe whilst at hospital after he sustained the
burn injuries,
he also had to wear diapers.
[20] The
Plaintiff testified that he still suffers from the burn wounds,
especially when it is hot, he has
to wear light clothes. He can't
wear a belt because it will cause his skin on his back to tear. The
burn wounds also affected his
vision. He received a disability grant
due to the burn injuries caused by the hospital.
[21] Under
cross-examination, the Plaintiff also confirmed that there was no hot
water at the hospital. The
nurse who came to change his bandages
heated water in a Urn. They would then pour the water from the Urn
into a basin to wash,
wipe and clean him. The Plaintiff maintained
his version under cross-examination that he could not recall what
happened when he
got burned. He only saw that he was covered in
bandages when he woke up.
[22] By
agreement between the parties, the expert reports and affidavits were
filed and accepted as evidence
without calling the respective
experts. The following expert reports were submitted by the
Plaintiffs legal representative:-
22.1 An
affidavit and report by Dr. Pienaar, a Plastic Surgeon, marked
Exhibit "A".
22.2 An
affidavit and report by Dr. Leputu, a Specialist Psychiatrist, marked
Exhibit "B".
22.3 An
affidavit and report by Me. Natalie Lauren Hamilton (Brink), an
Industrial Psychologist, marked Exhibit
"C".
22.4 An
affidavit and report by Me. Linda Roos, an Occupational Therapist,
marked Exhibit "D".
22.5 An
affidavit and report by Mr. Michelle Barnard, an Actuary, marked
Exhibit "E".
[23] After
the acceptance of the affidavits and reports by the respective expert
witnesses as exhibits, the
Plaintiff closed his case. The Defendant
called two witnesses.
Defendant's
First Witness: Sister Lepelele
[24] Sister
Lepelele testified that she has been employed at Seshego Hospital
since 2009. She is currently
a professional nurse. On 5 November 2014
she reported on duty at 19h00 in the evening. According to her, the
Plaintiff was confused
and weak when he was admitted in their ward.
He was given a sedative just before she arrived and reported on duty.
She testified
that the Plaintiff's condition was not of such a nature
that he needed high care, he only had to be monitored frequently.
Monitoring
was done every 2 hours.
[25] She
expected the sedative to last for twelve hours. Normally the sedative
lasts for twelve hours, unless
there are other contra indications for
example the sedative will wear off earlier in patients who use
substances. She testified
that she wouldn't have known if the
sedative was going to wear-off earlier.
[26] She
testified in examination in chief that the Plaintiff woke up at
03h00am on 6 November 2014, he went
to the bathroom and wanted to
take a shower, he opened the hot water and got burned on both his
hands, lower back and left leg.
[27] Mrs.
Lepelele testified that they became aware of the incident when they
heard the Plaintiff screaming.
According to her, they rushed to the
bathroom and found the Plaintiff standing in the bathtub. There was a
shower in the bathtub
- a two in one. They wanted to pull him out but
he resisted. They eventually managed to pull him out, but he slipped
and sustained
a laceration on his chin and left eyebrow. They were
four nurses on duty. They put him on the bed and assessed his
injuries. According
to Mrs. Lepelele they found that the Plaintiff
had superficial burns and a laceration on the chin and left eyebrow.
The burn wounds
were dressed, whereafter they called a doctor.
[28] According
to Mrs. Lepelele, there was no complaint about the water or geyser
that day. The hospital
did have hot water. The hot water ran through
a general system servicing the entire hospital. She testified that
the patients who
are bedridden are bathed by the nurses. They will
use a small basin to collect hot water from the bathroom and will
then carry
the water to the patient's bed where they will bath him.
Mrs. Lepelele denied that they ever used an Urn for hot water and
stated
that the Urn was only used for tea and coffee.
Defendant's
Second Witness: Dr. Modiba
[29] Dr.
Modiba testified that he was the Clinical Manager - Medical at
Seshego Hospital. He has been employed
at Seshego Hospital as a
medical practitioner (doctor) for 16 years. On the 5
th
of
November 2014, he was on call for the general wards. Dr. Modiba's
shift started at 16h30pm on 5 November 2014 and ended on 6
November
2014 at 07h30am.
