M.T.N.M obo A.M v MEC for Health for Province of Kwazulu-Natal (3597/2018P) [2024] ZAKZPHC 129 (30 September 2024)

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[2024] ZAKZPHC 129
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M.T.N.M obo A.M v MEC for Health for Province of Kwazulu-Natal (3597/2018P) [2024] ZAKZPHC 129 (30 September 2024)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
no: 3597/2018P
In
the matter between:
M[…]
T[…] N[…] M[…]
(obo
A[…] M[…])
Plaintiff
and
MEC
FOR HEALTH FOR THE PROVINCE
OF
KWAZULU-NATAL
Defendant
ORDER
The
following order is made:
1.
The defendant shall pay to the plaintiff’s attorneys in favour
of the plaintiff a total amount of
R13 159 579.68
which amount
is made up as follows:
1.1  For past
medical and related expenses, the amount of
R674 462.01
;
1.2  For loss of
earnings, the amount of
R996 512.00;
1.3  For the costs
of adaptations to a home for the accommodation of the minor child,
A[…], the amount of
R1 025 379.00;
1.4  For transport
the amount of
R903 644.00;
1.5  For attendance
at a special needs school, the amount of
R918 868.00;
1.6  For caregiving
and related expenses, the amount of
R4 788 262.00;
1.7  For case
management, the amount of R491 398.00;
1.8  For general
damages, the amount of R2 500 000.00;
1.9  For the costs
of the creation and administration of a trust in respect of the award
of compensation in terms of this order
an amount of R871 054.72
2.
The defendant is directed to make payment of the sum of R10 659
579.68, the judgment amount less the interim payment of
R2 500
000.00,
2.1  To be paid
within (thirty) days of the date of the order, failing which the
defendant will be liable for interest at the
rate of 11.75% per
annum, from the date of this order to date of payment, both days
inclusive; and
2.2  Into the
plaintiff attorney’s bank account, with the following details:
Bank: F[…] N[…]
B[…]
Branch:  M[…],
D[…]
Trust Account in the name
of: A[…] D[…] S[…] A[…]
Trust Account Number:
6[…]
Branch Code:  2[…]
3.
The defendant is directed to pay the plaintiff’s reasonable and
necessary taxed or agreed party and party costs on
the high court
scale, such costs to include but not be limited to:
3.1  The costs of
the plaintiff’s attorney attending upon reasonable and
necessary consultations with witnesses in preparation
for this
hearing, including the consultations with the undermentioned expert
witnesses;
3.2  The costs of
two counsel (senior and junior), with the reasonable and necessary
costs of senior counsel up to the maximum
rate or part thereof set
out in Scale C of Uniform rule 69(7), at the discretion of the taxing
master; and the reasonable and necessary
costs of junior counsel up
to the maximum rate or part thereof as set out in Scale B of Uniform
rule 69(7), at the discretion of
the taxing master, including the
reasonable and necessary costs of their preparation for this hearing
(as determined and at the
sole discretion of the taxing master), for
drafting and preparing heads of argument and for their attendance
upon consultations
with the under-mentioned expert witnesses and the
plaintiff for this hearing; the qualifying fees of the
under-mentioned expert
witnesses, including the costs of their
reports, supplementary reports and joint minutes, to qualify
themselves to testify at this
hearing and for any reasonable and
necessary consultations with the plaintiff’s attorney and
counsel for this hearing, as
determined by the taxing master namely:
3.2.1
Sue
Anderson
, Nursing Sister;
3.2.2
Grace
Hughes,
Physiotherapist; (including her reservation fee for 3 and
4 June 2024);
3.2.3
Jane
Bainbridge
, Occupational Therapist (including her reservation fee
for 3 and 5 June 2024).
3.2.4
Mandy
Read
, Dietician;
3.2.5
Dr. R
Campbell
, Life Expectancy Expert (including his reservation fee
for 6 and 7 June 2024)
3.2.6
Dr. M E
Mayat,
Dental Surgeon;
3.2.7
Kasia
Hrabar
, Architect;
3.2.8
Sonia
Hill
, Industrial Psychologist;
3.2.9
Rochelle
Thanjan
, Speech Therapist (including her reservation fee for 4
June 2024)
3.2.10
Maureen Casey
,
AAC Expert;
3.2.11
Darryl
Grobbelaar
, Orthotist & Prosthetist;
3.2.12
Dr R Fraser
,
Orthopaedic Surgeon;
3.2.13
Dr. I Ganie
,
Radiologist;
3.2.14
Dawid Marais
,
quantity surveyor; and
3.2.15
Mr. G
Whittaker
, actuary (report only).
4.
The plaintiff’s aforesaid attorney of record is hereby
directed, upon receipt of the monies being paid to it by the

defendant as aforesaid, to:
4.1 Hold all monies in
trust pending the formation of the Trust as aforesaid;
4.2 Pay the trustees
remuneration (which shall include the costs of the formation thereof,
the costs of administering the Trust,
the costs of the trustees
furnishing annual security, and obtaining an annual security bond to
meet the requirements of the Master
of the High Court in terms of
section 6(2)
(a)
of the Trust Property Act 57 of 1988, in the
sum of R871 054.72 directly to the Trust upon it being informed;
and
4.3 Pay the net balance
of the monies received pursuant to this order to the Trust after all
costs, fees, disbursements, and expenses
have been deducted
therefrom.
5.
The trial in respect of all other outstanding claims is adjourned
sine die
for the later determination.
JUDGMENT
Chithi
AJ:
Introduction
[1]
The plaintiff in this action sues the MEC for Health for the Province
of KwaZulu-Natal in her capacity as a mother and
natural guardian of
her minor child, who was born on 14 July 2015 at Christ the King
Hospital in Ixopo, for damages arising from
the brain injury the
minor child suffered at the time of her birth. For the purposes of
this judgment, I shall refer to the minor
child as AM. The issue of
liability was resolved 100% in favour of the plaintiff on 9 July
2020. The defendant has already paid
the plaintiff interim payment in
the sum of R2 500 000.00 in terms of Uniform rule 34A.
[2]
At the commencement of the trial, the parties agreed that all the
issues relating to the public healthcare defence are
to stand over
for later determination on dates to be arranged with the registrar.
Those issues include the following:
(a)   whether
the defendant is capable of providing the
services/interventions/therapies and equipment found to be reasonable

and necessary and in respect whereof the plaintiff has not been
compensated in terms of paragraph 1 above; and
(b)   Speech
therapy including speech therapy equipment, AAC equipment,
multidisciplinary meetings, and small group therapy;
(c)  Physiotherapy
including multidisciplinary meetings, parent and caregiver training,
and home visits;
(d)
Occupational therapy including multidisciplinary meetings and
caregiver training;
(e)
Physiotherapy equipment;
(f)
Occupational therapy;
(g)   Equipment
recommended by an orthoptist;
(h)   Nursing
recommendations for the treatment of pressure sores, and the
provisions of equipment, nappies, and related
items;
(i)  Dietetic
consultations, testing, supplementation, and equipment;
(j)  Orthopaedic
related surgical procedures;
(k)  Neurological
assessments, medications, serums drug level tests and treatment of
chest infections; and
(l)  where the court
is not convinced that particular and specific
services/interventions/therapies and equipment can be provided
by the
defendant at a level equivalent or superior to that available in the
private sector such costs should be determined by the
court.
The
issues
[3]
The only issues which this court was called upon to determine are
following:
(a)   Life
expectancy of AM;
(b)   General
damages;
(c)  Loss of
earnings;
(d)
Caregiving and related expenses;
(e)   Case
management;
(f)   The
reasonableness of providing cupboards in the house for the live in
caregiver and provision for security and
backup battery for short
term electricity failures. The costs of each of these items was
agreed to be a sum totalling R43 466.55
but reasonable requirement of
these items was in dispute; the costs of the adaptation of the
plaintiff’s home or the costs
of the construction of a suitably
adapted home have been agreed in the amount of R980 423.79;
(g)   Transport
requirements of AM;
(h)   The costs
associated with AM attending Pathways Stimulation Centre
(‘Pathways’).
Heads
of damages agreed upon
[4]
By the time the parties rendered their closing argument there was
agreement between the parties on the following heads
of damages:
(a)   The
plaintiff’s past medical and related expenses in the sum of
R674 462.01.
(b)   The costs
of the adaptation of the plaintiff’s home in the sum of R980
423.79.
(c)  The costs of
the creation and administration of a trust at 7.5% of the capital
amount awarded.
(d)   The
general contingency deduction of 15% in respect of the loss of
earnings.
Bundles
of documents and exhibits
[5]
For the
purposes of the determination of the issues several experts had
assessed AM and compiled the requisite reports. At the outset
of the
trial, the parties handed in bundles of documents to be admitted in
evidence. Bundle A is the Uniform rule 37 documents.
Bundle B is the
index to the joint minutes of experts. Bundle C is the plaintiff’s
expert reports comprising 8 volumes. Bundle
D is the defendant’s
expert reports comprising 4 volumes. Bundle E were the therapy and
progress reports. Bundle G
[1]
is
the index to literature. In addition, the working notes of Ms Heather
Grace Hughes were admitted as Exhibit 1. The memory stick
of the
videos, which were taken by the plaintiff, was admitted as Exhibit 2.
The article by Strauss
et
al
,
titled: ‘Life expectancy in cerebral palsy: an update’
[2]
was admitted as Exhibit 3. The notice in terms of Uniform rule
36(9)
(a)
and
(b)
,
under case number 1113/2014 was admitted as Exhibit 4.
Joint
minutes
[6]
The joint minutes in Bundle B comprised the joint minutes of:
(a)   The
physiotherapists, Ms Heather Grace Hughes, and Ms Pam Dawson;
(b)   The
dieticians, Ms Mandy Read and Ms Phumelele Mthembu;
(c)  The industrial
psychologists (loss of earnings), Ms Sonia Hill and Mr Gideon de
Kock;
(d)   The
occupational therapists, Ms Jane Bainbridge, and Ms Helene Prinsloo;
(e)   The
dental surgeons, Dr. Mayat and Dr. Singh;
(f)   The
orthopaedic surgeons, Dr Fraser, and Dr. Osman;
(g)   The
physiotherapists, Ms Heather Grace Hughes, and Dr. Sholena Narain;
(h)   The
amended joint minutes of the occupational therapists, Ms Jane
Bainbridge, and Ms Helene Prinsloo;
(i)  The updated
joint minutes of dieticians, Ms Mandy Read and Ms Phumelele Mthembu;
(j)  The architects,
Ms Kasia Hrabar, and Mr Roger Kerr;
(k)  The updated
joint minutes of industrial psychologists (loss of earnings) Ms Sonia
Hill and Mr Gideon de Kock;
(l)  The orthotists,
Messrs Darryl Grobbelaar, and Ugan Chetty;
(m)  The industrial
psychologists (caregiver’s remuneration), Ms Sonia Hill and Mr
Gideon de Kock;
(n)   The life
expectancy experts, Dr. R. Campbell, and Dr. A. Botha; and
(o)   The
speech and language therapists, Ms Rochelle Thanjan and Ms Fathima
Timol.
[7]
In an effort to prove each of the issues as identified in paragraph 3
above the plaintiff testified in person and called
four expert
witnesses, namely Ms Heather Grace Hughes, a physiotherapist, Ms
Rochelle Thanjan, a speech therapist, Ms Jane Caroline
Bainbridge, an
occupational therapist and Dr Robert Campbell, a general medical
practitioner who testified as a life expectancy
expert. On the other
hand, to controvert the plaintiff’s case on those issues the
defendant called two witnesses, namely
Dr Andre Stephan Botha, a
specialist paediatrician, who testified as a life expectancy expert
and Ms. Helene Prinsloo, an occupational
therapist. Before venturing
into the evidence which was led it would be useful to point out that
both occupational therapists,
Ms. Bainbridge and Ms Prinsloo agreed
in their joint minutes that AM would benefit from attending Pathways
for stimulation from
now to the age of 18 years. They also agreed on
the amount which was payable as the annual costs.
The
evidence of the plaintiff
[8]
The first witness for the plaintiff was Ms Hughes who assessed AM on
14 May 2020, 2 February 2023, and 27 March 2024.
She confirmed having
prepared the relevant reports and the joint minutes of the
physiotherapists in bundle B. Ms Hughes testified
that an objective
assessment deals with the individual's physical aspects in relation
to movement. The examination deals with whether
a person can sit,
stand, or whether they can partially stand, or whether they can
partially sit, and how do they move their head
and legs. This
assessment provides a basis from which speech and occupational
therapist can work. This assessment would consider
the impediments
resulting in aspects such as lying, rolling, standing, eating, and
walking straight. In relation to the subjective
assessment, Ms Hughes
testified that the plaintiff had reported that AM suffered from chest
infections between 2021 and 2023, which
have since resolved after AM
relocated from Ixopo to Durban.
[9]
Ms Hughes described AM as presenting with Gross Motor Function
Classification System (GMFCS) level V cerebral palsy. She
testified
that while some children with GMFCS level V cerebral palsy have no
mobility at all AM has some mobility. AM can interact
and loves being
given attention. AM was dependent on others for all her activities of
daily living. AM was primarily fed through
a percutaneous endoscopic
gastrostomy (‘PEG’). She emphasised that AM has improved
her movements since she returned
to Durban in November 2023. Ms
Hughes stressed that an individual can improve movements with
physiotherapy. However, as soon as
physiotherapy has been stopped
there was always a potential that movements would be rapidly lost. Ms
Hughes testified that AM had
grown taller and appeared to be more
alert and interactive than when she had previously assessed her in
February 2023. Moreover,
her gums were still swollen and bruised
after undergoing surgery to remove her teeth a few weeks before.
While there were still
some risks, AM had improved from the chest
infection she previously suffered from since Ms Hughes's last
assessment of her.
[10]
Ms Hughes emphasised that AM can hear and see; she smiles and laughs
appropriately and consistently. While she
is unable to speak any
words, she understands many commands. She sometimes uses eye gaze and
infrequently may try to point. The
muscle tone in AM’s right
lower limb and left upper limb appear to be severely affected. Since
the previous assessment AM
had improved head and trunk control, she
was able to sit for a few seconds without support. AM was able to
lift her head functionally.
She was able to move her upper limbs most
consistently and more purposefully. Children at GMFCS level V
generally did not have
this function. She was able to roll
consistently from the supine position to either side and back to the
supine position. In order
to roll from the supine position to her
stomach she needed plus plus encouragement, and AM did so with plus
plus difficulty. AM
did not have gluteal strength. While standing is
good for bone mineral density, AM would never be able to stand on her
own. She
would benefit from consistent standing in a frame. She can
kick the ball sitting and she can swat at objects.
[11]
Under cross-examination, Ms Hughes agreed that Ms Prinsloo’s
classified AM as Manual Ability Classification
System (MACS) level V.
She further confirmed that according to Dr. Botha, AM functioned at
GMFCS level V. When it was put to her
that AM had no hand function,
she stressed that her function and focus as a physiotherapist was on
gross motor function rather
than on a fine motor function, which was
a sphere reserved for an occupational therapist. When it was put to
her that AM cannot
consistently roll over Ms Hughes agreed to this
proposition. However, she added that AM rolled from the supine
position to either
side and back to the supine position consistently.
However, AM rolled from her stomach to her side and from supine to
the stomach
with extreme difficulty. When it was put to her that Dr
Narain did not observe AM rolling, Ms Hughes reiterated that she
observed
AM rolling. Ms Hughes did comment when it was put to her
that according to Dr Botha AM could not roll on both occasions that
he
assessed her.
[12]
When it was put to her that AM had a PEG and contractures on the
lower limbs, Ms Hughes admitted this. However,
she added that with a
PEG
in situ
AM most certainly had to be careful when rolling
so as not to upset it. The contractures made it further difficult for
her to roll
easily. When it was drawn to her attention that both life
expectancy experts in their joint minutes say AM had a mild
scoliosis,
Ms Hughes deferred to what the orthopaedic surgeons have
stated in their joint minutes, that AM’s scoliosis was unlikely
to require any orthopaedic management as it was a minor. When it was
put to her that Dr Narain had recorded in her report that she
did not
observe AM being able to turn or roll during her assessment, Ms
Hughes testified that AM might have been afraid to fall
as she was on
a thin plinth from what appears in the photographs of Dr Narain’s
report.
[13]
The next witness for the plaintiff was Ms Thanjan, who assessed AM on
19 May 2020 and 25 March 2024. Ms Thanjan
confirmed having prepared
the relevant reports and the joint minutes of the speech and language
therapists in exhibit B. Ms Thanjan
testified that the function of a
speech therapist is not to work with the speech but rather to work
with communication and swallowing.
At the time of the assessment AM
was taking 8ml of Epilim twice a day, Baclofen twice a day, a
multi-vitamin syrup 5ml once a day,
and a Probanthiane tablet once a
day. The purpose of Probanthiane was to reduce drooling. AM had a
dental extraction in respect
of all her teeth in March 2024. In
October 2023, AM had been attending weekly speech therapy,
physiotherapy, and occupational therapy
with different experts. Due
to the Covid-19 pandemic the plaintiff and AM went back home to High
Flats and only returned to Durban
in 2022. During the assessment, AM
was aware of her surroundings and communicative partners.
[14]
During the assessment in 2020, AM presented with a V-shaped palate
and during the assessment in 2024, she presented
a U-V-shaped palate.
The impact of a V-shaped palate as opposed to a V-U-shaped palate is
that an individual with a V-shaped palate
is affected in his ability
to speak and feed. When she assessed AM in 2020, AM had a difficulty
with nasal breathing and now she
has controlled nasal breathing.
Although, AM still cannot speak she has however improved and is now
able to communicate through
vocalisation. Ms Thanjan classified AM’s
drooling as moderate to severe. Ms Thanjan further testified that on
1 November
2023 AM received a specialised buggy, which plays an
important role in her feeding. AM’s suck-swallow ratio was
delayed.
However, with practice, it is likely to improve. During the
2020, assessment AM held the bolus for 3 minutes and since then there

