IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
In the matter between:
MEMBER OF THE EXECUTIVE COUNCIL :
DEPARTMENT OF HEAL TH, FREE STATE PROVINCE
and
JANINE RONELDA HARRIS
GIRSHEN MARC ARTHUR HARRIS
Not reportable
Case no: A209/2024
APPELLANT
FIRST RESPONDENT
SECOND RESPONDENT
Neutral citation: Member of the Executive Council: Department of Health, Free State
Province v Harris and Another (A209/2024) [2026] ZAFSHC 250 (17 April 2026)
Coram : OPPERMAN, DANISO etVAN RHYN JJ
Heard: 30 January 2026
Delivered: 17 April 2026
Summary: Appeal medical negligence claims against MEC of Health - merits
conceded in favour of the respondents. Damages - quantification - awards made by
court a quo in respect of claims relating to loss of earnings, future medical expenses
and general damages . Appeal lies against contingencies applied to first respondent's
loss of income as calculated by appellant's actuaries, both respondents - future
medical expenses as well as general damages . Principles restated .
2
ORDER
1 The appeal in respect of the respondents' future medical expenses is upheld.
2 The order of the court a quo is set aside and substituted with the following:
'2.1 Paragraph 30.1.3 of the trial court's order is amended by substituting the amount of
R690 170, in respect of future medical expenses, with R663 150.
2.2 Paragraph 30.2.2 of the trial court's order is amended by substituting the amount of
R90 870, in respect of future medical expenses, with R86 620.'
3 Save as aforesaid, the appeal is dismissed.
4 Each party shall pay their own costs including those costs incurred in respect of
the application for leave to appeal.
JUDGMENT
Van Rhyn J (Opperman et Daniso JJ concurring)
[1] This appeal by the Member of the Executive Council for the Department of Health,
the appellant, comes about as a result of a medical negligence claim instituted by the first
and second respondents, Mrs and Mr Harris against the appellant for damages arising
out of the alleged negligence of the medical staff in her employment. The appeal lies
against the court a quo's award, delivered on 19 December 2023, in respect of general
damages, loss of income and future medical expenses arising from the death of the
respondents' first-born son, a mere two days after his birth. The appeal is to the full bench
of this Division with the leave of Chesiwe J against those portions of the judgement and
order of Gusha AJ as set out in the notice of appeal.
(2] The respondents instituted action for damages on 14 July 2016 as a result of the
negligence of the appellant's employees at the Pelonomi Hospital in Bloemfontein
subsequent to the hospitalisation of the first respondent on the 2nd of August 2013 and
the birth of their son, Aristo, on 4 August 2013. Their son was born with a diagnosis of
asphyxia neonatorum and hypoxic-ischemic encephalopathy and died on 6 August 2013.
The appellant conceded liability for payment of 100% of the respondents' proven and/or
agreed upon damages on 23 April 2019. With the merits conceded the trial commenced
on 11 October 2023 in respect of the quantum of damages. The respondents filed medico
legal reports compiled by Dr D A Shevel, a Psychiatrist (Dr Shevel), Dr Kobus Truter, a
Clinical Psychologist (Dr Truter), Dr Marc Peverett, an Industrial Psychologist (Dr
Peverett) and Munro Forensic Actuaries. The appellant filed medico-legal reports by Dr
R T H Lekalakala, a Psychiatrist (Dr Lekalakala), Dr Mariske Pienaar, a Clinical
Psychologist (Dr Pienaar), Hardus van Pletzen, an Industrial Psychologist (Mr Van
Pletzen) and actuarial reports compiled by Edge Actuarial.
(3] The first respondent claimed damages in the aggregate sum of R9 607 700 under
the following headings:
(a) Future medical expenses R663 150.
(b) Past loss of income R1 707 385.
(c) Future loss of income R6 587 165.
(d) General Damages R650 000.
[4] The court a quo awarded damages in the total amount of RS 118 532.90 which is
made up as follows:
(a) Future medical expenses R690 170.
(b) Loss of income R3 878 392.90.
(c) General Damages R550 000.
(5) The second respondent claimed damages in the aggregate sum of R751 620.
under the following headings:
(a) Future medical expenses R86 620.
(b) Funeral expenses R15 000.
(c) General Damages R650 000.
3
[6] The court a quo awarded damages in the total amount of R390 870.which is made
up as follows:
(a) Future medical expenses R90 870.
