IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, BHISHO)
OF INTEREST
Case No: 431/2022
In the matter between:
DEANE LUCILLE OLIVIER Plaintiff
and
MEMBER OF THE EXECUTIVE COUNCIL FOR THE
DEPARTMENT OF HEALTH: EASTERN CAPE PROVINCE Defendant
JUDGMENT
KOTZÉ AJ
Introduction
[1] The plaintiff’s claim against the defendant arises from the defendant’s alleged negligent
or substandard medical care rendered to h er husband, the deceased, while under the care and
treatment of the defendant’s employees. As a result of such, the plaintiff alleges that the deceased
developed septicaemia and several bedsores which became septic , and as a further result , septic
shock set in which resulted in the deceased passing away on 8 May 2021.
[2] The plaintiff alleges that as a result of the above, she has suffered severe emotional shock
and pain requiring medical treatment, and therefore , claims for the cost of her past and future
medical treatment and general damages in respect of shock, pain and suffering. In sum, the
plaintiff alleges that the defendant should be held liable for her damages.
[3] The defendant disputes its liability, and therefore, t he matter c ame before this court on
trial.
[4] On 27 July 2023 , during the case flow man agement process and in terms of rule
37A(12)(f), a directive was issued (or to use the wording of the rule, an ‘order’) in terms of which
the issues of liability and quantum were separated. 1 Forward to the start of 202 5, the roll call of
the matter came before me on 31 January 2025 and was postponed to 7 February 2025 because
the joint minute of parties’ experts remained outstanding. 2
[5] On 7 February 2025 the matter was certified trial ready in respect of the separate issue of
liability. Although no joint minute, the letter of the plaintiff’s attorney dated 6 February 2025 had
advised the Registrar that the plaintiff no longer intends on calling her expert (Dr Wosu), and
therefore there was no longer a need for the joint minute.
[6] The trial proceeded on the issue of liability only . The trial ran for four days, was
postponed for closing arguments, was again postponed for closing arguments, and was finally
argued with the parties having filed written heads of argument. Judgment was reserved.
Summary of the parties pleaded cases
[7] It is necessary to first summarise the pleaded case of each party so that the remainder of
this judgment could be appreciated in its true context. The plaintiff’s claim, as already set out
above, relies on the negligent conduct of the defendant’s employees as the cause of death of the
deceased, and as a further result, her damages arising from it. In paragraphs 10 and 11 of the
particulars of claim, the plaintiff alleged:
1 The directive forms part of the jointly signed Form 1(a) dated 23 and 29 May 2023. A further formal directive was
emailed to the parties on 27 July 2023 at 15:12.
emailed to the parties on 27 July 2023 at 15:12.
2 This in terms of paragraphs 3.4 to 3.6 of the parties Form 2 roll call trial preparati on checklist.
10. In and as a result of the aforegoing the deceased developed septicemia and severa l bed
sores which became septic and as a further result septic shock set in as a result of which
the deceased passed away on 8 May 2021.
11. In and as a result of the aforegoing the Plaintiff suffered severe emotional shock and pain
requiring medical treatment as a result of which the Plaintiff suffered damages in the sum
of R409 300.00. Made-up as follows:
11.1 Past medical treatment R800.00
11.2 Future medical treatment R8500.00
11.3 General damages in respect of shock, pain and suffering R400000.00.
[8] The defendant in turn pleaded its denial as follows:
13. The Defendant denies that it was negligent in any way as alleged or otherwise, and
consequently, denies that there was any breach of a legal duty on its side or its employees
which cause (sic) the alleged death and /or conditions of the deceased and /or plaintiff,
respectively.
14. Alternatively, only in the event that the court finds that the defendant ’s employee s
negligently breached any duty of care or any other legal duty o wed to the deceased
and/or plaintiff, of which br each is denied and that the plaintiff will require medical
services and medical supplies as alleged, of which the plaintiff is put to the proof thereof.