has been an improvement. While liquids such as water were difficult
for AM to handle due to the swallowing risk, she was able to
handle
puree, as it was thicker than water. Ms Thanjan classified AM
according to the Eating and Drinking Ability Classification
System on
level VI. Ms Thanjan testified that AM enjoyed tasting juice when she
gave it to her. AM was able to follow simple commands
such as ‘give
me your hand’, ‘close your mouth’ or ‘open
your mouth.’ AM presented as a bright
child who knew what was
happening around her. She was orientated with animals on an
Alternative Augmentative Communication Board.
She could be able to
identify animals such as a dog. Ms Thanjan classified her to be the
age equivalent of 9 to 12 months.
[15]
Under cross-examination, Ms Thanjan testified that AM was a candidate
for combination feeding. She testified that
the basis for her to say
that is that AM was able to swallow without the food going into the
lungs and she expressed joy on being
fed. When it was put to her if
she knew how long this would last, Ms Thanjan stressed that there
would be more progress going forward.
In relation to whether there
would be no weight plateau, Ms Thanjan stated that that is the reason
why the PEG would be left
in situ
. When it was put to her that
AM would deteriorate going forward, Ms Thanjan emphasised that she
cannot make that prediction as
AM has up to now showed progress. When
it was put to her that according to Dr Botha there would be a
dramatic change in AM’s
condition after the age of 4 - 15
years, she testified that AM was now 9 years, she is in between 4 -
15 years, but she has only
made progress both in the areas of
swallowing and communication.
[16]
The next witness was the plaintiff, Ms M[…].The plaintiff
testified that she was 38 years of age and the
mother of AM. Other
than AM she did have other children. While she was no longer in a
love relationship with the father of AM,
however, AM’s father
still played a role in his child’s life. She further testified
that between 2006 – 2016,
she was employed as a quality
controller at Pandor Paper in Isipingo before she resigned to take
care of AM. The plaintiff currently
lived with AM in a flat situated
at South Beach, Point Road in Durban, since September 2023. They
lived in this flat with a care
giver who came 3 days a week. The
reason why she chose to live at South Beach was to ensure that she
was close to the health facilities,
which AM is required to attend
from time to time for her therapies. Before she moved into this flat,
she had lived at her parental
home, in the rural outskirts at High
Flats in Ixopo, KwaZulu-Natal. She had to go back to live at her
parental home in 2020 after
her erstwhile attorney had passed away
and there was no longer anyone to pay for accommodation in Durban.
This area was not easily
accessible if one was using a car. The
nearest hospital, which is Christ the King Hospital (‘CTK
Hospital’), is an
hour’s drive away.
[17]
The plaintiff testified that she previously had a caregiver and
currently requires one. The reason why she requires
a caregiver is
because when she went for therapies and to do groceries it was
difficult to carry AM as she invariably had to carry
AM on her back
when she attends to these activities. She has been unable to visit
her parental home in High Flats since September
2023 because AM is
too heavy to carry on her back. When AM was required to attend
therapies, her current attorneys assisted with
transporting them to
and from the therapies using a private motor vehicle. The plaintiff
indicated that she would like to continue
to live in Durban after the
completion of the case to be nearer to the health facilities and to
find employment for herself. A
caregiver would therefore be required
to look after AM whenever she was gone to work.
[18]
The plaintiff testified that the average day with AM entailed waking
up round about 08h00 in the morning, bathing
and then thereafter the
preparation of breakfast and medication for AM. AM ate every 2 hours
with a PEG and she gave her water
through the syringe. It took 15
minutes to feed AM. She fed AM by mouth in the morning and in the
afternoons round about 15h00.
She would feed AM foods such as mash
and yogurt. AM enjoyed eating with her mouth and she likes foods
which are sweet. AM enjoyed
watching television and listening to
music. On the television AM usually watched cartoons. AM also liked
to play, to go out and
to be driven in a motor vehicle. AM can
recognize all her family members with their names and voices when she
sees the family members.
AM communicated by screaming. AM was able to
play with toys, puzzles and with a ball. AM was able to turn left and
right from her
back. However, when she is on her stomach she could
not turn to the left or right. She likes to jump when she is lying on
her back
and she was able to lift her legs up and down. When lying on
her back AM was able to lift her head as well as when she was lying

on her stomach. AM was only able to sit on her own unassisted for a
few seconds.
[19]
The plaintiff testified that two weeks before the trial she took
videos of AM at the request of her attorneys.
The video depicted AM
sleeping, turning, sitting, and playing with the ball. On the video
AM is also depicted using her hands to
scroll on a cellphone, to hold
a ball and to play with toys. AM was able to follow instructions when
she was instructed to lift
her hands or feet or to close her eyes or
to open her mouth. The plaintiff testified that while AM had moods,
she was a happy child
who liked other children and people in general.
She further indicated that AM underwent teeth extraction because she
was troubled
by her gums as they were often swollen and bleeding.
Since AM underwent the procedure, her condition has improved. The
plaintiff
pointed out that every day AM took medication namely
Epilim, Baclofen, multi-vitamins and Probanthiane. The plaintiff
further pointed
out AM suffered from seizures, her last seizure being
in March 2024.
[20]
Under cross-examination, the plaintiff testified that AM was unable
to turn to her back when she was lying on her
stomach. When it was
put to her if she ever told any expert during the several assessments
which AM attended over the years that
AM was able to turn to lie on
her back when she was lying on her stomach, she said she did not
remember ever saying that to any
expert. The plaintiff confirmed that
AM was not able to turn to her back when lying on her stomach, unless
she was assisted with
the pulling down of her arm.
[21]
The next witness was Ms Bainbridge who assessed AM on 22 May 2020 and
19 March 2024. Ms Bainbridge confirmed having
prepared the relevant
reports and the joint minutes of the occupational therapists in
exhibit B. Ms Bainbridge testified that for
the past 10 years she had
been working with cerebral palsy cases. She described the condition
of AM as level V on the GMFCS and
MACS classification systems. She
testified that the plaintiff was told for the first time when AM was
8 months that she had cerebral
palsy. The plaintiff kept attending
CTK Hospital every month for AM to undergo various therapies until AM
was referred to Greys
Hospital in Pietermaritzburg as she was
vomiting copiously. At Greys Hospital, a PEG was inserted on AM. The
plaintiff continued
to attend the therapies at CTK Hospital monthly
and at Greys Hospital on a 6 Monthly basis. The plaintiff stopped
attending the
respective therapies at CTK Hospital in 2021 because
when she took the wheelchair which was issued to AM by the hospital
to be
fixed, she was told by the nurses to fix it herself.
[22]
When the plaintiff enrolled for private therapy from 2023 once a week
for AM. The plaintiff found this beneficial.
During her assessment of
AM in 2024, she found that the AM’s left hand was starting to
reach for things. The buggy helps
AM with posture. AM is now
attentive, can engage and is aware of her environment. AM’s
weight was at 27.8 kilograms. AM’s
weight is above the
recommended lifting for caregivers, which is 15 kilograms. The South
African average safe lift weight was between
22 to 25 kilograms.
There was a risk of AM falling, due to her weight or being bumped,
due to her height, if she was lifted. Ms
Bainbridge testified that
during the assessment AM was very engaging and observant of new
things. AM was excited with new objects.
She was aware when she was
left alone. AM was motivated and intentional and does not act
randomly. AM laughed appropriately and
knew about cause and effect.
[23]
Ms Bainbridge confirmed that she and Ms Prinsloo agreed that AM needs
to attend at Pathways until the age of 18
years and their
disagreement was in relation to the necessity of AM attending
Pathways after attaining the age of 18 years. Ms
Bainbridge testified
that Pathways is a special needs school. It caters for children up to
18 years as well as children from 18
years and over. Pathways is
well-run and staffed. In the facility children usually had their
meals together, and have sport days
and outings. These activities
would give AM an opportunity for social interaction in a group. Ms
Bainbridge further testified that
the reason why Ms Prinsloo was of
the view that it would unnecessary for AM to attend Pathways after
attaining the age of 18 years
was that Ms Prinsloo opined that AM did
not have enough cognition and had a low life expectancy.
[24]
Ms Bainbridge confirmed having undertaken an anxiety and depression
assessment on the plaintiff. She pointed out
that the reason why she
did so is because those who cared for cerebral palsied children were
always at risk. This was because cerebral
palsy is unusual and
because of its chronicity, it had a sad outcome as children with
cerebral palsy did not live their whole life
expectancy. She stressed
that the people who cared for children with cerebral palsy had very
little to no support. The impact on
these carers is so severe. There
is no facet in their lives, which is not affected. Ms Bainbridge
further stressed that the condition
in which these children are makes
the carers to suffer in their health. As a result, they commonly have
anxiety and depression.
Socially these carers are stigmatised and
ostracised. They become indigent and therefore they become unable to
provide for the
child. Moreover, she stressed that it was the mothers
of these children, who bore the brunt of all of this. Ms Bainbridge
testified
that the plaintiff’s ratings for anxiety and
depression were abnormally high. This was because when the plaintiff
lived in
High Flats, the family did not optimally support her.
However, when the plaintiff came to live in Durban those levels
became low.
[25]
Ms
Bainbridge testified that during the assessment AM approached the
assessment area with trepidation, reluctant to leave her buggy
until
she was lifted by the plaintiff and placed on the floor. However,
once she was on the floor she calmed down easily. She reached
for and
thrust and hit out at various toys, which were placed in her reach,
she engaged readily and laughed. While there were qualitative
changes
in AM, she remained profoundly disabled and uneducable. AM’s
loss of amenities of life were devastating. She responded
very well
to vestibular and movement stimulation though, which involved the
tipping of her wheelchair and the movement of the wheelchair
at a
fast pace. Since the initial assessment in 2020, and despite minor
gains in the motor function, AM still fell on the broader

classification of a level V cerebral palsy classification. She cannot
move without someone assisting her and will always be dependent
on
someone to move her. Several scales were used to determine AM’s
physical developmental capacity including the Chailey
Scales for
motor development
[3]
and Gross
Motor Function Classification System – Expanded & Revised
(GMFCS-E+R)
[4]
scales. These
scales showed that AM’s disability is profound and affects all
domains of function which meant that she will
always be reliant on
others to move her about. Lying on her back AM was able to lift her
head and arms partially, and lifted her
legs into abduction. AM could
roll onto her side and then fall into a prone position. Out of a
potential 6 points on the Chailey
scales AM scored 4 points. AM’s
age level on development scales was less than a 3-month-old child.
She was unable to do reciprocal
kicking in the prone position. Her
prone position improved from level III in 2020 to level IV. She can
lift her head for 3 minutes.
She cannot crawl because the trunk and
neck does not allow that due to spasticity. She log rolls into prone
position gravity assisted.
In relation to sitting, she improved from
level II in 2020 to level III. AM can tolerate 30 seconds of sitting
on her own. In relation
to standing, AM cannot weight bear and a
standing frame would therefore be useful to her. AM was completely
incontinent and was
completely dependent on the plaintiff in relation
to all her activities of daily living. AM cannot grasp or grab. AM
does not use
her hands together. She is fed every 3 hours. She has no
language, but she responds to instruction. AM is mainly PEG fed.
[26]
In relation to AM’s specialised accommodation, Ms Bainbridge
testified that security measures needed in such
accommodation
included burglar guards, a perimeter fence, a secure gate, and an
alarm system as AM was a vulnerable child who lived
in a household,
which was headed by a woman. In relation to the issue of a backup
battery, Ms Bainbridge stressed that in this
country the issue of
security is critically important for anyone. In relation to the
cupboard for a live-in care giver, she emphasised
that this would be
a necessary addition. Ms Bainbridge testified that a case manager was
a medically trained person preferably
an occupational therapist or a
specially trained nurse who was appointed by a trust. They act as
intermediaries between the trustees
and the client. A case manager
works closely with the mother and the child as the trustees are
usually not immediately available
to attend to the child’s
needs. Ms Bainbridge emphasised that the issue of accessing medical
care is difficult. While some
mothers may be educated, and
articulate, others are not. Ms Bainbridge emphasised that while she
and Ms Prinsloo agreed, as occupational
therapists, about the
appointment of a case manager, they disagreed on a fee structure. Ms
Bainbridge testified that in respect
of the attendance of meetings
with trustees and report writing she allocated 6 hours per annum at
the rate of R72 000.00,
while Ms Prinsloo allocated 3 hours for
the attendance of meetings and report writing at the rate of
R3 000.00.
[27]
Under cross-examination, Ms Bainbridge confirmed that she does case
management. She testified that where the mother
of the child was
actively involved in the sourcing of a caregiver and had a preferred
caregiver the case manager got such a caregiver
trained. However, the
mere fact that the mother was actively involved in the sourcing of a
caregiver does not reduce the cost.
While AM was generally healthy
and had not been admitted to hospital that did not necessarily
translate to the reduction in costs
of the sourcing of a caregiver as
sight should not be lost that AM was only 9 years of age and suffered
from epilepsy. While the
existence of a database of caregivers was
useful and would make it easy to source caregivers, however, there
were situations where
the caregiver and the mother might not be
compatible or where the caregiver might be moving on in life. These
situations would
necessitate the sourcing and interviewing of
caregivers, hence a provision had to be made to this end at the rate
of 5 to 10 hours
over 5 years.
[28]
Ms Bainbridge testified that there was no logical basis for why
provision should not be made for AM to attend Pathways
after
attaining the age of 18 years. When she was referred to the life
expectancy projections by Dr Botha, she testified that AM
would
exceed the age of 18 years and she will benefit from attending
Pathways as that would stimulate her optimally. She emphasised
that
attendance at Pathways did not amount to an attendance of school
program where attendance was required on an everyday basis.
A person
was charged per his or her attendance with the aim of attendance
being to optimise the quality of life. When it was put
her that the
fee structure from Pathways made provision for fees to be paid on a
monthly, 6 monthly and annual basis, Ms Bainbridge
testified that she
knew it as a fact that some children at Pathways would be
accommodated for less than a week and therefore would
be charged per
their attendance.
[29]
Ms Bainbridge confirmed that AM could execute only partial rolling.
She further testified that while AM had significantly
improved from
her last assessment those improvements were still within the GMFCS
level V and MACS level V. However, there was a
potential that AM
would get to level IV. Ms Bainbridge stressed that therapy improves
and retards deterioration. When she was asked
the age range in which
an improvement can be made, she emphasised that that it was not
possible to put a timeline on improvement,
as there were a variety of
interventions that are useful in effecting changes to a child’s
development. When it was put to
her whether it was not possible that
the improvements were due to therapy, Ms Bainbridge was emphatic that
the improvements were
due to therapy if one considered the
considerable improvement AM made 6-months preceding the trial. When
it was put to her that
according to Dr Botha children with GMFCS
level V cerebral palsy deteriorated from the age 7, Ms Bainbridge
pointed out that AM
was 9 years of age and at that age she had shown
improvement instead of decline.
[30]
The next witness for the plaintiff was Dr Robert Duncan Dower
Campbell. Dr Campbell had assessed AM on 17 July
2020, 17 May 2022,
and 29 April 2024. Before Dr Campbell testified the extracts of the
videos, which were taken by the plaintiff
were played on the TV
monitor, which is fixed in court. The depictions on the footage
showed the movements that AM was able to
make and from which
positions as they are now a matter of record. They also showed that
AM was able to follow commands, which were
made to her. In relation
to his background, qualifications and experience with cerebral palsy
and life expectancy, Dr Campbell
testified that he was a family
practitioner with 25 years of experience in physical rehabilitation
medicine. He had worked with
children and adults with cerebral palsy
on an outpatient basis over an extended period. He had travelled and
trained both nationally
and internationally in this subject. He had
published literature nationally and internationally in relation to
rehabilitation medicine
in children with cerebral palsy. He had been
utilised as an expert witness by plaintiffs and defendants over a
period of 25 years
in all the provinces in matters which arose both
from the private and public sectors regarding the question of life
expectancy
and future needs of children suffering from cerebral
palsy. Dr Campbell confirmed to having prepared the relevant reports
including
the supplementary report dated 28 May 2024, pursuant to Dr
Botha’s supplementary report dated 18 May 2024. He further
confirmed
having prepared the joint minutes in bundle B with Dr
Botha.
[31]
Before
venturing into the evidence of Dr Campbell, it would be useful to
mention that Drs Campbell and Botha agreed, as stated in
their joint
minute, that it would be reasonable to rely upon Brooks
et
al
’s
[5]
publication on survival patterns and life expectancy in persons with
cerebral palsy in estimating life expectancy in respect of
AM. In
addition, they agreed on the following aspects in respect of AM’s
condition:
(a)   She was a
9.4-year-old girl;
(b)   She has
severe spastic cerebral palsy leaving her on GMFCS level V and MACS
level V;
(c)  She has a
severe or profound cognitive impairment;
(d)   She is
generally in a good health condition;
(e)   Her
weight is satisfactory for her age and severity of her motor
impairment;
(f)   She is
incontinent of bladder and bowel;
(g)   She has
mild contractures around her elbows, wrists, fingers, thumbs, knees
and ankles. She has a mild scoliosis;
(h)   She is
tube fed;
(i)  She relies on
others for assistance with all activities for daily living; and
(j)  She has
developed epilepsy.
[32]
The fundamental areas of difference between Drs Campbell and Botha
were in relation to AM’s level of mobility
and the methodology,
which they each employed to calculate AM’s life expectancy. It
would also be useful to mention that
Dr Campbell provided life
expectancy projections when AM was 5 years and 5 months old, again
when she was 7 years and 4 months
old and then finally for purposes
of trial when AM was 9 years and 3 months old.
[33]
Dr Campbell
referred this court to annexure A attached to his initial report
which he prepared in 2020. This is where the summary
of the approach
he adopted in calculating AM’s life expectancy is set out.
[6]
Dr Campbell testified with reference to his initial report
[7]
and the opinion he expressed in relation to the methodology he used
to estimate AM’s life expectancy. He stated that he relied
on
the latest publication from the California based Life Expectancy
Project in estimating the impact that AM’s condition
has had on
her life-long survival and life expectancy.
[34]
Dr Campbell
stated that he mainly relied on the published information by Brooks
et al
in a paper.
[8]
Table II in
Brooks
et
al
’s
paper
[9]
provides survival data
in the form of probability of survival for a cohort of individuals
aged 4 to 30 years in various functional
groups, including the ‘lifts
head and chest in prone position’, partial rolling’ and
‘tube fed’ group.
Typical 5-year-old girls in this
functional group enjoy a 40.5% chance of surviving until the age of
30 years, and have a life
expectancy that is 26.3 years compared to
76.1 years in the general population or 34% of general population
life expectancy. Dr
Campbell testified that it was important to
determine the extent to which AM was close to ‘typical’
in the functional
group or was significantly different to the extent
that adjustment away from the survival trend for ‘typical’
girls
in the group. According to Dr Campbell, at the time of the
assessment, AM presented with severe cognitive impairment, severe
feeding
difficulties, poor hand function, limited ability to
communicate, was incontinent and probably had moderate visual
impairment.
Dr Campbell testified that these features, while carrying
negative implications for survival are typical of the functional
group
and their impact has already been allowed for in selecting this
functional group and at least some may even place AM in an above