(b) General Damages R300 000.
[7] The appellant lodged an application for condonation and leave to appeal against
the awards made by the court a quo. On 1 August 2024, Chesiwe J granted condonation
for the late filing of the application for leave to appeal. The appellant was granted leave
to appeal to the Full Court of this Division with the costs to be costs in the appeal. On the
20th of February 2025, the appellant's failure to deliver her notice of appeal within 20 days
after the date upon which leave to appeal was granted was condoned and the appellant's
appeal, which had lapsed, was reinstated. The appeal is directed at the amounts awarded
by the court a quo on the grounds that the respondents have been overcompensated.
The appeal is opposed by the first and second respondents. At the commencement of
the hearing of the appeal, Ms Williams SC, counsel for the appellants, contended that the
parties are in agreement that a court of appeal has limited power to interfere with the
exercise of a lower court's discretion, such as in the matter at hand, where the court a
quo exercised a discretion in the true (strict) sense.
[8] However, the parties disagree in respect of the contention on behalf of the
appellant that the court a quo failed to have appraised and assessed the evidence
adduced during the trial. This failure by the trial court resulted in the acceptance of
outdated assessments, which pre-date the assessment done by Dr Lekalakala, resulting
in the rejection of the opinion of Dr Lekalakala and the acceptance of the opinion of Dr
Shevel. It is contended that the court a quo failed to address, in the judgment, the reasons
why the opinion of Dr Shevel was preferred in respect of the diagnosis of the first
respondent. The consequences in rejecting the evidence presented by Dr Lekalakala for
respondent. The consequences in rejecting the evidence presented by Dr Lekalakala for
the appellant, not only impacts upon the amount awarded for loss of income, but also the
amounts awarded for future medical costs and general damages. Ms Williams SC
contended that on the evidence adduced no case was made out for future medical
treatment for the first respondent in the amount awarded by the court a quo.
[9] The appellant furthermore contends that the court a quo failed to have regard to
the pleadings in that the award made by the court a quo in respect of future medical
4
treatment for the first respondent in the amount of R690 170 exceeds the amount claimed
under this heading of damages. The amount claimed is R27 020 less than the amount
awarded for future medical treatment for the first respondent. It is argued by the appellant
that when Dr Lekalakala assessed the first respondent , there was a marked improvement
in her condition which is evident from the contents of his report and his testing. The correct
approach would have been for the court a quo to award the items which were common
cause between the experts and where they differed, the items should either have been
disallowed in their entirety or allowed but with appropriate contingencies applied.
[1 OJ As regards the first respondent's claim for loss of income and the award made by
the court a quo in the amount of R3 878 362.90 it is argued that this came about
principally as a result of the fact that the contingency deduction applied to the uninjured
income are too low and those applied to the injured income are too high. Ms Williams SC
argued that the injured income is so minimal and has already been attained before the
first respondent underwent the recommended medical treatment. Therefore, no
contingency adjustment should be made in the circumstances. The award made in
respect of general damages is out of kilter with the awards made in comparable cases
and is therefore not fair to either the first respondent, or the appellant.
[11] In respect of the second respondent the court a quo erred in awarding future
medical expenses in the amount of R90 870 in that the judgment does not address the
reason for such an award which is not supported by the facts of the matter. The amount
awarded under this heading is also R4 250 more than the amount claimed. The court a
quo erred in awarding general damages in the amount of R300 000 to the second
respondent in that the award is out of kilter with awards made in comparable cases and
is also not fair to both parties.
is also not fair to both parties.
[12] In an appeal a party's dissatisfaction with the judgment of a court a quo may arise
either because that party is discontented with a finding of fact made by the court, for
example the party is of the view that the court incorrectly accepted or rejected the
testimony of a witness whose evidence was material to the case or because the party is
dissatisfied with a ruling of law made by the court (e.g., the party is of the view that the
court misunderstood the law on a certain point). It may also turn out that a party feels that
the court erred both in respect of the law and the facts and an appeal will then be lodged
5
on both grounds. It is trite that an appeal court is reluctant to disturb findings of credibility
and fact by a trial judge who has the advantage, which the court of appeal cannot have,
of seeing and hearing the witnesses and of being steeped in the atmosphere of the trial.