[9] The plaintiff’s case therefore squarely relie d on the wrongful death of the deceased as the
source of her damages. During closing argument, Mr Louw, appearing for the plaintiff, advanced
an alternative argument to the effect that paragraph 10 of the particulars of claim above allows
for an interpretation of two different basis on which to find for the plaintiff . His heads of
argument reasoned as follows:
In the alternative, and in the event that it is not found that the deceased passed away as a result of
the sub-standard treatment afforded to the deceased at the Livingstone Hospital, then in that event
it is submitted that it has clearly been shown that t he lack of proper care and treatment given to
the deceased at the Livingstone Hospital has caused the Plaintiff harm in having to see, for an
extended period of time, how the deceased had been dealt with at the Livingston e Hospital and
read with the failur e of the hospital wise her on how to deal with the deceased ’s condition upon
his first discharge as well as on his second discharge from the hospital. It is submitted in the
circumstances that in any event the Plaintiff would be entitled to be compensated for the pain and
suffering that she was subjected to due to the negligence of the Livingstone Hospital staff.
[10] When the above was debated with Mr Louw, he indicated that an amendment would be
made to the particulars of claim to give effect to the above arg ument. Such an amendment
followed on 30 April 2025. The amendment was perfected without objection, and paragraphs 10
and 11 of the particulars of claim now read:
10. 10.1 In and as a result of the aforegoing the deceased developed septicemia and
several bedsores which became septic.
10.2 In and as a further result of the foregoing septic shock set in as a result of which
the deceased passed away on 8 May 2021.
11. In and as a result of the aforegoing as set out in paragraph 10.1 and/or 10.2 above, the
Plaintiff suffered emotional shock and pain requiring medical treatment as a result of
which the Plaintiff suffered damages in the sum of R409 300.00 made up as follows…
[11] The above is understood to mean that even if the plaintiff fails to prove that the
negligence of the defendant caused the deceased’s death (paragraph 10.2 above), she nevertheless
suffered damages because of the manner in which the deceased was treated (paragraph 10.1
above). Unfortunately, there was very little argument from the parties in aid to the court on how
to unpack the above and adjudicate the evidence, considering that the parties conducted the trial
on the particulars of claim as it were , closed their respective cases and argued the evidence all
before the amendment was undertaken. Considering the course I intend to take, I will assume that
the plaintiff’s amendment enables her to advance her argument on both basis.
Summary of the evidence and common causes
Summary of the evidence and common causes
[12] The plaintiff relied on the evidence of two witnesses: Sister Rensia Smit (a registered
nurse) and the plaintiff herself. In supplement to that, the plaintiff presented as Exhibit A, its trial
bundle inclusive of, for present purposes, the relevant hospital records, the report of Sister Smit,
the report of Dr Candice Harris (a general practitioner), and a series of photographs. The plaintiff
further handed in as Exhibit B a document titled ‘medical certificate of cause of death’. There
were no objections raised by the defendant concerning the documentary evidence.
[13] The defendant relied only on the evidence of Dr Andries Petrus Jacobus Botha (a
specialist physician), and the joint minute between Dr Botha and Dr Ifeanyi Wosu (a specialist
physician).
[14] During the course of the trial, it became common cause that the deceased was admitted to
Livingstone Hospital, for his first admission, on 27 January 2021 and was discharged on 23
February 2021. The deceased was again admitted to Livingstone Hospital, for his second
admission, on 16 April 2021 and was discharge on 29 April 2021. Finally, the deceased was
admitted on 30 April 2021 to Uitenhage Hospital, for his third and final admission, less than 24
hours since his second discharge, until he passed away on 8 May 2021.
[15] It was further common cause that the deceased pas sed away from septicaemia. What was
not common cause, was whether the septicaemia was caused by, for the plaintiff, the infected and
mismanaged bedsores of the deceased, or whether, for the defendant, the cause was the
deceased’s septic arthritis in the right knee.
[16] Sister Smit testified for the plaintiff largely on nursing standards and wound care; Sister
Smit examined the hospital records and testified that the deceased’s treatment fell below expected
standards, highlighting the absence of proper documentation and implementation of nursing
protocols, such as turning schedules and wound care. She further testified that the deceased was a
high-risk patient for developing bedsores due to multiple comorbidities, including chronic
tophaceous gout and arthritis. During his hospitalization, pressure sores eventually developed,
specifically on his right elbow, left ankle, and later on his sacral area, lower limbs, and other
body parts. These sores reached advanced stages . Sister Smit concluded that the hosp ital staff
failed to observe standard nursing procedures, including documenting skin conditions upon
admission, implementing proper pressure sore prevention measures, and applying wound care
effectively. There were no records of turning charts, daily dress ing protocols, or specific
measures tailored to the deceased’s deteriorating skin conditions. She emphasized that accurate
records were essential for preventing bedsores and ensuring continuity of care. She highlighted
that when the deceased was discharged from Livingstone Hospital on 29 April 2021, he was
discharged without any documentation of his condition, follow -up plans, or instructions provided
to the plaintiff regarding wound care, yet the next day, on 30 April 2021, he was admitted to
Uitenhage Hospital with severe septic bedsores described as foul -smelling and purulent. Sister
Smit opined that such sores could not have developed in 24 hours post -discharge and must have
existed during his admission at Livingstone Hospital.