average place in the functional group. AM, however, did probably have
at least some hip instability and this arguably left her
somewhat
worse off than ‘typical girls’ in this functional group.
He therefore applied an increase of 1.1 to the mortality
odds ratio
to account for probable instability in the hips.
[35]
Dr Campbell stated AM had a history of monthly generalised seizures.
Generalised seizures have been shown to be
associated with 5/1000
increase in the excess death rate. AM’s seizures have remained
controlled on medication since she
was three years old and Dr
Campbell therefore did not increase the excess death rate for them.
Dr Campbell testified that he therefore
applied these assumptions and
calculated that a 5-year-old girl in this functional group, including
AM’s specific profile
of additional features, had a 36.9%
chance of surviving from five years to 30 years and had a life
expectancy that was 24.3 years,
compared to 76.1 years in the general
population. This is the 32% of general population life expectancy. He
pointed out that in
his opinion, it would be fair to accept that AM’s
life expectancy, at the age of 5.5 years, was 32% of that of her
general
population. Dr Campbell then concluded by saying based on the
data he mentioned and making use of Koch’s Table 2 as a
reference
table to adjust to the South African conditions, he
estimated that a South African girl in this functional group and with
AM’s
profile of minor factors, AM had a life expectancy, at the
age of 5.5 years, of 22.7 additional years (32% of general population

life expectancy at age 5.5 years - 71 years).
[36]
Dr Campbell stated that the postulated life expectancy figures are
for individuals in the study population in California
in the United
States of America (‘USA’) and as such cannot be directly
applied to individuals in South Africa. It was,
however, possible to
apply the percentage of general population life expectancy to a South
African table. Dr Campbell testified
that he had opined that it would
be fair to accept that AM’s life expectancy at the age of 5.5
years, is 32% of that of her
general population peers. Dr Campbell
emphasised that the publication upon which he relied on was conducted
in the USA where the
mortality trends and life expectancy are more
favourable than those in South Africa. He applied the results of this
research in
an appropriate South African life table to adjust for the
difference in mortality between the two countries.
[37]
Dr Campbell pointed out that since the publication of the 1984/1986
South African Life Tables to his understanding
there were truly no
reliable and complete South African life tables that have been
published. However, there is a strong case for
making use of the
1984/1986 South African Life Tables on which Koch’s Table 1 and
Table 2 is based in the absence of better
options, although these are
old tables based on old data. He chose to rely on Koch’s Table
2 to adjust for the difference
in general life expectancy between the
USA and South Africa. The reason why Koch’s Table 2 was an
appropriate table to use
as a reference table was because:
(a)   This
table is the last available complete official life table from
Statistics South Africa that is based on empirical
data.
(b)   More
recent estimates of life expectancy from birth for persons who do not
have HIV/AIDS from Statistics South Africa
are not based on any
probability study. It has therefore been argued that it would be
incorrect to refer to the life tables based
on these figures.
(c)  It arguably
represents a reasonable reflection of the pattern of survival and
mortality for persons not negatively impacted
by pre-1994 racist
apartheid policy and practice and can neutralise the impact of racial
prejudice and bias.
(d)   There is
an ongoing support from the South African Actuarial community for the
use of this table.
(e)
There was
legal precedent in the South African courts for the use of this
table.
[10]
(f)
Further, he
recently examined the empirical survival data for 339 South African
children with cerebral palsy and that these results
suggest that the
use of Table 2, is more appropriate in the present case. In brief,
the mortality rates for South African children
with severe cerebral
palsy were 15 - 22 than higher than those for their counterparts in
California. The relative increase in mortality
rates more closely
matches an adjustment using Table 2, than any of the other Koch
Tables. The results of this analyse were recently
published in the
South
African Medical Journal
on an article written by himself, Brooks, and Whitaker.
[11]
[38]
Dr Campbell pointed out that as a result, he has at present,
continued to make use of Koch’s Table 2 for
the above reasons
but he deferred to the decision of the court and to legal and
actuarial input in relation to each point for a
final selection of a
life table.
[39]
Dr Campbell
testified that he further assessed AM on 17 May 2022 when her
condition had improved. During this assessment AM was
7.33 years old.
When he assessed AM based on the information on the reports, which
were available, he assumed that AM was best
compared with girls who
were in the ‘full rolling, does not walk unaided’
mobility group and who are in the ‘tube
fed’ feeding
group, as per the Brooks
et
al
paper.
[12]
He then considered
the pattern of mortality in this functional group between the ages 7
years and 29 years and estimated the life
expectancy for typical
7-year-old girls in this functional group. Dr Campbell pointed out
that there is a 59.3% probability of
a typical girl in this
functional group surviving from age 7 to age 30. Typical 7-year-old
girls in this functional group have
a life expectancy of 30.5
additional years, which is a 41% of general population life
expectancy.
[40]
Dr Campbell testified that adjustments had to be made for the fact
that AM had contractures in her hands and feet,
mild scoliosis which
arguably placed her somewhat worse off than the typical child in this
group. He therefore increased the mortality
ratio of AM by 1.1 to
adjust for their presence. However, he did not consider as negative
factors the fact that AM has severe cognitive
impairment, severe
feeding difficulties, poor hand function and was incontinent because
the impact of these factors have already
been allowed for in
selecting this functional group. Additionally, he did not consider as
a negative factor the fact that AM had
active generalised seizures as
they remained controlled on medication since AM was three years. Dr
Campbell testified that after
making these adjustments, 7-year-old
girls in this functional group had a life expectancy that was 28.9
additional years, which
was 39% of that of her general population.
[41]
Dr Campbell then concluded by saying based on the data he mentioned
and making use of Koch’s Table 2, as
a reference table to
adjust to the South African conditions, he estimated that a South
African girl in this functional group and
with AM’s profile of
minor factors, at the age of 7.33 years, has a life expectancy of
26.9 additional years, which is 39%
of the general population life
expectancy at 7.33 years (69.3 years). This is associated with an
anticipated total survival time
of 34.2 years.
[42]
Dr Campbell
testified that he further assessed AM on 29 April 2024. During this
assessment AM was 9.3 years old. Again, using Brooks
et
al
’s
paper, when he assessed, he assumed that AM was best compared with
girls who were in the ‘full rolling, does not
walk unaided’
mobility group and who are in the ‘tube fed’ feeding
group.
[13]
Again, he then
considered the pattern of mortality in this functional group between
the ages 9 years and 29 years and estimated
the life expectancy for
typical 9-year-old girls in this functional group. Dr Campbell
pointed out that there is a 61.3% probability
of a typical girl in
this functional group surviving from age 9 to age 30. Dr Campbell
stated after making the adjustments for
the negative factors specific
to AM’s condition, as in the previous assessment, 9- year-old
girls in this functional group
had a life expectancy that was 26.8
additional years, which was 37% of that of her general population.
[43]
Dr Campbell then concluded by saying based on the data he mentioned
and making use of Koch’s Table 2, as
a reference table to
adjust to the South African conditions, he estimated that a South
African girl in this functional group and
with AM’s profile of
minor factors, at the age of 9.3 years, had a life expectancy of 25
additional years, which is 37% of
the general population life
expectancy at 9.3 years (67.4 years). This is associated with an
anticipated total survival time of
34.3 years.
[44]
Dr Campbell
testified that on 28 May 2024 he further provided a supplementary
report in the form of a letter as there remained a
lingering question
whether AM had a ‘full rolling’ ability or only had
‘partial rolling’ ability. To that
end he compared AM
with girls of her age in the ‘lift head and chest and performs
partial rolling’ functional group.
[14]
Dr Campbell then pointed out that if the court accepted that AM
should be appropriately placed in this functional group, the new

estimate of life expectancy, at age 9.3 years, is 19.4 additional
years (29% of general population life expectancy). This is associated

with a total expected survival time to age of 28.7 years.
[45]
Dr Campbell
accepted that that based on videos, which were played in court, AM
could appropriately be placed on the functional group
‘lift
head and chest and performs partial rolling.’ Dr Campbell
testified that Table II in Brooks
et
al
paper
[15]
provides
probabilities of survival at ages 10, 15, 20, 25, and 30 years in 5
functional groups namely:
(a)   Those who
cannot lift their head at all in prone position.
(b)   Those who
can lift their head but not chest in pone position.
(c)  Those who can
lift their head and chest, and partially roll.
(d)   Those who
can fully roll and do not walk unaided.
(e)   Those who
can walk unaided.
[46]
Dr Campbell
pointed out that that Dr Botha used Table III
[16]
in estimating AM’s life expectancy while he relied on Table II,
but this did not result in a different outcome if the feeding
and
mobility approach was used. In his understanding, Table III was
applicable to adolescence and adults generally and does not
apply to
children of younger ages while Table II applied to young children.
When Dr Botha’s postulation was put to him that
AM would not be
able to lift her head when she was 15 years, Dr Campbell pointed out
that this can only be possible if one was
using the none standard
approach in estimating life expectancy. In addition, Dr Campbell
stressed that in the publications by Strauss
et
al
,
[17]
and Brooks
et
al
,
[18]
upon which their postulations were based, in relation to the
development of children to the age of 15 years, they did not observe

any notable decline in their ability to lift their heads. Dr Campbell
relied on a series of passages in Bundle G and suggested
that while
there seemed to be a decline, but that decline was variable. Those
extracts are the following:
(a)
At page G47
where it is stated: ‘Table I shows mean GMFM-66
[19]
by GMFCS and age. Although this simply uses crude age bands, and does
not account for multiple observations per child, it suggests
that the
nonlinear tread in GMFM-66 over age may differ by GMFCS level. The
tread in means shows no evidence of peak and decline
for Levels I and
II, whereas there is a suggestion of such a decline for Levels IV and
V. The tread foe level III is not clear.’
(b)   At page
G49 it is stated: ‘Of course, not all children will experience
the average pattern of change for their
level. The nonlinear
mixed-effects model estimates individual differences in all
parameters of change as variance components.’
(c)  At page G50 it
is stated: ‘Although the average patterns of change in Levels
III to V show a decline in GMFM-66,
the 50% ranges indicate that the
degree of this decline varies considerably among children. William
observed that “children
with a disability grow into adults with
a disability”, and has called for more attention to adolescence
as a key time of
transition and an understudied area of disability
research and service.’
(d)   At page
G51 it is stated: ‘the findings indicate that children and
youths within Levels III, IV and V are
at risk of losing motor
function, with the greatest declines apparent in Level IV.’
[47]
Moreover, Dr Campbell pointed out that this article was meant for
clinicians to mitigate those risks more than
anything else. In the
case of AM, she was beyond the age of 4 years and there were no signs
of any of the levels of decline postulated
in the article instead AM
has shown improvement from an early age of 4 years. When Dr Botha’s
proposition was put to him
that children who can roll onto their
sides and are tube fed at the age of 9 years have a significantly
better life expectancy
compared to those that lift head and chest but
cannot roll on their sides and are tubed fed at the age of 9 years as
unrealistic,
Dr Campbell pointed out that this was inconsistent with
the statistical analysis at page G40 of bundle G.
[48]
Under
cross-examination, Dr Campbell accepted that AM can only perform
partial rolling. When it was put to him whether in quoting
the
extracts from exhibit G, he considered Table IV, Dr Campbell pointed
out that what is referred to in Table IV were the average
trends and
AM did not follow those trends. Dr Campbell conceded that the
individual trajectories of gross motor capacity scores
for GMFCS
level V individuals captured by Rosenbaum
et
al
[20]
showed that there is significant variability in the ages of attaining
peak gross motor capacity and the ages when gross motor capacity

starts declining. When it was put to him that while AM might have
improved her gross motor skills between the ages of 6 to 9 years,

this improvement did not eliminate the probability of her losing her
ability to lift her head in early childhood, Dr Campbell pointed
out
that he does not accept that children are destined to deteriorate.
When it was put to Dr Campbell that Voorman
et
al
[21]
documented that the results of his study in respect of cohort
cerebral palsied children showed that children with poor selective

motor control have showed a less favourable course of gross motor
function than those less affected children, he denied that this
was
applicable to AM. Dr Campbell testified that while AM had severe
impairment of gross and fine motor function, she was better
than many
children in this group.
[49]
Dr Campbell
denied that AM would lose the ability to lift her head in prone
beyond the age of 15 years. When it was put to Dr Campbell
that the
major reasons why the data in Table II in Brooks
et
al
[22]
did not provide realistic life expectancy estimates is because there
are no 9-year-old girls in the cohort and all the children
in the
cohort were 3.5 to 5.0 years old, Dr Campbell maintained that this is
incorrect. Dr Campbell emphasised that AM has been
in this cohort
from the age of 4. When it was put to Dr Campbell that the reason why
the cohort approach was unrealistic was because
many of those
children surviving to age 7 years would no longer be in the same
condition, Dr Campbell denied this and pointed out
that AM’s
condition had not changed at the time when she was 5 and a half years
up to now. He pointed out that AM had stayed
on the same level of
function throughout. Dr Campbell agreed when it was put to him that
from March 2021 onwards Strauss used the
life expectancy estimate
from Table III at 15 years in Brooks
et
al
[23]
as the starting point. He agreed that in some specific matters,
Strauss used Table III. When it was put to Dr Campbell that Strauss

and Brooks never relied on the data in Table II in Brooks
et
al
[24]
to construct life tables from which life expectancy estimates were
derived in opinions, which they provided to the South African

cerebral palsy litigants, Dr Campbell pointed out that they used raw
data. He added that any assertion that Professor Strauss and
Dr
Brooks may not have used the standard approach was a
misrepresentation. Dr Campbell testified that the life expectancy of
children
like AM were the same as that of the general population.
When it was put to Dr Campbell that although the approach, which he
has
used has been described in the literature, but it was not the
approach that was used by Strauss, Dr Campbell pointed out that this

approach was accepted and published in literature that was
peer-reviewed. Dr Campbell admitted that poor hand use is associated

