SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(Gauteng Division , Pretoria )
Case no: 47322/2017
Heard on: 24 January 20 25
Judgment handed down: 11 April 2025
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES / NO
(3) REVISED.
DATE : 11 April 2025
SIGNATURE
In the matter between
N[...] O[...] R[...] 1st Plaintiff
(ID: 1 […])
Assisted herein by her mother and natural
Guardian M[...] I[...] R[...]
M[...] I[...] R[...] 2nd Plaintiff
And
The Member of The Executive Council For Defendant
Health, Gauteng
_________________________________ ___________________ ______ ____ ________
JUDGMENT
STRIJDOM , J
1. The second plaintiff in this matter instituted legal proceedings against the
defendant for recovery of damages in her personal capacity and in her
representative capacity on behalf of her minor child being the first plaintiff.
2. The defendant is being sued in her capacity as the executive authority
responsible for the control and management of the Department of Health and its
facilities including hospitals and clinics in the Province of Gauteng.
3. The plaintiff’s claim arose from the negligence of the doctors and/or nurses
and/or staff involved in the care and management of the first plaintiff during the
time of her delivery or birth at Mamelodi Hospital during the period 23 August
2015 and 24 Aug ust 2015 , when the delivery was completed.
4. The issue of liability has been disposed of 100% in favour of the plaintiffs . The
only remaining issue between the parties pertains to the amount of reasonable
compensation that should be awarded to them.
5. The first plaintiff ’s claim for loss of earnings and general damages has been
settled between the parties and an amount of R3 430 705 has been awarded to
the first plaintiff.1
1 Caselines: Section 2 Pocket 9 page 2 -34 (Court order)
6. In respect of her future medical expenses the first plaintiff has been award ed an
interim amount of R1 890 466,22 by the Court.2 The balance of the amount is
due for adjudication by this Court.
7. The second plaintiff, in her personal capacity, claims future medical expenses
general damages for emotional shock, trauma and loss of amenities of life and
past and future loss of earnings.
8. The plaintiffs have appointed various experts to assess the ext ent of injuries and
resultant sequalae therefrom, namely:
8.1 Dr Izak van Heerden (Urologist);
8.2 Ms Lila Bruk (Dietician);
8.3 Dr Karin Levin (Speech Therapist & Audiologist);
8.4 Dr CF Heffer (Dental Surgeon);
8.5 Ms Christel Botes (Physiotherapist);
8.6 Mr Marco Du Plooy (Ortho tist & Prosthetist);
8.7 Dr M Van der Ryst (Educational Psychologist );
8.8 Ms Anneke Greef (Occupational Therapist);
8.9 Mr Deon Rademeyer (Mobility Consultant);
8.10 Dr Dare n Str oler (Ophthalmic Surgeon);
8.11 Dr Tony B irrell (Orthopeadic Surgeon);
8.12 Mr James Brummer (Architect);
8.13 Mr Leon Roper (Clinical & Neuropsychologist);
8.14 Dr Mirriam Close (Specialist Psychiatrist);
8.15 Ms N Kotze (Industrial Psychologist);
8.16 Prof PA Cooper (Paediatrician & Neonatologist);
8.17 Mr Kobus Pretorius (Actuary).
2 Order for Interim Payment (Caselines: Section 2 Pocket 10 page 57 to 61.)
9. The defendant has not filed any expert reports to deal with the issue of quantum.
10. At the commencement of the proceedings on 20 January 2025 the plaintiffs
brought an application in terms of Rule 38(2) to dispense with the need to lead
oral evidence of th eir expert witnesses. The application was granted, and the
medico legal reports of the plaintiffs were admitted as evidence to be used to
prove their quantum. The plaintiffs closed their case sequel to the order of the
Court and the defendant closed its case without presenting any evidence.
11. It was subm itted by the defendant that the facts and findings of the plaintiff’s
experts are a matter of record and what they have opined as the injuries of the
first plaintiff and what her medical needs in the future are, is not contested.
Annexure A to the plainti ffs’ heads of argument which summarised the necessary
future medical expenses of the first plaintiff is also not in dispute.
12. The defendant’s major contention on the expert reports is restricted to the report
of Professor Cooper in so far as it pertains t o the factual basis for determining the
life expectancy of the first plaintiff. This contention was raised in consideration of
the report of Dr Birrell, the Orthopaedic Surgeon and the report of the Actuary.
13. In respect of the second plaintiff, the parties are in agreement that the defendant
shall pay the second plainti ff an amount of R1 521 655 for Loss of Earnings and
R54 368,00 for Future Medical Expenses.
The First Plaintiff’s Claim (Future Medical Expenses)
14. It is common cause that the calculations that have been compiled on behalf of
the first plaintiff in respect of her future medical and other needs have been
based on the child’s life expectancy as opined by Professor Cooper. The latter
has opined that the life expectancy is 31,4 years. The contentious issue in this
regard is what informs this life expectancy age.
15. It is further common cause that Professor Cooper did not personally evaluate the
first plaintiff.
16. Cooper’s report has been compiled for the purposes of o pining on life expectancy
of the first plaintiff.