Such findings are only overturned if there is a clear misdirection of the trial court's findings
and clearly erroneous.1
[13] In addition to appeals against the decision of a court a quo on the facts or the law,
a party may be faced with a situation where he or she wishes to appeal against the
exercise of a discretion by the court. A discretionary matter may require the court to
exercise a discretion in a wide or a narrow sense (a 'true' sense or a 'loose' sense), and
the difference between these types of discretion may impact on the court of appeal's
consideration of the issues on appeal. The nature of the two kinds of discretions has been
decisively established as follows:
'[85] A discretion in the true sense is found where the lower court has a wide range of equally
permissible options available to it. This type of discretion has been found by this court in many
instances, including matters of costs, damages and in the award of a remedy in terms of s 35 of
the Restitution of Land Rights Act. It is "true" in that the lower court has an election of which option
it will apply and any option can never be said to be wrong as each is entirely permissible.
(86] In contrast, where a court has a discretion in the loose sense, it does not necessarily have
a choice between equally permissible options. Instead, as described in Knox, a discretion in the
loose sense - "mean[s] no more than that the court is entitled to have regard to a number of
disparate and incommensurable features in coming to a decision".'2 (Footnote omitted.)
[14] There are different tests for interference by a court of appeal, depending on the
nature of the discretion exercised by a lower court. In the instance of a discretion in the
nature of the discretion exercised by a lower court. In the instance of a discretion in the
loose sense, ' ... an appellate court is equally capable of determining the matter in the
same manner as the court of first instance and can therefore substitute its own exercise
of the discretion without first having to find that the court of first instance did not act
judicially. '3 In Oakdene Square Properties (Pty) Ltd and Others v Farm Bothasfontein
(Kyalami) (Pty) Ltd and Others4 Brand JA emphasised the principle that a court of appeal
1 ST v CT (2018] ZASCA 73; 2018 (5) SA 479 (SCA) para 26.
6
2 Trencon Construction (Pty) Ltd v Industrial Development Corporation of South Africa Ltd and Another (2015]
ZACC 22; 2015 (5) SA 245 (CC) paras 85 and 86.
3 Ibid para 87
4 Oakdene Square Properties (Pty) Ltd and Others v Farm Bothasfontein (Kyalami) (Pty) Ltd and Others (2013]
ZASCA 68; 2013 (4) SA 539 (SCA).
may only interfere with the exercise of a lower court's discretion if it was influenced by
wrong principles of law, or a misdirection of fact, or if it had failed to exercise a discretion
at all. This limitation only applies to a discretion in the strict sense as articulated by Brand
JA:
'The contention has its roots in the well-established principle that a court of appeal is not allowed
to interfere with the exercise of a discretion merely because it would have come to a different
conclusion. It may interfere only if the lower court had been influenced by wrong principles of law,
or a misdirection of fact, or if it had failed to exercise a discretion at all. The reason for the
limitation, it is said, is because, in an appeal against the exercise of a discretion, the question is
not whether the lower court had arrived at the right conclusion, but whether it had exercise its
discretion in a proper manner (see Mabaso v Law Society, Northern Province, and Another 2005
(2) SA 117 (CC) (2005 (2) BCLR 129) para 20). Equally well settled, however, is the principle that
this limitation on interference only applies to the exercise of a discretion in the strict sense.'5
[15) In adjudicating the appeal the following facts are to be taken into consideration: At
the commencement of the trial joint minutes prepared by the appellant's and the
respondents' psychiatrists, the clinical psychologists and the industrial psychologists,
setting out the issues in dispute and those on which the various experts agree, were
prepared and handed up by agreement between the parties. In an endeavour to curtail
the trial, the parties reached various agreements which Mr Zietsman SC, who appeared
for the respondents (and during the trial on behalf of the plaintiffs) encapsulated in a
'further' rule 37 minute (the Further Rule 37 Minute). However, apart from revealing what
was agreed in respect of the calculation of the first respondent's loss of income by an
was agreed in respect of the calculation of the first respondent's loss of income by an
actuary, the Further Rule 37 Minute was not initially presented to the court a quo due to
the fact that counsel who appeared on behalf of the appellant during the trial, Ms Nhlapo
Merabe, placed on record that instructions had been received that the defendant
(appellant) intends to repudiate from the joint minutes compiled by the Clinical
Psychologists (Dr Pienaar and Dr Truter) in so far as the Clinical Psychologists' joint
minute are not in consonance with the report by Dr Lekalakala (the appellant's
psychiatrist). This aspect stood down until the following day and upon reconsideration the
appellant abdicated its intention to repudiate the said agreement. As a result, and by
agreement between the parties, the Further Rule 37 Minute was handed to the trial judge.