with increased mortality. However, he added that poor hand use and
lack of speech were already accounted for in the model he used.
When
it was put to Dr Campbell that Reid
et
al
[25]
documented
that a combination of additional impairments such as severe and
profound cognitive impairment, lack of speech, epilepsy,
blindness,
and deafness have a significant impact on survival probabilities of
children with cerebral palsy. Dr Campbell pointed
out that the study
by Reid
et
al
does
not have regard to feeding ability. Dr Campbell admitted that Table
III
[26]
can be used as a
matter of discretion. However, Table II was for young children while
Table III was for adolescents and adults.
When it was put to him that
Strauss was using the same data that Dr Botha relied on and came to
the same conclusion namely that
Koch’s Table III is a more
realistic general population life table for South Africa compared to
Koch’s Table II, Dr
Campbell admitted that there was a stage
where Strauss relied on Koch’s Table III and then he reverted
to Koch’s Table
II. Dr Campbell admitted that he had on an
occasion, as a compromise to assist the court, used Koch’s
Table III as opposed
to Koch’s Table II. Dr Campbell admitted
that all epilepsy cases remit. However, he pointed out that one will
not be able
to know when will that happen. When he was asked about
the possibility of seizure remission at the medium age of 11 years,
Dr Campbell
pointed out that 3 years was still in the future and that
some children do not remit. Dr Campbell further pointed out that
while
Dr Botha had predicted seizure remission between the age of 3.3
years 6 months and 10 years 4 months AM was close to 10 years, and

she has not regressed and therefore the results of the article cannot
be applied bluntly. In re-examination, there is nothing,
which is of
materiality which Dr Campbell raised. This then concluded the case
for the plaintiff.
The
defendant’s evidence
[50]
The defendant then opened its case and called Dr Andre Steven Botha.
Dr Botha had assessed AM on 17 March 2021
and 18 May 2024. Dr Botha
testified that he is a specialist paediatrician with 35 years’
experience. He had experience in
relation to children suffering from
cerebral palsy. He has testified in the high court before and had
prepared numerous medico-legal
reports in matters in which he
testified. He was a medical scientist and started researching on the
topic of cerebral palsy and
analysing the relevant literature in
2006. From then he developed an ability to construct life tables. Dr
Botha confirmed having
prepared relevant reports and joint minutes of
life expectancy experts in bundle B. Dr Botha testified that apart
from the disagreement
that he and Dr Campbell had about the
stratification of the child all the other issues were agreed. He
pointed out that his disagreement
with Dr Campbell was in relation to
the level of movement of AM.
[51]
He
testified while he agreed with the cohort approach from the general
point of view, however, the cohort approach is not appropriate
to
project life expectancy. The reason being that the difference of
motor skills and feeding skills is so big between the ages
of 4 and
15 years. He testified that in relation to the method he used to
project the life expectancy of AM there is no published
data. He had
used the period approach, as a cohort approach cannot reasonably be
applied in estimating the life expectancy of an
individual patient.
The cohort approach was used by Dale and Dr Campbell and not by the
California Life Expectancy Project. He
testified that the period
approach is based on the work of Hanna. He testified that according
to Hanna
et
al
[27]
at their peak age performance, 52.5% of GMFCS level V children can
lift their heads in the prone position but only 17.9% maintain
this
ability, hence the probability that AM will lose her ability to lift
her head in early adulthood is 66%.
[52]
Dr Botha
further testified that he introduced the research by Voorman
et
al
[28]
in that Voorman
et
al
had
actively studied a cohort of cerebral palsied children to determine
factors that predict gross motor regression with age. The
results
showed that children with poor selective motor control, tetraplegia,
poor muscle strength, mild or moderate limitations
in hip and knee
extension, spasticity of the hamstrings in both legs, and children
receiving special education, showed a less favourable
course of gross
motor function than less affected children. Dr Botha asserted that
because AM presents with all the factors that
are associated with
decreasing gross motor function with age as identified by Voorman
et
al
,
[29]
therefore, AM has no selective motor control. Dr Botha further
asserted that given the probability of AM losing the ability to
lift
her head in the prone position exceeds 50%. Thus, it is reasonable to
assume that it is appropriate to model the estimation
of her future
survival probabilities on the assumption that she will not maintain
the ability to lift her head in prone beyond
the age of 15 years.
[53]
Dr Botha testified that the extracts from the videos which were taken
by the plaintiff do not affect his views.
He remarked that from the
video extracts AM could only move her entire limb. He remarked that
if the probability is more than 50%
that is considered as a likely
outcome. When it was put to him that Dr Campbell had criticised him
that he was not using the standard
approach, Dr Botha pointed out
that the cohort approach is not a universal standard approach. He
testified that according to Hanna
as the children grew older, they
lost their skills. This will happen regardless of any intervention
and from a clinical perspective,
cerebral palsied children lose their
skills with age. Dr Botha further pointed out that the reason why AM
cannot roll is because
the muscles are contractured. When it was put
to him that it was suggested on behalf of the plaintiff that there
was no evidence
of decline to AM, Dr Botha remarked that there is no
evidence that AM had reached her gross motor capacity peak compared
to 2021
when he had initially assessed her. He testified that when he
made the downward adjustment in estimating AM’s life
expectancy,
he considered the degree of the cognitive ability AM had
as this would affect her going forward. He further testified that the
severe the cognitive impairments are, the lower the life expectancy
is.
[54]
Dr Botha
testified that in stratifying AM and estimating her life expectancy
he used Table III in Brookes
et
al
[30]
provides for the life expectancy estimates for the Californian Life
Expectancy Project defined cohorts. Table III documents that
the life
expectancy estimates for those children that lift their heads and
chest and are tube-fed is for 4 additional years more
at 15 years
compared to those who cannot lift their heads in the prone position.
The life expectancy estimates for tube-fed individuals
at the ages of
30; 45; and 60 are not affected by head lifting ability.
[55]
Dr Botha
pointed out that LT 2: California 2010 for a female who can lift head
and is tube fed which accompanied his report provides
the life table
that yields the life expectancy estimates for this stratification
published in Table III in Brookes
et
al
.
[31]
These are the baseline Californian Life Tables for children with the
same best gross motor performance and feeding method that
AM has.
AM’s additional positive factors were the following:
(a)   She is in
good health apart from her severe cerebral palsy and associated
complications.
(b)   She is
well-grown when compared to Californian tube-fed GMFCS level V girls.
(c)  She is a happy
and content child that sleeps well at night.
(d)   She has
not had any severe chest infections and has good upper airway control
for a tube-fed child.
(e)   She does
not drool excessively.
(f)   She was
noticeably more attentive and interactive at the age of 9 years
compared to when she was assessed in 2021
at the age of 6 years.
(g)   The
improvement in her socializing skills between 6 and 9 years is an
unusual and unexpected finding in a child
with GMFCS level V function
and profound cognitive impairment.
[56]
Dr Botha testified that although probability favours that AM would
lose the ability to lift her head in the prone
position before
adulthood there remained a chance that she could maintain this
ability into adulthood. To allow for this possibility,
he constructed
life expectancy tables for Californian children like AM who cannot
lift their heads in the prone position and who
can lift their heads
in the prone position and are tube fed. He then made a modest
adjustment for the number and extent of additional
impairments
displaced by AM:
(a)   The
scenario where she cannot lift her head in the prone position into
adulthood, he increased the yearly probability
of dying by 10%.
(b)   In the
scenario where she maintains head lifting ability, he increased the
yearly probability of dying by 20% from
9 to 30 years and by 10%
thereafter.
[57]
In both instances, the magnitude of the adjustment is very similar to
the impact of adjusting the mortality rate
by 5.4 deaths per 1000
person-years for epilepsy. Dr Botha testified that he then adjusted
the Californian Life Tables by using
the percentage of normal life
expectancy in California. In doing this adjustment he specifically
used the Californian 2010 general
population female life table at
15-; 30-; 45-; and 60- years. He then determined the equivalent life
expectancies at these ages
for the South African general population
female life table, derived from the life expectancy at birth and
under 5-year-mortality,
published by Statistics South Africa in 2018.
[58]
Dr Botha testified that he then selected Life Table 4 of his own
constructed life tables, which accompanies his
report, as most
applicable to AM and hence at 9 years, he estimated AM’s life
expectancy to be an additional 12 years. Dr
Botha further testified
that Life Table 5 of his own constructed life tables, which
accompanies his report, provides what can be
considered the upper
bound of AM’s life expectancy. based on the assumption that she
will maintain her ability to lift her
head in prone. It provides a
life expectancy estimate of 16 additional years at 9 years of age.
[59]
Dr Botha, testifying with reference to his report, he stated that in
estimating AM’s life expectancy, he
considered that AM
presented with additional negative factors, including those which are
set out as follows:
(a)   She has a
profound cognitive impairment.
(b)   Although
she is alert and enjoys reciprocal attention, she has not developed
any of the cognitive skills that are
associated with a neurotypical
child that is 18 months old.
(c)  She has an IQ
of less than 20.
(d)
She does
not use any words and according to Reid
et
al
,
[32]
Hillerman and Baird
et
al
[33]
documented that lack of speech is associated with decreased survival
probabilities in cerebral palsy cases.
(e)
AM has no
hand use and according to Baird
[34]
there is a dramatic impact on survival probabilities of cerebral
palsied children with both lack of speech and no hand use than

cerebral palsied children that have either lack of speech but have
hand use or lack hand use but have speech.
(f)
Blair
et
al
[35]
documented the dramatic additional negative impact of profound
cognitive impairment among cerebral palsied individuals when compared

to those with severe cognitive impairment.
(g)   Blair
et
al
further documented that by the age of 15 years 50% of cerebral
palsied children with severe cognitive impairment have died compared

to only 25% of cerebral palsied children with severe cognitive
impairment.
(h)
Reid
(2021)
[36]
documented that the
adjusted hazard ratio of death for severe and profound cognitive
impairment was 3%, however, in the analysis
of Reid
et
al
[37]
the most severe stratification of motor impairment was in the ability
to ambulate.
(i)
She has an
active seizure disorder. Active seizure disorder is associated with
decreased survival probabilities. Experts that provide
life
expectancy estimates for cerebral palsied litigants would usually add
5.3 deaths per 1000 person-years to the yearly mortality
rate to
reflect the increased risk of death associated with generalised
seizures based on the data provided by Strauss (2023).
[38]
[39]
(j)
She is
incontinent of urine and stool. Strauss (1998)
[40]
documented that the proportionate hazard ratio of death for no
toileting skills in the 15-year-old cerebral palsy cohort was 2.9

increasing to 3.5 in the 30-year-old cerebral palsy cohort.
(k)  AM has
clinically apparent scoliosis which did not appear to be clinically
severe in May 2024, however, scoliosis communally
progresses rapidly
during the pubertal growth spurt.
(l)  AM contractures
in all her four limbs and her contractures worsened during the four
years between his assessments as was
expected.
[60]
Dr Botha
further testified that he did not make any specific adjustments for
seizures. He stated that the probability of AM losing
the ability to
lift her head is 66%. Dr Botha disagreed that the use of Table II
instead of Table III
[41]
did
not result in a significant difference as Dr Campbell had testified.
Dr Botha pointed out that in his view the 7% difference
between his
life expectancy estimate to that of Dr Campbell made a significant
difference. When it was put to him that Dr Campbell
criticised him
for using Table III, which applies to adolescents and adults and not
to children, Dr Botha pointed out that it is
not possible to provide
for life expectancy at the age of 4 that is why the starting point is
15 years.
[61]
Under
cross-examination, Dr Botha admitted that he had attached to his
report dated 22 November 2021 what he called a working document.
He
further admitted that in this working document it is recorded that
there were 20 editions of it and that this working document
kept
changing. Moreover, Dr Botha admitted that in his report he has made
it clear that he had no formal qualification as a statistician
or an
actuarial scientist. However, despite his lack of qualifications he
stated that ‘he has the audacity to interrogate
and ultimately
discard accepted methodologies commonly used in constructing life
tables for cerebral palsy individuals and proffer
his own
methodologies.’
[42]
When
it was put to Dr Botha that he was self-qualified and had no formal
or objective qualifications, he agreed with this proposition.
Dr
Botha further stated that he has been criticised for generating a
South African life expectancy table in 2018. Dr Botha testified
that
the reason he generated a South African life expectancy table is
because he was not satisfied with the 1986 life expectancy
table.
When it was put to Dr Botha that he did this because he thought that
he was qualified to draw a reliable life table, he
agreed with this
proposition. Dr Botha conceded that his work has not been published
in journals, which are peer-reviewed. He testified
that the court
must take his word that his methodology was logical. When it was put
to him that his expertise was self-taught,
Dr Botha conceded to that
proposition. Dr Botha admitted to what he recorded in his report that
in 2020 Strauss and Dr Campbell
accused him of being hostile and
implied that he had such a bad attitude that he cannot be an
objective expert. Following some
introspection, he realised that he
had at times been too robust in presenting his arguments and perhaps
too outspoken and decided
to produce the third edition of his working
document with the explicit aim of toning down his statements and
demonstrating a less
forceful approach.
[43]
Dr Botha, again admitted that he had recorded in his report that his
intense analysis of life expectancy opinions had led to the
discovery
that the methods used by respected life expectancy experts to
construct life tables for the plaintiffs are sometimes
scientifically
flawed.
[62]
Dr Botha confirmed that when he assessed AM for the first time, she
was 6 years and 2 months old. When it was put
to him that AM is much
better than when he assessed her, Dr Botha contended that the reason
why AM may not have fared well during
his assessment may have been
because the assessment was conducted in the afternoon and AM must
have been exhausted at that time.
Dr Botha admitted that he recorded
in his report that AM lifted her head off the mat twice during her
initial assessment. He added
that for that period AM took a medical
sedative, Ativan and would have calmed down AM. Dr Botha confirmed
having recorded in his
report that AM was completely inept, she did
not respond when called upon and she had very little contractures.
When it was put
to him that as an expert dealing with AM’s life
expectancy, he was required to do more than seeing AM once in his
rooms,
he stated that at the time he was not provided with any expert
reports. However, he acknowledged that he did not ask for any reports

and that if he had phoned, he could have been told that there were
other reports, which had already been compiled. Dr Botha confirmed

