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IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU -NATAL LOCAL DIVISION, DURBAN

CASE NO: 3079/2015

In the matter between:

N[...] L[...] M[...] Plaintiff

and

THE MEMBER OF THE EXECUTIVE COUNCIL FOR Defendant
HEALTH, KWAZULU -NATAL

JUDGMENT

HENRIQUES J

Introduction

[1] This is the judgment in respect of the remaining issues of quantum for the
resumed trial of the matter , specifically past and future medical, hospital and
related expenses.

[2] On 13 January 2010, A[...] S[...] K[...] (A[...]) was born at Prince Mshiyeni
Memorial Hospital and suffered intrapartum hypoxia and a brain injury. As a
consequence of her brain damage she suffers from cerebral palsy and is
classified on the Gross Motor Function Classification System at (GMFCS) level 1.
She has moderate, to severe , mental and intellectual impairment, severe
cognitive delay, a wide range of severe to profound neurological deficits and mild
physiological limitations. As a consequence of the neurological deficits and
physiological limitations the plaintiff instituted action against the defendant for
damages on behalf of A[...].

[3] The defendant conceded liability and pursuant to judicial case
management, the issue of general damages and future and past loss of earning
capacity was determined and a judgment issued b y me on 30 April 2021. At the
time, the legal representatives agreed a state d case and agreed the life
expectancy of A[...], with a proviso that it would not be bound by such agreement
on life expectancy in the determination of the future medical expenses .

[4] The plaintiff’s claim for past hospital and medical expenses as well as all
future medical expenses was adjourned sine die pending the parties obtaining
reports from their respective experts.

[5] Since the delivery of the first judgement, the plaintiff obtained an interim
payment from the defendant in respect of future medical expenses in the sum of
R 4 493 383.00 on 1 1 October 2021.

[6] In addition, based on the award and A[...]’s condition the defendant had
agreed to the creation of a trust and a trustee’ s fee for administering the trust at
the rate of 7.5% per annum of the capital amount awarded.

[7] Pursuant to further judicial case management the matter was re -enrolled
for determination of the past hospital and medical expenses as well as the
quantific ation of A[...]’s future hospital , medical and related expenses as well as
the costs of modification to her current home.

[8] Additionally, the defendant had in the interim raised what is referred to as
“the public healthcare defence” in which the defendant alleges the plaintiff is not
entitled to receive monetary compensation in respect of certain future medical
treatment and ot her services and the defendant tenders to provide the plaintiff the
required treatment and related necessary services at any one of the public
provincial hospitals.

[9] In terms of an amendment to the plaintiff’s plea the quantum claimed is as
follows:

(a) Future medical expenses R14 000 000.00
(b) Future loss of earnings R5 878 082.00
(c) General damages R2 500 000.00
(d) Acquisition of alterations to a residential dwelling R300 000.00
which totals R22 678 082.00.

[10] Prior to the commencement of the trial, I was advised by Mr McIntosh SC
who appeared for the plaintiff, which was confirmed by Mr Van Niekerk SC who
appeared for the defendant, that such public healthcare defence ha d been
abandoned in toto .

[11] The remaining issues for determination during the re -enrolled trial were the
following:

(a) the future medical and hospital expenses to be incurred,
(b) the costs of renovations or modifications to her home which was
purchased in July 2022 by the Trust and
(c) the past hospital and medical expenses.

[12] In respect of (c), Mr McIntosh indicated that the attorneys were attempting
to resolve this and on finalisation of leading all the evidence will advise the court
whether they have reached an agreement on this aspect and in respect of which
no agreement has been reached the court will be asked to issue directives and
make a finding thereon.

Preliminary remarks

[13] I do not propose to summarise the evidence of all the witnesses who
testified as this is a matter of record and their respective areas of agreement and
disagreement have been recorded in the respective joint minutes. In determining
the appropriate award to make in respect of the future medical, hospital and
related expenses, I have considered the witnesses respective experience in their
fields of expertise. I have also borne in mind their specific experience and training
involving children with cerebral palsy (CP) like A[...]. In addition, I am mindful that
all of them have indicated that there is a window of opportunity available for A[...]
to learn and for her condition to improve and thereafter one is concerned with
maintaining those levels.

[14] The current positio n of A[...] which ha s informed the evaluation of the
evidence given by the respective expert witnesses in relation to the cost of future
therapies and treatment required. These are the following:

(a) A[...] is presently enrolled at the Swan a School and i s attended to in
the mornings by her caregiver who readies her school;

(b) She attends school as a day scholar leaving in the mornings at
approximately 07h30. Whilst she is at school, she is assisted by a
teacher’s assistant ;

(c) She returns home at appr oximately 14h00 and is attended to by the
caregiver who attends to her up until approximately 22h00. Such
caregiver is a live -in caregiver who earns a salary of R6000 per
month. (This is the salary the caregiver earned 2022 at the time the
evidence was pre sented) ;

(d) The present caregiver attends to all of A[...]’s needs when she returns
home from school in the afternoon until the early evening ;

(e) A[...] will attend the Swana School until she turns 21;

(f) Jane van der Merwe has been appointed as A[...]'s case manager
and has acted in such capacity since approximately June 2021 ;

(g) A[...] sleeps well through the night and if she gets up, her mother
calms her down and puts her back to sleep ;

(h) A[...] is transported to school on the school bus and such
arrangements are “reasonably acceptable” ;

(i) In respect of all therapies awarded, A[...] will be expected to attend such
therapies until age 21 outside school hours;

(j) the caregiver's attend therapy s essions with A[...] and are expected to
carry out a home exercise routine as a consequence of which they
will require training specifically in relation to the care of cerebral palsy
children.

[15] I have also borne in mind that A[...] has missed certain w indows of
opportunity to improve and that she is severely cognitively impaired and that there
is no room for improvement in such cognitive impairment. Her cognitive
impairment limits her ability to make gains both physically and mentally, although
improvem ents have been noted. I accept, however, that such improvements will
be modest and/or limited.

[16] A[...]’s cerebral palsy is classified on the gross motor function classification
system (GMFCS) between a level I and a level II and may probably improve t o a
level I. GMFCS level I do not necessarily deteriorate. She has moderate to severe
mental and intellectual impairment, severe cognitive delay, mild physiological
limitations and a wide range of severe to profound neurological deficits.

[17] She has compromised oral and sensory motor impairment and drools a lot.
She is classified on the eating and drinking classification system (EDA CS system)
as a level II to II I implying that she eats and drinks with some limitation to safety
and is unable to chew her food, has difficulty swallowing, requires her food to be
blended and must be supervised during all eating activities.

[18] On the functional communication classification system ( FCCS), she is
classified as a level IV indicating the need for ass istance, specifically, when in
situations with unfamiliar people and environments. She is unable to verbally
communicate her daily needs and wants with familiar people. She presents with
severe limitations in expressive language and communicate s with gestu res and
will require alternative and augmented communication devices and speech
therapy to address her feeding and swallowing impairment, AAC and language
development.

[19] I have also considered that the respective experts have indicated from the
consul tations with A[...] that she has developed her own communication system
with members of her family and does show some improvement and that there is
room for improvement in this regard. So, for example, when she is hungry, she
will fetch her bowl, indicatin g that she is hungry and wants something to eat.

[20] On the GMFCS scale, she is able to mobilise independently and can stand
on each foot, one foot at a time for a few seconds, but presents with poor
balance, she is able to reach out without taking a st ep forward but both her right
and left side are impaired, with the right side being worse . She has poor dynamic
balance, tends to walk in a zig -zag fashion rather than in a straight line, she is
able to jump up and down and forwards but not typical of a ch ild of her age. She
is unable to jump backwards and is unable to hop. She has weakness of her right
upper and lower limbs. As a consequence, on the functional mobility scale she is
independent on level surfaces.

[21] She is classified as a level III on t he manual ability classification system,
which indicates that she handles objects with difficulty and presents with an
inability to use her hands functionally, she requires assistance to prepare and
modify activities, has less functionality in her right ha nd than her left, does not
handle objects in an age -appropriate way, has poor fine motor function of both
hands, requires moderate assistance with bathing, dressing and grooming and is
incapable of self -feeding at all and must be fed all her meals.

[22] A[...] will require the assistance of caregivers for the rem ainder of her life.
Whilst the family and her mother have provided such support it cannot be
expected that they do so for the reminder of her life1. She has suffered an insult
and must be appropriately compensated therefore.

The role of experts and the expert witnesses’ evidence

[23] In evaluating the evidence of the respective expert witnesses I have borne
in mind the value of expert reports in the determination of the quantum of a
litigant’s damages . Such reports are important not only for litigants but also for the
courts in order to discharge their duty to award just compensation.

[24] The general rule is that e xpert s must provide appreciable help to the courts
in assessing damages. It is only then that the matter is capable of being decided
with due regard to these reports. Trollip JA in Gentiruco AG v Firestone SA (Pty)
Ltd2 held that:

‘. . . the true and practical test of the admissibility of the opinion of a skilled
witness is whether or not the Court can receive 'appreciable help' from that
witness on the particular issue . . .’

[25] The expert opinion does not supplant the court's duty to scrutinise their

1 NH Mtshali v MEC for the Executive Council for Health , KwaZulu Natal Case No 10460/2015
delivered on 2 May 2023 at paragraph 44
2 Gentiruco AG v Firestone SA (Pty) L td 1972 (1) SA 589 (A) at 616H, the court referring to
Wigmore on Principles of Evidence (3 ed) Vol VII at paragraph 1923.
admissibility and relevance.3 They are also required to lay a factual basis for their
conclusions and explain their rea soning to the court. A court must be satisfied as
to the correctness of an expert's reasoning.4 A court is not bound by the view of
an expert and the ultimate decision maker on issues is the court - experts merely
provide an opinion.5 Of vi tal importance in such determination is that any facts,
which an expert witness expresses an opinion on, must be capable of being
reconciled with all the other evidence in a matter.

[26] In Bee6 Seriti JA writing a minority judgment held the following:

‘The facts on which the expert witness expresses an opinion must be
capable of being reconciled with all other evidence in the case. For an
opinion to be underpinned by proper reasoning, it must be based on
correct facts. Incorrect facts militate against proper reasoning and the
correct analysis of the facts is paramount for proper reasoning, failing
which the cou rt will not be able to properly assess the cogency of that
opinion. An expert opinion which lacks proper reasoning is not helpful to
the court .’

[27] The duties and responsibilities of expert witnesses specifically in civil
matters was dealt with in National Justice Compania Navier SA v Prudential
Assurance Cr Ltd (“the Ikarian Reefer”)7 where the court held the following:

‘The duties and responsibilities of expert witnesses in civil cases include
the following:

1. Expert evidence presented to the Court should be, and should be see n
to be, the independent product of the expert uninfluenced as to form or

3 Seyisi v S [2012] ZASCA 144; [2012] JOL 29518 (SCA) para 13.
4 Bee para 22.
5 Michael and another v Linksfield Park Clinic (Pty) Ltd and another [2002] 1 All SA 384 (A) para
34 (Michael ).
6 Bee para 23. See also Jacobs and another v Transnet Ltd t/ a Metrorail and another [2014]
ZASCA 113; 2015 (1) SA 139 (SCA) paras 15 -16 (Jacobs ).
7 National Justice Compania Naviera SA v Prudential Assurance Co Lt d (“The Ikarian Reefer”)
[1993] 2 Lloyd's Rep 68 at 81.
content by the exigencies of litigation ( Whitehouse v Jordan , [1981] 1 WLR
246 at p 256, per Lord Wilberforce).

2. An expert witness should provide independent assistance to the Co urt
by way of objective unbiased opinion in relation to matters within his
expertise (see Polivitte Ltd v Commercial Union Assurance Co Plc , [1987]
1 Lloyd's Rep 379 at p 386 per Mr Justice Garland and Re J , [1990] FCR
193 per Mr Justice Cazalet). An expert witness in the High Court should
never assume the role of an advocate.

3. An expert witness should state the facts or assumption upon which his
opinion is based. He should not omit to consider material facts which could
detract from his concluded opinion ( Re J sup).

4. An expert witness should make it clear when a particular question or
issue falls outsid e his expertise. 5. If an expert's opinion is not properly
researched because he considers that insufficient data is available, then
this must be stated with an indication that the opinion is no more than a
provisional one ( Re J sup). In cases where an exp ert witness who has
prepared a report could not assert that the report contained the truth, the
whole truth and nothing but the truth without some qualification, that
qualification should be stated in the report . . . ’

[28] Seriti JA (the minority judgmen t) in Bee8 the Supreme Court of Appeal also
considered the role of experts and stated as follows:

‘[22] It is trite that an expert witness is required to assist the court and not
to usurp the function of the court. Expert witnesses are required to lay a
factual bas is for their conclusions and explain their reasoning to the court.
The court must satisfy itself as to the correctness of the expert’s reasoning.

8 Bee paras 22 -23, see also Jacobs paras 15 and 16 and Coopers (South Africa) (Pty) Ltd v
Deutsche Gesellschaft Für Schädlingsbekämpfung mbH 1976 (3) SA 352 (A) at 371F -G.
In Masstores (Pty) Ltd v Pick ‘n Pay Retailers (Pty) Ltd [2015] ZASCA
164; 2016 (2) SA 586 (SCA) para 15, this court said

“Lastly, the expert evidence lacked any reasoning. An expert’s
opinion must be underpinned by proper reasoning in order for a
court to assess the cogency of that opinion. Absent any reasoning
the opinion is inadmissible”.

In Road Accident A ppeal Tribunal & others v Gouws & another [2017]
ZASCA 188 ; [2018] 1 ALL SA 701 (SCA) para 33, this court said

“Courts are not bound by the view of any expert. They make the
ultimate decision on issues on which experts provide an opinion”.

(See also Michael & another v Linksfield Park Clinic (Pty) Ltd & another [2002] 1
All SA 384 (A) para 34.)

[23] The facts on which the expert witness expresses an opinion must
be capable of being reconciled with all other evidence in the case. For an
opinion to be underpinned by proper reasoning, it must be based on
correct facts. Incorrect facts militate against pr oper reasoning and the
correct analysis of the facts is paramount for proper reasoning, failing
which the court will not be able to properly assess the cogency of that
opinion. An expert opinion which lacks proper reasoning is not helpful to
the court.’

[29] Ramsbottom J made the following remarks in R v Jacobs :9

‘Expert witnesses are witnesses who are allowed to speak as to their
opinion, but they are not the judges of the fact in relation to which they
express an opinion ; the Court . . . is the judge of the fact. . . . In cases of
this sort it is of the greatest importance that the value of the opinion should

9 Rex v Jacobs 1940 TPD 142 at 146 -147.
be capable of being tested ; and unless the expert witness states the
grounds upon which he bases his opinion it is not possible to test its
correctness, so as to fo rm a proper judgment upon it .’

[30] The role of an expert witness was succinctly summarised by the Supreme
Court of Appeal in Jacobs and another v Transnet Ltd t/a Metrorail and
another10as follows:

‘It is well established that an expert is required to assist the court, not the
party for whom he or she testifies. Objectivity is the central prerequisite for
his or her opinions. In assessing an expert's credibility an appellate court
can test his or her underlying reasoning and is in no wor se a position than
a trial court in that respect. Diemont JA put it thus in Stock v Stock :

”An expert . . . must be made to understand that he is there to assist
the Court. If he is to be helpful he must be neutral. The evidence of
such a witness is of little value where he, or she, is partisan and
consistently asserts the cause of the party who calls him. I may add
that when it comes to assessing the credibility of such a witness,
this Court can test his reasoning and is accordingly to that extent in
as good a position as the trial court was.”’ (footnotes omitted)

[31] In Schneider NO and others v AA and another11 Davis J remarked as
follows:

‘In short, an expert comes to court to give the court the benefit of his or her
expertise. Agreed, an expert is called by a particular party, presumably
because the conclusion of the expert, using his or her expertise, is in
favour of the line of argument o f the particular party. But that does not
absolve the expert from providing the court with as objective and unbiased
an opinion, based on his or her expertise, as possible. An expert is not a

10 Jacobs para 15.
11 Schneider NO and others v AA and another 2010 (5) SA 203 (WCC) at 211J – 212B.
hired gun who dispenses his or her expertise for the purposes of a
particular case. An expert does not assume the role of an advocate, nor
gives evidence which goes beyond the logic which is dictated by the
scientific knowledge which that expert claims to possess.’

[32] The parties rely on the evidence of expert witne sses to support their
divergent contentions. An expert witness’ opinion and evidence must be
considered holistically during the evaluation of the expert opinion.12 The
evaluation of expert testimony requires a consideration and determination of
whether and to what extent the opinions advanced have a logical basis and are
premised on logical reasoning.13

[33] The limitations to expert opinions are well known and courts are cautious
to assess the value of expert opinions without a consideration of the facts upon
which it is based. If it is determined that the facts are incorrect then it follows that
the expert opinion is flawed.14 In the case of S v Mthethwa15 the court stated the
following:

‘The weight attached to the testimony of the psychiatric expert witness is
inextricably linked to the reliability of the subject in question. Where the
subject is discredited the evidence of the expert witness who had relied on
what he was told by the subje ct would be of no value.’