[17] The plaintiff herself testified about the deceased’s condition, which included chronic
tophaceous gout and hypertension. She described her concerns regarding his treatment during his
above admissions, and the consistent poor communication from hospital staff, inadequate care
and unsanitary conditions, including incidents of soiled bedding and lack of proper wound
treatment. The plaintiff testified that the deceased developed bedsores and sepsis during his
treatment, leading to deterioration in his health and eventual death. The deceased was initially
admitted to Livingstone Hospital in January 2021 after experiencing severe swelling in his knee
and symptoms associated with chronic gout. He was later discharged, however, in her view with
unresolved medical issues, including bedsor es and open wounds on his body. She was given no
advice or instructions on how to treat the wounds. The deceased developed no new sores during
the time he was cared for at home and his initial condition improved.
[18] The deceased was again admitted on 16 Apr il 2021 to Livingstone Hospital, this time due
to symptoms of severe gastrointestinal upset. She described the poor hygiene and unsatisfactory
conditions during her attempts to see him. During this admission, the deceased deteriorated
further, with odours from his wounds becoming prominent. The plaintiff testified as follows:
further, with odours from his wounds becoming prominent. The plaintiff testified as follows:
MS OLIVIER: … Then when he went back in the second time, I don’t know what happened, but
it went havoc from there, when I saw him, how can I explain it without breaking down, he literally
rotted away, when he was discharged and I was supposed to fetch him, I got there and you can
literally smell him from the lifts, I smelt the smell coming close, and I’d get to his door and it was
actually coming from there from his bed, and just seeing [interrupted]…
…
MR LOUW: And then when did you experience this smell or whatever you call it?
MS OLIVIER: When I came up the lifts.
MR LOUW: Yes.
MS OLIVIER: And entered the ward and the smell, it’s a distinct smell.
MR LOUW: As you entered the ward?
MS OLIVIER: Yes because he was close to the lifts, here’s the sister station, right next to the
sister station was the ward that he was in, there was only three beds in that ward, so it’s a small
ward.
…
MR LOUW: It could be somebody else.
MS OLIVIER: No I saw, because on his bed there was bedding, he was laying on bedding that
was soiled, there was like a brown pooh, gunky [inaudible] on it, and then I knew it was coming
from my husband, it was dirty linen.
…
MS OLIVIER: No, no, I don’t know if you’ ve ever been near a dead animal that’s been laying
there for a while, it’s a specific, like a dead smell.
MS MIYA: Yes.
MS OLIVIER: It’s a sharp smell, you can’t miss it, it’s like a sore oozing, I don’t know how to
put it, it’s just foul smelling.
MS MIYA: Yes.
MS OLIVIER: But it’s a distinct smell, it’s not a general smell, you don’t smell it every day in
your life…
[19] The plaintiff recalled the events in her testimony with visible discomfort, crying at times.
In questionable circumstance s, on the same day of the ‘smell’ incident above, the deceased was
discharged. Following his second discharge, the deceased was barely home a single day, when
the plaintiff arranged for him to be admitted to Uitenhage Hospital due to unbearable pain and
spasms. She did so because the deceased had expressed fear of returning to Livingstone Hospital.
On 8 May 2021, he passed away.
[20] The plaintiff, although armed with reports from Dr Harris and Dr Wosu, elected not to
call them as witnesses. The decision was based on an admission made by the defendant during a
pre-trial conference when it admitted the entire report of Dr Harris, a mplified by the defendant’s
failure to withdraw that admission. The plaintiff’s contention was that the admission stood in the
way of the defendant’s intention to lead evidence that would suggest that the cause of the
septicaemia was not the bedsores and mismanagement thereof, but the chronic gout. Although
much time was dedicated to this issue, and whether the court is bound by the entire report or only
the factual admissions made, it is not relevant to the course I intend to follow.