17. Cooper opines that the first plaintiff should attain an age of at least 31,4 years
old, which establishes a need for care and ancillary support to have to be
accommodated for a period of at least another 20 years .3
18. Cooper has premised her contentions on the following reasoning:4
“2.3 The latest life expectancy tables from Stats SA for the Sou th African
population correspond most closely to Koch’s Life Table 3. This table will
be used to calculate life expectancy.
2.4 I have placed N[...] midway between category “lifts head but not chest in
prone ” and “lifts head and chest, partial rolling” as well as fed by others in
table 11 of the Brooks paper. This gives an 8.2 – year-old female an 89%
chance of reaching the age of 15 years.
2.5 In table 111 of that paper a 15 – year-old female able to lift head or chest
in prone had a life exp ectancy that was 35% of the US general population.
2.6 Negative factors for life expectancy in this case are multiple fixed
contractures, a weight on the 20th percentile below which there is an
increased mortality and the significant limitation to safety when being fed
possibly needing a gastostomy feeding tube. A negative correction of
7,5% will be made for these factors.
2.7 Applying these data to Koch’s table 3 gives a life expectancy of an
additional “23,2 years from her current age. ”
3 Caselines: 9 -614 to 616
4 Caselines: 9-615 to 616
19. Prof Cooper concluded that “On the basis of the published data from California
and applying these to South African life expectancies, N[...] has life expectancy
of an additional 23,2 years from her current age of 8,2 years, i.e. to the age of
31,4 years.
20. Dr Birrell (Orthopaedic Surgeon) states as follows about the issue of the plaintiff’s
ability to lift her head:5
“Future surgical treatment for this child is a matter of not only practicability but
also a philosophy. To what extent does one go in orde r to correct deformities.
This child, for example cannot sit, walk or stand, and has difficulty at the moment
in even holding up her own head. There is clear spasticity in the upper and lower
limbs. ”
21. In his addendum report, Dr Birrell reiterates that the child cannot support her
neck for more than a few seconds before it flops.6
22. The first plaintiff is opined by Dr Birrell to have clear diagnosis of cerebral palsy,
which has manifested in her inability to walk, raise her neck, presenti ng upper
limb spasticity , hip flexion, flexed knees and feet stuck in a 60-degree equines ,
which cannot be correcte d7.
23. In his addendum report, Dr Birrell reiterates the following:8
“As noted in my original report, the child cannot sit, walk or stand or even hold up
her own head and no amount of surgery will improve this.”
5 Caselines: 9 -362 para 14
6 Caselines: 9 -427
7 Caselines: 9 -358 to 360
8 Caselines: 9 -431
24. It was submitted by the defendant that the observation made by Dr Birrell cannot
be ignored and should have bee n taken into consideration by Prof Cooper
because he relies on this crucial issue to make a determination as to the life
expectancy of the fist plaintiff. It was argued by the defendant that the Court
should apply a further 50% contingency.
25. In my view, based on the opinion and observations of Dr Birrell, the life
expectancy of the minor child, following the methodology used by Prof Cooper,
should be less than what Prof Cooper has opined to be.
26. This has influenced the actua rial calculations since they are based on a scenario
where the life expectancy is informed by the conclusion of Prof Cooper.
27. The actuary stated as a concern which needed to be clarified by Prof Cooper:9
“Note that Prof Cooper also applied a negative correction of 7,5% f or various
negative factors. It is not clear how Prof. Cooper allowed for same, and we defer
to the clarification in this regard. Prof. Cooper concluded that N[...] has a life
expectancy of an additional 23,2 years ( i.e. to the age of 31,4 years) . We
therefore allow for an additional mortality, loading to reconcile Prof Cooper’s
conclusion.”
28. Instead of seeking the clarity so that the calculations can be made, the actuary
proceeds to compile the calculations and still r elies on the conclusion reached by
Prof Cooper which – he says still needs to be clarified.
29. It was argued by the plaintiffs’ coun sel that Prof Cooper relied on what was
stated in the reports of Ms Anneke Greef (Occupational Therapist) , Dr J Reid
(Neurolo gist), Ms C Botes (Physiotherapist and the report of Dr Birrel to form his
9 Caselines: 9 -626
opinion. However, the opinion of Prof Cooper is not reconcilable with the
observations of Dr Birrell who personally evaluated the first plaintiff. It was
argued by the Defendant t hat the court should apply a further 50% contingency.
30. I conclude that the calculations in respect of the first plaintiff’s future medical
expenses and other associated needs are based on an incorrect factual basis
and has resulted in them been overstated by the actuary. In my view it would be
fair and reasonable to apply a higher contingency.