[30] Dr.
Modiba testified that whilst he was busy doing his rounds in the
maternity ward he received a call
about a patient who got injured in
the shower. He instructed the nurses to give the patient an injection
as a sedative and dress
him. When he arrived at the patient, he found
that it was the Plaintiff (Mr. Lebogo). The Plaintiff was in a stable
condition.
[31] The
Plaintiff appeared to Dr. Modiba to having been ill for some time. He
had a laceration on his left eyebrow and chin.
According to Dr.
Modiba, the Plaintiff also had superficial 1
st
degree
burns on his arms, leg and back.
[32] Dr.
Modiba testified that he was informed by the nurses that they heard
the Plaintiff scream in the bathroom while
they were at the nursing
station. They rushed to him and found him in the bath. The nurses
tried to remove him but he resisted.
He slipped and fell.
[33] According
to Dr. Modiba, the sedative was administered to the Plaintiff around
18h00pm on the 5
th
of November 2014. He was informed that
the patient woke up between 05h00am and 06h00am on the 6
th
of November 2014. He confirmed that the sedative did no last for the
expected 12 hours. According to Dr. Modiba the Plaintiff had
hepatitis (infection in the liver).
[34] According
to Dr. Modiba, there is a bath in the bathroom with a shower head, in
other words, a two in
one. Dr. Modiba testified that there was hot
water in the hospital on the day in question.
[35] In
cross-examination, it was put to Dr. Modiba that according to the
hospital records he arrived at
the Plaintiff around 04h00 am. Dr.
Modiba said that he was only informed telephonically around 04h00 am
about the incident, but
he arrived at the Plaintiff around 05h00 am
to 06h00 am.
[36] In
the hospital records, the doctor's diagnosis was that the Plaintiff
fell into a bath with hot water.
Dr. Modiba confirmed the diagnosis
to be correct. Dr. Modiba further confirmed that the Plaintiff had a
Glascow Coma score of 12/15.
[37] Dr.
Modiba, further, under cross-examination confirmed that the sedative
administered to the Plaintiff
at a maximum, wears off after 12 hours,
but it usually starts to wear off after 1O hours. Dr. Modiba further
confirmed that the
sedative wore off more or less the time of the
incident and the nurses should have been more alert that the
Plaintiff might start
to wake-up. According to Dr. Modiba, the nurse
should have had this knowledge.
[38] Dr.
Modiba also confirmed under cross-examination that he did not tell
the Plaintiff or the Plaintiffs
mother what happened as that was not
his duty, but the duty of the nurses and the offices.
Legal
Principles and the Law:
[39] The
legal relationship between a medical practitioner and a patient is
usually created by contract.
The practitioner undertakes to render
professional services and the patient undertakes (normally) to pay
for services rendered.
[40] The
Defendant had an obligation by contract and by delict. The Defendant
had a duty of care towards
the Plaintiff, being indigent, to provide
proper care, and not to harm or to injure him.
[41] In
order for the Plaintiff to succeed with his claim for damages, he
must allege and prove
a) the
contract or agreement;
b) negligent
breach of the contract;
c) causation;
and
d) damages.
[42] It
is an implied term of the contract between medical practitioner and
patient that the medical practitioner
will exercise the reasonable
skill and care of a practitioner in the particular field. In deciding
what is reasonable, the evidence
of qualified physicians is of the
greatest assistance, however, what is reasonable under the
circumstances is a matter for the
court to decide.
(See Van Wyk v
Lewis
1924 AD 438).
[43] Expert
evidence must be evaluated in accordance with the principles
enunciated by the Supreme Court
in
Michael and Another v
Linksfield Park Clinic (Pty) Ltd and Another (1) (361198) [2001]
ZASCA 12; [2002] 1 All SA 384 (A) (13 March
2001)
at paragraph 34:-
"However,
it
is
perhaps
as
well to
re-emphasise that the question of reasonableness and negligence
is
one for the
court itself to determine on the
basis
of the
various, and often conflicting, expert opinions presented. As a rule
that determination will not involve considerations of
credibility but
rather the examination of the opinions and the analysis of their
essential reasoning, preparatory to the court
are reaching its own
conclusion on the
issues
raised."