that when he assessed AM in November 2021, Ms Prinsloo had already
assessed AM in July 2020. When it was put to Dr Botha that what
he
said in his main report in relation to AM being completely inept is
markedly different from the objective physiotherapy assessment
of Ms
Prinsloo's as recorded paragraph 7.1 of her report in relation to AM
being able to move, Dr Botha stated that he did not
know whether AM
was on medication at the time of the assessment. In addition, he
stated that if the observations made support those
findings there
could possibly have been a gross regression when Ms Prinsloo’s
assessment was made in July 2020, and when
he made an assessment in
August 2021. When it was pointed out to Dr Botha that Ms Prinsloo in
her report, under general observations,
did not give a picture of AM
being a completely dull and flat child, which Dr Botha reported about
in November 2021, his response
was that the only defence he could
proffer was that at times it is extremely difficult to get reports
from the State Attorney’s
office. Dr Botha suggested that he
was therefore hamstrung by the people who instructed him. Dr Botha
admitted that as an expert
he was required to give a full picture in
his report.
[63]
When it was
put to him that in 2021, he was firmly of the view that AM had
essentially peaked, and she would not do better, Dr Botha
admitted
this proposition. However, he added that 15 years is not referring to
an absolute age, that is why in 2024, he introduced
the second
scenario. He stressed that in his original report he had said that
the chance of AM lifting her head at 15 years was
18%. Dr Botha
confirmed that in his report he stated that AM’s gross motor
skills improved between the age of 6 and 9 years
and this improvement
does not affect the probability of her losing the ability to lift her
head in the prone position in early
adulthood. When it was put to him
that a child who was 15 years of age cannot possibly be regarded as
an adult he replied and stated
that adulthood would technically start
after 15 years. He added that 15 years is not incompatible with
adulthood and a 15-year-old
can be referred to as an adult. Dr Botha
stated early adulthood is 15 years in females. Dr Botha confirmed
that his assessment
of AM put her at a lower level than what the
extracts from the videos, which were taken by the plaintiff,
depicted. Dr Botha testified
that in order to estimate AM’s
life expectancy he took the Californian life table and put it on the
RSA life table and then
made various adjustments. When it was put to
him that when he made the adjustments, he applied 20% and broke down
the 20%, Dr Botha
testified that he could not specify which of the
hazard ratios constituted the 20%. He added that in that 20% there
could be positive
factors. Dr Botha pointed out that the impact of
epilepsy at hazard rates gives 1.2%. Dr Botha confirmed that the
estimated life
expectancy looks at positive factors such as weight
and good health against the negative factors. Dr Botha confirmed that
in order
to derive a realistic estimate of the increased mortality of
profound intellectual impairment, within the stratification of
individuals
who cannot lift their heads in the prone position, and
are tube-fed, he decreased the relative risk of dying to 2.0%
associated
with profound intellectual impairment compared to severe
intellectual impairment between the ages of 5 and 35 by 60%, based on
the probable distribution of severe and profound cognitive impairment
within this cohort. Dr Botha suggested that this adjustment
was his
view of how typical AM was. Dr Botha pointed out that in his view, AM
has a profound cognitive impairment and this accounts
for the 10% for
AM’s probability of dying after attaining the age of 30 years.
Dr Botha confirmed that he agreed with the
statement at page G5 of
bundle G that: ‘When survival prognoses of an individual
patient with CP [cerebral palsy] is of interest
one can refer to
Tables II and III, which provide estimates based on age, sex,
severity of motor disability, and need for feeding
assistance.’
[44]
[64]
Dr Botha admitted that to the proposition that after the choice of a
reference table is made one must determine
if the factors of each of
the tables are typical or atypical group. When it was put to him that
AM does not fit neatly in the category
of the table, he had chosen,
Dr Botha retorted by saying that the only ability that AM had was to
roll to the side and partial
rolling is not documented anywhere in
the article. When it was put to him that life expectancies are
age-specific and those in
Table III are for adolescents and adults
and do not apply to children Dr Botha agreed. Dr Botha admitted that
when he assessed
AM, she was a child of over 6 years.
[65]
In re-examination, Dr Botha introduced exhibit 4, which is life
expectancy report, which was prepared by Dr Strauss
in the case
of
Shange v MEC for Health, KZN
: case no. 1113/2014. There is
nothing which turned out of the introduction of this exhibit except
the criticism which is recorded
in this exhibit in relation to the
methodology used by Dr Botha to estimate life expectancy.
[66]
The next witness for the defendant was Ms Prinsloo, who assessed AM
on 27 July 2020. Ms Prinsloo confirmed having
prepared the relevant
report and the joint minutes of occupational therapists in bundle B.
She testified that Ms Bainbridge and
her agreed that AM would benefit
from attending Pathways for stimulation to the age of 18 years.
However, she and Ms Bainbridge
disagreed on AM attending Pathways
after she attained the age of 18 years to life expectancy. She was of
the view that this was
unnecessary while Ms Bainbridge was of the
view that it would be beneficial for AM to attend Pathways to life
expectancy. In addition,
they further agreed on case management until
AM reached the age of 18 years. However, they differed on fee
structure and the hours
to be allowed for this task. In addition,
they differed on whether case management was required after AM
attained the age of 18
years to life expectancy. Ms Prinsloo
postulated case management from 9 years until AM reached 18 years,
while Ms Bainbridge postulated
case management to life expectancy.
Finally, they agreed on the need for a case manager to attend the
meetings of the trust and
to the writing of the reports to the trust,
but they disagreed on the fee structure and hours to be allowed for
these tasks.
[67]
Ms Prinsloo testified that AM, after attaining the age of 18 years,
would require a rest period because by then
she would have reached
her potential both cognitively and physically. She would not benefit
from being in the stimulation centre.
She would rather benefit by
being cared for at home. It would rather be prudent for the case
manager and the caregiver to take
AM out on wheelchair drives and
bring her home when she was tired. Home stimulation would be
beneficial to AM in that she would
be able to rest if she needed to.
Ms Prinsloo stated that in relation to case management, the
fundamental point of disagreement
was in relation to the hours. She
pointed out that what informed the hours, which she proposed, is that
she looked at AM, her mother,
her mother’s support system and
where they would live. She testified that since the plaintiff had
reported to Ms Bainbridge
that there is a database of caregivers,
which is where they could be sourced, it would be appropriate if the
time for the sourcing
and interviewing of caregivers would be set at
3 hours every 5 years. Ms Prinsloo testified further that case
management should
be given from 9 years to when AM attained 18 years
for 15 hours at the rate of R15 000. Ms Prinsloo pointed out
that the reason
for this proposition is that the issues that attended
to when AM is aged 10 years would not be different to the issues when
AM
is aged 18 years. She further pointed out that doctors do not have
to be sourced every year. Ms Prinsloo testified that 6 hours
for
report writing and the attendance at the meeting with the trust is
just too long. From her side she was recommending that provision
be
made for 3 hours at the rate of R3 000.
[68]
Under cross-examination, Ms Prinsloo testified that she does not
personally give case management and she was merely
a practitioner.
She admitted that it was a case manager who would attend meetings,
including an annual general meeting and write
reports. Ms Prinsloo
admitted that for the attendance of such meetings and report writing
she recommended R3 000 per month.
Ms Prinsloo, though, conceded
that 6 hours in a year is not excessive. When it was put to her that
there was no reason to deprive
AM of any benefits as one must treat a
patient as far as he or she could go, Ms Prinsloo stated that the
child can only be stimulated,
but her condition cannot be improved.
This then concluded the evidence of the defendant.
The
parties’ submissions
[69]
Mr
Pillemer SC
, who appeared with Ms
Gajoo
, argued that
this court should find the life expectancy of 19.4 additional years
as fair and reasonable and as such it is the one
that should be
applied. They then provided actuarial calculations by Mr Whittaker of
Algorithm Consultants and Actuaries CC, based
on the projected life
expectancy of 9.4 additional years. However, they submitted that an
actuary would be available on short notice
should this court make a
different determination on the question of life expectancy to the one
they proposed.
[70]
Mr
Mthembu SC
, who appeared together with Ms
Takchund
,
argued that this court should find the life expectancy of 16
additional years as fair and reasonable and is the one which this

court should apply.
[71]
Mr
Mthembu SC
requested the court after the conclusion of the
argument that the defendant be allowed to instruct an actuary to do
actuarial calculations
on the scenarios as postulated by the relevant
experts. This court granted the defendant that opportunity and the
relevant actuarial
calculations were delivered on 1 July 2024.
Actuarial
calculations
[72]
The defendant’s actuary, Mr Mavimbela of Manala Actuaries and
Consultants, did actuarial calculations on
the plaintiff’s loss
of earnings based on Dr Botha’s life expectancy of 12
additional years as well as Dr Botha’s
estimated life
expectancy of 16 additional years. In addition, he made actuarial
calculations on loss of earnings based on Dr Campbell’s

estimated life expectancy of 19.4 additional years. Further, he made
actuarial calculations in respect of future medical expenses
based on
Dr Campbell’s estimated life expectancy of 19.4 additional
years. Moreover, they made actuarial calculations on
future medical
expenses based on Dr Botha’s estimated life expectancy of 16
additional years as well as Dr Botha’s
estimated life
expectancy of 12 additional years.
[73]
First, it seems that it was unnecessary for any actuarial calculation
to be done on Dr Campbell’s estimated
life expectancy of 25
additional years. Second, that projection was based on the assumption
of AM’s mobility of ‘full
rolling and does not walk
unaided.’ Considering Mr
Mthembu
's submission during
argument that this court should find that the life expectancy of 16
additional years is fair and reasonable
it was no longer necessary
for actuarial calculations to be done on Dr Botha’s estimated
life expectancy of 12 additional
years.
[74]
On 2 September 2024, this court through the registrar, enquired from
the parties whether do they not consider it
necessary to file brief
heads of argument consequent upon the defendant having filed their
actuarial calculations on 1 July 2024.
The parties were then
requested to file their heads of argument on or before 9 September
2024, should they consider it necessary.
On 9 September 2024, the
defendant advised that it would not be filing any further heads of
argument. The plaintiff on the other
hand requested an indulgence to
file further heads by mid-day, 10 September 2024. This court granted
this indulgence after the
fact as the request came to its attention
after the requested timeframe.
[75]
In the
further heads of argument, which were filed on behalf of the
plaintiff, the plaintiff’s counsel prepared five tables
which
set out the differences in the calculations by each actuary. I will
revert to these tables later in this judgment. It is
argued on behalf
of the plaintiff that there is a nominal difference between the total
life expectancy calculations as a result
of time difference when the
calculations were made. |In summary, there is, a substantial
difference between the two calculations
in the sum of R893 834.00
in respect of the plaintiff’s future medical expenses. Mr
Whittaker explained these differences
in an email dated 9 September
2024. In essence he stated that the main reason for the differences
was due to the adjustment made
to the life tables. He pointed out
that Mr Mavimbela applies a different method of adjustment to the
underlying mortality table
that leads to higher capitalized values.
In addition, Mr Whittaker, attached to his email an article by
Strauss
et
al
titled ‘Estimation of Future Mortality Rates and Life
Expectancy in Chronic Medical Conditions.’
[45]
Mr Whittaker explained that, in this article, Professor Strauss
et
al
recommends the use of the log-linear declining relative risk (LDR)
method for cerebral palsy cases, which is the method he used.
[76]
This court
has considered this article. In one of the passages in this article
Strauss
et
al
records that proportional life expectancy (‘PLE’) and LDR
models ‘are clearly the best methods for the case of
cerebral
palsy, giving errors of approximately 1 year only.’
[46]
[77]
I have reproduced below the tables, which I have referred to above,
and the argument, which was advanced for the
plaintiff in relation to
the differences under each of the different heads of damages covered
in the relevant tables.
Loss
of earnings
REPORT
LIFE
EXPECTANCY
CALCULATION
ON
THE SAME LIFE
EXPECTANCY
Whittaker
(B)
(Plaintiff)
19.4
add. Years at age 9 = age
28.4
Total LE
Future
loss: R1 172 367
Less
15% contingency (as agreed)
R996
511.95
Manala
(“C3”)
19.4
add. Years at age 9.3 =
28.7
years Total LE
Future
Loss: R1 129 299
Less
15% contingency
R959
904.15
OTHER
LIFE EXPECTANCIES:
Manala
(defendant)
(“C1”)
12.19
add. Years = age
21.19
total LE
Future
Loss R516 809
Less
15% contingency
R439
287.65
Manala
(defendant)
(“C2”)
Age
25
total LE
Future
Loss: R731 413
Less
15% contingency
R621 701.05
[78]
In relation to this head of damages, it is argued that on the
suggested life expectancy (written ‘LE’
in the table) of
19.4 additional years, and after the application of a 15%
contingency, as agreed between the parties, there is
only a
difference of R36 607.80 in the calculation by the actuaries. It was
therefore submitted that it would be reasonable if
this court awarded
damages under this head in the sum of R996 511.95.
Future
medical expenses
[79]
Counsel for the plaintiff then made comparisons on the actuarial
calculations on the suggested life expectancy
of 19.4 additional
years at age 9.3 for a total life expectancy of 28.7 years old.
Caregiving
Details
Plaintiff
Defendant
Until
age 18:
Caregiver
1 (12 hour)
Caregiver 2(12
hour)
R1
205 352
R1
205 352
= R 2 410 704
R1 254 336
From
age 18:
Caregiver
1 (24 hour)
Caregiver
2 (24 hour)
R1
187 779
R1
187 779
= R2 275 558
R2 538 092
TOTAL
R4
686 262
R3
792 428
[80]
In relation to the figures in this table, it is argued that the
underlying recommendations are the same and the
difference of R893
834.00 is explained by the different methods used by the respective
actuaries. It was therefore submitted that
it would be reasonable if
this court awarded damages under this head in the sum of
R4 686 262.00.
Adaptations
to home
Details
Plaintiff
Defendant
Total Build Cost
R702 138.00
R701 225.00
Maintenance
R143 956.00
R143 775.00
Architecture Fee
R97 799
R97 676
Appliances
R37 765
R37 718
Furniture for Carer
R8 978
R8 967
Alarm System
R9 212
R9 200
Battery Back Up
R25 532
R25 500
Total
R1 025 379
R1 024 061
[81]
In respect of this table, it was pointed out, on behalf of the
plaintiff, that the costs calculated by the actuaries
are almost the
same and there are no material differences. Once more this court was
urged that it would be reasonable to award
damages under this head in
the sum of R1 025 379.00.
Case
management
Details
Plaintiff
Defendant
Initial
set up
R15
000
R15
000 (agreed)
Sourcing
and Interviewing Caregivers and Domestic Workers
R25
854
R28
783 (on the plaintiff’s version)
Sourcing
and interviewing Caregivers and Domestic Workers
R10
713 (on the defendant’s version)
Case
Management until age 18
R169
677
R177
042
Case
Management from age 18
R158
645
R143
089 (on the plaintiff’s version)
Case
Management from age 18
R15
000 (on the defendant’s version)
Report
writing & meetings
R87
723
R94
716 (on the plaintiff’s version)
Report
writing & meetings
R47
358 (on the defendant’s version)
Crisis
Management
R34
491
R30
501 (agreed)
TOTAL
R491
398
R295
614 (on the defendant’s version)
[82]
In relation to this table, it was submitted that once again, the
amounts calculated by the different actuaries
are not very different.
The only differences are the scenarios, which underpin these
calculations. It was submitted that it would
be reasonable if this
court awarded damages under this head in the sum of R491 398.00.
Transportation
requirements
Details
Plaintiff
Defendant
VW
Caddy (new 1.6l manual) – once off
R509
286
R509
000
VW
Caddy (new 1.6l manual) every 8 years
R296
038
R299
420
VW
Caddy (used 1.6l) - once off
R389
000
VW
Caddy (used 1.6l) – every 8 years
R228
830
Wheelchair
Docking System (new) - once off
R87
549
R87
500
Docking
system restraints - once off
R65
000
Docking
system restraints - once off
R9
806
R9
800
Docking
system restraints - age 25
R966
R1
140
TOTAL
R903
644
(based on new
items)
R693
770
(based on used
items)
[83]
In relation to this table, it was submitted on behalf of the
plaintiff that the provisions of new vehicles and
devices are more
suitable for AM’s needs as they would provide reliability and
longevity. In the circumstances, this court
should allow an amount of
R903 644 be allowed.
Stimulation
centre
Details
Plaintiff
Defendant
Pathways
until age 18
R431
307
R440
744
Pathways
from age 18
R479
561
R393
774
TOTAL
R910
868
R834
518
[84]
In relation to this table, it was pointed out that there is a
difference of R76 350 between the actuaries’
calculations. Once
more this court was urged to allow a sum of R910 868.00 for this
head of damage.
[85]
Mr
Pillemer
and Ms
Gajoo
, in the plaintiff’s
further heads of argument, argued that Mr Whittaker’s actuarial
calculations should be followed.
I have considered both actuarial
calculations and the fundamental reason why there is a substantial
difference between the actuarial
calculations in respect of future
medical expenses. This court accepts Mr Whittaker’s explanation
for this substantial difference
based on his email and the
literature, which he had attached to the email as reasonable and
logical. In the circumstances and absent
any countervailing
explanation this court sees no reason why it should not follow the
actuarial calculations of Mr Whittaker.
The
law
[86]
In
Singh
v Ebrahim
[47]
this court stated the following:
‘
[9]
At common law, the basic principle underlying an award of damages of
this nature in terms of the
actio legis
aquiliae
, is that the compensation
should be assessed with a view to place the injured party, as far as
it is reasonably possible, in the
position he would have been had the
injury not occurred (
Union Government
(Minister of Railways and Harbours) v Warneke
1911
(AD) 657 at 665). The principle has been succinctly summarized by the
Court of Appeal in
Heil v Rankin
and Another and other
[2000] EWCA Civ 187
;
[2000] 3 All
ER 138
at paragraph 22 as follows:
“
.
. . the aim of an award of damages for personal injuries is to
provide compensation. The principle is that ‘full compensation’

should be provided . . . this principle of full compensation applies
to pecuniary and non-pecuniary damage alike . . .”
And at paragraph 27:
“
.
. . compensation must remain fair, reasonable and just. Fair
compensation for the injured person. The level must also not result