[21] Dr Botha, a specialist physician, provided expert testimony focused on the deceased’s
medical conditions, including chronic tophaceous gout and septic arthritis, primarily affecting his
right knee. Chronic tophaceous gout is a severe complication of gout that destroys joints and can
cause ulceration. Following tests, t he presence of E -coli bacteria confirmed sepsis in the
deceased’s right knee, which was treated with antibiotics and aspiration. Dr Botha explained that
septic arthritis is a common complication in joints already damaged by chronic conditions like
gout. He noted that due to the deceased’s debilitative state, a bilateral above-knee amputation was
considered but ultimately deemed too risky. He stated that definitive surgical intervention was
not viable, given the deceased’s critical condition. Dr Botha disputed the classification of some
wounds as bedsores, suggesting they were tophi-related breakdowns rather than pressure ulcers.
[22] Dr Botha provided differing conclusions on the cause of the deceased’s death than Dr
Harris. Dr Botha attributed the septicaemia to septic arthritis in the deceased’s right knee, citing
blood cultures matc hing the bacteria identified in the knee and bloodstream. Conversely, Dr
Harris concluded that the deceased died from septicaemia caused by infected pressure sores,
which view was seemingly also supported by the medical death certificate ( as Exhibit B) stating
"decubitus ulcers" as a contributing factor to septicaemia. The plaintiff objected to Dr Botha’s
conclusion on the strength that it stood in conflict with the admitted report of Dr Harris.
conclusion on the strength that it stood in conflict with the admitted report of Dr Harris.
Appreciating the distinction drawn between admissions of fact, that bind a court, and admissions
of opinion, which do not, 3 and having only the benefit of Dr Botha, I asked the following:
COURT: Okay. If one accepts all of what Dr Harris says as a fact. I am not interested in opinion
for now, but as a fact. Do you agree or disagree with her professional opinion or conclusion based
3 See HAL obo MML v MEC for Health, Free State [2022] 1 All SA 28 (SCA) at paras [220] and [229] ; Van Zyl
NO obo AM v MEC for Health, Western Cape Province Department of Health [2023] 1 All SA 501 (WCC). A party
cannot bind the court to th e opinion of an expert by a concession that the opinion is correct (NSS obo AS v MEC for
Health, Eastern Cape Province 2023 6 SA 408 (SCA) at para [24]).
on her facts? If you are in a position to so. If you are not in a position you can tell me. I am trying
to divorce the facts from the professional opinions in foresight of what this argument would be.
MR BOTHA: Yes. I would disagree with her. I would have disagreed with her on the basis of
exactly that, that the culprit or the most hard -hit area of the body where the pus was isolated and
where the infection was isolated, was only the knee. There were never samples taken from other
pressure areas. So we do not know whether there were bacteria, and what the nature of the
pathology was there. And that is why I relied on the knee because that was the only place I had
that was a documented evidence of there were organisms isolated from the knee and from the
blood, but not from the other wounds. So the significance of the other wounds to me hangs in the
air.
COURT: Mm.
MR BOTHA: I know that they were there, I am not denying that there were…
COURT: Yes.
MR BOTHA : …other wounds in other parts. But the significance of them is for me an
uncertainty.
COURT: Yes. Almost as if she has overemphasised their presence…
MR BOTHA: I would think so.
COURT: …and overlooked the knee.
MR BOTHA: I would think so. And underestimated the significance of the findings of the right
knee.
[23] The remainder of Dr Botha’s evidence concerned his differ ing opinion to the conclusion
reached in Exhibit B, in particular, in the absence of a post -mortem report. The defendant closed
its case thereafter.
The general legal principles
[24] In Goliath v MEC for Health, Eastern Cape, it was held that: 4
The general rule is that she who asserts must prove. Thus in a case such as this a plaintiff must
prove that the damage that she has sustained has been caused by the defendant's negligence. The
failure of a professional person to adhere to the general level of skill and diligence possessed and