[44]
The
Supreme Court of Appeal in
Michael
and Another v Linksfield Park Clinic
supra
at
paragraphs 36 to 37
held
as follows:-
"[36]
what
is
required in
the evaluation of such evidence
is
to
determine whether and to what extent their opinions advanced are
founded on logical reasoning. That
is
the thrust
of the decision of the House of Lords in the medical negligence
case
of Bolitho
v City and Hackney Health Authority
{19971
UKHL
46;
{19981
AC
232
(H.L.(E.) ). With
the relevant dicta in the speech of Lord Browne-Wilkinson we
respectfully agree. Summarised,
they
are to the
followin effect.
[37]
The
court
is
not bound
to absolve a defendant from liability for allegedly
negligent medical
treatment or diagnosis just because evidence of expert opinion,
albeit genuinely held,
is
that the
treatment or diagnosis in issue accorded with sound medical practice.
The court must be satisfied that such opinion has
a
logical
basis, in other words that the expert has considered comparative
risks and benefits and has reached "a defensible conclusion"
[45] It
was further held in paragraph 40 of Michael and Another v Linksfield
Park Clinic
supra
that:-
"Finally,
it must be borne in mind that expert scientific witnesses do tend to
assess likelihood in terms of scientific certainty.
Some of the
witnesses
in this
case
had
to be diverted from doing
so
and were
invited to express the prospects of an event's occurrence,
as
far as they
possibly could, in terms of more practical assistance to the forensic
assessment of probability, for example,
as
a
greater
or lesser than fifty per cent chance and
so
on. This
essential difference between the scientific and the judicial measure
of proof was aptly highlighted by the House of Lords
in the Scottish
case of Dingley v The Chief Constable, Strathclyde Police,
200
SC (HL)
77
and the
warning given at 89 O-E that:
"(o)ne
cannot entirely discount the risk that by immersing himself in every
detail and by looking deeply into the minds of
the experts,
a
judge may
be seduced into
a
position
where he applies to the expert evidence the standards which the
expert himself will apply to the question whether
a
particular
thesis has been proved or disproved
-
instead of
assessing, as
a
judge must
do, where the balance of probabilities lies on
a
review of
the whole of the evidence.
[46] From
the documentary, as well as
viva voce
evidence before me, it
is clear that there was an agreement between the Plaintiff and the
medical practitioners and/or the medical
staff members and nurses at
Seshego Hospital.
[47] The
Defendant called two witnesses who were responsible for giving
various different versions. There is a version given
by the
professional nurse/sister Lepelele in the hospital records, a second
version pleaded in the Defendant's plea, which was
also put to the
witnesses. A third version during evidence in chief which in summary
is that the sedation wore off when the nurses
did not suspect it,
they heard the Plaintiff scream and rushed to his assistance where
they found him in a hot shower. The Plaintiff
resisted the nurses'
assistance and slipped and fell. Under cross-examination Sister
Lepelele however testified that the Plaintiff
was standing in the
bathtub with an overhead shower and he was already standing away from
the water, whereafter they turned off
the water and tried to get the
Plaintiff out of the bathtub, but he resisted, slipped and fell which
caused the lacerations to
his upper eyelid and chin. A fifth version
was given by Dr. Modiba in the hospital records and as he testified
in court to the
effect that the Plaintiff fell into a bath with hot
water.
[48] In
my view, the Defendant's version that the Plaintiff got out of bed at
03h30 am on the morning of
6 November 2014, walked to the bathroom
and wanted to take a shower and subsequently changed the bath tap to
shower mode before
opening a tap of hot water over himself, which
caused him to sustain the 2
nd
degree burn wounds, is
improbable and not true.
[49] Firstly,
it is highly improbable that the Plaintiff would have remained
standing in the bath under the
extremely hot water and cause himself
to burn. It is further highly improbable that the Plaintiff would
resist assistance from
the nursing staff and remain in the bath under
the shower to get burned, all this whilst he was screaming.
Furthermore, if one
considers where the burn wounds are situated, it
does not support the Defendant's version that the Plaintiff got
burned under a
shower - which later transpired to be a half-height
shower head.