in injustice to the defendant and it must not be out of accord with
what society as a whole would perceive as reasonable.”
[10] Damages include
direct positive losses (
damnum emergens
) and also negative
losses (
lucrum cessans
) - being that which the injured party
is prevented from achieving - insofar as those losses flow from the
delict –
Whitfield v Phillips and ano
. 1957(3) SA
318 (A) at 329 and
Guggenheim v Rosenbaum
(2)
1961(4) SA 21 (W) at 34.’
[87]
Mr
Mthembu
and Ms
Takchund
,
in their heads of argument relying on
Broom
v Administrator Natal and Accident Versekerings Maatskappy SA Bpk v
Uijs
,
[48]
argued that an injured person may, in addition to compensation for
medical expenses, recover reasonable damages for items such
as costs
of transport to and from hospital or doctors; the costs of special
transport to and from school; the cost of an attendant
for someone
who is seriously injured, in the case of a paraplegic. It is
conceivable that reasonable expenses in terms of the modification
of
a motor vehicle or a house of the position of apparatus to render his
or her life more comfortable may be recoverable; and the
expense of
purchasing a vehicle by a paraplegic
vis-â-vis
place of abode and his needs and compensation for accommodation in a
specialised institution. In addition, they referred this court
to the
case of
Medi-Clinic
Ltd v Vermeulen
[49]
in relation to the general approach to the assessment of expert
evidence where the following was stated: ‘the court has to
be
satisfied that the exponents of the body of opinion relied on can
demonstrate that such opinion has a logical basis.’
It should
be noted that ‘An expert is not a hired gun who dispenses his
or her expertise for the purposes of a particular
case.’
[50]
Life
expectancy of AM
[88]
Mr
Pillemer
submitted that the court should accept Dr
Campbell’s estimate of the life expectancy of AM of 19.4
additional years as at
the age of 9 years and 3 months. He submitted
that those projections are based on a methodology that is standard,
and set out in
peer-reviewed literature, and that this court should
reject Dr Botha’s estimates of life expectancy, because it was
founded
on his own uniquely developed approach, which has not been
published and/or peer-reviewed. In addition, he criticised Dr Botha
for his unbelievable lack of judgment. First, for seeking to rely on
exhibit 4, which was an expert opinion rendered in a different
case
by another expert, which did not only amount to hearsay evidence but
also severely criticised the methodology which he used
as that of his
own devising which was divorced from standard practices. In addition,
Strauss who is an eminent expert in the field
of life expectancy,
unequivocally stated in exhibit 4 that he and his colleagues have not
been able to make sense of Dr Botha’s
methodology. Moreover, he
stated if Dr Botha wished to challenge the established
statistical/actuarial methodology for life expectancy
he was
certainly free do to so provided that, he published his methodology
in peer-reviewed scientific literature other than expressing
it in
litigation regarding individual children. Mr
Pillemer
argued
further that when Dr Botha prepared his main report, he did so
without having regard to any of the other reports and gave
a
different picture about AM.
[89]
Mr
Mthembu
argued that while Dr Campbell criticised Dr Botha’s
construction of life tables, suggesting they fell within the domain
of a statistician or an actuary, he himself conceded that he too
compiled life tables individual to the child. He further argued
that
in annexure 4 to his report, Dr Campbell had acknowledged that he
himself was not a statistician or an actuary. In addition,
while he
criticised Dr Botha for stratifying AM in terms of Table III of
Brooks
et
al
,
[51]
he conceded that Strauss who is one of the authors of the Brooks
et
al
publication, on occasion used Table III for the purposes of
stratifying a child. Mr
Mthembu
added that Dr Campbell stated that he himself on occasion had used
Table III for the purposes of stratifying a child. Mr
Mthembu
therefore urged this court to find Dr Botha’s estimates of AM’s
life expectancy of 16 additional years as fair and
reasonable.
[90]
Dr
Campbell, as has been previously indicated, provided life expectancy
projections in this case when AM was 5 years and 5 months
old
[52]
and when she was 7 years and 4 months old
[53]
and then finally for the purposes of trial when she was 9 years and 3
months old.
[54]
[91]
Dr Campbell
testified that when estimating AM’s life expectancy
fundamentally he relied on published information contained
in the
Brooks
et
al
publication. It is apposite to quote from Brooks
et
al
[55]
the following:
‘
When survival
prognosis of an individual patient with CP [cerebral palsy] is of
interest one can refer to Tables II and III, which
provide estimates
based on age, sex, severity of motor disability, and need for feeding
assistance. The figures there are appropriate
for individuals whose
overall condition is typical of the group. To determine whether this
is the case, other factors (e.g. activities
of daily living,
intellectual disability and communication, comorbidities, general
health, height and weight, and so on) should
also be considered.
. . .
Along these same lines,
it should be noted that life expectancies are age specific and those
given in Table III for adolescents
and adults generally do not apply
to children of younger ages. For young children, the survival figures
given in Table II may be
used, or more detailed calculations may be
undertaken.’
[92]
Mr
Pillemer
argued that the question of whether the individual’s condition
as a whole is typical of a group is particularly important
in cases
where an individual’s pattern of disability does not fit neatly
into one of the categories listed in the article.
Moreover, he argued
that if the person’s profile with respect to these and other
predictive factors is markedly better or
worse than the average then
some further adjustments to the survival prognosis may be indicated.
Mr
Pillemer
pointed out that the article stresses that aside from the other
considerations,
[56]
‘
The most
compelling argument for the use of survival prognosis of other
countries is the fact that when the severity of disability
is taken
into account, the survival probabilities for persons with CP
[cerebral palsy] in California are markedly similar to those
from
other countries. If one were to make some adjustments to the life
expectancy to reflect the country of residence, the “percentage

of normal” method . . . remains a reasonable choice’.
[93]
It is trite
that this method has now found approval in this country and has been
approved by our courts.
[57]
Dr
Campbell had specifically set out the methodology in his original
report dated 2 July 2020, and in his supplementary reports
dated 26
June 2022 and 19 March 2024
[58]
respectively. In the joint minutes, both Drs Campbell and Botha
agreed that it is reasonable to rely on Brooks
et
al
publication
[59]
on survival
patterns and life expectancy in persons with cerebral palsy when
estimating life expectancy in this matter.
[60]
Dr Botha has acknowledged that the methodology, which Dr Campbell
used has been described in the literature.
[61]
During cross-examination, Dr Botha made several concessions in
relation to the flaws in the methodology he used. Dr Botha used
his
own method to construct life tables, which are unique to him and that
such tables have not been peer-reviewed in published
literature. He
attached to his report what he referred to as a working document,
which runs into hundreds of pages, which has 20
editions and these
keep changing over time. Mr
Pillemer
SC
specifically criticised Dr Botha for lack of judgment when Dr Botha
insisted and placed before this court exhibit 4. Exhibit 4
does not
only amount to inadmissible hearsay evidence it also contains a
severe criticism of the very methodology that Dr Botha
wants this
court to follow. In my view, Mr
Pillemer
correctly
criticised Dr Botha that there was no reasonable basis which he
advanced to seek this court to rely on his own work as
authority for
his views. Mr
Pillemer
relied
on
Menday
v Protea Assurance Company Ltd
[62]
to articulate this point. Dr Botha conceded that in preparing his
report he did not consider the reports of the other experts,

including reports of the defendant’s experts that had already
been secured at the time he prepared his report. Consequently,
Dr
Botha’s initial report in relation to AM paints a picture that
is in stark contrast to the reports of other experts.
[94]
Unlike Dr Botha, I find that Dr Campbell’s methodology is
founded on logical reasoning. It accords with established
literature.
This court has no hesitation to accept as fair and reasonable the
estimated life expectancy of AM of 19.4 additional
years as at age 9
years and 3 months for a female child who can lift her head and
shoulders in the prone position, can perform
partial rolling and is
tube-fed, as projected by Dr Campbell. Dr Campbell’s downward
adjustment for the fact that AM suffers
from epilepsy and has
contractures is in my view rational. I was not impressed with Dr
Botha’s testimony as he was a poor
witness and made a bad
impression to me particularly in relation to his methodology. What I
found rather puzzling is that in his
initial report Dr Botha severely
self-criticised. I have highlighted the relevant pages and paragraphs
in his report where he self-criticised,
in the footnotes above, when
he was under cross-examination by Mr
Pillemer
. Accordingly, I
reject Dr Botha’s methodology, which by his own admission is of
his own devising and has not been published
in peer-reviewed
articles. However, I am unable to agree with Mr
Mthembu
’s
proposition that simply because both Drs Botha and Campbell are
neither statisticians, nor actuaries, they are therefore
not experts
in the projection of life expectancy. I say so because there is a
body of authority where both Drs Botha and Campbell
testified in this
division and other courts in other provinces as experts in this area.
In my view, there is no reason why their
expertise should be put to
question.
[95]
In the circumstances, I find that the life expectancy of 19.4
additional years is fair and reasonable, and it is
the one that
should be applied.
The
costs of the adaptation of the plaintiff’s home
[96]
The only remaining issues under this head is whether the plaintiff’s
adapted accommodation should include
the built-in cupboards for the
caregiver and whether it is reasonable to provide an alarm system
with an intercom a battery back-up
system to cover a maximum of 2
days of no electricity supply. Ms Bainbridge testified as to the
reasonable need of these specific
items. Ms Bainbridge was not
challenged in cross-examination in relation to the necessity for each
of these items. In addition,
the defendant did not lead any
countervailing evidence on any of these items, except for Mr
Mthembu
’s submission that the caregiver’s bed to
the extent reasonably required will be from the age 18 to life
expectancy.
Mr
Mthembu
further submitted that the alarm system
is not related to the issue of negligence.
[97]
It is
undeniably that the issue of security in this country is one of the
biggest issues, which has taken a centre stage especially
when it
relates to women and children. In this case we are not only talking
of a household that is headed by a woman, we are also
talking about a
child who has been rendered vulnerable naturally not only because she
was female, but also because of debilitating
injuries she suffered at
birth. Unlike other children, she would not be able to identify a
would-be criminal and run away from
him or her. She has been rendered
totally defenceless. It is well to remember that in relation to
whether a particular item of
expenditure is necessary the test is
whether it is reasonably required to make a condition or to
ameliorate it and the necessity
must be established on a balance of
probabilities.
[63]
While we
have not had loadshedding for a reasonably long period of time the
fact is that loadshedding has been with us since 2008
and
intermittently it would be gone for a few years before it is
reactivated. In view of that, a provision must be made for AM
if
loadshedding was reactivated. I am therefore satisfied that both the
built-in cupboards for a caregiver and an alarm system
with an
intercom and a battery back-up system are reasonably required and I
will allow the costs for their installation.
Case
management
[98]
Both Ms Bainbridge and Ms Prinsloo are agreed on the need of case
management. They agreed on the initial set up
costs and the costs of
case management at 15 hours at the rate of R1 000.00 per hour to
include 4 home visits in the first
year at the rate of R15 000.00.
However, they disagreed in relation to the hours to be allowed for
the performance of this
task. Ms Bainbridge recorded the reasons why
case management is essential in her report. She stated that it is
essential to ensure
necessary therapies, medication compliance,
appropriate nourishment, stimulation and liaising with caregivers and
family members.
In her evidence, she stated that a case manager was a
liaison between the trust, the parent, and caregivers. In relation to
the
sourcing and interviewing of caregivers and domestic helpers, Ms
Bainbridge recommends 5 to 10 hours, every 5 years and R12 000

every 3 years. However, an average of 7½ hours was accepted as
reasonable. Ms Prinsloo suggests 3 hours, every 5 years at
the cost
of R2 400. In relation to case management from 9 years to 18
years Ms Bainbridge proposes 24 hours annually at the
cost of
R24 000, while Ms Prinsloo proposes 15 hours at the cost of
R15 000 from 9 years to life expectancy. In relation
to case
management from 18 years to life expectancy Ms Bainbridge suggests 18
to 24 hours per annum at the total cost of R18 000.
It has
however, been accepted that it would be fair to apply the average of
that which would be 21 hours per annum. Ms Prinsloo
contends that 15
hours from 9 years to life expectancy would be appropriate. In
relation to report writing and the attendance of
meetings, Ms
Bainbridge proposes that 6 hours per annum be accepted, while Ms
Prinsloo proposes that 3 hours per annum be accepted.
Both Ms
Bainbridge and Ms Prinsloo agree to 10 hours every 5 years for the
purposes of crisis management at the rate of R10 000.00.
[99]
Ms Prinsloo testified that the reasons behind the hours she proposed
in relation to case management was that issues
that the case manager
would deal with when AM is 10 years would not be different to the
issues that the case manager would deal
with when she was 18 years.
Insofar as the issue of the sourcing and the interviewing of
caregivers Ms Prinsloo testified that
the use of a database would
streamline the sourcing of caregivers, which meant this process would
be quicker and the hours much
less. Ms Prinsloo, under
cross-examination for the plaintiff, had however admitted that she
was merely a practitioner and did not
personally give case
management. In addition, she admitted that 6 hours in relation to
report writing and attendance of meetings
was not excessive.
[100]
Mr
Mthembu
suggested that this court should deem Ms Bainbridge
to be a witness who was not objective. The reason for this suggestion
is because
Ms Bainbridge acted as a practitioner and in addition, she
ran a case management company. As a result, of that she may well have

had an interest in the matter, would have been lacking objectivity
and may well have been biased when she testified. This attack
was
founded on the basis that Ms Bainbridge personally gave case
management. I disagree with Mr
Mthembu
. Ms Bainbridge did not
display any interest in the matter, bias for the plaintiff and any
lack of objectivity when she testified.
When she was under
cross-examination, she specifically stressed that she does not case
manage cases which are current. Pointedly,
she also stressed that she
does not inflate the quantum or settle for something that is less.
She was not challenged in relation
to this pointed contention that
she does not inflate the quantum. If any of the amounts, which she
referred to were somehow inflated,
she could have been challenged on
her assertion. The fact that Ms Bainbridge acted as a case manager
made her the expert she professed
to be. Unlike Ms Prinsloo, who was
not a case manager, Ms Bainbridge gave this court the invaluable
insight it required on this
item based on her experience. In my view,
Ms Bainbridge’s opinion was founded on logical reasons.
[101]
In the circumstances, I find that 7½ hours every 5 years in
respect of sourcing and interviewing of caregivers
would be fair and
reasonable. In relation to case management of AM from 9 years to 18
years, I find that 21 hours annually at the
cost of R24 000 is
fair and reasonable. In relation to case management from 18 years to
life expectancy, I find that 21 hours
per annum at the rate of
R18 000.00 to be fair and reasonable. Finally, I find that 6
hours per annum at the rate of R7 200.00
for report writing and the
attendance of meetings is fair and reasonable.
Transport
requirements of AM
[102]
Ms Bainbridge and Ms Prinsloo agreed on the provision of a suitably
adapted motor vehicle with a docking system
for a wheelchair for AM’s
use. It is proposed that this vehicle would be replaced every 8
years. The only issue in respect
of the transport requirements of AM
was the determination of life expectancy. To ensure reliability,
longevity, and AM’s
safety, I agree with the plaintiff’s
counsel that the vehicle and other devices in relation to AM’s
transportation
requirements should be new and not be second hand (or
used). Based on the figures as agreed by the parties, the actuarial
calculation
by Mr Whittaker on the estimated life expectancy of 19.4
additional years the amount in relation to this head of damages is
R903 644.00.
The
costs associated with AM attending a stimulation centre post 18 years
[103]
Ms Bainbridge and Ms Prinsloo are agreed on the requisite need for AM
to attend Pathways until she reaches the
age of 18 years. The only
dispute between the two of them is in relation to the need for AM to
attend Pathways from 18 years until
life expectancy. Ms Bainbridge
testified that the attendance at Pathways by AM will provide her with
an opportunity of stimulation
and socialisation. Ms Prinsloo on the
other hand disagreed and suggested that AM would not benefit from
such attendance instead
she would benefit if she received care at
home wherein the case manager and caregiver would take her out on
wheelchair rides and
whenever she was tired bring her home to rest.
[104]
In the determination of this issue, it is also relevant to consider
the other dimensions of what the plaintiff
attested to when she
described AM. She described AM as a happy child who likes other
children. She stated that, although at times
she was moody, she liked
people. This evidence also spoke directly to the issue of stimulation
and socialisation. From this context
it is apparent that AM would
benefit from the attendance of Pathways post 18 years.
[105]
In the circumstances, I find that it is fair and reasonable that I
allow costs for the attendance of AM at Pathways
post 18 years to
life expectancy.
Loss
of earnings
[106]
The
industrial psychologists, Ms Sonia Hill and Mr Gideon De Kock, in
their joint minutes agreed on the career projection
[64]
of AM and based on the scenario they postulated Mr Whittaker made
actuarial calculations based on future life expectancy of 19.4

additional years, which I have already accepted. Mr Whittaker valued
the loss of income at R1 172 367.00. I have also
already
accepted the actuarial calculation by Mr Whittaker.
[107]
The parties have agreed on the general contingency deduction of 15%.
After the deduction of the contingency of
15% the value of the loss
of income under this head of damages is R996 511.95
Caregiving
and related expenses
[108]
In their
joint minutes,
[65]
Ms
Bainbridge and Ms Prinsloo agree that AM whether she was resident in
Durban or High Flats, from 9 to 18 years, would require
two
caregivers, working 12-hour shifts on a 1 week on / 1 week off
rotational basis while the plaintiff would assume a night time

oversight. In adulthood that is from 18 years to life expectancy they
agreed that as AM’s disability was profound and it
is
anticipated that over time she would deteriorate, AM would require
access to 24-hour care. However, Ms Bainbridge and Ms Prinsloo

deferred to the industrial psychologists on the caregiver’s
rates.
[109]
The
industrial psychologists, Ms Hill, and Mr De Kock, in their joint
minutes agreed to the rate of R31,05 per hour.
[66]
The parties were agreed to this rate and the actuarial calculation
had to be done on that rate. The only issue that was in dispute
was
the estimation of life expectancy. Both parties have done actuarial
calculations based on this rate. I have already dealt with
the issue
of actuarial calculations above and advanced the reasons why I
preferred the actuarial calculations by Mr Whittaker and
not those of
Mr Mavimbela. I have also determined that the fair and reasonable
estimation of life expectancy is 19.4 additional
years. Consequently,
on a life expectancy of 19.4 additional years, Mr Whittaker’s
actuarial computation is a sum of R4 788 262.
General
damages
[110]
Mr
Pillemer
argued that based on the recent cases it would be
fair and just if this court awarded AM general damages in the sum of
R2.5 million.
Mr
Mthembu
on the other hand submitted that
cases upon which the plaintiff relied on emanated from other
divisions. He therefore submitted
that in his view an appropriate
amount for general damages would be between R2 million to R2.2
million. Both parties referred me
to several cases. All the cases,
which the parties referred to, were similar except for one case.
[111]
As a
starting point, the cautionary injunctions in the assessment of
general damages are perhaps apposite. It has been said that
i
n
assessing damages, the court must take care to see that its ‘
award
is fair to both sides - it must give just compensation to the
plaintiff, but must not pour our largesse from the horn of plenty
at
the defendant's expense
.’
[67]
[112]
Mr
Pillemer
identified the following as the main aspects of
comparison between the cases he referred to and the impact the injury
has on AM:
(a)   Has a
severe cerebral palsy.
(b)   Presented
with gross motor function classification scale level V characterised
by spastic quadriplegia with elevated
muscle tone, as well as
diminished proximal muscle tone.
(c)  Takes
medication for epilepsy, spasticity and drooling as well as
multi-vitamins.
(d)   Can
probably see and hear without impairment.
(e)   Has a PEG
in situ
and receives most of her meals and liquids through the
PEG.
(f)   Has a
number of contractures.
(g)   Appears
to be in pain when some of her passive movements are done,
particularly where she has more severe contractures
in her left wrist
and both ankles and feet with the contracture being greater in the
right ankle than in the left ankle.
(h)   Has a
mild scoliosis.
(i)   Before
moving to Durban in September 2019 she suffered infections
approximately monthly which have since decreased.
(j)   Has
difficulty swallowing.
(k)  Can lift her
head and shoulder in supine.
(l)   Can
attain upright/sitting from a forward flection position over her
legs, but she is unable to maintain sitting
for any length of time.
(m)  Can effect some
purposeful rolling.
(n)   Engages
readily and enthusiastically with those around her.
(o)   Presents
with profound permanent disability, associated with her mixed type of
level V cerebral palsy.
(p)   Remains
profoundly disabled and is completely reliant on her mother and
caregiver for every aspect of her activities
of daily living and
survival.
(q)   Has
cognitive and physical delays, which are compounded by epilepsy,
which is medically managed.
(r)   Requires
reasonable stimulation, specialised equipment, transportation,
therapeutic and medical intervention and
care lifelong.
[113]
In determining the issue of general damages, I have had regard to the
following cases as were referred to by the
parties.
[114]
In
KTP
obo OP v Minister of Health
[68]
an award of compensation of R2.5 million was made in May 2024 in
respect of a child with GMFCS level V of disability. The child
in
this case suffered from spastic quadriplegic cerebral palsy and
microcephaly. He suffered spasticity in all four limbs, with
his
upper limbs being more severely spastic than his lower. He could not
sit unsupported, was mentally disabled and had no ability
to
communicate verbally or non-verbally. He would only express himself
with joyful sounds when touched or picked up and could roll
from side
to side. He needed high levels of care and comfort for the rest of
his life. The award is very recent and highly comparable
to the
damages claimed in respect of AM.
[115]
In case of
MEC for
the Department of Health: Free State Province v GAK obo MAK
[69]
Hefer AJ, on appeal upheld an award of R2.4 million as a fair and
reasonable amount for compensation for the minor child who suffered