4 Goliath v MEC for Health, Eastern Cape 2015 (2) SA 97 (SCA) at para 8.
exercised at the same time by the members of the branch of the profession to which he or she
belongs would normally constitute negligence (Van Wyk v Lewis 1924 AD 438 at 444). A surgeon
is in no different a position to any other professional person (Lillicrap, Wassenaar and Partners v
Pilkington Brothers (SA) (Pty) Ltd 1985 (1) SA 475 (A) at 488C). It has been pointed out that a
'medical practitioner is not expected to bring to bear upon the case entrusted to him the h ighest
possible degree of professional skill, but he is bound to employ reasonable skill and care'
(Mitchell v Dixon 1914 AD 519 at 525). As Scott J put it in Castell v De Greef 1993 (3) SA 501
(C) at 512A – B, '(t)he test remains always whether the practitioner exercised reasonable skill and
care or, in other words, whether or not his conduct fell below the standard of a reasonably
competent practitioner in his field' (cited with approval in Buthelezi v Ndaba 2013 (5) SA 437
(SCA) para 15).
[25] In Oppelt v Department of Health, Western Cape, the Constitutional Court said: 5
A successful delictual claim entails the proof of a causal link between a defendant's actions or
omissions, on the one hand, and the harm suffered by the plaintiff, on the other hand. This is in
accordance with the 'but -for' test. Legal causation must be established on a balance of
probabilities. The vital question is whether, as a matter of probability, the applicant's paralysis
would not have occurred or been rendered permanent had the reduction procedure been
performed promptly and within a time that was reasonably likely to prevent permanent
quadriplegia.
[26] In JA obo Da v MEC for Health, Eastern Cape 2022 (3) SA 475 (ECB) at paras 48 -49,
the full court of this division held: 6
The most commonly employed technique for determining factual causation is the 'but for' test.
This means that the appellant had to prove on a balance of probabilities that, 'but for' the
This means that the appellant had to prove on a balance of probabilities that, 'but for' the
negligent actions or omissions of the respondent's employees, the injury would not have occurred.
The test for factual causation was explained simply and precisely by Lord Denning in Cork v
Kirby MacLean Ltd:
5 Oppelt v Department of Health, Western Cape 2016 (1) SA 325 (CC) at para 35 (also reported as 2015 (12) BCLR
1471 (CC).
6 JA obo Da v MEC for Health, Eastern Cape 2022 (3) SA 475 (ECB) at paras 48-49.
'(I)f you can say that the damage would not have happened BUT FOR a particular fault,
then that is in fact the caus e of the damage; but if you can say that the damage would
have happened just the same, fault or no fault, then the fault is not the cause of the
damage.'
The law on claims for psychiatric injury
[27] The plaintiff’s claim is clearly a claim premised on a psyc hiatric injury or psychiatric
lesion as it is also referred to.
[28] In her supplementary heads of argument, Ms Miya, appearing for the defendant, argued
that the plaintiff had to prove that the defendant’s negligent breach of the legal duty owed to the
plaintiff caused the harm of the plaintiff. 7 During her argument in court, Ms Miya also referred
the court to cases which dealt with the issue of harm in psychiatric injury cases. 8
[29] In Road Accident Fund v Sauls 2002 (2) SA 55 (SCA) , the plaintiff witnessed her fiancé
being struck by a motor vehicle in her near vicinity and thought at the time that he had been
killed or seriously injured, leaving her in a condition of shock and confusion, when in fact it
turned out not to be the case. The re the plaintiff was subsequently diagnosed with a post -
traumatic stress disorder which became chronic and unlikely to improve. The court’s summary of
the plaintiff’s case was that ‘…her case is that as a consequence of her witnessing the injury to
Sauls, she suffered severe emotional shock and trauma, which gave rise to a recognised and
detectable psychiatric injury, viz post -traumatic stress disorder. ’ 9 The court further listed the
material common causes between the parties , which included ‘[f]or the purposes of this phase of
the litigation, that the respondent had in fact suffered shock and emotional trauma, resulting in
7 Relying on International Shipping Company (Pty) Ltd v Bently 1990 (1) SA 680 (A) at 700E-I.
8 Relying on N.K v Member of the Executive Council for Health, Eastern Cape; Barnard v Santam Bpk; and, Road
Accident Fund v Sauls, infra.
Accident Fund v Sauls, infra.
9 At para [2].
chronic post-traumatic stress disorder. ’ 10 The court state d the following o f the law concerning
such a claim: 11
It must be accepted that in order to be successful a plaintiff in the respondent's position must
prove, not mere nervous shock or trauma, but that she or he had sustained a detectable
psychiatric injury. That this must be so is, in my view, a necessary and reasonable limitation to a
plaintiff's claim.