[50] Furthermore,
even if the Defendant's version was probable and true, in any event,
the water was too
hot for human use and not safe. In addition, the
Plaintiff had to stand under the boiling hot water for a considerable
long time
to sustain the degree of burn wounds, at the respective
places on his body as he did. However, Sister Lepelele testified that
when
you open the tap to the shower, you have to stand under the
water or wait for a considerable long time before the water becomes
warm. It is not immediately warm, let alone hot. Therefore, the
Plaintiff had to stand in the shower for an even longer period
than
what could have been anticipated before the water turned warm and hot
to such an extent to burn him.
[51] The
test for negligence was formulated in the well-known case of
Kruger
v Coetzee
1966 (2) SA 428
A at 430E-F
as follows:-
"For
purpose of liability culpa arises if:
(a) A
diligence paterfamilias in the position of the defendant-
(i)
would foresee the reasonable possibility of his conduct injuring
another in his person or property and causing him patrimonial
loss;
and
(ii)
would take reasonable steps to guard against such occurrence; and
(iii)
the defendant failed to take such steps."
[52] Although
this is the classic formulation which has consistently been applied,
the Supreme Court of Appeal
restated the test as in
Mukheiber v
Raath and Another
1999 (3) SA 1065
(SCA) at 1077 E
-
F
by
adopting the following test as proposed by
Prof. Boberg in the Law
of Delict at 390:
"For
the purposes of liability culpa arises if
-
(a) a
reasonable person in the position of the defendant-
(i)
would have foreseen harm of the general kind that actually occurred;
(ii)
would have foreseen the general kind of causal sequence by which that
harm occurred;
(iii)
would have taken steps to guard against it, and
(b) the
defendant failed to take those steps".
[53] This
latter formulation involves a narrower test for foreseeability than
that propounded in
Kruger
v
Coetzee,
supra
by relating it to the
consequences produced by the conduct in question and effectively
conflating negligence and so-called
"legal
causation"
in
order to eliminate the problems associated with remoteness. See the
judgment of
Scott
JA in Sea Harvest Corporation v Duncan Dock Cold Storage
2000 (1) SA
827
(SCA) at 839.)
[54] Essentially,
the test in the
Mukheiber-case,
supra
involves a
consideration both of factual causation and of remoteness in order
for
culpa
to be established.But
Scott JA
stated in the
Sea Harvest case,
supra
at
839 E - F
that he had
not understood the judgment in the Mukheiber-case to have
unequivocally embraced the relative theory of negligence and
went on
to observe that there probably can be no universally applicable
formula appropriate to every case.
[55] In
Van Wyk v Lewis
1924 AD 438
at page 444, Innes CJ
said the
following about the applicable test for determining whether a medical
practitioner was negligent in the performance of
his or her duties:-
"it
was pointed out by this court, in
Mitchell
v Dixon
(1914 AD p525)
that
"a
medical
practitioner is not expected to bring to bear upon
a
case
entrusted to him the highest possible degree of professional skill
but he is bound to employ reasonable skill and care. In
deciding what
is reasonable, the court will have regard to the general level of
skill and diligence possessed and exercised at
the time by the
members of the branch of the profession to which the practitioner
belongs. The evidence of qualified surgeons or
physicians is of the
greatest assistance in estimating that general level."
[56] It
cannot be determined in the abstract whether a surgeon has or has not
exhibited reasonable care and
skill. The question to be answered is
whether the Defendant's doctors and medical staff members acted as
average surgeons and medical
staff members, placed in similar
circumstances, would have acted, or did they manifestly fall short of
the skill, care and judgment
of the average surgeon and or medical
staff members in similar circumstances.
[57] The
Defendant in this matter did not tender any expert witnesses,
alternatively any other evidence,
to prove the contrary. In fact, Dr.
Modiba, himself, testified that it should have been expected at the
time of the incident that
the Plaintiff would start to wake-up and
confirmed that the nurses should have been alert to this fact.
[58]
In my view, the Plaintiff succeeded in alleging and proving that the
treatment and
monitoring given to him at Seshego Hospital was
sub-standard and negligent in the circumstances. Alternatively, the
water used
in the hospital to bath and/or shower by the patients was
too hot for human consumption, of which fact the hospital staff
should
have reasonably been aware.