[34] It is also apposite to mention the English decision of R v Turner ,16 which
reasoning has been applied wi th approval by our courts in the evaluation of
expert witness opinions. In that matter Lawton LJ stated:

‘Before a court can assess the value of an opinion it must know the facts
on which it is based. If the expert has been misinformed about the facts or

12 Life Healthcare Group (Pty) Ltd v Suliman [2018] ZASCA 118; 2019 (2) SA 185 (SCA) para 18.
13 Michael and another v Linksfield Park Clinic (Pty) Ltd and anoth er 2001 (3) SA 1188 (SCA) para
36-37.
14 Ndlovu v RAF 2014 (1) SA 415 (GSJ) para 35.
15 S v Mthethwa [2017] ZAWC 28 para 98.
16 R v Turner [1975] 1 ALL ER 70.
has taken irrelevant facts into consideration or has omitted to consider
relevant ones, the opinion is likely to be valueless .’

[35] In Bee17 the court quoted from the judgment in The State v Thomas ,18
which referred to the expert reports of two psychiatrists and said:

‘When dealing with expert evidence the court is guided by the expert
witness when deciding issues falling outside the knowledge of the court but
within the e xpert’s field of expertise; information the court otherwise does
not have access to. It is however of great importance that the value of the
expert opinion should be capable of being tested. This would only be
possible when the grounds on which the opinion is based is stated. It
remains ultimately the decision of the court and, although it would pay high
regard to the views and opinion of the expert, the court must, by
considering all the evidence and circumstances in the particular case, still
decide wheth er the expert opinion is correct and reliable.’ (footnotes
omitted)

[36] It is also trite that the role of the expert witness is to assist the court in
reaching a decision. A court is not bound by, nor obliged to accept the opinion of
any expert witness.19 The facts relied upon by the expert in his evidence must be
capable of being reconciled with all the other evidence.20 In addition, the facts on
which the expert witnesses rely must be established during the trial. The
exception relates to facts drawn as a conclusion by reason of the expert witness’
expertise from other facts that have been admitted or established by admi ssible
evidence.21


17 Bee para 29.
18 The State v Thomas [2016] NAHCMD 320 para 29.
19 Road Accident Appeal Tribunal & others v Gouws & another [2017] ZASCA 188; [2018] 1 ALL
SA 701 (SCA) para 33; Bee para 22.
20 Bee para 23 .
21 Mathebula v Road Accident Fund [2006] ZAGPHC 261 para 13 ; PriceWaterhouseCoopers para
99.
[37] In Jacobs ,22 the court held that:

‘Where experts in a joint minute reach an agreement on an issue, they
signify that such an issue need not be adjudicated upon as the initial
dispute simply does not exist. Unlike in an expert report where the factual
basis upon which the expert opinion hing es is indicated, parties to a joint
minute do not indicate such factual basis. They in essence simply agree
that a fact or opinion is not in dispute and it will in the normal course of
events not be open for a court to cut the veil of such an agreement and
question the veracity of the facts or opinion contained therein. By having
reached an agreement, they put the dispute beyond the need for
adjudication .’

[38] It is apparent from the aforementioned exposition on the applicable
principles that a distinctio n can be drawn between the facts upon which an
expert’s opinion is based and the expert's actual opinion.

[39] In A M & Another v MEC for Health, Western Cape 2021 (3) SA 337 (SCA)
Wallis JA writing for a full court held the following at 21 ‘The opinions of expert
witnesses involve the drawing of inferences from facts. The inferences must be
reasonably capable of being drawn from those facts. If they are tenuous, or far -
fetched, they cannot form the foundation for the court to make any finding of fact.
Furthermore, in any process of reasoning the drawing of inferences from the facts
must be based on admitted or proven facts and not matters of speculation.’

[40] The importance of joint minutes were stressed by the Supreme Court of
Appeal in Hal obo MML v MEC for Health, Free State 2022 (3) SA 571 SCA at
paragraph 49 as follows ‘It is trite that where experts agree on a matter of fact in a
joint minute, the parties are bound by the agreement and may not, without more,
deviate from the agreement, without proper explanation and the consideration of
prejudice.’


22 Jacobs v The Road Accident Fund [2019] ZAFSHC 4 ; 22019 JDR 0934 (FB) para 25.
[41] At paragraph 53 the court in relation to uncertainty concerning opinions the
court held the following ‘When dealing with the evidence of experts in a field
where medical certainty is virtually impossible, a court must determine whether
and to what extent their opinions advanced are founded on logical reasoning. The
court must be satisfied that such opinion has a logical basis, in other words that
the expert has considered comparative risks and benefits and has reached “a
defensible conclusion.”

[42] An opinion expressed without logical foundation can be rejected.’ Relying
on the status of joint minutes as expressed by the court in Bee v Road Accident
Fund the court held that where experts in the same field reach agreement a
litigant cannot be expected to adduce evidence on the agreed matters. A caution
was sounded that unless a trial court was for any reas on dissatisfied with the
expert’s agreement and had alerted the parties to the need to adduce evidence
on the agreed material it would be bound to accept the matters as agreed by the
experts. Bee v Road Accident Fund 2018 (4) SA 366 SCA at paragraph 73.

What then does one do when one has conflicting expert opinions and areas
of disagreement in a joint minute

[43] In AD and another v MEC for Health and Social Development, Western
Cape Provincial Government23 Rogers J as he then was deals with opinion
evidence, where he remarked as follows:

‘When faced with conflicting expert opinions, th e court must determine
which, if any, of the opinions to accept, based on the reasoning and
reliability of the expert witnesses. The court must determine whether and
to what extent an opinion is founded on logical reasoning. An expert’s
function is to assi st the court, not to be partisan. Objectivity is the central
prerequisite (see Michael & Another v Linksfield Park Clinic (Pty) Ltd &
Another 2001 (3) SA 1188 (SCA) paras 37 -39; Jacobs & Another v

23 AD and another v MEC for Health and Social Development, Western Cape Provincial
Government [2016] ZAWCHC 116 para 39 ( AD).
Transnet Ltd t/a Metrorail & Another 2015 (1) 139 (SCA) par as 14 -15). The
expert must not assume the role of advocate. If the expert’s evidence is to
assist the court he or she must be neutral. The expert should state the
facts or assumptions from which his or her reasoning proceeds
(PriceWaterhouseCoopers Inc & O thers v National Potato Co -Operative
Ltd & Another [2015] 2 All SA 403 (SCA) paras 97 -99.) ‘

[44] Further, in AD he held the following:24

‘The expert must demonstrate to the court that he or she has relevant
knowledge and experience to offer opinion evidence. If such knowledge
and experience is shown, the expert can draw on the general body of
knowledge and understanding of the relevant exper tise.’

Contingencies

[45] Some preliminary remarks are warranted in relation to contingencies. I
have in this matter been requested to apply a contingency by the defendant in
relation to life expectancy, certain of the therapies and equipment as well as to
the care giving model.

[46] Contingencies allow for the unknown possibility that the plaintiff may have
less than normal expectations of life, that he or she may have experienced
periods of unemployment, illness, accident or general economic conditions.
These relate to what is often referred to as ‘imponderables’ and speculation about
the future. In addition, age is an important factor in calculating co ntingencies.

[47] That the calculation of contingencies is not an easy task and is not cast in
stone was noted by Willis JA in NK v MEC for Health , Gauteng25 as follows:


24 AD para 42. a
25 NK v MEC for Health, Gauteng 2018 (4) SA 454 (SCA) para 16.
‘…[Contingencies are like] the rolling of a dice. A court is not a
casino…Conjecture may be required in making a contingency deduction,
but it should not be done whimsically.’

[48] In Buys v MEC for Health and Social Development of the Gauteng
Provincial G overnment26 the court summarised the position in regard to
contingencies as follows:

‘Contingencies are the hazards of life that normally beset the lives and
circumstances of ordinary people (AA Mutual Ins Co v Van Jaarsveld (1),
The Quantum of Damages, Vol II 360 at 367) and should therefore, by its
very nature, be a process of subjective impression or estimation rather
than objective calculation (Shield Ins Co Ltd v Booysen 1979 (3) SA 953
(A) at 965 G -H). Contingencies for which allowance should be made,
would usually include the following:

▪ the possibility of errors in the estimation of life expectation;

▪ the possibility of illness which would have occurred in any
event;

▪ inflation or deflation of the value of money in future; and

▪ other risks of life, such as accidents or even death, which
would have become a reality, sooner or later, in any event.’

[49] Any enquiry into the appropriate contingency to be applied is speculative.
Although mentioned in the context of past and future loss of earnings, in Southern
Insurance Association Ltd v Bailey NO27 the court held the following:


26 Buys v MEC for Health and Social Development of the Gauteng Provincial Government [2015]
ZAGPPHC 530 para 96.
27 Southern Insurance Association Ltd v Bailey NO 1984 (1) SA 98 (A) 113F -G.
‘Any enquiry into damages for loss of earning capacity is of its nature
speculative, because it involves a prediction as to the future, without the
benefit of crystal balls, soothsayers, augurs or oracles. All that the Court
can do is to make an estimate, w hich is often a very rough estimate, of the
present value of the loss.’

[50] At 114C -E the court further remarked:

‘In a case where the Court has before it material on which an actuarial
calculation can usefully be made, I do not think that the first app roach
offers any advantage over the second. On the contrary, while the result of
an actuarial computation may be no more than an “informed guess”, it has
the advantage of an attempt to ascertain the value of what was lost on a
logical basis; whereas the tr ial Judge’s “gut feeling” (to use the words of
appellant’s counsel) as to what is fair and reasonable is nothing more than
a blind guess.’

[51] The amount to be allowed by way of a deduction for contingencies is
variable and dependent on the circumstances of a particular case in which a trial
judge is asked to exercise his or her discretion. Arbitrary considerations inevitably
come to play. This was confirmed by Margot J in Goodall v President Insurance
Co Ltd :28

‘In the assessment of a proper allowance for contingencies, arbitrary
considerations must inevitably play a part, for the art or science of
foretelling the future, so confidently prac tised by ancient prophets and
soothsayers, and by modern authors of a certain type of almanack, is not
numbered among the qualifications for judicial office.’

[52] Both parties accept that this court has a wide discretion to determine what
an appropriate contingency deduction ought to be and accept that sometimes
arbitrary considerations play a part in the assessment of a contingency

28 Goodall v President Insurance Co Ltd 1978 (1) SA 389 (W) at 392H -393A .
allowance. When the matter was first enrolled for oral and writ ten submissions,
the plaintiff submitted that no contingency deduction ought to apply to the
calculation of future medical expenses.

[53] These submissions were particularly applicable in light of the following:

(a) every item of expenditure had been meticulously considered by the
individual experts concerned and based on their experience and a
consideration of A[...]'s condition, each expe rt recommended what
future medical needs would be required for A[...];

(b) in circumstances where the experts reached agreement on
individual expenses, an appropriate contingency had already been
taken into account, as with for example blood tests where a 50%
contingency was agreed;

(c) all duplications had been removed from the calculation of A[...]’s
future hospital and medical expenses; and

(d) in relation to the costs of caregivers, the estimation has taken into
account what will be paid over A[...]’s life expectancy, and there is
no additional surplus that can be trimmed or removed from the
calculations and any reduction by way of a contingency will result in
a loss to Trust which is responsible for the administration of her
needs A[...].

[54] It is for these reasons that the plaintiff submitted that no contingency
deduction ought to apply to the calculation of future medical expenses.

[55] The defendant acknowledges that where a court makes assumptions, it is
necessary for them to be supported by proven available facts in order to be
relevant. To make an assessment of what damages are fair and reasonable, one
must have regard to the possibilities that the assumptions may not fully
materialise or will only partially come into future fruition. In de termining the nature
of the contingency to be considered by a court, one considers the facts and
circumstances of a particular matter, subject to the exercise by the court of a
discretion.

[56] The defendant submitted that when considering the question o f
contingencies in this particular matter, this court must take the following into
consideration, namely:

(a) that there is a probability that A[...] will not receive all the therapies
and utilise all the devices awarded to her;

(b) one must consider the high crime statistics which increase the risk
of A[...] being a victim of a serious crime;

(c) the risk of her being involved in a serious motor vehicle accident;

(d) that unknown genetic health conditions will arise which may sho rten
her life expectancy;

(e) the three aspects which Dr Campbell was unwilling to factor in his
calculation will affect negatively on A[...]’s life expectancy, being the
fact that she is overweight, the possible incidence of respiratory
tract infections and/or chest infections; and

(f) having been awarded funds, the plaintiff ought to have ensured that
A[...]’s damages are mitigated by ensuring that her condition is not
exacerbated and that she underwent the necessary interventions
where there was a wi ndow of opportunity.

[57] The defen dant proposed that once directives had been given to the
actuaries, the court could reconvene and the parties could make submissions on
the applicable contingencies to apply.

[58] Given this, the court reconvened to deal inter alia with the aspect of
contingencies. A directive was issued to the parties to specifically address this,
given that certain contingencies were already taken into account by the experts
and the parties in the determination of future medical and hospital expenses and
the defendant’s stance that a contingency ought to apply to A[...]’s life
expectancy. A directive was thus issued to the parties which the parties
addressed at a reconvened hearing.

[59] There are two seminal judgments which deal with the appropriate
contingency deduction to be applied to future hospital and medical expenses, and
where certain factors were considered when applying such a contingency. These
are the decisions of Koen J in Singh and A nother v Ebrahim (1)29 and that of
Rogers J, in AD and Another v MEC for Health and Social Development, Western
Cape Provincial Government .30

[60] In Singh , the court initially considered app lying an appropriate contingency
deduction in respect of each and every item which comprised the future medical
costs, however Koen J concluded that such an approach would lead to an
impossible varying of the contingency deduction rates in respect of some items
which might, when compared with others be difficult to justify.

[61] He opined that such a determination would ‘ seek to raise the determination
of an appropriate contingency to a level of mathematical precision, to which that
exercise does not lend itself, and which is ultimately undesirable’.31 The approach
which Koen J adopted was to apply a contingency once the various rulings on
different aspects of the case had been embodied in a schedule and actuarially
calculated to take account of amended variables. A ruli ng on a contingency was
only provided in the final judgment once the actuarial calculations had been made

29 Singh and Another v Ebrahim (1) [2010] 3 All SA 187 (D).
30 AD and Another v MEC for Health and Social Development, Western Cape Provincial
Government [2016] ZAWCHC 116.
31 Singh and Another v Ebrahim (2) [2010] 3 All SA 240 (D) para 12 .
and submitted to him.32

[62] He then applied a 10% contingency deduction. Such contingency
deduction app ears to have been influenced over concerns he had, that a
maximum tariff had been implied in some instances, the effectiveness of some of
the therapies, whether all therapies would continue as proposed by the experts,
whether some therapies would be carrie d out with the diligence with which they
had been claimed, the possibility that there would be insufficient time to fit in all
the therapies claimed, the possibility that some therapies may be discontinued as
no benefit was to be gained from continuing wit h such therapies and also to allow
for a rest period each year from such therapies.33

[63] Rogers J in the AD case did not follow the approach of Koen J and did not
apply a general contingency deduction to the calculation of future medical
expenses. In declining to follow Koen J’s approach, he held the following:

‘[600] The defendant’s counsel raised the possibil ity of applying a
contingency deduction to future medical costs. A contingency deduction
was made by the court a quo in Singh , a discretionary decision in which
the SCA did not interfere. A similar approach was followed by Fourie J in
Buys v MEC for Health and Social Development, Gauteng [2015]
ZAGPPHC 530. The deductions in these cases were 10% and 15%
respectively. The defendant’s counsel said that they did not ask for a
global contingency deduction of this kind.

[601] In Singh the deduction was made bec ause the judge was doubtful
about some of the medical expenses (eg items allowed at the maximum
tariff where less might be charged, doubts as to the effectiveness of some
of the therapies, whether therapy programs would run their full course,
whether they would be diligently carried out, the difficulty of
accommodating all of them in the child’s schedule and so forth – see para

32 Singh and Another v Ebrahim (1) para 177 .
33 Ibid para 107 .
107). While I make no pretence to be able to predict IDT’s future expenses
precisely, I have attempted in each instance to determin e whether the
intervention would be reasonable and, if so, its reasonable cost. In regard
to time -based interventions, particularly physiotherapy and psychotherapy,
I have taken into account what can reasonably be accommodated in IDT’s
schedule. I do not r egard the possibility that the costs will be less than I
have assessed them as exceeding the opposite possibility. This includes
the possibility that new treatments, not yet dreamt of, may become
available which might reduce or increase the overall expendi ture on IDT’s
health.

[602] The factors mentioned in Buys in support of the contingency
deduction were: (i) the possibility of errors in the estimation of LE; (ii) the
possibility of illness which might have occurred in any event; (iii) inflation or
deflation; (iv) “other risks of life, such as accidents or even death, which
would have become a reality sooner or later, in any event”. I do not find
these compelling:

• As to (i), I have determined IDT’ s post -morbid LE on the basis of
evidence before me. Things may turn out differently but that
could cut both ways. IDT’s life might be longer or shorter. One
might think intuitively that he is more likely to die in the 48 years
from now to age 55 than surv ive beyond age 55 but that may not
be sound. Dr Strauss’ life table for IDT’s cohort as from age
seven reflects slightly fewer death in the group aged 7 – 55 than
in the group aged 55 and beyond.

