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[2025] ZAECMHC 85
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O.M v Member of the Executive Council responsible for Health in the Eastern Cape Province (2992/2013) [2025] ZAECMHC 85 (4 September 2025)
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IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MTHATHA)
Reportable
CASE
NO: 2992/2013
In the matter between:
O[...]
M[...]
PLAINTIFF
and
MEMBER OF THE
EXECUTIVE COUNCIL
RESPONSIBLE FOR HEALTH
IN THE
EASTERN CAPE PROVINCE
DEFENDANT
Neutral
citation:
O[...]
M[...]
v MEC for Health, EC
(C/N).
Coram:
NHLANGULELA AJP
Heard
:
24 MARCH 2025
Delivered
:
04 SEPTEMBER 2025
Summary
:
General damages – loss of amenities of life – whether a
claim made by an unconscious plaintiff for compensation for
loss of
amenities of life is competent – claim found to be not
competent and dismissed with costs.
ORDER
1.
The plaintiff’s claim for compensation made on behalf of her
minor child is dismissed without an order as to costs.
2. The defendant pays the
plaintiff, in her personal capacity, the amount of R280 000 (R400 000
less 30%) in respect of her claim
for general damages after
application of the apportionment with interest thereon at the legal
rate from 30 days after the grant
of this order to the date of
payment thereof.
3. The defendant is
ordered to pay the cost of the action relating to quantum together
with all reserved costs, if any, on scale
C ( for SC) and scale B
(for junior counsel) together with interest thereon at the prevailing
legal rate from a date 30 days after
taxation or agreement to date of
final payment thereof, such costs to include:
3.1 the cost of two
counsel where utilised.
3.2 the cost of the
hearing on 24 March 2025 including counsel’s day fee.
3.3 the cost of preparing
for consultations and trial.
3.4 the travelling and
accommodation expenses, if any, of the plaintiffs legal
representatives attending consultations with witnesses
and court.
3.5 the reservation fees,
if any, together with the qualifying fees, if any, of the plaintiff’s
expert witnesses, together
with the costs of preparing their reports
and supplementary reports, if any, in respect of whom notices in
terms of rule 36 (9)
(
a
) and (
b
) have been filed of
record.
JUDGMENT
Nhlangulela AJP
[1]
The plaintiff is Ms O[...] M[...], the
mother of N[...] M[...], a minor boy-child. She sues in her personal
capacity as well as
in representative capacity on behalf of her minor
child. Her claim is for damages arising from the negligent monitoring
of labor
and delivery at the birth of the child between 15 and 25
February 2008 at Mthatha General Hospital, hence the defendant is the
MEC for Health, Eastern Cape (the MEC). As a result of negligent
monitoring, the child suffered from cerebral palsy. The estimated
value of damages sought to be recovered in respect of the plaintiff
was R500 000, and R2 500 000 in respect of the
child.
[2] At the
time of the hearing on the matter, the issue of the MEC's liability
for wrongful monitoring had been settled
on 11 December 2020. In
addition, an award for damages in the sum of R400 000 (subject to
apportionment at 70%-30%) in favour of
the plaintiff was agreed upon
between the parties. Therefore, the claim for general damages in
respect of the child remains outstanding
for adjudication in this
matter, all other claims having been extinguished by the death of the
child on 25 October 2024.
[3]
In the law of delicts, general damages are a non-patrimonial type of
damages comprising two distinct categories. The first
category
relates to pain and suffering, mental anguish, fear and anxiety. The
second category comprises loss of amenities of life,
reduced
expectation of life and disfigurement
[1]
.
[4] In this
case, the nature of the injuries suffered by the child is set out in
various medical reports, admitted by
consent in terms of
s 3
of the
Law of Evidence Amendment Act No. 45 of 1988
. The medical reports
reveal that the child suffered a hypoxic brain injury during labour,
as a result of which he suffered from
cerebral palsy of a mixed
spastic and dyskinetic motor impairment. This severe brain injury
resulted in significant impairment
of body function and multiple
contractures, and resulted in brain dysfunction and motor impairment
affecting his head, neck, trunk,
and all four limbs. He was
classified as GMFCS, Level 5 and MACS, Level 5, representing those
individuals with the most severe
restriction of functioning. Those
impairments are associated with severe language impairment,
incontinence, multiple contractures
in his upper and lower limbs and
mild and fixed scoliosis.
[5]
Furthermore, the child suffered from severe cognitive impairment in
that:
he was conscious and
aware of his surroundings. But his physical impairment prevented him
from reciprocating and engaging effectively.