[59] In
my view, in all probability the hospital did indeed have issues with
water, alternatively the water
system was defective. The hospital
staff used an Urn to heat up or even boil the water, and failed to
test the heat of the hot
water before the Plaintiff was bathed or
washed and he consequently got burned.
[60] It
is self-evident that the burns were caused by the negligence of the
staff of the Defendant in failing
to properly care for the Plaintiff.
[61] I
am under the circumstances, having considered the evidence and
reports presented, satisfied that the
Plaintiff succeeded in alleging
and proving that there was a contract or agreement, there was
negligent breach of the contract,
causation and that he suffered
damages in the consequence. The Defendant and its medical personnel
did not exercise and act with
the reasonable skill and care expected
of a practitioner in the circumstances and therefore the Defendant
was in negligent breach
of the contract between patient and medical
staff members of the Seshego Hospital.
[62] By
virtue of all the evidence and facts placed before me, only one
conclusion can be drawn and that
is that the Defendant is 100% liable
for the Plaintiffs proven and/or agreed damages.
QUANTUM OF
DAMAGES:
[63] Both
the Plaintiff and Defendant filed expert reports. Joint minutes have
also been filed between all
the experts.
[64]
In
Phillipa
Suzan van Zyl N.O. v The MEC for Health 2022 [ZAWCHC] 133 (2023) (4
July 2022) All SA 501 (WCC) at par 68, Gamble J
said
the following:-
"68.
A joint minute compiled by the experts has a particular status in a
matter such as this. The Court a quo relied
on the judgment of Rogers
AJA (as he then was) for the majority in
Bee
which sets out
that status and the approach thereto as follows.
"Effect
of agreement between experts
[64]
This raises the question as to the effect of an agreement recorded by
experts in a joint minute. The plaintiff's counsel referred
us to the
judgment of Sutherland J in Thomas v BO Sarens (Pty) Ltd [2012]
ZAGPJHC 161. The learned judge said that where certain
facts are
agreed between the parties in civil litigation, the court is bound by
such agreement, even if it is sceptical about those
facts (para 9).
Where the parties engage experts who investigate the facts, and where
those experts meet and agree upon those facts,
a litigant may not
repudiate the agreement 'unless it does so clearly and, at the very
latest, at the outset of the trial' (para
11). In the absence of a
timeous repudiation, the facts agreed by the experts enjoy the same
status as facts which are common cause
on the pleadings or facts
agreed in a pre-trial conference (para 12). Where the experts reach
agreement on a matter of opinion,
the litigants are likewise not at
liberty to repudiate the agreement. The trial court is not bound to
adopt the opinion but the
circumstances in which it would not do
so
are likely
to be rare (para 13). Sutherland J's exposition has been approved in
several subsequent cases including in
a
decision of
the full court of the Gauteng Division, Pretoria, in Materna v The
Road Accident Fund
[20171
ZAGPHC 275
para
92."
(Footnotes
omitted).
[65] Dr.
JPM Pienaar and Dr. A Potgieter, as plastic and reconstructive
surgeons, stated as follows in their
joint minutes:-
"We
hereby
agree on the history and physical findings
as
well
as
proposed treatment plan of scar revision to his small facial
scars. The burn scars are not amendable by surgical or medical
treatment.
We agree that the burn wound distribution and extend is
not that of a shower (sprayed splash) injury but rather that of bath
water.
The time of exposure was longer than a splash type of injury.
Possibility of loss of consciousness can not be ruled out."
[66] In
the joint minutes between the Industrial Psychologists, Mr. P.C.
Diedericks (PD) and Mr. L. Marais
(LM), the experts agreed that the
Plaintiffs biographical background is a matter of record as indicated
in their respective reports.
They agreed that at the time of the
incident, the Plaintiff was working in a self-employed capacity as a
Trolley Pusher. He reported
different information to the experts
regarding his earnings at the time of the incident. To PD he reported
that he earned R180
per week (R9360 per annum) and to LM that he was
uncertain about his earnings at the time of the incident. His
earnings reported
to PD was between the lower quartile and median
earnings of self-employed persons in the informal sector.