from cerebral palsy for general damages. Although the specific
details pertaining to the condition of the child were not discussed

in the judgment, but the court found that the diminished life
expectancy of the child was to be taken into account, but did not

play a role in determining the amount of general damages to be
awarded.
[116]
In
MSM
obo KBM v MEC for Health, Gauteng
[70]
the minor was seven years old at the time of judgment and had reduced
life expectancy of 24.6 years. Although the judgement did
not set out
a list of disabilities and deficits suffered by the minor child, she
was awarded R2 million as damages. (The current
value of which is
R2.552 million).
[117]
In
Booyse
and another v MEC, For Health, Gauteng Province
[71]
the court awarded R1.5 million as general damages (the current value
of which is R1.914million). However, the child in this case
passed
away during the litigation at the age of nine. Prior to his passing,
the child was almost in a permanent vegetative state.
He had
epilepsy, which was becoming increasingly difficult to control. His
ability to interact had deteriorated over time, and
he could no
longer respond to a voice or even smile. The child’s gross
motor function and manual ability classification were
of the most
severe.
[118]
In
PM
obo TM v MEC for Health, Gauteng Provincial Government
[72]
the
court awarded compensation of R1.8 million (the current value of
which is R2.53 million) in respect of a child with a GMFCS
level 5.
The child in this case although she was not able to communicate
verbally, she was aware of her surroundings. She was capable
of
understanding English, Southern Sotho and isiZulu and she could make
sounds. She would smile, laugh out loud and become excited.
Despite
her disabilities, she was alert and able to recognize some objects
and pictures. She cried when upset and enjoyed various
activities
including horse riding and swimming. She did, however, have very
little voluntary functional movement and was dependent
on others for
all activities of daily living. She had profound mental retardation
and required constant and permanent care.
[119]
In
N
Mngomeni obo EN Zangwe v MEC for Health, Eastern Cape Province
[73]
the child suffered from spastic quadriplegic cerebral palsy, was
severely mentally and physically retarded, and permanently disabled.

He had been rendered unemployable in the open market and suffered a
catastrophic loss of amenities of life and was dependent on

assistance in all personal care and activities of daily living,
requiring 24-hour care and supervision. The minor child would need

continuous medical care and treatment as well as specialised
equipment, devices, accommodation, and services to accommodate his

special needs for the remainder of his life. He was awarded general
damages of R2 million (the current value of which is R2.812
million).
[120]
In
Matlakala
v MEC for Health, Gauteng Provincial Government
[74]
the minor child suffered from spastic dystonic cerebral palsy, which
was irreversible, as a result of incorrect resuscitation procedures

at a provincial hospital. The minor child was totally incommunicative
and had never learned to sit, stand, or walk and was regarded
as
ineducable, had the lowest level of gross motor function
classification and only produced sounds, no words and was incapable

of social activity. The minor child needed constant care for his most
basic functions. He was awarded general damages in the sum
of R1.5
million (the current value of which is R2.344 million).
[121]
In the
matter of
CS
obo TGS
[75]
Louw J awarded a sum of R1.8 million (the current value of which is
R2.183 million). In this case, the minor child suffered from
severe
motor and cognitive impairment in the form of quadriplegia
complicated by contractures leaving him permanently disabled
and
disfigured. The child required scoliosis surgery, had a disfigured
claw-like right hand, could not walk or talk and his hearing
and
vision had been severally reduced. The child was considered not to
have insight into his condition but did suffer pain, discomfort,
and
frustration.
[122]
In
Singh
and another v Ebrahim
,
[76]
Koen J awarded R1.2 million as general damages, the current value of
which is R2.9. In this case the child, Nico who was 6½
at the
time of judgement, and whom the trial judge found to have a life
expectancy of 30 years, was unable to walk and lacked self-feeding

ability. Nico had no loss of hearing and did not have expressive
speech.
[123]
In
ME
obo NPM v MEC for Health, Gauteng
[77]
the court awarded R2 million as of compensation (the current value of
which is R2.254 million) in respect of a child with a GMFCS
level IV
level of disability. The child was toilet trained, and able to
communicate her toileting needs but needed assistance to
use the
toilet. The child was able to see and hear. She could communicate
with limited sentences, but her speech was dysarthric
and difficult
to understand. She had good receptive language. She had severe
mixed-type cerebral palsy, predominantly dystonic,
with superimposed
right hemiplegia. She also had compensatory scoliosis, microcephaly,
contractures and severe developmental delay.
[124]
In
Madela
v MEC for Health, Kwazulu-Natal
[78]
this court awarded compensation of R1.6 million (the current value of
which is R1.9 million) in respect of a child with a GMFCS
level I
disability. This award stands in stark contrast to the pattern of
other awards in similar case the current value of which
in many cases
exceed R2,5m.
[125]
In
Kriel
NO obo S v Member of the Executive Council for Health, Gauteng
[79]
an award of R2 million (the current value of which is R2.45 million)
in respect of a child who was GMFCS level II. The child walked
with
limitations. Her motor impairment was associated with global
developmental delay, congenital microcephaly, intellectual
disability,
excessive drooling of saliva, communication problems and
bladder and bowel control problems. She was however, capable of
independent
mobility but could not manage long distances.
[126]
In
MP
obo SP v Member of the Executive Council for Health, Eastern Cape,
Province
[80]
the child suffered from cerebral palsy as a consequence of hypoxic
ischaemic injury to the brain, which resulted in him becoming
a
quadriplegic involving the trunk of his body. He was unable to stand
without assistance and was only able to roll, scoot or crawl
in order
to move. He was unable to feed himself or perform his personal
hygiene. His speech had been severely affected. His brain
functions
however, were at a much higher level than his body, and enabled him
to express himself, which was found to be a factor
aggravating his
suffering. There had been devastating loss of enjoyment of ordinary
amenities of life, although he would be able
to attend to a school
and operate an iPad. Full time care was required. An award of R2
million (the current value of which is R2.672
million) was made for
general damages.
[127]
In
NK
v
MEC for Health of the Gauteng Provincial Government
[81]
a
boy suffered a hypoxic-ischaemic incident during birth and suffered
severe brain damage which manifested itself in spasctic cerebral

palsy, quadriplegia, mental retardation, epilepsy, marked delays in
development, speech deficits, general spasticity, compromised

respiratory function, subluxtion of the hips, scoliosis of the spine
and behavioral problems. The little boy would be incontent
for his
entire, would have to use nappies and would have to be changed
constantly by caregivers. He experienced pain and discomfort
and
would have to undergo physiotherapy requiring the regular use of a
hoist in later years. He had difficulty eating, had to be
force-fed,
and was not in a state of ‘unconscious suffering.’ An
award of R1.8 million (the current value of which
is R2.404 million)
was made for general damages.
[128]
In
AD
and another v MEC for Health and Social Development, Western Cape
Provincial Government
[82]
the court made an award of R1.8 million (the current value of which
is R2.813 million) for general damages. The level of disability
of
the child was GMFSC level II. He suffered from athetoid movements,
which would cause him muscle fatigue and stress for his life.
He
could self-feed, although messily, was still incontinent of bowel and
bladder, but was seen to be toilet trained. He had hearing
loss,
which resulted in communication being a major challenge in his life.
The court found that the child had some insight into
his condition
and had a life expectancy of 48 additional years with his expected
death age being his 55
th
birthday.
[129]
I am conscious that the previous awards of damages in comparative
cases are not straightjackets. They merely serve
as a useful guide
and are not decisive. It is common cause that AM presents with
profound permanent disability, associated with
her mixed type of
level V cerebral palsy. AM is predominantly tube fed. She is unable
to communicate. She has severe contractures,
mild scoliosis. She has
had they were painful with gums constantly bleeding. AM is unable to
attend to the activities off daily
living will for the rest of her
life be dependent on others including her mother and caregivers. I
have considered the several
comparative cases, which were referred to
by the parties. I am of the view
it would be reasonable, fair, and appropriate to award
a sum of R2.5 million as and for general damages in this case.
Costs
[130]
Mr
Pillemer
submitted that it was reasonable that in granting
costs, this court should grant costs consequent upon the employment
of two counsel
and the qualifying costs and other associated costs of
the witnesses employed by the plaintiff. He submitted that this
matter was
complex and involved vast documentation and expert
opinion. Consequently, the costs consequent upon the employment of
two counsel
were warranted, with costs of senior counsel to be
awarded at scale C while those of junior counsel were to be awarded
at scale
B. Mr
Mthembu
did not make any submissions on the
issue of costs. However, the issue of costs is pre-eminently in the
discretion of the court
which discretion must be exercised
judicially.
[131]
Above
and beyond the general discretion which this court has regarding
costs generally, additionally, the court has a discretion
whether to
allow the costs consequent upon the employment of more than one
counsel. In relation thereto, it must consider whether
it was a ‘wise
and reasonable precaution’ to employ such advocate.
[83]
In addition, the court will also have regard to the amount involved
in the action,
[84]
the nature
of the issues in dispute between the parties, the number of legal
authorities quoted.
[85]
The
general rule is that the costs follow the event. I do not see any
reason why I should deviate from this general rule.
[132]
In this case both parties had instructed senior and junior counsel.
Counsel from both sides during the trial had
to marshal several
bundles of documents comprising various volumes which they
meticulously had to go through with their respective
witnesses. These
documents comprise among others pleadings, various expert reports,
joint minutes of experts and the relevant literature
on life
expectancy. In addition, counsel from both sides apart from providing
invaluable heads of arguments they also provided
to the court
separate bundles of case authorities on general damages which ran to
253 pages and 68 pages respectively. This case
was not only
undoubtedly complex but it was also important to both sides.
According to the prayer to the particulars of claim the
total amount
of the claim is a sum R22 374 462.01. This is quite a
substantial quantum claim. The mere fact that I separated
all the
issues relating to the public healthcare defence for later
determination has not made the claim insubstantial either. This
will
be apparent from the order which I grant. Without extra pair of
hands, it would have been challenging for senior counsel from
both
sides to marshal the bundle of documents involved as efficiently as
they did. Not to mention the well-known phrase ‘two
heads are
better than one.’
[133]
In the
circumstances, I am therefore satisfied that the complexity of the
matter, the value of the claim and the importance of the
case
warranted the employment of two counsel. I am conscious that the
scale of fees contemplated by Uniform rule 67A(3) and Uniform
rule
69(7) apply to all counsel alike irrespective of seniority. However,
an appropriate scale is left to the discretion of the
court. There is
authority where different scales were applied.
[86]
For these reasons I do not see why in this case I should not award
costs of counsel on scale B and C respectively. Accordingly,
for the
reasons I have alluded to above, I am satisfied that it is fair and
reasonable to award costs consequent upon the employment
of two
counsel with costs of junior counsel at scale B and costs of senior
counsel at scale C.
Order
[134]
In the result, I make the following order:
1.  The defendant
shall pay to the plaintiff’s attorneys in favour of the
plaintiff a total amount of
R13 159 579.68
which amount is
made up as follows:
1.1 For past medical and
related expenses, the amount of
R674 462.01
;
1.2 For loss of earnings,
the amount of
R996 512.00;
1.3 For the costs of
adaptations to a home for the accommodation of the minor child, A[…],
the amount of
R1 025 379.00;
1.4 For transport the
amount of
R903 644.00;
1.5 For attendance at a
special needs school, the amount of
R918 868.00;
1.6 For caregiving and
related expenses, the amount of
R4 788 262.00;
1.7 For case management,
the amount of R491 398.00;
1.8 For general damages,
the amount of R2 500 000.00;
1.9 For the costs of the
creation and administration of a trust in respect of the award of
compensation in terms of this order an
amount of R871 054.72
2.  The defendant is
directed to make payment of the sum of R10 659 579.68, the judgment
amount less the interim payment of
R2 500 000.00,
2.1  To be paid
within (thirty) days of the date of the order, failing which the
defendant will be liable for interest at the
rate of 11.75% per
annum, from the date of this order to date of payment, both days
inclusive; and
2.2  Into the
plaintiff attorney’s bank account, with the following details:
Bank: F[…] N[…]
B[…]
Branch:  M[…],
D[…]
Trust Account in the name
of: A[…] D[…] S[…] A[…]
Trust Account Number:
6[…]
Branch Code:  2[…]
3.  The defendant is
directed to pay the plaintiff’s reasonable and necessary taxed
or agreed party and party costs on
the High Court Scale, such costs
to include but not be limited to:
3.1  The costs of
the plaintiff’s attorney attending upon reasonable and
necessary consultations with witnesses in preparation
for this
hearing, including the consultations with the undermentioned expert
witnesses;
3.2  The costs of
two counsel (senior and junior), with the reasonable and necessary
costs of senior counsel up to the maximum
rate or part thereof set
out in Scale C of Uniform rule 69(7), at the discretion of the taxing
master; and the reasonable and necessary
costs of junior counsel up
to the maximum rate or part thereof as set out in Scale B of Uniform
Rule 69(7), at the discretion of
the taxing master, including the
reasonable and necessary costs of their preparation for this hearing
(as determined and at the
sole discretion of the taxing master), for
drafting and preparing heads of argument and for their attendance
upon consultations
with the under-mentioned expert witnesses and the
plaintiff for this hearing; the qualifying fees of the
under-mentioned expert
witnesses, including the costs of their
reports, supplementary reports and joint minutes, to qualify
themselves to testify at this
hearing and for any reasonable and
necessary consultations with the Plaintiff’s attorney and
counsel for this hearing, as
determined by the Taxing Master namely:
3.2.1
Sue
Anderson
, Nursing Sister;
3.2.2
Grace
Hughes,
Physiotherapist; (including her reservation fee for 3 and
4 June 2024);
3.2.3
Jane
Bainbridge
, Occupational Therapist (including her reservation fee
for 3 and 5 June 2024).
3.2.4
Mandy
Read
, Dietician;
3.2.5
Dr.
R Campbell
, Life Expectancy Expert (including his reservation fee
for 6 and 7 June 2024)
3.2.6
Dr.
M E Mayat,
Dental Surgeon;
3.2.7
Kasia
Hrabar
, Architect;
3.2.8
Sonia
Hill
, Industrial Psychologist;
3.2.9
Rochelle Thanjan
, Speech Therapist (including her reservation
fee for 4 June 2024)
3.2.10
Maureen
Casey
, AAC Expert;
3.2.11
Darryl
Grobbelaar
, Orthotist & Prosthetist;
3.2.12
Dr R
Fraser
, Orthopaedic Surgeon;
3.2.13
Dr. I
Ganie
, Radiologist;
3.2.14
Dawid
Marais
, quantity surveyor; and
3.2.15
Mr. G
Whittaker
, actuary (report only).
4.  The plaintiff’s
aforesaid attorney of record is hereby directed, upon receipt of the
monies being paid to it by the
defendant as aforesaid, to:
4.1  Hold all monies
in trust pending the formation of the Trust as aforesaid;
4.2  Pay the
trustees remuneration (which shall include the costs of the formation
thereof, the costs of administering the
Trust, the costs of the
trustees furnishing annual security, and obtaining an annual security
bond to meet the requirements of
the Master of the High Court in
terms of section 6(2)
(a)
of the Trust Property Act 57 of 1988,
in the sum of R871 054.72 directly to the trust upon it being
informed; and
4.3  Pay the net
balance of the monies received pursuant to this Order to the Trust
after all costs, fees, disbursements, and
expenses have been deducted
therefrom.
5.  The trial in
respect of all other outstanding claims is adjourned
sine die
for the later determination.
CHITHI
AJ
APPEARANCES
Counsel
for the Plaintiff:
Instructed
by:
M.
Pillemer SC with C. Gajoo
AC
De Sousa Attorneys
Durban
Counsel
for the Defendant:
Instructed
by:
T.S.I.
Mthembu SC with S. Takchund
State
Attorney (Durban)
Heard:
3,
4, 5, 6, 7, 10, 12 June 2024
Date
of Judgment:
30
September 2024
[1]
When the parties labelled the bundles, they inadvertently labelled
the next bundle as Bundle G instead of Bundle F.
[2]
D Strauss, J Brooks, L Rosenbloom and R Shavelle ‘Life
expectancy in cerebral palsy: an update’ (2008) 50(7)
Developmental
Medicine & Child Neurology
487-493.
[3]
Chailey Scales are used to measure the motor ability in children and
young adults with motor impairments.
[4]
GMFCS-E+R is a widely used method for classifying the movement
ability of children with cerebral palsy.
[5]
JC Brooks, DJ Strauss, RM Shavelle, LM Tran, L Rosenbloom and YW Wu
‘Recent trends in cerebral palsy survival. Part II:
individual
survival prognosis’ (2014) 56(11)
Developmental
Medicine & Child Neurology
1065-1071.
[5]D
Strauss, J Brooks, L Rosenbloom and R Shavelle ‘Life
expectancy in cerebral palsy: an update’ (2008) 50(7)
Developmental Medicine & Child Neurology
487-493. This
publication is marked ‘Exhibit C.’.
[6]
Bundle C: Vol 2: page 210 - 212.
[7]
Bundle C: Vol 2: page 197.
[8]
JC Brooks, DJ Strauss, RM Shavelle, LM Tran, L Rosenbloom and YW Wu
‘Recent trends in cerebral palsy survival. Part II:
individual
survival prognosis’ (2014) 56(11)
Developmental
Medicine & Child Neurology
1065-1071.
[9]
JC Brooks, DJ Strauss, RM Shavelle, LM Tran, L Rosenbloom and YW Wu
‘Recent trends in cerebral palsy survival. Part II:
individual
survival prognosis’ (2014) 56(11)
Developmental
Medicine & Child Neurology
1065 at 1068.
[10]
Singh
and another v Ebrahim
[2010] ZASCA 145
and
AD
and another v MEC for Health and Social Development, Western Cape
Provincial Government
[2016] ZAWCHC 181
;
2017 (5) SA 134
(WCC).
[11]
JC Brooks, RDD Campbell, and GA Whittaker ‘Survival of South
African children with cerebral palsy’ (2021) 111(6)
South
African Medical Journal
591-594.
[12]
See JC Brooks, DJ Strauss, RM Shavelle, LM Tran, L Rosenbloom and YW
Wu ‘Recent trends in cerebral palsy survival. Part
II:
individual survival prognosis’ (2014) 56(11)
Developmental
Medicine & Child Neurology
1065 at 1068.
[13]
JC Brooks, DJ Strauss, RM Shavelle, LM Tran, L Rosenbloom and YW Wu
‘Recent trends in cerebral palsy survival. Part II:
individual
survival prognosis’ (2014) 56(11)
Developmental
Medicine & Child Neurology
1065 at 1068.
[14]
JC Brooks, DJ Strauss, RM Shavelle, LM Tran, L Rosenbloom and YW Wu
‘Recent trends in cerebral palsy survival. Part II:
individual
survival prognosis’ (2014) 56(11)
Developmental
Medicine & Child Neurology
1065 at 1068.
[15]
JC Brooks, DJ Strauss, RM Shavelle, LM Tran, L Rosenbloom and YW Wu
‘Recent trends in cerebral palsy survival. Part II:
individual
survival prognosis’ (2014) 56(11)
Developmental
Medicine & Child Neurology
1065 at 1068.
[16]
JC Brooks, DJ Strauss, RM Shavelle, LM Tran, L Rosenbloom and YW Wu
‘Recent trends in cerebral palsy survival. Part II:
individual
survival prognosis’ (2014) 56(11)
Developmental
Medicine & Child Neurology
1065 at 1069.
[17]
D Strauss, J Brooks, L Rosenbloom and R Shavelle ‘Life
expectancy in cerebral palsy: an update’ (2008) 50(7)
Developmental
Medicine & Child Neurology
487-493.
[18]
JC Brooks, DJ Strauss, RM Shavelle, LM Tran, L Rosenbloom and YW Wu
‘Recent trends in cerebral palsy survival. Part II:
individual
survival prognosis’ (2014) 56(11)
Developmental
Medicine & Child Neurology
1065-1071.
[19]
GMFM-66 means the Gross Motor Function Measure 66.
[20]
PL Rosenbaum, SD Walter, SE Hanna,
et
al
‘Prognosis for gross motor function in cerebral palsy:
creation of motor development curves’ (2002) 288(11)
JAMA
1357-1363.
[21]
M Voorman, AJ Dallmeijer, DL Knol, GJ Lankhorst and JG Becher
'Prospective longitudinal study of gross motor function in children