• As to (ii), there is no evidence that the illnesses of which IDT may
have been at risk pre -morbidly will not still be a risk for him. He is
not being compensated for the cost of treating them. There is no
notional saving post -morbidly.

• As to (iii), the parties here have agreed a net discount rate. There
is no evidence that medical inflation is more likely to differ from
the agreed rate in one direction than the other.

• Factor (iv) seems to be a different way of expressing factor (i).

[603] Accordin gly I do not intend to make a general contingency deduction
from medical expenses. This is by no means novel (see, eg, Van Deventer
v Premier Gauteng [2004 TPD] C & H Vol V E2.1; De Jongh v Du Pisanie
NO 2005 (5) SA 457 (SCA) paras 48 -49; Lochner v MEC for Health and
Social Development, Mpumalanga supra paras 32, 37 etc). I have borne in
mind the possibility of item -specific contingencies but have not considered
it appropriate to make deductions save for the psychiatric claims which
were advanced and have b een allowed on the basis of a percentage risk.
(A number of items were settled on the basis of a percentage risk.)’

[64] I have carefully considered the submissions of both parties in respect of
applying a contingency deduction. In the portion of the judg ment which dealt with
the life expectancy and the criticisms of Campbell’s calculation thereof, I have
declined to apply a contingency as suggested by the defendant. Pillay, the
paediatrician, has accounted for the possibility of chest infections which may arise
in the latter part of her life. Given the fact that A[...] will be provided with the
necessary therapies going forward, optimal care and treatment, I do not foresee a
possibility given her GMFSC level as well as any CF level which justify such a
contingency deduction and I decline to do so specifically in relation to A[...]’s life
expectancy.

[65] If one considers the evidence presented by the various experts and what
has been agreed on by the parties largely due to compromises on the part of their
respective experts, contingency deductions have already been built into the
assessment of the future medical needs and devi ces required for A[...]. All
duplications have been removed from the calculation of the future medical and
hospital expenses, and I am mindful of the fact that the fear expressed by Koen J
in that there may be an overstatement of therapy does not apply in this matter.

[66] I also agree with the submission of the plaintiff that, having regard
specifically to the cost agreed upon in respect of caregivers, which is in large part
a compromise, and what has been provided for her, any further contingency to
these costs will result in a loss to the Trust, which is required to make provision
for her future needs.

[67] In determining the various therapies to be provided, I have been mindful of
the concerns expressed by Koen J in Singh specifically whether all th erapies will
be needed, the effectiveness thereof, that some may not be carried out with the
diligence with which they have been claimed, considering the fact that A[...]’s
endurance will lessen as she grows older, the difficulties in scheduling all the
therapies for her, the possible interruption of certain therapies, but more
importantly, the fact that a lot of the therapies towards the latter part of her life are
maintenance therapies given the fact that all the experts are in agreement that a
maximum be nefit stage will be reached over the course of her life and the
continued therapy would merely be to maintain her condition and prevent any
further deterioration.

The evidence

[68] Several expert witnesses testified for both parties and where there were
two experts in a particular field they prepared joint minutes. Only one expert
testified in relation to life expectancy. Given that there was no agreement on this
a substantial portion of t he judgment will be devoted to this aspect . This is also
as it will determine the time period for which A[...] will be required to be
compensated.

Life Expectancy

[69] Dr Robert Campbell (Campbell) was briefed by the Plaintiff to consult with
and prepare a medico -legal report in relation to the estimation of A[...]’s life
expectancy. Although he is a general practitioner he has approximately twenty
years of experience as a rehabilitation and life exp ectancy expert. He had done
research and studied the relevant methodology . He has co -written with renowned
life expectancy experts such as Strauss, Brooks and the actuary Gregory
Whittaker.

[70] His report was prepared and written from a rehabilitation medicine
perspective and with a focus on physical rehabilitation. He testified that a
rehabilitation medical practitioner bridges the gap between impairment following
injury and illness and functionality and independence.

[71] In his initial report, whe n he interviewed A[...] together with her mother in
September 2018 he was advised as follows:

(a) that currently A[...] lives at home and is taken care of by her mother
and her grandmother;

(b) A[...] requires care and supervision at all times;

(c) A[...] is likely to start menstruating soon, her mother is concerned as
to how this would affect her;

(d) A[...] is only able to tolerate soft food and her mother is unsure
whether this would always be the case in the future;

(e) A[...] cannot communicate or express her needs, wants and
concerns;

(f) The plaintiff believes that she will need a full time caregiver to assist
with A[...]’s care as she is working and not at home during the day
and A[...] is cared for by her grandmother who is getting old and
who is unable to cope with A[...].

[72] During the early hours of the morning A[...] gets up and wants to watch
television. Because she sleeps with her, she calms her down, settles her and puts
A[...] back to sleep again. A[...] then wakes up again at around 04:30 a.m. walks
around and follows her mother around as she is getting ready fo r work. When
A[...]’s mother leaves for work at 06:00 a.m. A[...]’s grandmother takes over her
care and supervision. A[...] plays in and outside the house, chases the chickens
and tends to pull the furniture around.

[73] A[...]’s breakfast, usually giv en to her around 08:00 a.m. is either Weetbix
or break soaked in milk or some other type of soft food. A[...] sits on the chair on
the floor for her meals and is fed either by her or her grandmother. Although A[...]
opens her mouth for food, she cannot ta ke it off the spoon and the food must be
poured into her mouth for her. This often results in food spilling from her mouth
while she is eating but A[...] rarely coughs or chokes. Meal time lasts for
approximately 20 to 40 minutes.

[74] When A[...] is hungry she indicates her hunger by going to fetch her food
or a bowl and asks to be fed by showing this to her mother or grandmother. A[...]
has water to drink after a meal which must be given to her in a cup which is held
whilst the water or liquid is po ured into her mouth. A[...] tends to mess the liquid
all over herself if she tries to drink independently. During the morning whilst her
grandmother is busy with her chores, A[...] plays around the house.

[75] At approximately 11h00 she is bathed and her grandmother fetches water
from the communal tap. (This is no longer the position since the family have
relocated to Noordsig). A[...] does try to assist her grandmother to help her bath
but is supervised and requires assistance to do so. She enjoys b athing and sits
independently in the bath water.

[76] Lunch time is around 13:00pm and similarly she fetches the bowl to
indicate to her grandmother that she is hungry. A[...] will play and watch
television during the course of the afternoon until her mother returns from work in
the late afternoon to assist in caring for A[...]. Supper time is between 16:00pm
and 18:00pm and thereafter A[...] settles down around 20:00pm to sleep.

[77] A[...] has had about 4 to 5 episodes of seizures during the course of her
life which commenced around about the age of 2. S he has not had any seizure
episodes in the last two years and has never been put on medication for such
problem. A[...] cannot talk, she makes moaning noises and cries and drools
excessively and grinds her teeth. A[...] uses nappies to manage her bladder and
bowel incontinence but is able to indicate the need to go to the toilet using non -
verbal communication during the day. However, she is entirely dependent on
nappies during the night.

[78] A[...] has mild to moderate asymmetrical spastic pattern of movement
disorder. Her movement is weaker on the right hand side and in her upper limbs
when compared to her left hand side and lower limbs. He classified A[...] on
GMFCS level 1 which is a reliable tool to assess levels of gross motor function
with leve l 1 representing individuals with the least severe restriction of
functioning.

[79] He classified A[...] on GMFCS level 1 as she is between the age of 6 and
12 years as “she can walk at home, school, outdoors and in the community”. She
is able to walk up and down kerbs without physical assistance and stairs without
the use of a railing. She performs gross motor skills such as running and
jumping, but speed, balance and coordination are limited.

[80] With respect to her fine motor skills and upper limb movement, although
A[...] is able to pick up and handle light objects and toys she is unable to hold
heavier objects. Movement and function is better on the left than on the right side
of her body.

[81] In respect of the MACS which organises individuals at different levels of
hand function he classifies A[...] on level 4, as she is able to handle a limited
selection of easily managed objects in adapted situations, that she performs parts
of activitie s with effort and with limited success. A[...] requires continuous support
and assistance and/or adaptive equipment even for partial achievement of
activity.

[82] In addition to primary sensory -motor impairments, A[...] has the following
associated impair ments, namely moderate to severe cognitive impairment, severe
communication impairment, incontinence and mild to moderate visual impairment.

[83] A[...] is fully conscious and aware of her environment and interacts readily
with it. She is friendly but be comes irritable if she does not get her way. She
initiates contact only with people who are known to her and is able to express her
needs and wants through non -verbal communication and cues. Her ability to be
attentive and concentrate is impaired. She is a ble to see and fix her gaze and
track movement, but has a variable squint in the right eye with loss of medial
deviation. Her hearing is intact and there are no signs of chronic or recurrent pain.
A[...] cannot talk and only makes moaning noises and cries. She requires a
modified soft textured diet and is dependent on careful feeding by others. She
has good facial expression, but tends to keep her mouth in an open position,
drools excessively and grinds her teeth.

[84] In September 2018 A[...] weighed 52.4 kg which is above the 95th centile
line on an appropriate centile chart placing her well above the zone of concern for
an increased risk of morbidity and mortality associated with low we ight for age.
She still continues to use nappies, especially at night, although she has
developed some ability to delay bladder emptying.

[85] She exhibits good head and trunk control in all positions tending to slump
her trunk in sitting sometimes. She is able to move all four limbs without any
difficulty but movement appears somewhat weaker and of poor quality on the
right when compared with the left. Her gross motor function is not obviously
impaired but she exhibits poor fine motor function. She is ab le to pick up and hold
objects but with a coarse mass grasp with primitive pincer grip only.

[86] She has no obvious signs of severe impairment of muscle tone but there is
an impression of mildly decreased muscle tone in her trunk and neck. Her resting
limb tone is grossly intact. Her sitting and standing balance are good. She walks
by holding her arms against her sides with her elbows and wrists flexed in front of
her. Although she is awkward she is stable while walking.

[87] She recognised sounds, voi ces and her own name and understands some
simple instructions. Although she is unable to speak at all she can communicate
some things like hunger through non -verbal methods of communication. On the
communication function classification scale (CFCS), which classifies an
individual's ability to engage in receptive and expressive functional
communication with level 5 being the lowest level, he classified A[...] on level 4.
This means she is limited as both a sender and receiver. Her communication is
difficult for most people to understand and she has limited understanding of
messages from most people. Communication is seldom effective even with
familiar partners.

[88] A[...] is fully independent with respect to all aspects of movement and
mobility and she is a ble to lift her head in all positions, roll over without any
difficulty in all directions. She transitions independently from lying to sitting and
sitting to standing, can sit and stand without support and can walk and run.

[89] On the eating and drinkin g classification scale (EADCS), which classifies
a person's ability to eat and drink and rates feeding and swallowing ability, A[...] is
classified on level 3. People on this level are described as eating and drinking
with some limitations to safety and th ere may be limitations to efficiency.

[90] At the time of his consultation with her and the completion of his report in
November 2018, A[...] had been seizure -free for over two years and had never
received medication for it and had no history of respirat ory problems with no signs
of cardiac, respiratory or abdominal problems.

[91] In determining A[...]'s life expectancy he followed the following approach,
namely:

(a) he used A[...]'s current age of 8.8 years as a calculation point;

(b) used the relevant life table being life table 2;

(c) the different research groups which have studied survival trends in
cerebral palsy;

(d) the research and publications from the researchers working out of
California (Strauss and Brooks et al.) provided the most useful and
precise framework for use in the estimation;

(e) A[...]'s level of mobility and ability to feed represent the two most
important predictors of the impact of cerebral palsy on survival and
life expectancy;

(f) accepted that the results of the research performed in California can
be app lied in a South African context by adjusting for the differences
between general population life expectancy in the USA and that in
South Africa.

[92] In calculating A[...]'s estimation of life expectancy he took into account the
relevant clinical assumpti ons from the various classifications he has done and
compared her with 8.8 year old girls with cerebral palsy who can walk unaided
and who are fed orally by others and whose weight is satisfactory. He has also
considered the table 2 from Brooks’ recent pub lication from the California Group
and the probability of survival of children between the ages of 4 and 30 including
in the walks unaided and fed orally by others functional group. He has made use
of data from this table and he has calculated that a typic al 8 year old girl in A[...]'s
functional group has an 88.7% chance of surviving until the age of 30 years.

[93] Secondly, a typical 8 year old girl in the same group has a life expectancy
that is 56.1 years compared to 73.2 years in the USA general popu lation.
However, because A[...] has more severe cognitive impairments than any other
children in the functional gr oup it was appropriate to make an adjustment for the
probable impact of her severe cognitive impairment on mortality. As a
consequence he has increased the mortality rates used by 1.35 and when this is
applied to 8 year old girls in this customised functio nal group a life expectancy of
an additional 15.7. However, because the research emanates from the USA the
life expectancy of the general population is better than in South Africa those
results could not be used and applied to A[...] without qualification.

[94] The defendant’s cross -examination of Dr Campbell focused on his ability to
testify as a life expectancy expert given his qualifications and that the assessment
of A[...]’s life expectancy had to be reduced or an appropriate contingency had to
be ap plied due the use of Koch’s life table 2 , her substantial weight increase , and
the risk of epilepsy and respiratory infections in the latter part of her life.

[95] He was challenged on the fact that he is a qualified medical practitioner
and not an actuary and in his evidence in this matter and in other matters
involving life expectancy, he has relied on the methodology followed by life
expectancy experts like David Strauss and Jordan Brooks, that he has referred to
papers written by them and has merely collaborated with them on matters and
interacted with them.

[96] He has relied on his involvement in the medical field and written papers on
life expectancy. He was challenged on the fact that apart from the Singh , matter
courts in judgments in which he has testified as an expert have not approved the
process of qualification that he has described. It was suggested to him that what
he relies on is his expertise as a m edical doctor, papers that have been written by
others, specifically in California and his interaction with other life expectancy
experts and the fact that he has collaborated with Strauss to produce a paper on
life expectancy in South Africa.

[97] Campb ell’s response to this was that he had the knowledge, experience
and expertise which has been accepted by both plaintiffs and defendants and he
has testified on life expectancy in courts of law who have accepted the
methodology he has used and his experien ce in the field of rehabilitation
medicine.

[98] He indicated that he is the only person in South Africa to research the life
expectancy of children with cerebral palsy in which he collaborated with Dr
Jordan Brooks and Gregory Whittaker . He collected t he data, analysed the data
and report ed on it. He is also the only published African researcher in the field of
life expectancy in cerebral palsy. The assessment of life expectancy falls into an
inter-disciplinary field which marries aspects of actuarial s cience and medical
science, and that his knowledge, skills, expertise and experience as a medical
practitioner are a strong foundation to provide the opinion.

[99] The second challenge to his evidence was his use of the Koch life table 2
from 1984 for whi te males. He indicated that there are no South African tables
that have been published since the 1984 one and the 1986 that are based on
empirical evidence. He indicated that the 1984, 1986 tables are the only four life
tables that are available. It was su ggested to him that the 1984 life tables
pertaining to the white population is an outdated table and that there are other life
tables available. He indicated that there is legal precedent for the use of Koch 2
life tables and that if the court was of the v iew that Koch life table 3 would be
more appropriate, it would have the effect of reducing the life expectancy by two
years at most.

[100] He was pertinently asked whether he was of the view that the 1984 life
table was out of date and he disagreed and i ndicated that although it is an old
table it is still valid. He was requested to look at Koch life table 3 to indicate what
difference there would be in A[...]'s life expectancy if such table was used. He
was given an opportunity to do so and he did a comparison between Koch life
table 2 and Koch life table 3 and he indicated that there was a differential of 1.7
years.

[101] The second aspect dealt with during the course of cross -examination was
the risk of respiratory tract infections in A[...]. He confirmed that there is an
increased risk of respiratory tract problems and infections in people with cerebral
palsy, but it differs on the severity of the cerebral palsy with which they are
diagnosed with. He confirmed that the empirical evidence indicated that the risk of
respiratory tract infections which leads to pneumonia and consequently resulting
in death is a factor that one has to consider. He confirmed that he had considered
this and dealt with it in his report.

[102] He acknowledged that risk factor was taken into account in relation to
A[...]. He considered her specific profile and her history of respiratory tract
infections. If in her medical history, i t demonstrated that she experienced an
increase in respiratory tract infections or respiratory tract infections which
required specialist care or hospitalisation in the period leading up to his
assessments, then he would have assessed her as being worse of f than her
comparison functional group peers and it would have been appropriate for him to
make an adjustment to the estimated life expectancy.

[103] He indicated that as no such risk was reported it was not appropriate to
make any adjustments. He acknowl edged that the risk of respiratory infections in
the future was in line with that of her functional peer group and has been
accounted for.

[104] The next aspect dealt with in cross examination was A[...]'s epilepsy. He
confirmed that she has had six episo des of epilepsy, the last one being on 13
April 2021 and it is under control given the use of Epilim. There was a risk that
A[...] could have further seizures in the future. It was suggested by Mr Van
Niekerk that there was an apparent problem with the us e of Epilim as since her
use thereof it has increased her weight substantially as indicated by Jane
Bainbridge.