[67] PD
and LM agreed that it would be equitable to postulate that the
Plaintiff's income would have progressed
steadily (straight line
recommended) in real terms to a lever equivalent to the median
earnings of unskilled workers in the non-corporate
sector of the
labour market employees (at the time of the report, R25500 per
annum), to be reached at approximately age 40-45 years.
According to
PD, if the Plaintiff is employed in the non-corporate sector, he may
also have received an annual bonus equivalent
to 2 - 4 weeks' salary.
According to LM it is however unlikely that he would have switched
his employment, and it is postulated
that he would have remained a
trolley pusher.
[68] According
to PD the Plaintiff would have been able to continue working until
age 63 - 65, depending
on the retirement policy of his employer at
the time. However, according to LM, the Plaintiff would have worked
until he qualified
for government pension, age 60 years, health
permitting. The experts however deferred to the relevant medical
expert to comment
on the impact the Plaintiff's overall health and
HIV+ status would have on his likely retirement age.
[69] Post-morbid,
PD and LM agree that, based on the overall body of expert opinion,
the Plaintiff has been
rendered a vulnerable and unequal competitor
in the open labour market mostly form a psychological perspective as
well as from
a physical perspective due to this scars.
[70] PD
and LM differ in regards to the Plaintiff's future income. According
to PD, the Plaintiff will clearly
not be an equal competitor for
alternative work and his best option will be to work in a
self-employed capacity, such as trolley
pusher. The Plaintiffs income
is however likely to be lower than what he earned at the time of the
incident, given his residual
pathology. If he cannot do such, or
similar work in a self-employed capacity, he will probably remain
unemployed.
[71] LM
agrees that the Plaintiff will remain a trolley pusher and that he
will earn accordingly, similar
to his pre-accident earnings, and
defer to factual information in this regard.
[72] Dr.
Leputu and Dr. Melapi agreed in their joint minutes that pre-morbidly
the Plaintiff was a 27-year
old patient at Seshego Hospital, where he
sustained burn wounds.
His highest
educational qualification is grade eight (Gr 8) and he is employed in
the informal employment sector, pushing trolleys
at supermarkets. The
Plaintiff has no post-school qualifications. Further, the Plaintiff
is HIV+, smokes cannabis and drinks alcohol.
He however had no
functional impairment as a result of the aforementioned conditions or
substances prior the burn injuries that
he sustained while admitted
at Seshego Hospital. The Plaintiff had no history of mental illness
symptoms or diagnosis prior the
burn wounds.
[73] Dr.
Leputu and Dr. Melapi agreed that post-morbid, the Plaintiff fulfils
diagnostic criteria for Post-Traumatic
Stress Disorder (PTSD) and
Major Depressive Disorder (MOD), which is as a result of the burn
wounds that he sustained whilst admitted
at Seshego Hospital. They
further agree that because of the scarring from the burn wounds, the
Plaintiffs self-image and confidence
have been affected negatively
and as a result thereof he cannot function as well as he used to
prior to the burn wounds. It was
agreed that both PTSD and MOD that
was diagnosed in the Plaintiff, are chronic. They may follow a
remitting and relapsing course.
[74] In
both Dr. Leputu and Dr. Melapi's opinion, the Plaintiff requires long
term treatment form both a
psychiatrist and a psychologist. In
respect of psychotherapy, it was agreed that each session costs
between R800 and R1500. A course
of psychotherapy ranges between 12
and 16 sessions. In respect of psychiatry treatment, a first
consultation with a psychiatrist
ranges between R2500 and R3500.
Follow up consultations range between R1000 and R1500. The Plaintiff
may need about four follow
up sessions per year, depending on
response to treatment.
[75] In
respect of medication, both Dr. Leputu and Dr. Melapi are
ad idem
that anti depressants are used for both PTSD and MDD. An
estimate cost of commonly used medication is R600 per month. There
may also be additional costs if hospitalisations become necessary in
future, however the cost and probabilities of hospitalisation
cannot
be estimated reliably at this stage.
[76] Ms.
Roos and Ms. Beddingfield, the Occupational Therapists, in their
joint minutes, agree that the presence
of unsightly scars, anxiety,
poor self-confidence and an affected self-image can be related to the
injuries the Plaintiff sustained.