31. In Southern Insurance Association v Bailey NO10 it was stated by Nicolas J at
116-117 that:
“Where the method of actuarial calculation is adopted, it does not mean that the
trial Judge, is ‘tied by inexorable actuarial calculations ’. He has ‘a large
discretion to award what he considers right ’ (per Holmes JA in legal Assurance
Company Limited v Botes 1963 (1) SA 608 (A) at 61,4F). One of the elements in
exercising that discretion is the making of a discount for ‘contingencies ’ of the
‘vicissitudes of life ’. These include such matters as the possibility that the plaintiff
may in the result have less than a ‘normal ’ expectation of life; and that he may
experience periods of unemployment by reason of incapacity due to illness or
accident, or to labour unrest or general economic conditions. The amount of any
discoun t may vary, depending upon the circumstances of the case. See also
Van der Plaats v South African Mutual Fire & General Insurance Company
Limited 1980 (3) SA 105 (A) at 114 -5. The rate of the discount cannot of course
be assessed on any logical basis. T he assessment must be largely arbitrary and
must depend upon the trial Judge’s impression of the case.”
32. I am of the view that in the circumstances of this case a further 30% contingency
in respect of future medical expenses will be fair and reasonable. Such a
10 1984 (1) SA 98 (A)
contingency takes into account a probable shorter life expectancy of 31,4 years
as postulated by Prof Cooper.
Second Plaintiff’s Claim
General Damages
33. It was submitted by counsel for the second plaintiff that an amount of R400 000-
00 must be awarded. The defendant argued that an amount of R250 000,00 for
general damages would be fair and reasonable.
34. The principles of quantification has been set out in a variety of matters including
Bay Passenger Transport Ltd v Franzen 1975 (1) SA 269 (A) at 274, Sigournay v
Gillbanks , 1960 (2) SA 552 (A) on 572 C, Pitt v Economic Insurance Company
Ltd 1957 (3) SA 284 (D) E -F, the SCA judgment in Road Accident Fund v
Marunga 2003 (5) SA 164 (SCA).
35. The purpose of an award for general damages is to compensate a claimant for
the pain, suffering, discomfort and loss of amenities of life to which he or she has
been subjected as a result of the particular injuries that were sustained.
36. Although the deter mination of an appropriate amount in this regard is largely a
matter of discretion, some guidance can be obtained by having regard to
previous awards made in comparable cases.
37. In assessment of the second plaintiff, Dr Close11(Specialis t Psychiatrist) not es
the severe trauma suffered by her, following the birth of the first plaintiff and
which sequalae still persists at present.
11 Caselines: 9 -600 to 611
38. The second plaintiff has suffered a reduction in her amenities to life as she no
longer participates socially as she did, whilst further she is noted to present with
an alteration in her mood, as well as temperament.12
39. The second plaintiff suffer from permanent tiredness and has depressive
thoughts of a suicidal nature.13
40. Close describes the second plaintiff as having anxiety, which seemingly is
compounded through post-traumatic stress symptoms.14
41. At present the second plaintiff is aloaf and struggles with her energy levels, which
has led to her increased weight and has hampered her relationship with her
minor children . 15
42. The second plaintiff is opined to present with the following fallout, by Dr Close,
namely16:
“Miss R[...] does present with residual mood symptoms. As per the Diagnostic
and Statistical Manual -5 (DSM -5), which is used for diagnosis in psychiatry,
Major Depressive Disorder is a Mood Disorder …
Although there has been acceptance of the current situation described, there has
been an impact in interpersonal and social functioning present. There has been
a change in interaction and Ms R[...] has been described as more moody and
less sociable. There is noted fatigue present: anxiety as to her children’s futures
are noted and occasional panic attacks described.”
12 Caselines: 9 -605
13 Caselines: 9 -605
14 Caselines: 9 -605 to 606
15 Caselines: 9 -606
16 Caselines: 9 -609 to 610
43. In MCN obo MBM v MEC for Health, Gauteng Province17 the Court awarded
R300 000,00 to the mother as general damages. The minor suffers from a mi xed
type of cerebral palsy, predominantly dystonic with a super imposed hemiplegia
(paralysis of one side of the body.)
44. In Me obo NPM v MEC for Health, Gauteng18 an amount of R350 000,00,
(current value about R400 000,00) was awarded. The injuries sustained by the
minor included cerebral palsy with severe limitations; immobility to perform and
enjoy normal activities of daily living and life amenities, neuropsyc hiatric
moderate mental retardation is applicable but where the minor is educable but to
a limited degree and where she can feel emotional pain and suffering.
45. In MNK and Another v MEC for Health, Gauteng Province19. (Awarded
R350 000,00 current value R385 428,98 ), the child suffered from a brain injury
manifesting as cerebral palsy, mental retardation, spa stic quadriplegia,
microcephaly, severe developmental delay, permanent neuro -physical and
intellectual impairment.
46. Having considered the expert reports and having regard to the relevant case law
I am of the view that an amount of R400 000,00 would be fair and reasonable
compensation for general damages.
47. In the result, the following order is made:
The draft order “X” is made an order .
_________________________________________
17 (2017/9252) [2023] ZAGP JHC 66 (26 January 2023)
18 (9257/2017 [2022] ZAGP JHC 29 (21 January 2022 )
19 (9407/2017 [2022] ZA GP JHC 175 (25 March 2022)
JJ STRIJDOM
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION , PRETORIA
Appearances:
For the plaintiffs : Adv SJ Myburgh SC and Adv JA Steyn
Instructed by: Vorster & Brandt Inc
For the defendant : Adv D Mosoma
Instructed by: The State Attorney