[105] He indicated that when he first weighed in 2018 her weight was well over
the 95th centile line and she weighed 52 kilograms. When he com pleted his third
report she weighed 70.5 kilograms, a variable of approximately 17 kilograms. It
was suggested to him that such an increase in her physical weight was
attributable to the use of Epilim. Campbell indicated that the increase in her
weight is not remarkable as if one tracks her growth on the chart she has stayed
on a similar point on the centile chart above the 95th centile line and A[...]'s
increase in weight has therefore been in line with pre -adolescent growth spurts
which one would expect.

[106] He indicated that when one compares the increase in her weight against
the centile chart and the objective evidence, the weight gain is not unexpected
despite evidence of the significant weight increase. When pressed by Mr Van
Niekerk he acknowledged that she has gained 17 kilograms. The question for him
to be considered in relation to her weight gain is whether it is remarkable,
unremarkable and whether it is expected or unexpected. He indicated that such
weight gain is not unexpected if one considers the centile chart.

[107] One would have expected an increase in weight in this period and this is
based on the empirical evidence being the centile chart. A[...] has gained weight
in line with tracking her position on the centile chart. She was overweight wh en he
did his assessment in 2018 and she is at a similar point on the centile chart in
2022 and that there has not been an acceleration of weight after the addition of
Epilim. He confirmed that Epilim does have a side effect of increased weight in
some peo ple as it stimulates appetite and would contribute to weight gain.

[108] He indicated when asked to comment on the consequence of such weight
gain in a child with cerebral palsy he prefaced it by saying that he rejected the
contention that there is a connection between Epilim and A[...] and her weight
gain. He indicated that th ere is no empirical evidence as to exactly what the
impact and extent of weight gain is. He indicated in answer to the suggestion by
Mr Van Niekerk that it may affect the mobility and activity of the child. In other
words, A[...] may become less active and less mobile. That was an assumption
which has not been borne out by the research, although it may be true in an
individual who has excessive weight gain.

[109] When asked to comment that the use of Epilim may be the cause of her
weight gain and that othe r experts are of the view that it may affect her
detrimentally in the long run particularly in so far as her level of activity and
mobility is concerned, he indicated that in patients he has encountered who have
experienced problems with weight gain relate d to Epilim one then alters the
medication to one which does not stimulate weight gain, although he emphasised
that he disagreed that her weight gain was due to the Epilim and if it was, he
would manage it with changing her medication.

[110] He indicated that it was possible that if she has a weight problem, it would
affect her health detrimentally in the future, but it could be managed once A[...]
has access to appropriate care. He was then asked to pertinently comment as to
whether this would affect her life expectancy. Campbell's response was that when
one considers the approach taken by Strauss, Brooks and others there is a
possibility that the condition of a person may get better or worse but this was
purely speculative. He disagreed with the proposit ion that A[...]'s condition would
worsen. He indicated that he could not discount it. He disagreed with the
proposition that the assessment of her life expectancy had to consider A[...]'s
ability to climb stairs or slopes or uneven ground.

[111] The test that one uses for life expectancy is whether or not A[...] can walk
unaided for 20 feet. The proposition was put to him that her personal situation is
not something that can be excluded from the equation of her life expectancy and
that her weight gain is a problem and it would have an effect on her mobility in the
future. He indicated that the weight gain was not out of keeping with her tracking
above the 95th centile line and is unremarkable and that secondly any perceived
change in her mobility at this s tage is not relevant to the estimation of life
expectancy given the methodology that is used, namely that as long as she can
walk unaided for 20 steps it does not affect the calculation of life expectancy.

[112] He also indicated that it would be inappro priate for the defendant to argue
that the court ought to take these personal factors into account and that a failure
to do so would be an incorrect approach. He indicated that he has followed the
approach laid out by researchers and has taken additional f actors into account.
A[...]'s profile of features fall within those which one could expect inside the
functional group and these features are not so grossly outside of typical for this
particular functional group for an adjustment to be warranted to the li fe
expectancy in objective scientific terms.

[113] He acknowledged that the estimation of life expectancy based on the
literature is a general acceptance and that it was impossible to predict with any
degree of certainty how long a person like A[...] would live and he agreed with this
submission. He also agreed that although there is no available information on the
survival of persons with cerebral palsy in South Africa against whom one can
compare A[...], the database that Strauss uses is the life expecta ncy project
conducted in the USA database and that that is what he uses.

[114] He conceded t hat he is not an actuary or statistician but a general
practitioner and relies on the information available in peer reviewed publications.
He confirmed that although life expectancy is an inexact science two experts may
disagree on calculations and there m ay be a variance of 3 to 5 years. As there is
no expert with a contrary view he has presented his assumptions based on a
scientific approach and believe them to be reasonable, fair and unchallenged. He
defended the suggestion that his estimate of life expe ctancy was speculative and
he indicated that it provided a fair start point and it is reliable, although imperfect
as the methodology used is sufficiently reliable on which to base a computation of
damages.

[115] I am of the view that the defendant’s crit icism of Campbell’s expertise to
comment and proffer an opinion on A[...]’s life expectancy is unfounded. When
he testified he confirmed that since 1999 he has practised exclusively in physical
rehabilitation medicine as a clinician and as leader in a gro up of hospitals
providing rehabilitation services to adults and children around the country.

[116] He has published and taught in the field of physical rehabilitation medicine
both nationally and internationally. He has published in the Peer Review Press
with Dr Brooks and Greg Whittaker. Together the three of them published the first
research paper on the survival of children with cerebral palsy in South Africa. Dr
Jordan Brooks is with the Life Expectancy Project in the USA, California and is
one of the principal researchers in research dealing with life expectancy in South
Africa, along with Professor David Strauss.

[117] He has also been assisting the court as an expert witness in life
expectancy for approximately 22 years since late April 2000. He ha s testified as
an expert witness in life expectancy both by plaintiff and defendant's attorneys,
including the Medical Protection Society for private claims, the Western Cape
Department of Health, the Eastern Cape Department of Health, KwaZulu -Natal
Depart ment of Health, Free State, Northern Cape, Mpumalanga, Gauteng and
Limpopo.

[118] The defendant did not lead the evidence of or provide any expert report of
its own life expectancy expert, to challenge the opinion Campbell , and contented
itself with a ch allenge to his expertise. In the absence of a contrary opinion I
accept his evidence of the assessment of her life expectancy. In addition, given
his experience in the field, I accept that he is qualified to proffer such opinion.

[119] He confirmed that h e completed three reports in the matter and in all three
reports her life expectancy remains unchanged, namely that she would live a
further 47.2 years and that A[...]'s total expected survival time is 56 years.

[120] In doing so, he considered Koch’s life table 2 and also the most important
facets being mobility and feeding. He found that children with cerebral palsy
experience a reduction in life expectancy which is predominantly related to the
level of mobility and f eeding ability. Having regard to the variance relating purely
to mobility and feeding ability he arrived at a total expectancy survival time of an
additional 47.2 years.

[121] In determining where to place A[...] in the various life tables he followed the
following process. He reviewed other available collateral information by way of
medical records and medico -legal reports, conducted a semi -structured interview
with A[...]'s mother, family and caregiver and also conducted a careful
examination of A[...]. From that he was able to compile an assessment of A[...]'s
condition and then identified the relevant factors which would contribute to an
estimation of life expectancy. This process was documented in his initial report of
November 2018.

[122] When asked to comment on her weight he indicated that her weight was
well above the 95 centile line which put her weight at the top of expected weights
of children at her age at that point in time with her severity of cereb ral palsy. If
A[...] was underweight it would warrant an additional downward adjustment of life
expectancy. However, such an adjustment was not appropriate in this instance
given that her weight was in line with the expected weights for children at her age
and with her level of severity of cerebral palsy.

[123] He also testified that although he classified A[...] on the GMFCS level 1
she could also be a level 2 but it would not make a material difference as this
does not impact on the estimation of life ex pectancy. He confirmed that between
completion of his first report and the second report, A[...] experienced a single
episode of generalised seizures in April 2021.

[124] Concern was expressed that this could possibly affect her life expectancy
given the status of epilepsy. He indicated that there is an assumption that the
arrival of epilepsy impacts negatively on the life expectancy of a cerebral palsy
child. This is based on two published studies which indicated that if one has
seizure activity in the l ast 12 months one must adjust by increasing the excess
death rate as one has an increased chance of dying relative to persons who have
not had seizures at all in a 12 month period.

[125] At the time of completion of the second report he saw A[...] in Apr il 2022,
and he had confirmed with her mother that there had been no seizures in the 12
month period since April 2021 and therefore because she f ell outside of the 12
month window, coupled with the fact that she was not placed on anti -epileptic
medication prior to the seizures but has since been well controlled on the
medication he did not make any adjustments for epilepsy and thus her life
expectancy as it was inappropriate to do so based on the existing empirical
evidence.

[126] He confirmed that althoug h the were some changes in A[...]'s condition
since the completion of his first report, none of them impacted significantly on her
level of mobility or feeding ability nor were there any additional factors which
would have influenced him to interfere with the life expectancy either upwards or
downwards relative to his first estimation.

[127] Following on the second report he completed a third report dated 8 August
2022, which was intended to clarify certain points raised. He found no significant
changes i n either her feeding or mobility which would warrant a change in his
estimation of her life expectancy. A further reason for the third report emanated
from queries raised by the defendant related to the impact of the risk of chest
infections either mild or severe in considering A[...]'s life expectancy.

[128] He indicated that children and individuals with cerebral palsy live less
longer than the general population and one of the common causes of death
relates to respiratory tract infections. Research cond ucted by him, Strauss, and
Shavelle demonstrated that even in people with mild to moderate cerebral palsy
there is a significantly increased risk of death due to respiratory tract problems.

[129] As a consequence in A[...]'s instance, her life expectancy is around about
30% less than the general population given one of the factors being the increased
risk of respiratory tract infections. A[...]'s functional group was at risk of respiratory
tract infections, which is why the life expectancy is poorer. To de termine this one
would look for a history of recurrent hospitalisations for respiratory tract problems,
recurrent chest infections and the need for treatment of chest problems by a
specialist medical practitioner.

[130] However, although A[...] has an increased risk relative to the general
population she did not have any of these features, which would warrant him
reducing her life expectancy relative to the function group. He was of the view
that she is at no higher risk than appears and therefore no further adjustment to
her life expectancy was necessary, but provision ought to be made for treatment
of chest infections as this would be more common in people who have cerebral
palsy than in members of the general population .

[131] The third report was also asked to address the question of whether the
impact of epilepsy was considered when estimating her life expectancy. He
confirmed that there had been a history of partial seizure activity in 2018, more
than two years prio r to the date of his assessment and that she had been seizure
free and on no treatment for at least two years of him seeing her. At that stage it
appeared that her seizure activity seemed to have resolved itself. Her subsequent
seizure activity in April 20 21 lasted one to two minutes and is classified as a
generalised seizure at a time when she was on no treatment.

[132] She was admitted to hospital and seen by a paediatrician and treatment
commenced. She had been seizure free between 13 April 2021 and 11 April 2022
and is still seizure free at present. In determining not to make an adjustment to
her life expectancy he considered the studies of Strauss and a study by Day
which excluded the need to make an adjustment to the life expectancy where one
was seiz ure free in a 12 month period since the last seizure regardless of whether
one was receiving treatment or not even if there was a history of epilepsy. These
studies concluded that on the basis of objective, empirical evidence it did not
increase the risk o f death and therefore no adjustment was appropriate to the life
expectancy.

[133] He indicated that one would have to make provision for A[...] to deal with
respiratory and chest infections even though it does not affect her life expectancy
simply because children with cerebral palsy have an increased risk to suffer from
them later on in life and is at increased risk of death due to respiratory i llness
relative to the general population.

[134] Dr Pillay the paediatrician also recommended ongoing treatment for
epilepsy and the treatment of respiratory infections. Campbell considered the risk
of epilepsy and respiratory infections as well as A[...]’s weight gain and its
possible effect on A[...]’s life expectancy. I accept his conclusions in this regard
and in the absence of a contrary opinion, accept his assessment that it would not
impact on her life expectancy.

[135] Campbell’ s response to such suggestion warrants mentioning ‘… I
presented my assumptions. I contend that they are based on a scientific
approach and as I said they are not challenged and I believe them to be
reasonable and fair.’

[136] In the light of this there i s no reason to accept the defendant’s suggestion
of a 3 to 5 year variance in her life expectancy.

[137] I have also considered the defendant’s criticism of his use of Koch life
table 2. Although questions have been raised concerning the use of these li fe
tables, our courts have consistently endorsed the use thereof in the calculation of
life expectancy.

[138] In Singh and Another v Ebrahim34 Conradie J A writing for the majority
agreed with the following passage from Snyders JA judgment:

‘As with most things in this matter, the appropriate life tables to be applied
to the assessment of Nico’s life expectancy were also in issue. The high
court applied the SA white male tables. The appellant contends for the
application of the Koch life tables which adds between 2 to 4 years to the
various scenarios calculated by Strauss. Koch’s attempt to remove race
from the SA life tables is obviously attractive, but the evidence of the
assumptions made to compile his life tables does not, in this case,
succeed to illustrate their reliability. Although the 1984/1986 SA life tables
are out of date, they are still the best available. In the circumstances it

34 Singh and Another v Ebrahim [2010] ZASCA 145 at paragraph 199.
seems eminently r easonable to have used the white male tables to
exclude any racial component from the calculation . Consequently the
dispute about whether the appellant agreed to the application of the SA life
tables only to the actuarial calculation or also to the assessm ent of life
expectancy is irrelevant. ’

[139] The use of these life tables was also endorsed by Roger’s J in AD. I am
bound by these decisions and I see no reason to adjust the assessment of A[...]’s
life expectancy given the use of such life table. In any event the use of Life table 3
results in a negligible differential of 1,7 years. Dr Campbell’s methodology and
final assessment are in line with the accepted Strauss practice based on a
scientific approach with mathematical certainty and there are no reasons to
interfere with his conclusion s.

[140] He deals with this principle in cross examination as follows:

“…The second bit of the question relates to, we are dealing with crystal
ball gazing to some extent and we have to acknowledge that there is some
uncertainty about what will happen. The model of estimating future life
expectancy is the average additional survival rime for a child like this. Now
some children will die earlier, some will live as long as predicted and some
will live much longer. The estimate of life expectancy provides protectio n
for both the plaintiff and the defendant and provides a fair midpoint. In
addition to that, the actuary is going to apply this reduction in life
expectancy to a customised life table and then work out what is the
probability that the child will be alive at various points in life in the future. ”

Occupational Therapy

[141] The plaintiff ’s occupational therapist was Jane Bainbridge (Bainbridge) .
Her expertise was not admitted and consequently Mr McIntosh had to qualify her
as an expert. The reason for this was not apparent nor did Mr Van Niekerk during
the course of his cross -examination challenge her credentials or her expertise
and therefore I am not certain as to why court time was wasted qualifying her.
She confirmed having prepared a joint minute with the defendant’s expert
Prinsloo.

[142] She had last seen A[...] on Friday 26 August at the Swana School in
Empangeni to observe her in the classroom and determine how much
occupational therapy she was receiving in school. Her enquiries revealed that
there were two occupational therapists employed at the school, only one of them
was presently at the school as the one who worked with A[...] resigned. The
nature of the occupational therapy which A[...] was receiving was not one -on-one
occupational therapy and was not focused on her disability or improving her
condition and assisting her.

[143] She testified that the area of dispute between herself and Prinsloo was that
she classified A[...]’s cerebral pal sy as meeting level two in the classification
criteria for motor function but falling at a lower scale for other domains of function
on various scales of development. She had completed and filed a report and
classified A[...] at level one and this was the main area of disagreement. In
addition, she was of the view that A[...] suffers from dyspraxia whereas Prinsloo
was of the view that she suffers from apraxia.

[144] Bainbridge completed her reports on 25 May 2021 and Prinslo o on 16
September 2021 and again on 9 November 2019. At the time of completion of
their reports and specifically the joint minute, both had regard to the findings and
recommendations of various other medico -legal experts briefed and which were
documented i n their respective reports.

[145] They agree that A[...] presents, despite her being 13 years old, with the
gross motor skills equating to that of a 24 -month old child. The differential
between their classifications lies in Bainbridge observing A[...] to require wall
support when climbing or descending stairs and her instability walking over
uneven terrain and reduced balance ability. There were planning difficulties hence
the reason why she classified her as being dyspraxic as she does not know what
to do with her body or how to initiate activity.

[146] She is unable to communicate verbally, has limited vision and hand
dysfunction. As a consequence of her hand dysfunction she is rendered
dependant on others for feeding, dressing, toileting and bathing. T hey both agree
that A[...] is ineducable and although she is enrolled at Swana Special School she
will never be equipped to live alone, work or function in the community. She is
extremely vulnerable for the remainder of her life and requires appropriate
support, care, equipment, housing, medical and therapeutic intervention.

[147] She confirmed that there was an increase in tone evident in her upper
limbs with effort and that the MACS level 4 indicated fine motor control was weak
affecting unilateral and b ilateral manual control requiring a handover hand
approach matching a 2 to 3 -year old level of function. Dominance was not
established. They both agreed that the feeding is at EDACS level 3. She has
limited receptive language, acute communication levels ar e 0 as she is unable to
articulate language. There is a cognitive delay for all basic concepts of less than
24 months and a functional or behavioural delay of between 10 to 24 months.