He was mostly content
and peaceful but at times became irritable with his surroundings. He
initiated contact with others but could
not express himself properly
because of his severe impairment of communication, for he appeared to
understand his mother when she
spoke to him, but he was unable to
express himself verbally or non-verbally. He was unable to
engage in purposeful activity
because of his severe physical
impairment. He could hear and see without any difficulty, although he
had a squint in his right
eye. He had a dyskinetic grimace on
his face, and his mouth remained open. He had abnormal
involuntary movements of
his tongue, and he was unable to speak at
all. He had drooled at times. He was dependent on careful feeding by
others and on a
relatively smooth diet. He was only able to indicate
hunger by crying and comfort by smiling and laughing. He knew
and recognised
his family when he returned home. He also recognised
his mother's voice on the telephone when she spoke to him. He
recognised his
own name and he understood the conversation addressed
to him. However, he was unable to express himself effectively by
non-verbal
or verbal means other than by smiling, laughing or crying.
He enjoyed watching television and in particular the cartoon
programs.
He was unable to sit, crawl, stand, walk, or even roll. He
was completely dependent on others for all aspects of functional
mobility.
He was completely incapable of taking part in ordinary and
everyday aspects of life.
[6] There were
significant barriers to the child's well-being and function during
his short life span, in that he had not
been supplied with any
mobility aids or assistive devices beyond buggies. He and his mother
lived in poverty under adverse conditions
in an inadequate home
environment and without proper transportation options. Despite this,
his mother displayed a commitment to
his well-being and care. He did
not have regular medical follow-ups for cerebral palsy. He did have
monthly sessions of physiotherapy,
occupational therapy and
speech therapy at various hospitals during his life. He was
assessed as having a life expectancy
of 29 years in total. He had
lived for approximately 17 years.
[7]
Counsel for the defendant submitted that the medical report of Dr
Campbell shows that the child suffered from a moderate
to severe
cognitive impairment and, although conscious and aware of and
interested in his surroundings, he was unable to engage
with them.
His ability to communicate was restricted. It did not appear as
though he was suffering from any chronic or recurrent
pain. Further,
counsel drew the attention of the court to a report by Dr de Kock,
the Industrial Psychologist, where it is stated
that the child had
profound developmental delays, rendering him unable to understand
instructions or communicate appropriately.
Against this background,
counsel submitted that since the child had no intellectual
appreciation of his condition, the monetary
award made could not be
used to his advantage, nor could it provide consolation to him. In
contending that the child’s neurological
condition was in
‘persistent vegetative state’
[2]
,
thus an unconscious plaintiff, he placed reliance on C
ollins
v Administrator, Cape
[3]
,
where the following was said at 92F-H:
‘
As
previously indicated, there would appear to be unanimity that an
unconscious person is not entitled to damages for pain and suffering
or anguish, that is to say, the subjective element of the loss of
amenities, since he or she suffers no pain and experiences no
anguish. The objections to the English approach are the following.
First, the award of non-pecuniary damages in respect of the
actuality
of the loss serves no purpose as the money awarded cannot be used for
the benefit of the unconscious plaintiff. Second,
it can provide no
consolation to an unconscious plaintiff, as consolation presupposes
consciousness and some capacity of intellectual
appreciation. A
conscious person who, by reason of his injuries, is incapable of
deriving any advantage from a monetary award can
notionally obtain
some consolidation from the receipt of money and from being able, if
he pleases, to give it away. An unconscious
person cannot even have
this consolation.’
[8] The issue
of whether the child is the unconscious plaintiff or not does not
arise in this case. Counsel did not
raise an issue about the medical
evidence contained in the reports that places the child into the
category of an unconscious plaintiff.
It is so because the proof lies
in the severity of the hypoxic ischemic injuries sustained by the
child, which imposed the most
severe restrictions on the functioning
of his brain and motor systems, affecting the head, neck, trunk, and
all four limbs. The
manner in which the injuries sustained
compromised the capacity of the child to engage with others
meaningfully has already been
discussed, and no more needs to be
said.
[9]
It appears in the plaintiff’s particulars of claim that the
damages sought are for pain and suffering and
loss of amenities of
life. It is a trite law that an unconscious plaintiff is not entitled
to damages for pain and suffering
[4]
.