[30] In support of the above, the court in Sauls referred to and relied on Barnard v Santam Bpk
1999 (1) SA 202 (SCA), where the court at 216E – F made it clear that a prospective plaintiff
would have to prove an actual psychiatric injury or lesion and would , as a rule , have to rely on
supporting psychiatric evidence to that effect. This came in response to the argument that to
allow such claims would open up the floodgates on mere subjective say-so by plaintiffs.
[31] In Komape and Others v Minister of Basic Education and Others 2020 (2) SA 347 (SCA),
the plaintiffs succeeded with a claim for the 'emotional trauma and shock' they had experienced
following the unfortunate death of their young son and sibling. In Komape: the plaintiffs were
‘diagnosed with having post -traumatic stress disorder, and for years had difficulty in sleeping
and required psychological counselling ’ and were ‘seen by a psychologist ’; 12 ‘at a pre-trial
conference, the respondents admitted that the first and second appellants and their minor
children had 'suffered emotional trauma and shock' as a result of Michael's death ’ and ‘in a joint
minute of the clinical psychologists who were to be calle d as experts, it was recorded that the
appellants had suffered severe trauma and required further psychotherapy ’; 13 the case for the
plaintiffs included both their evidence and that of ‘an expert psychologist relating to their
emotional suffering’. 14
[32] In Komape the court further said this (with my own emphasis):
10 At para [5].
[32] In Komape the court further said this (with my own emphasis):
10 At para [5].
11 At para [12]; Komape and Others v Minister of Basic Education and Others 2020 (2) SA 347 (SCA) at para [27].
12 At paras [12] & [14].
13 At para [18].
14 At para [20].
[25] However, for many years now, such a claim has been recognised in this country where the
claimant shows that the nervous shock is associated with a detectable psychiatric injury…
…
[32] Accordingly, there is no difficulty in recognising in principle the legal basis of the
appellant's Claim A, which as I understand the pleading, is a claim for emotional shock
attributable to a psychiatric lesion caused by the circumstances of Michael' s death. It is a claim
long recognised in this country and supported by the other common -law jurisdictions I have
mentioned. I shall return to whether, given the facts of this case, liability in respect of that claim
was established.
…
[47] It is clear from all of this that the respondents admitted that Michael's death had caused each
of the appellants to suffer psychiatric injury with which their extended period of grief and sense of
bereavement were associated. Once the respondents had admitted this and c onceded liability in
respect of the claim, there was no longer a lis in respect of which the appellants bore the onus of
proof beyond establishing the quantum of their damages. This they purported to do, in part, by the
expert evidence led at the trial. In doing so, the evidence further corroborated that which the
respondents had conceded. The psychologist, Mr Molepo, explained that the symptoms of
depression and post -traumatic stress disorder, suffered as a result of the emotional trauma the
appellants had undergone, embraced the grief they had experienced. He explained that their
feelings of grief and bereavement were psychological reactions to the significant emotional
trauma they had undergone due to the shock caused by the circumstances surrounding Mich ael's
death, and contributed to their psychiatric injuries.
[48] The court a quo dismissed the appellants' claim A as it felt that 'due to the insufficiency of the
expert evidence, the appellants had not suffered psychiatric lesions'. In the light of what I have
said, it clearly erred and misdirected itself in that regard. The existence of the psychiatric lesions
was not only common cause but established by the evidence…
…
[52] As appears from these reports and Mr Molepo's evidence, all of the claimants sus tained
emotional shock, which is understandable given the circumstances under which poor Michael met
his death…
[33] In MM obo GM v Member of the Executive Council for the Department of Health, North
West Province (782/2022) [2024] ZASCA 52 (18 April 2024) the plaintiff sued in both her
personal and representative capacities, following the birth of her child who was later diagnosed
with cerebral palsy, which she alleged was caused by the negligence of the defendant. In her
personal capacity, the plaintiff’s par ticulars of claim alleged ‘ [t]he Plaintiff has been severely
shocked and traumatised as a result of seeing her first born in a cerebral palsied state and has
suffered general damages for anguish, psychological trauma and loss of amenities of life .’ The
defendant denied liability. The court further held that:
[11] It is trite that the appellant bears the onus to prove the damages she claims against the
respondent, that the respondent’s employees owed a legal duty to care for her and her baby ,
which duty was negligently breached and that a causal nexus exists between the damages suffered
and the breach alleged. The quantum generally rests in proving the amounts claimed. Bester v
Commercial Union confirmed that a plaintiff who suffers from negl igently inflicted ‘nervous
shock’ resulting in psychiatric or psychological injuries is entitled to claim damages for
patrimonial loss under the Lex Aquilia. In Road Accident Fund v Sauls, this Court held that in
order to be successful in claiming damages for emotional shock a plaintiff must prove that she or
he had sustained a detectable psychiatric injury.