[148] Both occupational therapists agree that their recommendations ar e in the
context of therapeutic, accommodation, transportation and educational needs
secondary to A[...]’s profound developmental, motoric and functional deficits.
They agree that A[...] is not a candidate for conventional or even remedial school.
Placemen t in a special school such as Swana is appropriate and continued
attendance until she reaches the age of 21 is recommended.

[149] As regards accommodation both occupational therapists agree that
although she is mobile A[...] has difficulties with balance and instability. The
necessary renovations need to be made to her home to allow for safe and non -
slip bathroom fixtures, non -slip flooring and unobstructed walkways, running
water and sanitation. Prinsloo commented on the fact that A[...] is taking Epilim
which Bainbridge was not aware of. She noticed that cognitively A[...] appeared
more suppressed as a consequence of her taking Epilim which has created a
difference in level of alertness and physical tempo and recommended that her
doses be monitored and re vised if possible to have a better effect on her level of
alertness.

[150] As regards accommodation for the caregiver, Prinsloo is of the opinion that
she does not need a bed sitter as A[...] sleeps without major difficulties at the
school hostel and at home. Bainbridge however recommends bedsitter
accommodation to be considered for her caregiver. Both occupational t herapists
agree that specific training is required for any caregiver appointed to deal with
A[...] specifically her cerebral palsy needs and such courses are offered by
Nakalala at a cost of R4 180.00

[151] As regards transportation it is reported that A[...] travels quite well on
public transport save that she needs to be accompanied by an adult or a
caregiver and is very slow.

[152] Prinsloo recommends that she be accompanied on public transport and
funds made available for a caregiver or her mother to travel with her. Bainbridge
is of the view that difficulties associated with timing for travel, safety of travelling
with a disabled p erson who cannot communicate and who lacks balance and is
unstable walking, there is a need for a mobility device for long distances and
should be accommodated by either special transportation for disabled persons or
the provision of a small sedan. Bainbri dge is of the view that A[...] will deteriorate
over time making mobility more difficult and placing her at risk especially at
increased risk for falling or injuries. At present, both confirm that A[...] is using
school transport to travel to and from scho ol and her mother indicates on other
occasions she makes use of hired transport.

[153] The defendant’s witness Helen Prinsloo’s expertise was not accepted by
the plaintiff. Prinsloo confirmed she had prepared two reports dated 9 November
2019 and 16 Septe mber 2021 and a joint minute with Jane Bainbridge on 27
September 2021. She prepared the joint minute after she had performed a re -
assessment of A[...] in September 2021. She confirmed the reports and that she
adhered to the contents thereof specifically h er findings and conclusions.

[154] During the course of her assessment in September 2021, she established
that A[...] was a day scholar at Swana school and they had moved out of the rural
area at Debe to Empangeni. These were the major changes since she h ad last
seen A[...] in 2019. From her reading of the reports she established that Swana
School caters for children until age 21.

[155] She testified that despite several attempts made by her telephonically to
contact the school and obtain information abou t the school and the therapy
offered, she could not obtain such information. She indicated that when they
heard it was her on the phone they refused to provide her with information and
she had to rely on what was reported to her. She confirmed that A[...] has balance
and stability issues, she cannot feed herself or dress herself and can never be left
on her own. She needs constant care -givers for the rest of her life.

[156] Despite this she opined that A[...] could be taken care of by family
members and her mother needed to be involved in her development. What was
significant since she saw A[...] was that initially during the first two years of her life
she suffered five seizures and thereafter in 2021 a major seizure for which she
was admitted to hospita l. She testified that A[...] is currently on Epilim and her
seizures are well controlled. However, one of the side effects of Epilim which is
quite common is that she is slower and most importantly is the increased weight
gain. This she established from th e various reports which show that A[...]’s weight
had increased by approximately 17 kilograms over the last two -year period.

[157] When compared to the plaintiff’s expert Jane Bainbridge, Bainbridge
advocates treatment until life expectancy the reason bei ng she wanted A[...] to be
as self -sufficient as possible. However, it is evident that A[...] will never be fully
dependant for the daily activities of life given her cognitive deficits and will always
be reliant on caregivers 24/7. She acknowledges that d espite the extensive
therapy which she advocates for A[...] at some stage she will plateau and
thereafter some therapy will become maintenance therapy.

[158] The issues in dispute between these experts are as follows:

(a) the amount of occupational ther apy that is required by A[...];

(b) the nature and cost of caregiving services required by A[...];

(c) the amount of time required for the sourcing and interviewing of
caregivers;

(d) the number of hours required for annual case management;

(e) the number of hours required for report writing or meetings;

(f) the need for an adult hoist;

(g) the need for an advanced anti -decubitus overlay mattress;

(h) the need for a height adjustable bench and table;

(i) the need for a roller/bolster; and

(j) the need for a standard bobath plinth.

[159] In considering the areas of dispute between these two experts I have
considered the following:

(a) Caregiving is essential for optimal care for A[...]. Caregivers require
to be suitably trained in caring for persons with CP. A[...]’s family if
they are appointed to care for her as care g ivers ought to be
remunerated. Accepting that if they are remunerated well they will
be less inclined to leave their e mployment.

(b) Her mother cannot cope with her as she gets older and heavier and
will require assistance for her.

(c) If caregivers are appointed to care for her, this will ensure that she
will be able to do the exercises and some of the therapy required as
she gets older and as reaches the age where only maintenance
therapy is required.

(d) Prinsloo has an extremely con servative approach when it relates to
the therapy required. She has not case managed CP children and
her expertise to speak to their needs in my view is limited.

(e) Bainbridge on the other hand has far more extensive experience in
not only case manag ement but has been involved in the actual
treatment of CP children like A[...].

(f) Prinsloo in her assessment of A[...]’s needs has indicated that it is
better for her to ambulate and walk and this has to a large extent
influenced her reluctance to agree to certain of the items
recommended by Bainbridge.

[160] I agree with Bainbridge’s suggestion of the adult hoist. As A[...] grows older
and if her condition deteriorates it will be difficult for her care givers to move her
around like for example transferring her off the bed, into the shower or onto a
commode. This would be contingent on her condition deteriorating and bear ing in
mind the therapies advocated together with her be ing given optimal care I believe
a contingency ought to apply of 50 %. The same would apply to the advanced
anti-decubitus overlay mattress as this would be needed to prevent pressure
sores if her mob ility drastically decreases and she becomes immobile and bed
ridden.

[161] The height adjustable bench and table Bainbridge conceded was “nice to
have” but not a necessity. The roller/bolster is necessary for her therapies to
provide her with good proxim al support or stimulation. I agree that the standard
bobath plinth can assist with her therapy and ought to be allowed.

Case Management, Crisis Management, Report Writing

[162] Bainbridge advocated 24 hours per annum and indicated that this was a
conservative estimate based on her experience. This would involve inter alia
arranging doctor’s visits, new prescriptions, medication, interaction with the
various therapists. In relati on to caregivers, she indicated that they would need to
be trained in CP care and has made allowance for training to be repeated every
five years. Her allowance for 10 hours every five years is a reasonable estimate
having regard to what is involved namel y conducting intensive interview with
prospective candidates, doing background checks and any aspects incidental to
the appointment of caregivers. This is based on her extensive experience as
case manager. She has also indicated that a conservative estima te of 6 hours per
annum will be required.

[163] In respect of crisis management, her and Prinsloo part ways. Her
suggestion that the plaintiff deal with any potential crisis which may arise, I agree
illustrates a lack of empathy and a detachment from the circumstances mothers
of CP children must negotiate. Her lack of experience as a case manager
renders her oblivious to the hardships mothers of CP children endure. Bainbridge
testified that 10 hours every five years is required. Her reasoning for this i s the
following:

“Well my view and the view generally in the global body of this is that
disability of this nature places an inordinate strain on caregivers but the
matter in particular and the enormity of the responsibility that goes with this
and there is no end in sight really. That this is never going to get better is
exhausting and it is exhausting on many levels. It is extremely exhausting,
it is physically draining and financially bankrupting and from a social point
of view isolating. ”

[164] Bainbridge further recommends 6 hours per annum.

[165] Prinsloo admitted that she has never done work with cerebral palsy
children and has never been a case manager. This in my view renders any
opinion she proffers in regard to case management unreliable as such opinion is
not based on any practical experience. Consequently, Bainbridge’s
recommendations in this regard must be preferred.

Caregivers

The remuneration of caregivers

[166] Two industrial psychologists prepared reports relating to the remuneration
for the caregivers and facilitators to be appointed. The plaintiff’s expert, Sonia Hill,
and the defendant’s expert, Gideon De Kock, prepared remuneration reports and
then subsequen tly as a consequence, a joint minute.

[167] Pursuant to the preparation of the joint minute they agreed after
consideration of the various medical legal reports that her life expectancy is
reduced and any calculation in relation to the remuneration of ca regivers would
have to bear this in mind to A[...]’s expected survival time to age 56. They agree,
having regard to A[...]’s disabilities and to the reports of the experts that A[...]’s
disability comprises of severe functional limitations in all spheres o f development
and will preclude her from living a normal life. She is dependant on her mother
and her caregiver for all her basic needs, security and they agree that this will be
lifelong warranting appropriate provision of care, schooling and therapeutic and
medical interventions.

[168] They agreed that given the complexity of dealing with a cerebral palsy
child it is necessary for a caregiver to obtain a relevant qualification and a
certified trained caregiver should be appointed. In addition, they agr eed that the
number and type of caregivers, hours of work, shift work as well as relief workers
would be determined by the respective occupational therapists and they agree to
the recommendations of such therapists.

[169] In addition, a signed contract o f employment as containing the
appointment and benefits for caregivers should incorporate the terms and
conditions of the Basic Conditions of Employment Act. As per the BCEA, the
following would apply to such remuneration package, namely a basic salary,
overtime (limited to a maximum of 10 hours per week), shift work, fifteen days
annual leave, ten days sick leave per annum, family responsibility leave of 3 days
per annum and the caregiver, relief worker or shift worker ought to be registered
with the Unemp loyment Insurance Fund (UIF).

[170] Meals may be provided at the discretion of the employer as well as
bonuses. Other benefits may also be paid at the discretion of the employer and
caregivers ought to benefit from an annual inflationary linked increase for the
duration of their employment.

[171] They note that A[...] has currently one caregiver, Miss Ngxongo, whose
working hours are from 05h00 to 09h00, 15h00 to 21h00 from Monday to Friday.
She earns at a rate within the region of R30.78 per hour working a 45 -hour week
and a basic salary o f R6000 a month. She lives in and benefits from
accommodation and meals calculated at approximately 10% per day in the region
of R60 plus annual leave and a total income of R7 654.84 per month.

[172] In relation to the appointment of a suitable caregiver Miss Hill has done
extensive research which she testified about. In addition, in preparing tables to be
used for remuneration of caregivers, facilitators and attendants she has had
extensive consultations with therapists, parents, facilitators, caregivers as well as
the Head of Wizkids, Pathways and Nakalala. She drafted a relevant job
description specifically in relation to the care of a cerebral palsy child. Included in
the job description includes in summary an understanding of a cerebral palsy
child, h andling of a disabled child, the administration of medication,
understanding seizures, stimulation and application of therapeutical intervention
and keeping notes. The provision of pension or a provident fund and a medical
aid are not compulsory benefits p ayable to the employee and does not form part
of the basic conditions of employment. However, it is compulsory for an employer
to register an employee and it is compulsory for the employer and the employee
to contribute to the Unemployment Insurance Fund.

[173] n her report she has prepared three tables for salaries for a caregiver and
facilitators working a 40 -hour normal week, an eight -hour shift system and
caregiver rates as provided to her by Nursing SA. Essentially the total cost to an
employer of a general caregiver amounts to R6 872.98 per month, a facilitator to
R9 482.81 per month and an assistant to R5 093.84 per month. In respect of shift
workers, the total cost to employer of a general caregiver amounts to R7 690.72 a
month and the cost of an a ttendant to R5 699.90 a month.

[174] Essentially, in respect of those caregiver rates provided by Nursing SA the
hourly rates have been provided for a weekday, weeknight, Saturday, Sunday
and public holidays. It must be borne in mind that caregivers from Nursing SA
have a nursing qualification and in addition from the hourly rate is deducted a
commission and less is paid to a caregiver and a specialised caregiver.

[175] Miss Hill refers to the opinion of Sue Anderson that A[...] requires two
caregivers as well as a night assistant.

[176] There is disagreement between her and Gideon De Kock as he is of the
view that A[...] is cared for by her mother and her mother’s sister Ms Biyela. In
addition, she is cared for by Ms Ngxongo whose qualifications and experience are
not known. He is of the view that in the final analysis a caregiver is a general
worker which if cerebral palsy (CP) trained receives a week’s formal training.
Caregivers often g et involved in domestic work but do not work as domestic
workers and he is of the view that it would be appropriate that the remuneration
for caregivers fall within the rage of the general worker category. He opines that
there is an overlap in duties betwe en domestic workers and caregivers. He has
applied the national minimum wage as an appropriate wage rate for CP
caregivers. He compares the national minimum wage with the wage payable to
farm workers, domestic workers, gardeners and community health worker s.

[177] In addition, he has relied on a search engine Payscale.com for the various
rates paid to caregivers. These rates are much lower than the rates advocated by
Miss Hill.

[178] In the final analysis he is of the view that a rate of R23.91 per hour be used
in all calculations and permutations as a basic remuneration rate of a trained CP
caregiver. In addition to this the statutory required payments must be
proportionally added and the appropriate support care system must be agreed by
the occupational therapists.

[179] In addition, he is of the view that A[...]’s mother consider a suitable family
member to be trained to be appointed to look after A[...] and that the contract of
employment concluded with any person appointed to take care of her must
comply with the BCEA. Any caregiver appointed must undergo a refresher
training course every five years.

[180] The parties subsequently agreed the model of costing for caregivers’
subject to the court’s directive in relation to the caregiving model the ag reed rate
of remuneration is R 27.00 per hour.

[181] For similar reasons, Bainbridge’s model for the appointment of caregivers
is to be preferred. I do not agree with Prinsloo’s suggestion that her mother and
family members ought to be responsible for A[...]’s care. In the event that a family
member is appointed as a caregiver, they ought to be renumerated. I accept
Bainbridge’s recommendation on the following in relation to caregivers:

(a) two caregivers be appointed working 8 -hour shifts until A[...] turns
18 years of age;

(b) thereafter A[...] will require 24 -hour care with three 8 -hour shifts.
The costing of caregivers was agreed as per the table below subject
to the UIF contribution being halved.

Description Unit Caregiver
Hourly Rate
1 hour R 27.00
Overtime (x 1.5) R 40.50
Sunday (x 2) R 54.00
Public Holidays (x 2) R 54.00
Weekday
8 hours R 216.00
Saturday R 324.00
Sunday R 432.00

Week 5 days R 1080.00
Saturday 1 day R 324.00
Sunday 1 day R 432.00
Total weekly 7 days R 1836.00
Monthly Total (x 4,333 weeks) R 7 955.39

Annual leave (15 days per year) (27x8x15)/12 R 270.00
UIF R 46.80
12 Public Holiday per year 1 day/4,333 (R99.70)
Total R 8 418.68
Additional Discretionary benefits
Bonus (2 weeks’ pay) (27x80)/12 R 180.00
Food and Accommodation (10% of basic
wage) R 180.00
Total monthly R 8 778.68
Relief caregiver cost (8 hours at R 27 and 8
hours at R 40.50) R 540.00

(c) The additional discretionary benefits recommended should be included in
the calculation to eliminate the likelihood of a high turnover of caregivers.
The contribution to a provident fund or pension fund should the plaintiff
decide to pay is a cost the Tru st must bear.

Physiotherapy

[182] The plaintiff instructed Surekha Somaroo (Somaroo) and the defendant
Sholena Narain (Narain). They prepared a joint minute from which it is apparent
there are wide discrepancies in relation to the nature of therapy A[...] will require.
Somaroo testified in detail advocating the therapies she recommends and
envisages intensive therapy to begin with and therapy to life expectancy. Narain
is of the view that following the intensive period of therapy, what is required b y
A[...] is maintenance therapy.

[183] Rogers J in A.D. held the following when faced with discrepancies in the
recommendations and evidence of physiotherapists.

“451. However I cannot but think that subconscious pro -client bias has
caused the one expert to make recommendations at the top end of
what might be defendable and the other to do the opposite.

452. An appropriate amount lies somewhere between the two sets of
recommendations. In determining the appropriate allowance one
must not only consider the incremental benefit from more physical
therapy. It is also necessary to consider the totality of the
interventions he will be receiving. Even if additional physiothera py
might in the abstract yield some additional benefits he may simply
not have time for it. ITT cannot be expected to live a life of constant
medical intervention... ”

[184] I agree with the defendant that Somaroo was a poor witness and did not
provide an objective opinion and left little doubt as to whose side she was on.
She placed extensive reliance on literature to support her recommendations. She
was evasive and defensive under cross examination and I am of the view that she
failed in her responsibi lities to the court as an expert witness in this matter and I
therefore cannot rely on her evidence.