Therefore, the issue for decision in this case is whether the
plaintiff’s child, as the unconscious plaintiff, is
entitled to compensation for the loss of amenities of life. This is a
vexed question, which was answered in the negative by Scott
J in
Collins
(supra),
in
1995; the affirmative answer having been given in
Gerke
NO v Parity Insurance Co Ltd
[5]
in
1966;
and
Reyneke
(supra)
in
1991. Between the hearing of arguments and delivery of the judgment
in this matter, the conflicting decisions were settled by
the
majority bench of the SCA in
The
MEC for Health, Gauteng Provincial Government v AAS obo CMMS
[6]
(AAS) where, endorsing the
Collins
case,
the following is stated:
‘
[157]
The
position in our law on the compensation of an unconscious claimant
can thus be summarised as follows. Such a claimant is not
entitled to
any award for pain and suffering under any circumstances. This is
uncontroversial. In respect of an award for loss
of amenities of
life, such can only be made to the extent it can serve some function
for the personal and exclusive benefit of
the claimant. This is
particularly so where an award for special damages adequately
provides the means and facilities to make the
unconscious claimant’s
life less miserable.’
[10]
The doctrine of
stare
decisis
[7]
requires
this Court to follow settled law that has been pronounced by the
SCA. That being the case, in applying the newly
evolved
delictual principle of law that an unconscious plaintiff is not
entitled to compensation for loss of amenities, I am duty-bound
to
dismiss the plaintiff’s claim for compensation that she brought
on behalf of the minor child. And I must take into account
that
mulcting the plaintiff with costs could be catastrophic because she
is a poverty-stricken citizen. Furthermore, the
Biowatch
[8]
principle
may well redound in her favour, as the nature of the case prosecuted
on her behalf is not an abuse, but a constitutional
rights-based
claim founded on the vindication of the child’s protected right
of freedom and security of the person in terms
of s 12 of the
Constitution.
However,
for the success of the plaintiff acting in her personal capacity, the
costs ought to be paid by the defendant.
Order:
[11]
In the result, the following order shall issue:
1. The
plaintiff’s claim for compensation made on behalf of her minor
child is dismissed without an order as to costs.
2. The defendant pays the
plaintiff, in her personal capacity, the amount of R280 000 (R400 000
less 30%) in respect of her claim
for general damages after
application of the apportionment with interest thereon at the legal
rate from 30 days after the grant
of this order to the date of
payment thereof.
3. The Defendant is
ordered to pay the cost of the action relating to quantum together
with all reserved costs, if any, on scale
C ( for SC) and scale B
(for junior counsel) together with interest thereon at the prevailing
legal rate from a date 30 days after
taxation or agreement to date of
final payment thereof, such costs to include:
3.1 the cost of two
counsel, where utilised.
3.2 the cost of the
hearing on 24 March 2025 including counsel’s day fee.
3.3 the cost of preparing
for consultations and trial.
3.4 the travelling and
accommodation expenses, if any, of the plaintiffs legal
representatives attending consultations with witnesses
and court.
3.5 the reservation fees,
if any, together with the qualifying fees, if any, of the plaintiff’s
expert witnesses, together
with the costs of preparing their reports
and supplementary reports, if any, in respect of whom notices in
terms of rule 36 (9)
(
a
) and (
b
) have been filed of
record.
Z. M. NHLANGULELA
ACTING JUDGE PRESIDENT
EASTERN CAPE DIVISION
Appearing for the
plaintiff:
Adv. A D Schoeman SC
appearing with Adv. H B
Ayerst
Instructed
by:
Mpambaniso Attorneys
c/o Vapi Attorneys,
MTHATHA.
Appearing for the
defendant:
Adv. B Dyke SC
Instructed
by:
Norton Rose Fulbright SA Inc.
c/o Smith Tabata
Attorneys,
MTHATHA.
[1]
See:
Reyneke
v Mutual and Federal Insurance Co Limited
1991
(3) SA 412
(W) at 419.
[2]
The
neurological condition that is described in
Clarke
v Hurst NO and Others
1992
(4) SA 630 (D).
[3]
1995
(4) SA 73
(C) at 92F-H.
[4]
Ibid
at 92
[5]
Gerke
v Parity Insurance Co Ltd
[5]
1966
3 SA 484 (W)
[6]
(SCA)
unreported case no 401/2023 of 20 June 2025 at para 157.
[7]
In
Ex
Parte
Minister
of Safety and Security and Others:
In
RE: S v
Walters
and Another
(4)
SA 613 (CC)
[2002] ZACC 6
; ;
2002 (7) BCLR 663
(CC) at para. 57
the
words
stare
decisis
was
said to be: ‘…
an
abbreviation of a Latin maxim,
stare
decisis et non quieta movere,
which
means that one stands by decisions and does not disturb settled
points’.
[8]
Biowatch
Trust v Registrar, Genetic Resources and Others
2009
(6) SA 232
(CC).