[12] More recently, in Komape v Minister of Basic Education (Komape), where a learner at
school fell into a pit latrine and drowned, this Court reaffirmed the position that a plaintiff can
only claim damages for emotional shock where it is suffered as a result of detectable psychiatric
injury. In contrast, in the present matter there is no evidence that the appellant suffered any
emotional t rauma or shock. When faced with questions from the Court as to the paucity of
evidence to sustain a claim for emotional shock in light of Komape, the high watermark of
counsel’s response was that the appellant was affected by the injury to her child, evide nced when
she became emotional while testifying, and started to cry. The transcript reflects that at some
stage in her testimony the appellant requested an adjournment. The presiding judge enquired
whether ‘the witness required time’, and court adjourned briefly. That is as far as the record goes.
…
[15] … the appellant’s claim for emotional trauma must be proven by way of evidence. The
appellant failed to meet this standard in the high court…
…
[17] … It is necessary to note that the appeal record did not contain any record of whether the
parties had agreed to a separation of issues. Only the respondent’s attorneys responded to the
Court’s enquiry and advised that a pre-trial conference was held on 6 November 2017 in which it
was agreed that liabili ty and quantum would be separated, and that the plaintiff would bear the
onus of proof and the duty to begin. No agreement was reached to defer the appellant’s claim for
emotional shock. In light of this agreement, it remains inexplicable why no evidence w as led by
the appellant in respect of her claim for emotional shock…
[34] Finally, in the case of N.K v Member of the Executive Council for Health, Eastern Cape -
Application for Leave to Appeal (502/2017) [2023] ZAECBHC 24 (15 August 2023), Zilwa J,
relying by and large on the same authorities above, came to the conclusion that the plaintiff
before him had failed to prove her claim for ‘severe psychological and/or psychiatric shock and
trauma’ arising from her medical negligence claim. In N.K, the court held that:
[6] Such proof would, of necessity, entail the leading of expert evidence. To succeed, in her
claim the plaintiff had to prove that she sustained a detectable psychiatric injury which is not
trivial.
[7] The applicant is a lay person and there is no suggestion that she has any expertise that
would enable her to diagnose herself of the alleged ailments. A Claimant cannot simply make bald
and unsubstantiated allegations of psychological and / or psychiatric shock and trauma that
allegedly ex ists in the present and that will persist in the future. This requires proper
accompanying diagnosis from relevant experts such as psychiatrists and psychologists.
[8] It is common cause that in this case no such expert evidence from any psychiatrist s or
psychologists has been led by the plaintiff to substantiate her claim of having sustained the
alleged psychological and / or psychiatric shock and trauma. The mere ipse dixit by the lay
applicant to have suffered such injuries has no evidential value that would ground a damages
award in her favour for such alleged but unsubstantiated injuries.
Application of the legal principles to the facts
[35] The plaintiff, without proving the quantum of her claim, had to prove that the negligence
[35] The plaintiff, without proving the quantum of her claim, had to prove that the negligence
of the defendant caused her harm. In other words, but for the amount of the damages, the plaintiff
in the present context had to prove negligence, causation and harm.
[36] In Home Talk Developments (Pty) Ltd and Others v Ekurhuleni Metropolitan
Municipality 2018 (1) SA 391 (SCA) , a case where the issues of liability and quantum were
separated in terms of rule 33(4), and the matter proceeded to trial in respect of liability, the
following was said of the delictual element of damage:
[93] Proof of damage is fundamental to a delict ual claim. Assessment of damage is not the same
as quantifying damage. Before quantifying damage, one must ascertain whether any loss has in
fact been suffered. A plaintiff must produce sufficient evidence to enable a court to reasonably
find that it has suffered damage. Damage is assessed by comparing the utility value of a plaintiff's
patrimony before and after a damage-causing event.