[185] Narain on the other hand impressed me as witness and her conservative
approach was justified based on A[...]’s presentation and the available facts. She
was willing to compromise and make necessary concessions and a careful
reading of her evidence reveals the logic on which she relies. What impressed me
about her evidence was that in making her recommendations for physiotherapy,
she adopted a holisti c view taking into consideration the other therapies that
would be provided to A[...], the duties of her caregivers and the possible benefit of
the various interventions.

[186] In my view, the defendant’s expert Narain’ s recommendations in respect of
physiotherapy expenses ought to be accepted. In addition, given the variants in
the respective rates used by Somaroo and Narain, they have agreed that an
average rate be applied to the calculations and an agreed tariff is s et out in table
1 of the joint minute and should be used by the actuary in determining the
calculations.

[187] In reaching these conclusions, I am mindful of the concession made by
Somaroo that A[...] is unlikely to acquire new skill following the inten sive neuro -
rehabilitative therapy. I also agree with Narain’s assessment that A[...] given the
interventions and medications it is unlikely that she will suffer a chest infection
and a 50% contingency ought to apply.

Speech Therapy

[188] Rochelle Thanj an (Thanjan) a Speech Therapist employed by the plaintiff
consulted with A[...] and her mother to prepare a report. She noted from her
evaluation of A[...] that she has limitations in swallowing , feeding and
communication. The oral peripheral examination revealed that A[...] presented
with moderate dysarthria, a motor speech disorder which results from impaired
movement of the muscles used for speech production including her lips, tongue,
vocal cords and diaphragm.

[189] A[...] presents with reduced strength, speed and coordination oral
musculature including the cheeks, lips, tongue and jaw. She also presents with
premature fatty pads with right sided prominence, compromised lip seal, absent
tongue lateralisation and elevation, premature mild suckling, absent rotational and
lateral jaw movements as well as absent jaw protruding during drinking.

[190] A[...] has a V -shaped palette and anterior diastema. A[...] presents with
premature reflexes including premature suckling and oral sensory integration
compromises. Such oral, sensory, structural limitations and abnormal or
premature reflexes adversely affect her swallowing skills and speech production
by affectin g her ability to sustain movements necessary for feeding and speaking.
The motor speech skills assessment conducted by Thanjan revealed
compromises in the areas of respiration, articulation, phonation, voicing and
fluency namely mouth reading, compromised length of exhalation, compromised
head support for speech, compromised graded coordination of vocal intensity,
compromised with the range of pitch variations and significantly compromised
articulation.

[191] The swallowing assessment of A[...] revealed that she presents with
moderate oro -pharyngeal dysphagia , moderate drooling which may reduce with
drooling management program implemented by a speech therapist. However,
Thanjan submitted this is not always effective and must be monitored to review
her progress. If poor or no progress is noted, then saliva reducing medication
can be implemented alternatively botox injections to the saliva glands performed
by an Ear, Nose & Throat Specialist. During feeding A[...] is able to maintain an
upright position, and a chair -seated position is recommended over floor seating.

[192] With regard to communication there is a mild compromise as A[...] is not
orientated to time to eat and drink but communication cues are used by her
feeder. When the spoon is directed to her mouth she voluntarily opens her mouth
but is unable to fully close it. A[...] is unable to request the next spoonful to sip so
pacing is dependent on the feeder's judgement and is inconsistently too fast.
Incorrect feeding techniques were evident and a s a consequence she
recommends that A[...]'s feeders would benefit from ongoing intensive training.

[193] In relation to feeding, A[...] presented with partial mouth closure during
feeding, anterior spillage with thick purées, moderate to severe anterior spillage
with thin purée consistency, severe anterior spillage within liquid consistency,
poor bolus manipulation, compensatory effortful swallows for airway protection
and tongue and pharynx weakness, compromised oral sensory skills
characterised by reduc ed awareness of smaller portions and the delay in
triggering the pharyngeal swallow, mildly prolonged oral transit with thin purées,
weak jaw stability with cup drinking, premature sipping method, weak, purposeful
bite reflex, absent midline transfer with solids and impaired chewing skills.

[194] A[...] also presented with choking and aspiration disc with all solid foods.
She recommended that the swallowing and feeding skills indicated symptoms of
GORD , being a gastro -oesophageal reflux disorder and furth er radiological
investigation was recommended to assess the cause and effects of GORD.
Because A[...] was resistant to feeding and swallowing techniques she would
have to be weaned to changes in her eating skills.

[195] The language assessment revealed a significant delay in communication
skills. In relation to receptive language, A[...] was able to understand some words,
phrases and sentences. She was also able to follow some one -party instructions
and benefits from repe titions and breaking down of instructions. She presents
with object identification of common objects and is able to understand the self -
made gestures used by her mother.

[196] Although A[...] can understand some commands and gestural cues, she
however di splayed significantly delayed receptive language skills as she is unable
to understand a variety of words, phrases and sentences and thus is unable to
engage at a conversational level. She observed a significant delay in receptive
language with the recepti ve language falling in the 9th to 15th month range, which
is approximately a seven year delay.

[197] With regard to expressive language, A[...] communicates using head
nodding, intentional eye gazes, vocalisations, tapping, waving, self -made
symbols, two real words and facial expressions. Most of A[...]'s communication
methods are non -verbal, like for example tapping her mother for attention. In
order to call her mother she uses “AH” instead of “MA”. When asked to say
“Funa ” by the therapist, she was able to produce the words with consonant
omissions U and A. She also uses “AH” for clarification, to request repetition
when her mother gives her command. She has developed the use of the following
symbols or objects to communicate her needs. She uses a cup to communicate
thirst as an example.

[198] She has developed compensatory methods of communication but her
communication skills remain significantly compromised and has contributed by
the motor speech disorder dysarthria. As a consequence, A[...] is unable to
communicate in a diversity of words, phrases and sentences, and at
conversational level. Consequently, a significant delay in expressive language is
observed and her expressive language falls within the 9 to 15 month range, which
was an approximately se ven year delay.

[199] Her assessment of A[...] revealed that she was a candidate for AAC as
A[...] has the ability to use unaided communication in sign language or Makaton
as well as aided communication being a picture communication device. As
regards aided communication, A[...] is resistant to change and must begin at a
symbolic level and gradually de velop to a picture, low -tech level and eventually to
a high -tech communication system. A[...] has the ability to use AAC to augment
her communication skills so as to expand her knowledge and give her more
control of her environment. As a consequence of her compromised language
skills being falling within the 9 to 15 month range she was of the opinion that A[...]
should receive a basic symbolic communication system and gradually move on to
a more advanced communication device as she communicates as well as s ign
language Makaton.

[200] In the result Thanjan recommends the following both physiotherapy to
manage her fine motor difficulties and occupational therapy to manage functional
skills. A referral to an ENT to investigate and manage suspected GORD.
Radiol ogical investigations to ascertain the exact nature of dysphagia, speech
therapy techniques targeted at reducing A[...]'s drooling and investigation of
saliva reducing medication or Botox injections. Placement within a special school
and a case manager as well as the protection of her funds.

[201] Despite the lack of early intervention and the fact that A[...] is much older,
Thanjan is of the view that she has potential to improve her ability to
communicate as well as her feeding and swallowing skills. If individual direct
speech therapy is provided at a school the therapy frequency can be subtracted
from therapy that she is recommending. She recom mends the following speech
therapy. Up until age nine, 60 minutes three times a week, which will be focused
on swallowing therapy, communication therapy, including AAC training and
caregiver training.

[202] Speech therapy reassessments for two hours annu ally, multidisciplinary
team meetings with professionals involved with A[...]’s treatment to discuss
progress and holistic therapies. The rates will differ given the dependent on the
other therapists involved in the meeting. A one hour meeting for speech t herapy
consultations, she estimated at the rate of R750 and multidisciplinary team
meetings, she estimated 4 per annum.

[203] Thanjan completed a joint minute with Ms Sishi (Sishi) the defendant’s
expert who is a qualified speech therapist. Both the area s of agreement and
disagreement are reflected in the joint minutes which they completed and signed.
She confirmed that there are no prescribed tariffs for speech and language
therapists, or audiologists and hourly tariffs of speech and language therapists
and audiologists vary according to the therapist’s level of expertise and the
location of the practice.

[204] She also indicated that another reason for the difference is that Sishi
recommends rates based on the current tariffs as listed by Healthman, which is
an agency which provides estimates of what different medical aids cover for
speech therapy servic es. Private practitioners often charge over and above
medical aid rates given the years of experience and the area of practice. What is
also evident from the documentation provided and the estimates of the hourly
rates is that the medical aid rates are usu ally lower than the private practice rates.

[205] Essentially, this a variable difference in the rates that they suggest and
having regard to the joint minutes they both agree on the following, namely that:

(a) with regard to the speech, language and co mmunication profile,
A[...] presented significant impairments in the area of speech
production, receptive and expressive language skills, oral -motor
integrity and general communication skills;

(b) with regard to A[...]’s feeding and swallowing profile she presents
with compromised oral and sensory -motor impairments that affect
both her speech abilities as well as swallowing/feeding functions;

(c) with regard to alternative and augmentative communication, A[...] is
a candidate for AAC devices.

[206] They disagree though on what devices she requires.

[207] They agree on the following AAC devices for A[...] namely the 3D
communication symbol board, the super talker progressive communicator. The
difference is that Thanjan recommends this once off for year 2 to year 3, Sishi
recommends this every 4 to 6 years. Thanjan also recommends batteries for the
super talker progressive communicator at R300 per annum.

[208] They cannot agree on the following high -tech AAC equipment
recommended by Thanjan, n amely:

(a) the iPad Pro -12 9 inch 64GB commencing from year 4 being
replaced every five years;

(b) the iPad protective cover and adapter also commencing at year 4
and being replaced every five years;

(c) the Go -Talk Now commencing at year 4 and been replaced every
five years;

(d) a battery device adapter for year 1 to year 3;

(e) toys that can be con nected to the super talker progressive
communicator via the battery device adapter from year 1 to year 3;

(f) a Makaton material once off.

[209] Thanjan has recommended these AAC devices based on A[...]'s diagnosis
of motor speech impairment which preve nts her from expressing her language
potential. Because A[...] understands and uses gestures and head nods to
communicate using these AAC devices Thanjan opines that she can use these
compensatory methods to communicate. As A[...] uses objects to communica te
her needs like taking a bowl to her mother or grandmother when she is hungry,
her use of objects for communication paired with self -made gestures, in Thanjan’s
view indicate good potential for Makaton which is a sign language program as
well as use of d evices for communication.

[210] As A[...]'s proficiency improves additional devices are recommended so
her language l evel can grow hence, she has advocated for additional devices to
the super talker progressive communicator. The reason for this is because the
super talker progressive communicator is limiting as it only allows up to 8 options.
So as an initial device it i s recommended but as she progresses one would not
want to limit her communicative potential and therefore other additional devices
are recommended.

[211] With regard to speech therapy to address her feeding and swallowing
impairment, AAC and language dev elopment they have not reached agreement
with regard to the frequency and duration of speech therapy. Thanjan
recommends from age 10 to 12 biweekly sessions of 60 minutes, from age 13 to
18 one weekly session of 60 minutes and from age 19 to life expectanc y 60
minutes twice a month. The reason for this based on her profile is because the
human brain is not fully mature until 20 years after birth.

[212] As a consequence , she advocates for more frequent rehabilitative
therapies for 20 years to utilise the c ritical period of development. She has also
relied on research to support this as well as the need for speech therapy until life
expectancy. Having regard to papers she indicates that long -term study shows
that individuals using AAC change in their pattern of communication over time.

[213] In addition, they have not reached agreement in relation to the necessity of
A[...] attending group speech therapy. The basis for Thanjan’ s recommendation of
group therapy is because speech therapists are trained to target pragmatic or
social skills in a structured environment more specifically than in the school
environment. A[...] on examination presents with compromised pragmatic skills a s
well as an inability to engage in incidental learning. As A[...]'s expressive
language is limited because of the motor speech disorder, she has not had
opportunities to exercise social language. Sishi conceded that whilst A[...] was in
a school setting, she would benefit from group therapy at the rate of one per
month as recommended by Thanjan and upon leaving school would benefit from
one group therapy session every three months as recommended by Thanjan.

[214] When she is provided with an AAC device h er expressive language
opportunities will increase which will in turn create more opportunities for
pragmatic / social skills and therefore therapy for these skills is imperative in a
group setting. She recommends it from age 10 to 12 two sessions a month, from
age 13 to 18 a session once a month and from 18 years until life expectancy a
session once per quarter. She also recommends annual reassessment to assess
and document her progress and to form a baseline for therapy procedures to be
performed in the f ollowing year because therapy procedures will change as A[...]
develops through therapy. Ongoing therapy sessions will also focus on treatment
and reassessment is recommended to ascertain whether she is reaching her
potential with the current treatment pla n or whether the treatment plan has to be
reviewed. She recommends speech therapy reassessments of two hours
annually.

[215] In addition to the annual speech therapy assessments she also
recommends radiological investigations like the barium swallow test and fibre -
optic and endoscopic evaluations of swallowing and recommends three. She has
also catered for multidisciplinary meetings from age 10 to 12 four per annum,
from age 12 to 18 two per annum, from age 19 until life expectancy once per
annum. She rec ommends these quarterly meetings from age 10 to 12 as A[...] will
be receiving frequent speech therapy and changes are anticipated in light of the
frequency. This needs to be communicated to other team members and school
staff so that a holistic approach c an be adopted.

[216] Sishi on the other hand, recommends speech and language therapy, 45
minute sessions twice a week for 24 months, thereafter once a week for 24
months, thereafter once a month 20 sessions of 60 minutes each, a once off
feeding assessme nt and annual meetings to determine the duration of speech
therapy and therapeutic intervention.

[217] The basis for Sishi’s recommendations is because A[...] presents with
significant challenges with regard to all areas of communication. In her opinion,
A[...] has passed the age of maximum benefit through early intervention being six
years. The current models of early intervention recommend intensive intervention
for the first six years of life.

[218] Because A[...] surpassed the age of maximal benefit from intensive
intervention any and all therapy will be focused on functional skills and
improvements in all areas targeted is likely to be slow. All improvements in her
view are likely to only be qualitative rather than quantitative and it would be
difficult to measure via standardised or traditional speech and language tests and
batteries. Therefore, in her view, her recommended therapy sessions are
sufficient.

[219] She also expresses the view that the recommendation of a daily
stimulation centre would provide ample opportunity for A[...] to be exposed to
social interaction. A typical daily programme in a stimulation centre for learners
includes me -time and schedule playtime which offers opportunities for structured
and unstructured social interaction f or A[...]. Additional speech and language
therapy is unlikely to result in further improved social skills for A[...] given her
significant language deficits.

[220] As regards the purchase of feeding equipment, although they agree that
A[...] requires spec ialised feeding therapy material, Sishi has catered for a once
off cost of R10 000.00 whereas Thanjan has recommended various items as
reflected in her report . Thanjan recommends specific oral equipment and feedi ng
material tailored to A[...]'s compromises in oral and feeding skills. The
recommendations for these devices include replacement frequency as well as
duration of use.

[221] They also agree that she requires intervention from other professionals
canvass ed in their joint minute and that she requires assessment from an ENT to
investigate and manage suspected GORD (gastro -oesophageal reflux disorder).
They agree that speech therapy techniques targeted at reducing drooling is not
always effective and saliva reducing medication is suggested. Should that fail
then Botox injections into the saliva glands must be considered, performed by an
ENT. They agree that A[...] should also be placed in a stimulation centre/school
for learners with complex disabilities. In addition, they agree on the employment
of a caregiver and defer to an occupational therapist relating to the number of
working hours etcetera and agree that the employment of a caregiver for the rest
of her life will assist given her profound communication and feeding problems and
because the burden of care is significant professional care giving is a necessity.
They also agree that a case manager ought to be appointed for the rest of A[...]'s
life to manage the arrangements that need to be made in relation to therapies and
funds once same has been allocated.

[222] She testified in relation to the difference in approach between herself and
Sishi. She indicated that she was thorough when she conducted her examination
as she is a sensory oral and sequential t rained feeding therapist in KwaZulu -Natal
and is therefore upscaled in a number of approaches that look deeper in terms of
the structure and function of oral structures pertaining to feeding. Such training
looks at five different areas of feeding not limit ed to just the mouth like nutrition,
medical influences, psychological influences and sensory. When she conducted
her assessment it was based on a thorough feeding examination as well as an
examination of A[...]'s oral structures and communication.

[223] In determining what recommendations to accept, I have tried to find a
balance between the recommendations of Sishi and Thanjan. The focus in my
view, ought to be improving her eating and swallowing skills and to improve her
communication skills. As there is already an overlap with Casey’s
recommendations, I do not believe that all Thanjan’s recommended therapies are
necessary.

Pillay

[224] Dr Thasa rathan Pillay (Das) a specialist paediatrician whose expertise was
accepted confirmed that he has been in private practice for an excess of 28 years
and he mainly sees patients with neuro -developmental and cerebral palsy. He
confirms that he prepared a repor t in respect of A[...]. Cerebral palsy in children
are where they are born with a deprivation of oxygen and blood that goes through
the vein which causes insults that lead both to motor, emotional and mental
problems.