with cerebral palsy' (2007) 88(7)
Archives
of physical medicine and rehabilitation
871-876.
[22]
JC Brooks, DJ Strauss, RM Shavelle, LM Tran, L Rosenbloom and YW Wu
‘Recent trends in cerebral palsy survival. Part II:
individual
survival prognosis’ (2014) 56(11)
Developmental
Medicine & Child Neurology
1065 at 1068.
[23]
JC Brooks, DJ Strauss, RM Shavelle, LM Tran, L Rosenbloom and YW Wu
‘Recent trends in cerebral palsy survival. Part II:
individual
survival prognosis’ (2014) 56(11)
Developmental
Medicine & Child Neurology
1065 at 1069.
[24]
JC Brooks, DJ Strauss, RM Shavelle, LM Tran, L Rosenbloom and YW Wu
‘Recent trends in cerebral palsy survival. Part II:
individual
survival prognosis’ (2014) 56(11)
Developmental
Medicine & Child Neurology
1065 at 1068.
[25]
SM Reid, J McCutcheon and DS Reddihough ‘Survival of
individuals with cerebral palsy born in Victoria, Australia, between

1970 and 2004’ (2012) 54(4)
Developmental
Medicine & Child Neurology
353-360.
[26]
JC
Brooks, DJ Strauss, RM Shavelle, LM Tran, L Rosenbloom and YW Wu
‘Recent trends in cerebral palsy survival. Part II:
individual
survival prognosis’ (2014) 56(11)
Developmental
Medicine & Child Neurology
1065 at 1069.
[27]
SE Hanna, PL Rosenbaum, DJ Bartlett,
et
al
‘Stability and decline in gross motor function among children
and youth with cerebral palsy aged 2 to 21 years’ (2009)

51(4)
Developmental
Medicine & Child Neurology
295-302.
[28]
M Voorman, AJ Dallmeijer, DL Knol, GJ Lankhorst and JG Becher
'Prospective longitudinal study of gross motor function in children

with cerebral palsy' (2007) 88(7)
Archives
of physical medicine and rehabilitation
871-876.
[29]
M Voorman, AJ Dallmeijer, DL Knol, GJ Lankhorst and JG Becher
'Prospective longitudinal study of gross motor function in children

with cerebral palsy' (2007) 88(7)
Archives
of physical medicine and rehabilitation
871-876.
[30]
JC Brooks, DJ Strauss, RM Shavelle, LM Tran, L Rosenbloom and YW Wu
‘Recent trends in cerebral palsy survival. Part II:
individual
survival prognosis’ (2014) 56(11)
Developmental
Medicine & Child Neurology
1065 at 1069.
[31]
JC Brooks, DJ Strauss, RM Shavelle, LM Tran, L Rosenbloom and YW Wu
‘Recent trends in cerebral palsy survival. Part II:
individual
survival prognosis’ (2014) 56(11)
Developmental
Medicine & Child Neurology
1065 at 1069.
[32]
SM Reid, J McCutcheon and DS Reddihough ‘Survival of
individuals with cerebral palsy born in Victoria, Australia, between

1970 and 2004’ (2012) 54(4)
Deve.lopmental
Medicine & Child Neurology
353-360.
[33]
MW Baird and J Vargus-Adams ‘Outcome measures used in studies
of botulinum toxin in childhood cerebral palsy: a systematic
review’
(2010) 25(6)
Journal
of Child Neurology
721-727.
[34]
MW Baird and J Vargus-Adams ‘Outcome measures used in studies
of botulinum toxin in childhood cerebral palsy: a systematic
review’
(2010) 25(6)
Journal
of Child Neurology
721-727.
[35]
E Blair, L Watson, N Badawi and FJ Stanley ‘Life expectancy
among people with cerebral palsy in Western Australia’
(2001)
43(8)
Developmental
Medicine & Child Neurology
508-515.
[36]
Dr Botha did not provide the full details of the article and this
article was not contained in the literature in Bundle G. I
have
therefore referred to this article in general terms as referred to
by Dr Botha.
[37]
SM Reid, J McCutcheon and DS Reddihough ‘Survival of
individuals with cerebral palsy born in Victoria, Australia, between

1970 and 2004’ (2012) 54(4)
Developmental
Medicine & Child Neurology
353-360.
[38]
Dr Botha did not provide the full details of the article and this
article was not contained in the literature in Bundle G. I
have
therefore referred to this article in general terms as referred to
by Dr Botha.
[39]
S Day, D Strauss, R Shavelle, and YW Wu ‘Excess Mortality in
Remote Symptomatic Epilepsy’ (2003) 35
Journal
of Insurance Medicine
155
- 160, DJ Strauss, SM Day, Rm Shavelle, and YW Wu ‘Remote
Symptomatic Epilepsy: does seizure severity increase mortality?’

(2003) 60
Neurology
395 -
399.
[40]
Dr Botha did not provide the full details of the article and this
article was not contained in the literature in Bundle G. I
have
therefore referred to this article in general terms as referred to
by Dr Botha.
[41]
See
JC
Brooks, DJ Strauss, RM Shavelle, LM Tran, L Rosenbloom and YW Wu
‘Recent trends in cerebral palsy survival. Part II:
individual
survival prognosis’ (2014) 56(11)
Developmental
Medicine & Child Neurology
1065 at 1068-1069.
[42]
Bundle D: Vol 2: page 186: paragraph 1.19 and 1.20.
[43]
Bundle D: Vol 2: page 187: paragraph 1.34.
[44]
JC Brooks, DJ Strauss, RM Shavelle, LM Tran, L Rosenbloom and YW Wu
‘Recent trends in cerebral palsy survival. Part II:
individual
survival prognosis’ (2014) 56(11)
Developmental
Medicine & Child Neurology
1065 at 1069.
[45]
DJ Strauss, PJ Vachon and RM Shavelle ‘Estimation of future
mortality rates and life expectancy in chronic medical conditions’

(2005) 37(1)
Journal
of Insurance Medicine
20-34.
[46]
DJ Strauss, PJ Vachon and RM Shavelle ‘Estimation of future
mortality rates and life expectancy in chronic medical conditions’

(2005) 37(1)
Journal
of Insurance Medicine
20 at 30.
[47]
Singh
and another v Ebrahim
(1)
[2010] 3 All SA 187
(D) paras 9-10.
[48]
Broom
and another v The Administrator, Natal
1966 (3) SA 505
(D) at 526;
Kloppers
v Rondalia Assurance Corporation of SA Ltd
1972 (2I3) QOD 289 (W);
General
Accident Versekeringsmaatskappy SA Bpk v Uijs NO
[1993] ZASCA 58
;
1993 (4) SA 228
(A) at 236-237.
[49]
Medi-Clinic
Ltd v Vermeulen
[2014]
ZASCA 150; 2015 (1) SA 241 (SCA.
[50]
Schneider
NO and others v AA and another
2010 (5) SA 203
(WCC) at 212A-B.
[51]
JC Brooks, DJ Strauss, RM Shavelle, LM Tran, L Rosenbloom and YW Wu
‘Recent trends in cerebral palsy survival. Part II:
individual
survival prognosis’ (2014) 56(11)
Developmental
Medicine & Child Neurology
1065 at 1069.
[52]
Bundle
C: Vol 2: pages 131 - 213.
[53]
Bundle
C: Vol. 5: pages 408 - 519.
[54]
Bundle
C: Vol. 7: pages 702 – 776 and Bundle C: Vol. 8 pages 844 -
848.
[55]
JC
Brooks, DJ Strauss, RM Shavelle, LM Tran, L Rosenbloom and YW Wu
‘Recent trends in cerebral palsy survival.
Part
II: individual survival prognosis’ (2014) 56(11)
Developmental
Medicine & Child Neurology
1065 at 1069-1070.
[56]
JC Brooks, DJ Strauss, RM Shavelle, LM Tran, L Rosenbloom and YW Wu
‘Recent trends in cerebral palsy survival. Part II:
individual
survival prognosis’ (2014) 56(11)
Developmental
Medicine & Child Neurology
1065 at 1070.
[57]
Singh
and Another v Ebrahim
[2020]
ZASCA 145
and
AD
and another v MEC for Health and Social Development, Western Cape
Provincial Government
[2016] ZAWCHC 181
;
2017 (5) SA 134
(WCC)
.
[58]
Bundle
C: Vol 2: pages 194 - 199: paras 7.1 - 7.4; Vol 5 pages 451 –
458: paras 4.1 - 4.5; Vol 7: pages 750 – 755:
paras 5.1 - 5.4.
[59]
JC Brooks, DJ Strauss, RM Shavelle, LM Tran, L Rosenbloom and YW Wu
‘Recent trends in cerebral palsy survival. Part II:
individual
survival prognosis’ (2014) 56(11)
Developmental
Medicine & Child Neurology
1065-1071.
[60]
Bundle B: index to joint minutes page 82: para 2.
[61]
Bundle
D: Vol 4: page 408: para 4.47.
[62]
Menday
v Protea Assurance Co Ltd
1976 (1) SA 565
(E) at 569B-E.
[63]
Dhlamini
v Government of the Republic of South Africa
1985 (3A3) QOD 554 (W) at 585.
[64]
Bundle B: Index to Joint Minutes: pages 18 - 21.
[65]
Bundle B: Index to Joint Minutes: pages 54 - 60.
[66]
Bundle B: Index to Joint Minutes: pages 68 - 70.
[67]
Pitt
v Economic Insurance Co Ltd
1957 (3) SA 284
(N) at 287E-F.
[68]
KTP obo
OP v Minister of Health of the National Department of Health and
others
[2024] ZANWHC 120
[69]
MEC
for the Department of Health Free State Province v GAK obo MAK
[2024]
ZAFSHC 142.
[70]
MSM obo
KBM v MEC for Health, Gauteng
2020 (2) SA 567 (GJ).
[71]
Booyse
and another v MEC, For Health, Gauteng Province
[2019] ZAGPPHC 363.
[72]
PM obo
TM v MEC for Health, Gauteng Provincial Government
[2017] ZAGPJHC 346.
[73]
N
Mngomeni obo EN Zangwe v MEC for Health, Eastern Cape Province
2018 (7A4) QOD 94 (ECM).
[74]
Matlakala
v MEC for Health, Gauteng Provincial Government
[2015] ZAGPJHC 223; 2015 (7A4) QOD 22 (GJ).
[75]
CS (obo
TGS) v MEC for Health, Gauteng
[2015]
ZAGPPHC 605;
2018
(7A4) QOD 104 (GNP).
[76]
Singh
and another v Ebrahim (1)
[2010] 3 All SA 187
(D) para 13. The Supreme Court of Appeal
subsequently confirmed the awad of R1.2 million for general damages,
see
Singh
and another v Ebrahim
[2010] ZASCA 145
para 116.
[77]
ME obo
NPM v MEC for Health, Gauteng
[2022] ZAGPJHC 29.
[78]
Madela
v MEC for Health, Kwazulu-Natal
[2021] ZAKZDHC 18.
[79]
Kriel
NO obo S v Member of the Executive Council for Health, Gauteng
Provincial Government
[2020]
ZAGPJHC 273.
[80]
MP obo
SP v Member of the Executive Council for Health, Eastern Cape,
Province
[2018] ZAECMHC 28.
[81]
NK
v MEC for Health of the Gauteng Provincial Government
[2018]
ZASCA 13
;
2018 (4) SA 454
(SCA); 2018 (7A4) QOD 80 (SCA).
[82]
AD and
another v MEC for Health and Social Development, Western Cape
Provincial Government
[2016] ZAWCHC 181; 2017 (5) SA 134 (WCC).
[83]
Steenkamp
v Steenkamp
1966
(3) SA 294
(T) at 297G.
[84]
Barlow
Motors Investments Ltd v Smart
1993(1)
SA 347 (W) at 352.
[85]
De
Naamloze Vennootschap Allintex v Van Gerlach
1958
(1) SA 13 (T).
[86]
Buhle
Waste (Pty) Ltd v MEC of Health, Gauteng Province and Others
(2023/102560) [2024] ZAGPJHC 493 (22 May 2024).