[94] In its plea, the respondent denied that the appellants had suffered damage, and they were
thus required to prove that they had suffered loss…
[37] The plaintiff ’s testimony on the issue of her damages or harm, was limited to the
following:
MR LOUW : If I may just take an instruction M'Lord. Indebted to M'Lord. Mrs Olivier, I’ve
noticed that you are emotional, or upset while you gave your evidence this morning, apart from
that …
… Experienced since your husband’s admission to the Livingstone Hospita l the first time, and
going through the second time, and then to Uitenhage, what do you experience by day or at night,
from that day onwards?
MS OLIVIER: I went into depression, I was treated for [interrupted].
…
MR LOUW: Thank you M'Lord. Perhaps I can phrase it differently, and without going into too
much detail, just broadly, do you have nightmares about what has happened?
MS OLIVIER: I actually, I did, I couldn’t sleep, I still suffer from insomnia, I was, I did go t o the
doctor and I was treated for depression and anxiety, I still have nightmares, it’s stuck in here, that
kind of thing, so yes I do have a lot of anxiety.
MR LOUW: As the court pleases, that is the evidence of this witness.
…
[38] The above was never cha llenged by the defendant and stood uncontroverted. However,
the question that arises is whether the above alone would suffice to prove harm. Absent proven
the question that arises is whether the above alone would suffice to prove harm. Absent proven
harm, the other issues of negligence and causation matter not.
[39] From the authorities above, it is c lear that the plaintiff had to tender in evidence the
accompanying diagnosis from relevant experts such as psychiatrists or psychologists, and in the
words of Zilwa J in the N.K case, the ‘mere ipse dixit by the lay applicant to have suffered such
injuries has no evidential value that would ground a damages award in her favour for such
alleged but unsubstantiated injuries ’. The plaintiff had to prove a ‘detectable psychiatric injury’.
15
[40] Had the plaintiff presented the evidence of a suitable expert on her psychological lesion,
her evidence above would have laid the necessary factual basis upon which her expert could base
an opinion.
Conclusion and costs
[41] In the result, I am constrained to find that the plaintiff has not proven her damages or
harm, and consequently, her claim must be dismissed.
[42] Had the plaintiff done so, the alternative argument of Mr Louw, arising from the
amendment of the particulars of claim (paragraph 10.1), may have been a cause of concern to the
defendant, considering that: it fa iled without explanation to call any witnesses to deal with the
actual treatment and management of the deceased, in particular, absent thorough medical notes; it
failed without explanation to call the ‘treating doctor’ who concluded on the cause of death a s set
out in Exhibit B; and it failed to explain how, in the prevailing circumstances, taking into account
the comorbidities of the deceased, the deceased was discharged on 29 April 2021 in the state that
he was in; and, it failed to withdraw or deal with its admission of the report of Dr Harris, in
especially concerning her factual recordings arising from the hospital records.
[43] Concerning the issue of costs, Ms Miya argued that costs should be ordered on a party and
party scale, Scale A. Mr Louw arg ued for costs on Scale C. It is trite that a court retains a
15 For example, see Komape at para [12].
discretion on the issue of costs, and may take into account an array of considerations, but when
doing so, should exercise its discretion judicially.
[44] The general rule is that costs follow th e result. Following that rule, the defendant would
be entitled to its costs. However, a court may take account of, inter alia, the conduct of litigating
parties, the failure to take certain steps when they should have, the interest of justice , and
ultimately, a decision that is a matter of fairness to both sides.
[45] Considering that the cause of the conclusion I have reached is the plaintiff’s failure to
establish one of the delictual elements, the general should be followed and the plaintiff’s claim
should be dismissed with costs.
The Order
[46] Accordingly, the following order is granted:
The plaintiff’s claim is dismissed with costs, such costs to be allowed on Scale A in
terms of rule 67A.
__________________________
C D KOTZÉ
ACTING JUDGE OF THE HIGH COURT
Date of hearing: 10, 11, 12 and 13 February 2025 ; 2 and 8 April 2025
Date of judgment: 10 March 2026
Appearances:
For the Plaintiff : Adv Louw instructed by MKB Attorneys (formerly Niehaus McMahon Attorneys) (ref:
MAT8413).
For the Defendant : Adv Miya instructed by the State Attorney (ref: 520/22-P2).