[225] Primarily, most experts focus on motor problems where one has
weaknesses in the upper and lower limbs of varying degrees ranging from where
patients walk with an unsteady gait right down to the other end of the spectrum
where they are unable to utilize both their upper and lower limbs and are
bedridden. On an emotional side cerebral palsy patients have anxiety,
depression, frustration, aggression and screaming attacks.

[226] In respective of their neurological aspects as a consequence of the
deprivation of oxygen to the brain certain areas in the brain are damaged which
leads to inappropriate stimuli that causes convulsions. Convulsions form a large
part of the treatment of a cerebral palsy patient as if one does not control the
convulsions patients either choke, aspirate, and die as a result thereof or fall as a
consequence of experiencing convulsions and then suffer head injuries. A large
part of treating cerebral palsy patients focuses on controlling the prevention of
fitting and the complications relating thereto. He confirmed that the words
convulsions and seizures and fitting are used synonymously.

[227] His report, which is dated 6 September 2019 emanated as a consequence
of an interview with A[...] and her mother, based on a clinical examination. He
was asked to prepare a repor t dealing with the various medical costs he foresees
A[...] would require in the future. He indicated that he would recommend the
following be catered for in relation to A[...]'s future medical treatment.

[228] The first being regular neurodevelopment pae diatric consultations and he
recommended three consultations a year from age 12 to age 17. The purpose of
these consultations is to monitor any improvement for A[...] and to make sure that
whatever other therapy she is receiving like for example, physiothe rapy,
occupational therapy and speech therapy the improvement thereof is monitored.
Most of the time as well children in A[...]'s position are on anti -convulsion
medication which results in weight gain. They use epilim to treat convulsions in
patients such as A[...] and the dosage is quantified and computed according to
her w eight .

[229] He indicated that the dosages between 20 to 30 mg per kilogram per day
in two divided dosages. Between the ages of 12 to 18 there is a lot of growth as
children go through puberty and they have their final growth stage. As a
consequence, weight increases exponentially during that period. So the purposes
of having monitoring three times a year would be to monitor the weight, the anti -
convulsant therapy to make sure that the child is on the appropriate dosage to
prevent convulsions and lastly, to see that the adjunctive medical therapists are
doing what they are supposed to be doing in relation to emotional, mental,
physical health and speech. So from the ages of 12 to 17 he c osts it at R7500 per
annum. From the ages of 18 and above he advocates two consultations per year
with a neurologist physician.

[230] Pillay testified that paediatricians in South Africa only see children up until
the age of 18 and they thereafter follow -up with an adult physician. By such age
the child is fully grown, the weight fairly static and less frequently needed visits.
Therefore, from the age of 18 he advocates two consultations a year to life
expectancy.

[231] He testified that in relation to t he treatment of epilepsy the most commonly
used medication by paediatricians, paediatric neurologists or paediatric
neurodevelopment specialists is Epilim hence why he advocates Epilim CR.
Epilim is a broad -spectrum anti -epileptic medication which controls seizures and
because one has various different types of seizures some anti -epileptic drugs
treat specific seizures whereas Epilim is a very safe drug. It is widely used and
administered as it is relatively safe. It is also easily administered as one can
administer it in the morning and the evening. He further confirmed that in the last
28 years of private practice the primary anti -epileptic drug used was Epilim. He
would start with Epilim to control the child's weight and if one does not control it
with Ep ilim then he would add on a second anti -epileptic medication and
sometimes a third if necessary.

[232] The next medic al treatment that he advocated was that of serum drug level
testing four times a year in the first year and thereafter twice a year for life
expectancy. Because anti -epileptics have a narrow therapeutic toxic ratio and you
achieve quality optimum anti -epileptic cover to prevent convulsions, if you
administer too little one experiences breakthrough convulsions. If you provide too
much of a dosage or too high of a dosage you get the toxic side -effects of the
anti-epileptic. So, the narrow therapeutic toxic ra tio has to be monitored initially so
that one obtains the right range and right dose of the drug, which is why in the
first year one performs the serum drug level testing four times a year and
thereafter once one achieves the optimum dosage twice a year to monitor it.
Pillay cautioned that with anti -epileptic medication, inasmuch as it is used to
control convulsions if one gives too high of a dosage it causes convulsions.
Hence the reason why one needs to get the dosage absolutely correct.

[233] A further reason why one administers the drug serum level testing is that in
some patients some have a high metabolic rate, which metabolises the drug
quickly, but in others who are slow to metabolise it takes a long time to
metabolise the medication and a s a consequence, the blood levels rise higher
than they should. Although the weight of the child is a guideline other factors also
considered like for example whether the child has a slow or fast metaboliser and
by doing the blood tests one gets the most a ccurate indication from the blood
levels. In addition, one performs two blood levels at every visit being a peak and a
trough. The peak is performed two hours after administering the medication which
is the highest level that it can reach in the blood and thereafter the trough is just
before one administers the medication.

[234] The next test that Pillay advocates for is the EEG ( electroencephalogram ).
Just as one has the ECG in the heart which monitors your electrical waves in the
heart to ensure that the heart is beating effectively the EEG does something
similar in the brain to make sure that the brain is not inappropriately firing . In the
first year he advocates two and thereafter once every three years to life
expectancy.

[235] The last set of medicat ion he advocates relates to the treatment of
behavioural disorders among cerebral palsy children. Such children suffer from
severe emotional difficulties in the sense that when they are amongst other
children they observe what other children do, and realis e their limitations. They
suffer from anxiety because if they have unsteady gaits they fall easily and also
get depressed. In the treatment of cerebral palsy children, one also looks at the
emotion wellbeing and provide medication to prevent frustration an d anxiety.

[236] To assist with the control of the behavioural issues Risperdal is
recommended. It is the most commonly used drug to control behaviour , irritability
and also in instances where cerebral palsy children become aggressive and self -
mutilate. He recommends a minuscule dose of 0.25 mg as he indicated that one
obtains a good clinical response in controlling the irritability.

[237] He further testified that puberty is a fragile time for cerebral palsy children
as they have an increase in hormone s, specifically that of oestrogen in girls . This
leads to severe anxiety and depression as they become aware of the opposite
sex and have peers who are doing things around them which they cannot do.
Often, one needs to increase not only anti -epileptic medi cation but also prescribe
medication for the emotional and behavioural aspects and for mood stabilisation.

[238] For this he recommends Lamictin and it is one of the newer anti -epileptic
medications. It works synergistically with Epilim as a consequence of which one
prescribes less Epilim. The advantage of using Lamictin is that it has a secondary
effect being that of a mood stabiliser as it inhibits the neuro transmitters which
cause depression. One uses it in conjunction with Epilim for two reasons, fir stly
as one is as able to use less Epilim and one has the added benefit of having a
mood elevator to treat depression in children with cerebral palsy. He advocates a
cost of R2520 per annum for Lamictin.

[239] The next item he prescribes is that of an ana lgesia and suggests Panado
or Myprodol. Children with cerebral palsy that have global development delay
crave analgesia. Because the motor systemic brain is affected cerebral palsy
children have an increased time so their upper and lower limbs have a tendency
to go into spasm and they cannot easily extend these limbs. Where there is no
muscle spasm especially around the neck and postural areas they are
susceptible to tension headaches which is wh y one provides Panado or
Myprodol.

[240] It varies from child to child hence the two different medications he
prescribes to treat the time defect in cerebral palsy. In A[...] he indicated that she
has an ataxic gait and does not walk confidently like a n ormal child, almost like
what he described as a stiff -legged type walk which would result in tension and
aches and pain. Hence the need for analgesia per annum.

[241] The last item that Pillay spoke to was treatment for possible chest
infections. He ind icated that depending on the degree of cerebral palsy and the
degree of muscle tone deficit , cerebral palsy children who are severely affected
do not move effectively and as a consequence they suffer from hydrostatic
bronchopneumonia due to their inactivit y and lack of movement. They are more
prone to postural type of secretions accumulating in the lungs.

[242] In a normal child because such a child is more mobile this occurs less
frequently but because A[...] is ataxic she can aspirate. A further complication
with A[...] is she drools a lot and has some swallowing difficulties. If she swallows
food then she will suffer from aspiration bronchopneumonia as opposed to
hydrostatic bronchopneumonia which one gets from stasis of fluids.

[243] He testified that an average child gets 3 to 4 upper respiratory and lower
respiratory tract infections which is normally treated as an outpatient. However ,
with cerebral palsy children if they aspirate , they need intravenous antibiotics
especially if they are unable to take oral medication at home. He advocates
R1500 per annum in respect of antibiotics for chest infections. Dr Pillay also
testified that on average a cerebral palsy child requires hospital administration at
least once a year usually a 48 to 72 hour admission f or intravenous antibiotics
and thereafter one discharges with oral antibiotics. He has testified that he did
not provide for hospital admission for A[...] as he does in most other cases where
children are either wheelchair bound or bedridden. The reason for this is
although A[...] is ataxic , she is relatively more mobile than other cerebral palsy
patients he has seen , which is why he provided for outpatient treatment.

[244] During cross -examination Pillay was questioned concerning the need for
A[...] to remain on Epilim for the treatment of her seizures. The undisputed
evidence was that A[...] had a series of seizures when she was a young child
possibly 4 and she remained stable until April 2021 when she had a seizure. She
was therefore diagnosed and w as prescribed Epilim. In response, Pillay indicated
that the answer to that was two -fold. Firstly in a normal child who has a
convulsion and was treated for two years until they are fit free or convulsion free.
After two years one does an EEG and stops t he medication as when one does an
MRI scan of the brain it is normal so one can stop the medication.

[245] However, in a cerebral palsy child, you are dealing with a child that has
suffered a major brain ins ult at birth. So throughout that child’s life she or he has
scar tissue in the brain at different levels which at any stage can precipitate
inappropriate e lectrical activity which then results in a convulsion. Because of
this rather than take the risk of A[...] aspirating after a convulsion or falling and
suffering a head injury or making her pre -existing conditions worse , he would
prescribe Epilim for the remainder of her life.

[246] In response to questions from the court he confirmed that he worked
closely with Dr Campbell on a number of occasions and their views were very
similar in this regard . He indicated that A[...] would remain on Epilim for the
remainder of her life expectancy and the only change would be an adjustment to
the dosage.

Ebrahim

[247] Ashraf Ebrahim (Ebrahim), a specialist obstetrician and gynaecologist,
confirmed that he prepared a medico -legal report in respect of A[...] in this matter.
He testified regarding the main gynaecological problems that arise in relation to
girls who suffer from cerebral palsy. He confirmed that in puberty, one is
concerned with the management of the menses and if there is sexual contact
there is a risk of pregnancy.

[248] There are also social -psychological adjustments. It is unclear to what
extent this aff ects the psyche of children with limited intellectual ability is.
Depending on the severity of the cerebral palsy, the main issue relates to the
physical changes being the development of the menses and the potential to
become pregnant.

[249] He consulted with A[...] and her mother when she was 11. He indicated
that initially menstruation in A[...] could be prevented with the insertion of a
Mirena every five years. The Mirena is a plastic device which has a hormone
which is a synthetic analogue of a natura lly occurring hormone being
progesterone. The Mirena device delivers a small amount of the reservoir of the
hormone on a daily basis for its lifespan, which is about five years. It measures
about 3 ½ to 4cm in length and 3cm in width and it is inserted int o the cavity of
the uterus. The hormone in this device causes thinning of the lining around the
wall so that the uterus is unaffected and the lining becomes very thin to the extent
that at the time when the menses is supposed to occur there is nothing to b e
shed and nothing which resembles a period is expelled. This continues without
interruption for a period of five years. The device would have to be replaced every
five years for it to be effective until menopause occurs naturally, which is usually
in the early 50s. In a cerebral palsy child, the insertion of the device can be done
in the doctor's rooms or in theatre. Once it is inserted there are strings attached to
the device, which are trimmed very short to ensure that the child does not feel
anything. U nfortunately, the Mirena is not infallible and one of the main side
effects is bleeding.

[250] The second option advocated for A[...] is a hysterectomy either an
abdominal one alternatively, a laparoscopic one. The operation involves removing
the uterus w hich will stop the menstruation completely. In addition, the ovaries
remain as they serve functions which are of importance to the health of the
individual over and above the menstrual function. The abdominal hysterectomy
can be done through incisions carr ied out in the abdomen or vaginally. Both are
done under anaesthetic. Given the advancement in instrumentation a
hysterectomy can also be done laparoscopically, which involves passing the
telescope into the abdomen through an incision, approximately a cent imetre in
size and one observes the inside of the pelvis without cutting open the abdomen.

[251] Other instruments of a similar size are placed into the abdomen through
other incisions and the surgeon operates from the outside and is able to
manipulate t he instruments to carry out the incisions that are necessary to
remove the uterus. In a minor child, given the size of the vagina, one is unable to
take out the uterus through the vagina but instruments are used to reduce the
size of the uterus to take it out less invasively.

[252] The laparoscopic hysterectomy is head and shoulders above conventional
open surgery as it has fewer complications, less blood loss, a decreased risk of
infection, less pain and a shorter hospital stay and a faster recovery peri od. The
incisions for laparoscopic history hysterectomy are also small. Given the three
option s, Ebrahim was of the view that the best procedure for A[...] taking into
account her condition and deficits would be a laparoscopic hysterectomy.
Although it cos ts more than an abdominal hysterectomy given the diminished risk
of infection and the reduced recovery time it also has resulted in minimal
interference with the abdominal organs and minimal risk of infection.

[253] I agree that given A[...]’s condition, the laparoscopic hysterectomy is the
most appropriate intervention as opposed to the abdominal hysterectomy.

Casey

[254] Maureen Anne Casey (Casey) a n educator with specialization in teaching
children with cerebral palsy and who have diffi culty with communicating orally and
who has extensive experience in augmentative and alternative communication
(AAC) (whose expertise was not challenged) confirmed she prepared a
medicolegal report in late November 2018. Her evidence was proffered to
augme nt that of the speech and language therapist Thanjan. She confirmed that
cerebral palsy children have difficulty communicating via spoken language. Such
children have complex communication needs with little or no functional speech
where they have less than 15 intelligible words.

[255] A[...] is considered to be a child with complex communication needs as she
did not have any intelligible words in her vocabulary when she interviewed her in
2018 but had communication function. A[...] had developed her own
communication mechanisms to communicate without using words. Augmentative
and alternative communication is multi -modal where communication is achieved
through different modalities. Apart from oral communication one uses facial
expression, gestures and body l anguage.

[256] In a child with cerebral palsy who is unable to communicate via spoken
language one wants to develop their skills so that children have better
communication and people can understand them better. A[...] is unable to speak
in full sentences at all. A[...] is able to match for colour and find primary colours
when asked to do so. She did not know three basic shapes, but she was able to
classify according to size. She was unable to count and even with the assessor
counting out loud she could no t move beads to demonstrate one -on-one
correspondence. However, A[...] loved to be engaged and interacted with the
person conducting the assessment.

[257] Casey testified that when cerebral palsy children like these have had no
stimulation and no intervention , the kind of skills that you would expect of a typical
child, they would not have had. It does not mean that because A[...] did not know
it she is unab le to learn it because from her assessment of her there are already
skills that A[...] is demonstrating to say that she has developed learning. There
are certain concepts she has not learnt but with intervention of a structured and
repetitive nature A[...] would be able to learn.

[258] Casey testified that in her practice she has worked with children who have
less skills than what A[...] shows who have actually made significant progress.
There is potential for further development when the child is support ed.

[259] During the assessment although no words were heard A[...] understood
the reciprocal nature of communication and understood turn taking. Although
A[...] did not show good memory retention and could not make the sounds after a
five minute break w ith therapy and follow -up at home she is expected to master
them.

[260] She confirmed that A[...] was able to use the talking bricks to answer
simple yes or no questions. The talking brick was a little square that has a round
bottom on the top and differe nt colours and it gives you eight seconds to pick up
and record. It is a simple communication device. The pictures are at the bottom
and when one presses the picture, it then speaks to describe the picture.

[261] A[...] is also able to do certain things by way of non -verbal means. There
was also a mismatch between what she understood, receptive language and
what she was able to communicate being expressive language and Casey is of
the view that with intervention by a speech and language therapist appropri ate
strategies could be used by A[...]’s carers at home to enable her to become
proficient in the use of AAC devices.

[262] In field of AAC there are three tiers of being able to express oneself. The
first tier and the most sophisticated would be high -tech, that is anything that uses
a computer chip. So, for example, it could be a computer, a tablet, an iPad or a
dedicated device. Such device is specifically made for the group of people who
have complex communication needs or little or no functional speech but with the
iPad or a tablet , applications can be downloaded which will assist , like for
example the talking bricks.

[263] The second tier are low -tech, which is paper -based or cardboard -based
where one would make communication cards like flashcards with pictures on it
and then one has cards using pictures and photographs with line drawings. The
second tier is that of medium t ech, which are battery operated devices like talking
bricks or the quick button items.

[264] The dedicated device which Casey spoke about for cerebral palsy children
is exorbitantly expensive and commences at a cost of around R250 000.00. Such
devices ar e used for children with cerebral palsy, autism, or children with Down
Syndrome who cannot speak. She indicated that for A[...]’s purposes the gold
standard would be the device which cost R250 000.00 but in A[...]'s case it is not
necessary and the iPad wo uld be sufficient.