The therapists agree that it can be
seen as reasonable that the Plaintiff suffered past loss of earnings
for approximately 11 months
due to the injuries sustained, but they
are however (in agreement) of the opinion that the Plaintiffs ability
to assist customers
with their trolleys have not been affected
significantly by the injuries he sustained.
[77] Mrs.
Roos and Ms. Bedingfield further agree that the Plaintiffs self-image
is hampered by the unsightly
scars he sustained. Together with the
diagnosis of Adjustment disorder with mixed anxiety and depression,
it could most probably
affect his self-confidence and ability to
present himself sufficiently during a work interview, partly
affecting success when seeking
alternative employment. They also
agree on 16 hours Occupational Therapy Intervention, which should
include psychosocial rehabilitation,
for instance by means of Group
Therapy to address life skills and emotional functioning, functional
rehabilitation including for
instance domestic participation as well
as work conditioning. A case manager could then determine further
rehabilitation needs.
[78] Case
management for an additional 4 hours is recommended to make sure that
the Plaintiff attends the
recommended therapies and to manage his
case. An Occupational Therapist is recommended as case manager. They
further agreed that
the cost involved for Occupational Therapy in
South Africa at the time of the joint minutes was approximately
R670.00 per hour
including VAT. An additional cost of ±R475.00
per visit should be reserved for home and work visits for the
travelling time
and distance covered by the therapist.
[79] The
therapists agree on physiotherapy and biokinetics for pain
management, improved endurance and body
strength, mobility
maintenance as well as core strengthening. The therapists further
agreed that depression and anxiety could affect
work motivation and
work quality, as well as quality of life and therefore recommends
psychotherapy. The therapists also agreed
on a consultation with a
dermatologist who can provide the necessary advice on the correct
treatment for the burn wound areas.
They also agreed that the
Plaintiff suffered loss of amenities and defer to their respective
reports for more detail in this regard.
[80] Mrs.
Michelle Barnard, from Quantum Actuarial Services CC, made
calculations according to the postulations
of the Industrial
Psychologist filed on behalf of the Plaintiff, namely PC Diedericks,
and the joint minutes between Diedericks
and the Industrial
Psychologist filed on behalf of the Defendant, L. Marais. She applied
5% contingency for past loss of income,
15% for future pre-morbid
contingency and 35% post-morbid contingency (as per her instruction).
[81] The
Plaintiff's Counsel however submitted that the 20% spread is a fair
and reasonable percentage taking
into consideration all the factors
of contingency already pointed out. It was further submitted that by
virtue of the disagreements
between the Industrial Psychologist
and the evidence before court, a fair award for loss of earning
capacity
is found i Scenario 2B of the calculations.
[82] In
my view, neither of the calculations reflected in the Scenario's by
the Actuary are correct and a reflection
of the actual loss of
income. At most the Plaintiff was left without any income whatsoever,
except for the disability grant he
received from January 2015 to
December 2015 for a period of 1 year where after he returned to his
normal work of pushing trolleys.
He indicated that his annual income
was R9360.00 per year and he received disability grant in the
amount of R16770.00. The
Plaintiff therefore was in an advantaged
position in that his disability grant received was in actual fact
more than his total
income per annum. It can therefore not be said
that he suffered a loss of past income. It should also be borne in
mind that the
Plaintiff only stopped working as a trolley pusher
during approximately 2020/2021 (6/7 years after the incident ).
[83] In
respect of future loss of income, the Plaintiff appears to be
adversely impacted by the residual
psychological pathology, as well
as the serious and permanent disfigurement arising from the scarring
sustained in this incident
and his overall residual pathology will
likely have an adverse impact on his drive and motivation to work and
this may explain
his unemployment since 2020/2021 to date. It should
however be borne in mind that during evidence in Chief, the Plaintiff
testified
that he cannot work as he used to because he gets tired.
This may also be as a result of his HIV+ status.