[265] When doing the comparison of her items which she recommends and that
produced by Thanjan she confirmed there was a lot of duplication. She indicated
that the duplication arises from what the speech therapist wants and she would
defer to her in respect of what she would require for A[...]’s therapy as a speech
therapist. She indicated that AAC is multi -professional and could be used by an
occupational therapist, a special needs educator or a physiotherapist and even an
IT specialist . The carers appointed to assist A[...] would be trained to use the
devices by the therapists.

[266] One of the reasons why she opined that AAC strategies would assist A[...]
was because even though she had very little to no speech and vocabulary , A[...]
showed great promise in that she developed her own vocabulary to communicate
with others. In addition, although A[...] has limited concentration and tries to
conform to requests , she is a non -verbal child , but is able to communicate and
make her needs know n. A[...] was interested in all the toys which she was shown
and showed great pleasure and fear when playing with the dancing bunny.

[267] During the course of the consultation , A[...] was able to sit independently
on the sofa and on the floor but became fatigued. She was cooperative and try to
engage during the assessment. She was able to match for colour but was unable
to find the primary colours when asked to do so. She was unable to identify the
three basic shapes, unable to count and although was una ble to engage with the
beats to count , loved to be engaged and interacted with the assessor.

[268] A[...] was able to make use of an array of pre -verbal communication
means. She would reach out and touch her mother or look at her to get her
attention. Sh e also gave the switch to the assessor so that the assessor could
assist her in fixing it if the protective casing came loose. A[...] would lift up her
hand to say stop and would use eye gaze and would point to an item if she
wanted it and was unable to re ach it or would touch or take it if it was within
reach. She would shake or nod her head to indicate yes and no and would use
proximity to an object to indicate a desire or dislike for it as well as facial
expressions. At home she pointed to her bottom to indicate that she needed to
use the toilet or to bring an item of desire to her. She would demonstrate her love
for her mother or her granny by giving them hugs.

[269] She vocalised and nodded her head when asked if marshmallows were
nice and she tried to imitate hand signals for more, help, nice and finished. She
did not show good memory retention and could not make the signs after a five -
minute break. However , with the rapy and follow -up at home Casey was of the
opinion A[...] will master them.

[270] As regard to communication functions, A[...] was able to via gesture greet
and wave goodbye, request assistance, request action, deny or negate, direct
actions of others a nd state possession . She was unable to via verbal or non -
verbal means, describe or partly describe objects, request information and/or
comment.

[271] In order to determine whether A[...] would benefit from AAC devices and
be able to use them , she indicat ed that A[...] was able to extend her arms to move
them towards and away from her body, she was able to clap her hands together
and bounce a medium -sized ball. Although her right hand and arm were
significantly less functional and less used than her left a rm and hand, fluctuation
in tone was not observed and she used her right hand for some stabilisation and
to execute crude hand function.

[272] A[...] could use her left and for some activities but with reduced
functionality and with significantly lesser degrees of proficiency than that of a
typical peer. She was able to grasp and release using both hands with the left
being more efficient. She could hold a large crayon in a closed web, had sufficient
pressure and control to scribble although she was unabl e to copy horizontal or
diagonal lines or shapes.

[273] A[...] was able to isolate her index fingers on her left hand for the purposes
of pointing and for the purpose of activating the keys on the computer or cells on
the iPad. She could use the cold fin gers of her right -hand to activate the
touchscreen of the iPad. Although A[...] was unable to press a small button like
that on a cell phone as she was unable to see small icons , she could touch cells
ranging from 6cm x 6cm to 2,4cm x 4 cm and 2½ cm x 2½cm. Although the 2.5cm
cells were more difficult she managed and accuracy was noted to increase with
the introduction of a key guard. A[...] could hold a stylus and activate a small cell
of 2cm x 2cm.

[274] A[...] was able to point to a specific i con and a communication device on
both a high -tech and low -tech device and when the single button devices like
talking brix and step -by-step were offered she was able to activate the message
by lightly tapping the face. A[...] could lift and hold her arm o ver a touchscreen of
communication device in order to press the screen and repeat the action.

[275] Casey confirmed that on an iPad , a speech application can have as many
as 128 different cells if the screen is big. Because A[...] did not receive previous
speech and language therapy or AAC as part of a trans -disciplinary team
approach Casey was of the view that A[...] required the prov ision of a highly
structured hierarchical individualisation development programme to be devised,
implemented and closely monitored. She anticipate d that with appropriate
interventions and accommodations , A[...] will be capable to make progress, albeit
limited with regard to development, perceptive and expressive skills, cognitive
concepts and reciprocal communication.

[276] Because there was an overlap with Thanjan, she was of the view that on
her list she would advocate for a full -colour communication ca rd booklets, mats
and flashcards. This would be supplied by an AAC therapist at a cost of R1500
and she would advocate this every year for five years and thereafter every two
years for life. Casey’s list of items were also listed in a schedule and to some
extent overlapped with that of Thanjan. The reason why she would advocate for
the communication boards was that they are laminated and say things like what “I
want”, “I feel”, “sad” and this would enable A[...] initially to point to them and they
would be developmental and one as she improves populated with more and more
words. This would teach her vocabulary. She would have access to 400 words in
the English language .

[277] During the course of cross -examination, Casey acknowledged that she
was a special educator with advance qualifications in AAC. She acknowledged
that 4 years had elapsed since she had seen A[...] in 2018 and A[...] suffers from
moderate to severe cognitive impairment or the inability for logical and abstract
thought, poor attention and concentration, and does not show good memory
retention.

[278] She agreed that A[...]’s severe intellectual disability will result in slight
improvements but that she was eff ectively untrainable. As a consequence, it was
suggested to her that given her severe cognitive delay and intellectual impairment
as well as poor concentration the devices she recommends A[...] would be unable
to use. She disagreed and opined that A[...] would be able to utilise low -tech
devices.

[279] In going through the devices recommended in the joint minutes of the
speech therapists she acknowledged that certain of the devices were low -tech.
The 3D communication symbol board was a low -tech device and a fairly basic
device. The Super Talker Progressive Communicator is a high -tech device which
has eight overlays, which one touches and a message to come out. It is a flat little
block which one places an overlay on with the screen guard over and each cell
would say something different. There would be a maximum of eight messages.
This device generates a sound. One can use it to learn colours or the therapist
could record a question, for example, it would say “I would like the red crayon”.
The trainer could b e trained to utilise this.

[280] The super talker progressive communicator would provide basic
communications for A[...] and the maximum number of messages would be 64 if
she has the 8 grid. Because in 2018 A[...] was already showing more than eight
comm unication functions she was of the view that she would benefit from this
despite its classification as a “high tech device” . The Go Talk device only goes up
to 32 words and the Super Talker to 8. Although the Go Talk goes to 32 it has five
levels and it wi ll give her access to more than the Super Talker, but both of them
are very clunky.

[281] She was of the view that A[...] would be able to operate the Super Talker
and the Go Talk. She also agreed with Thanjan that A[...] would benefit from the
Makaton ma terial as this is the unaided one which would be signing, gestures and
facial expression. She was of the view that she would not recommend the
Makaton as it has limitations as it is not the South African sign language, which is
why she was of the view that the low -tech flashcards and booklets would be a
better option.

[282] She testified that although A[...] had problems with fine motor function she
would be able to operate the iPad Air as she will be able to use her fingers.
Although she cannot draw, writ e or scribble she can hold a crayon and therefore
with a stylus is able to access the iPad Air. The stylus is a pen or a pointer that
works with touchscreen and she operates like a kid.

[283] Having regard to the evidence of Casey the reservations expressed by the
defendant that A[...] will not be able to operate the iPad fall away. She testified
that A[...] was able to operate the iPad more efficiently with her left hand and was
able to isolat e her index fingers on her hand for the purposes of pointing and
activating the keys. She was also very accurate with the stylus. In addition, she
confirmed that the quick talker was not an unnecessary duplication. I agree that
despite A[...]’s severe c ognitive difficulties, the use of AAC equipment will expose
A[...] to devices that would expand her vocabulary and restore some dignity to a
severely impaired child. I am fortified in this view having regard to the evidence
of Casey that she has the physi cal ability to use the iPad and should be given the
opportunity to expand her communication skills.

Anderson

[284] Sue Anderson (Anderson) a qualified Nursing Sister who started Disabled
People South Africa testified in relation to her medico -legal re port which she
prepared after the interview with A[...] and her mother on 1 November 2018. She
confirmed the contents of her report and testified regarding the future medical
costs she recommended for A[...]. She indicated that she recommended
treatment for skin care and abrasions as well as simple fractures and lacerations.
Her reason for doi ng so was as consequence of cerebral palsy children falling
especially as they get older. The common fractures are wrist fractures and they
are more prone to abrasions.

[285] As A[...] gets older she will become less stable. She also recommends a
fold down shower seat as when she interviewed A[...] she was unstable and
unable to stand in a shower. The fold down shower seat allows her to sit down
and shower whilst someone is attending to her. Because she is unstable and
especially when one is washing he r hair, her eyes are closed and she is less
stable. The fold down shower seat would need to be replaced every five years.

[286] The next item which Ms Anderson spoke about was that of incontinence.
As the parties agreed on the number of nappies she did not testify on the number
of nappies required. S he also advocated the use of Vaseline and various other
skin treatments in addition to routine skin care for A[...] as a cerebral palsy child.
She advocates the use of Aqueous cream as well as tea tree oil which is often
used to heal skin. It will keep A[...]’s skin supple and if there are tiny little
abrasions the tea tree oil will heal these. The second cost she advocates for A[...]
as she gets older for skin care treatment is that of a Zinc starch and b oracic
powder. This prevents fungal infections which are very common in cerebral palsy
children and cerebral palsy adults where they ar e wearing nappies. It is used in
the folds of the skin to prevent fungal infections.

[287] During cross -examination of Ms Anderson the focus was on a number of
factors. It was suggested to her that in light of the fact that A[...] had not fallen or
suffered a fracture with injuries, her estimate in relation to catering for a fracture
and everything therewith is over generous. She indicated that when she
interviewed A[...]’s mum she confirmed that she had fallen but these were not
serio us falls which resulted in any fractures.

[288] It was suggested to her that another expert had suggested catering for four
fractures in A[...]’s lifetime and she indicated that would be fair and was more
than what she estimated in her report. She indica ted that although she usually
mixes the tea tree oil with Epimax if the child has dry skin or Aqueous cream if the
child does not. She had no difficulty if the tea tree oil was mixed with whatever
normal cream A[...] was using. She indicated that the tea tree oil was expensive
as opposed to the Aqueous cream.

[289] When asked to comment on her recommendation that the night attendant
be less qualified than the day attendant, she indicated that the night attendant is
normally someone who is there to assis t her when her sleep is disrupted and
would be required to be less qualified than the day attendant. It would appear
that the only issue which the defendant had with Ms Anderson’s recommendation
related to what creams she had recommended and what A[...] was already using.

[290] I am of the view that the recommendations of Ms Anderson be accepted as
they were not seriously challenged and appear fair and reasonable in the
circumstances.

Items a greed upon by the parties

Kerr

[291] At the commencement of the initial trial , the parties were not in agreement
in relation to the cost of alterations to the home to cater for A[...]. To this end the
architect Roger Kerr (Kerr) prepared a report in 2019 as to the probable costs to
revamp th e rural home in which A[...] and her mother stayed to accommodate her
needs. Subsequent ly, a Trust was established and it purchased a home for the
plaintiff and A[...] which was more suitable to A[...]’s needs in the suburb of
Noordsig, Empangeni.

[292] As a consequence there was an amendment to the costs required for the
alterations to their new home . Kerr revised his initial report o n 11 August 2022, to
make provision for the recommendations of Somaroo and Bainbridge as per their
reports completed in 20 21. Kerr prepared a further report and the estimated costs
of the alterations to the home in the sum of R143 653.26.

[293] After the evidence of the occupational therapists and physiotherapist, one
of the therapies advocated for A[...] to assist her was aqua therapy given that
there was a pool at their home. As a consequence, Kerr was specifically
requested to provide a suppl ementary report of costs related to the use of the
pool and the maintenance thereof. He confirmed that the pool would require
heating and ongoing maintenance. At the time of his inspection, the pool was full
of untreated green water and appeared not to be in use. He indicated that there
ought to be once off costs of a P -Shape grab rail, a heat pump and a heat blanket
with allied costs relating to installation, electrical, piping and sundries. These
costs were estimated at an amount of R36 500.00.

[294] In addition, there would be ongoing pool maintenance costs relating to
monthly pool maintenance, annual heat pump servicing, heat blanket
replacement, pool net replacement, filter sand replacement, filter pump motor
servicing, pipe replacements and kreepy replacements as well as surface touch
ups and fibre glass re -lining. These costs would be approximately R19 696.67
annually.

[295] I do not believe that the costs relating to the pool ought to be allowed given
the various therapies that A[...] will be receiving. Should the plaintiff wish to follow
the recommendation to provide her with aqua therapy as suggested, this should
be an expe nse that should come from the monies already received.

Dieticians

[296] The parties have agreed on the costs and applied an appropriate
contingency based on the joint minute of the experts of 9 June 2020 .

Motor vehicle

[297] The costing and replacement of the vehicle as set out in the report of
Rosslyn Rich dated 23 August 2022 has been accepted. Although this has been
agreed the necessity for such a vehicle and from when it would be needed
remained in dispute. The defendant submits that the given the award already
made to A[...] the costs of a vehicle beyond age 22 must be a cost for A[...]’s
personal expense financed out of her income.

[298] The plaintiff disagrees with this approach and submits that in the award
made in respect of loss of earnings a contingency was applied to account for
travelling expenses and the defend ant’s stance that A[...] would have had to
purchase her own vehicle amounts to a double deduction .

[299] A[...] is a day scholar and travels to and from school in a school bus. Public
transport is utilise d which poses problems for A[...] and whomever is taking her
anywhere. She cannot travel alone and I agree that she is a child who is
vulnerable to falling especially on uneven terrain. Moreover, she will need to be
transported to therapies which do not ta ke place at school and a vehicle will be
needed for such purpose. I am of the view that a vehicle is necessary for A[...]’s
use specifically to transport her to and from therapies. This starter vehicle as
indicated by Ms Rich can be allocated at age 18 at seven year intervals
thereafter . The actuaries are also to add a 10% contingency deduction to this
expense.

Nappies

[300] The parties have agreed the cost and frequency of nappies for A[...] at 1
and a half per day to life expectancy as per Sue Anderson ’s report.

Dentistry

[301] This too has been agreed by the parties as per Dr Y Singh’s report and the
calculations can be done as per such report.

Past medical expenses

[302] The parties have agreed on this in the sum of R129 642.03 as per the
schedule supplied by the Plaintiff.

Draft order

[303] The parties agree that once the actuary does the calculation from the
directives, a draft order, hopefully by consent, can be presented to the court.
Should there be an dispute regarding the actuarial calculations and/or the
directives be unclear a further hearing will be necessary.

Costs

[304] As regards costs of the action, I am of the view that they should follow the
result, such to include the cos ts incurred by the Plaintiff consequent upon the
engagement of both senior and junior counsel. The scale of junior counsel on
scale B and that for Senior Counsel on scale C applicable from the date of
amendment of the Uniform Rule 67. The costs can be incl uded in the draft order.

Directives

Therefore I make the following directives:

(a) the agreed costs are to be calculated in accordance with ‘ A, A1 to
A4’ hereto;

(b) the cost of the Obstetrician and Gynaecologist Dr A Ebrahim in
accordance with ‘B’;

(c) the cost of the Nursing Sister Sue Anderson in accordance with ‘C’;

(d) the cost of the Specialist Paediatrician Dr Das Pillay in accordance
with ‘D’;

(e) the cost of the occupational therap y, case management, crisis
management and report writing and sourcing and interviewing of
care givers in accordance with ‘E 1 and E2 ’;

(f) the cost of the physiotherapy in accordance with ‘F’;

(g) the cost of the AAC in accordance with ‘ G’;

(h) the cost of the speech therapy in accordance with ‘H1 & H2 ’;

(i) the cost of caregiving and the caregivers’ remuneration , in
accordance with paragraph 180 of the judgment . In addition,
provision must be made for training for t he caregivers as suggested
by Bainbridge.


____________________
Henriques J



CASE INFORMATION

APPEARANCES

Counsel for the Plaintiff : K C McIntosh SC
M A Oliff

Instructed by : Justice Reichlin Ramsamy
Attorneys Inc
Suite 3, 72 Richefond Circle,
Umhlanga Ridge
Tel: 031 305 3844
Email: mohamed@jrr.co.za

Counsel for the Defendant : G Van Niekerk SC
M Moodley

Instructed by : The State Attorney
6th Floor, Metlife Building
391 Anton Lembede Street
Durban
Email: NtMajola@justice.gov.za /
NPeete@justice.gov.za


Dates of Hearing : 29, 30 & 31 August 2022 ; 01, 2, 05,
06, 07 & 09 September 2022; 13 & 27
October 2022; 8 June 2023 & 20
September 2024

Date of Judgment : 09 May 2025

This judgment was handed down electronically by circulation to the parties’
representatives by email, and released to SAFLII. The date and time for hand
down is deemed to be 14h30 on 9 May 2024.