[84] It
should further be borne in mind that with therapy and medication, the
Plaintiff's self-esteem and
depression can become better or even
return to normal. Having considered the above facts in respect of the
Plaintiff's claim for
future loss of income, I am of the view that
the Plaintiff will suffer some loss of future income, however I am of
the view that
the Plaintiff's income should only be calculated to the
age of 60 (being the age he will qualify for a state pension) and not
64,
considering the fact that Plaintiff was diagnosed to be HIV+,
suffered from health issues at the time of his admission, his highest
grade is only Grade 8 and he was a trolley pusher up to or about
2020/2021 whereafter he did piece jobs as a gardener. In addition,
I
am of the view that a contingency of 35% pre-morbid should be applied
and not just only 15% and 40% post-morbid instead of only
35%
post-morbid. In the result, I am of a view that a future loss of
income in the amount of R223279-00 is reasonable.
[85] In
respect of future medical expenses, I am of the view that the
estimation and calculations made by
the Actuary are indeed reasonable
and the calculation is as a result of the estimations by the experts
in their joint minutes for
costs. In the result an amount of
R416369.00 is awarded for future medical expenses.
[86] This
then leaves the issue of general damages and enjoyment of amenities
of life. It is clear that the
Plaintiff suffered emotional trauma and
still suffers from depression, over and above the burn wounds, as
well as permanent disfigurement
and scarring as a result of the
incident.
[87] In
M obo Thibedi and Another (7202/2008) [2019] ZAGPPHC 128 (24 April
2019),
the Plaintiff sustained scars on his forehead, hairline
and above the eyelid. The Plaintiff was awarded R450 000.00.
[88] In
Mpulwane E v Road Accident Fund (4661/2016) [2019] ZAGPPHC 563 (3
October 2019),
the Plaintiff sustained burn wounds on her neck,
both legs, buttocks, both feet, right forearm and hand which covered
45% of her
body. She was awarded R700 000.00.
[89] In
Mashego v Road Accident Fund (2120/2014) [2018] ZAGPPHC 539 (13
June 2018),
the Plaintiff sustained burn wounds and scars over
her chest and belly. The court awarded R500 000.00.
[90] Having
regard to these cases, as well as inflation on the amounts awarded,
and further having regard
to the injuries the Plaintiff sustained and
more in particular the circumstances under which the injuries were
sustained, as well
as the fact that the Plaintiff will be disfigured
and scarred for the rest of his life, I am of the view that a
reasonable amount
to be awarded for general damages, inclusive of
loss of amenities of life would be R650 000.00.
[91] It
is trite law that costs normally follow the result. In the present
matter there is no reason to deviate
from this general rule. In the
result the Defendant is to pay the costs of suit on a party and party
scale, including all costs
previously reserved, as well as costs of
expert witnesses, consultations and reports where such costs have
been incurred.
[92] I
therefore make the following order:-
1. The
Merits are awarded 100% in favour of the Plaintiff.
2. The
Defendant is ordered to pay the Plaintiff an amount of
R1289648.00
(One Million Two Hundred Eighty Nine Thousand Six Hundred Forty
Eight Rand), which amount is calculated as follows:-
a. Future
Medical and Related Expenses R416
369.00
b. Past
and Future Loss of
Earnings R223
279.00
c. General
Damages and Enjoyment of Amenities of Life R650
00.00
3. Interest
on the amount of R1289648.00 at the prescribed interest rate per
annum, as at the time of judgment,
calculated fourteen days from date
of judgment to date of payment.
4. Cost
of suit on a party and party scale, which costs shall include, but
not be limited to all expert costs,
including consultations, drafting
of reports and joint minutes, and reservation costs, where
applicable.
M.
NAUDE-ODENDAAL
JUDGE
OF
THE
HIGH COURT,
LIMPOPO
DIVISION,
POLOKWANE.
APPEARANCES:
6
& 7 NOVEMBER 2023
HEARD ON:
HEADS OF
ARGUMENT
SUBMITTED
IN CLOSING ARGUMENT:
28
NOVEMBER 2023
JUDGMENT
DELIVERED
ON: 13
MARCH 2024
For the
Plaintiff:
Adv.
M. De Meyer
Instructed
by: Oosthuizen
& Steyn Attorneys
Polokwane,
marieadvlaw@gmail.com
christine@osattorneys.co.za
For the
Defendant: Adv.
EK Tsatsi SC
Instructed by:
The
State Attorney
Polokwane
Ref:753/15/MV