The Further Rule 37 Minute provided as follows:
5 Ibid para 18.
7
'1.1 The first plaintiff's loss of income is to be calculated by an actuary on the basis as
postulated in the joint minute of the Industrial Psychologists - Mr Marc Peverett and Mr Hardus
van Pletzen - filed of record, provided that the contingencies to be applied will be the prerogative
of the court.
1.2 The joint minute of the Psychiatrists - Dr Shevel and Dr Lekalakala - in respect of both
the first and second plaintiff, filed of record, shall serve as evidence before court.
1.3 The joint minute of the Clinical Psychologists - Dr Truter and Dr Pienaar - in respect of both
the first and second plaintiff, filed of record, shall serve as evidence before court.
1.4 The expert reports of Dr Truter and Dr Pienaar, filed of record, shall serve as evidence before
court.'
[16] To curtail the issue of the first respondent's loss of income claim, the parties
agreed that her loss of income be calculated by an actuary on the basis as postulated in
the joint minute of the industrial psychologists. It was furthermore agreed that the
appellant would instruct Edge Actuarial to calculate her loss of income, bar the
contingencies to be applied, which calculation was accepted by the first respondent. This
aspect therefore became settled save for the contingencies to be applied. The calculation
by Edge Actuarial was as follows:
Past Income Future Income Total Income
Income if R717 586 R4 020 524 R4 738 110
incident did not
occur
Income given R56 947 R228 846 R285 793
incident did
occur
Difference R660 639 R3 791 678 R4 452 317
Therefore, the only issues for determination by the court a quo were the respondents'
claims for general damages, the future medical expenses and the contingencies to be
applied to the first respondent's loss of income as calculated by the appellant's actuaries,
Edge Actuarial.
[17) During the trial the testimonies of the first respondent and second respondent were
8
presented. The respondents furthermore presented the testimony of Dr Shevel and Ms
Valentine of Munro Actuaries. Thereafter the respondents closed their case. The
appellant presented the testimony of Dr Lekalakala who examined both the first and
second respondents and it was contended by Ms Nhlapo-Merabe that, from the joint
minutes by Dr Lekalakala and Dr Shevel, ' ... the only aspects that are in dispute are the
severity of the illnesses and the treatment . . . ' thereof as suggested by the two
psychiatrists.
[18) In the joint minutes of the psychiatrist meeting held on the 5th of October 2023 the
following was, inter alia recorded:
'3. It was agreed that Mrs Harris had not had any psychiatric treatment or had experienced any
psychological problems prior to the event.
4. It was agreed that Mrs Harris is currently suffering from a Major Depressive Disorder. Dr
Lekalakala considers her chronic depression to be of a mild to moderate degree, whereas Dr
Shevel considers her chronic depression to fall into the moderate to severe category.
5. Furthermore, Dr Shevel, from the history obtained, notes the presence of Chronic Generalized
Anxiety with superimposed Panic Attacks and Agoraphobia.
6. Dr Shevel notes that she is now largely confined to her home environment.
7. Both Dr Shevel and Dr Lekalakala agrees that Mrs Harris requires psychiatric/psychological
treatment.
8. The extent of the psychological/psychiatric treatment differs in that Dr Lekalakala believes that
psychotherapy is necessary.
9. Dr Shevel's view is that long-term treatment, including the use of psychiatric medication and
psychotherapy will be required.
10. With regard to her pre-August 2013 occupational functioning and the current situation,
deference is given to the Industrial Psychologists.'
[19] Dr Shevel assessed the first respondent on the 10th of March 2020, and his report
is dated the 15th of March 2020. It is noted that the life-threatening ordeal occurred close
is dated the 15th of March 2020. It is noted that the life-threatening ordeal occurred close
to five and a half years previously and the first respondent has ongoing symptoms of post
traumatic stress disorder (PTSD) and that she must be considered to be suffering from a
chronic form of this condition. PTSD is a condition that has a high incidence of co-morbid
major depression. According to Dr Shevel the first respondent has a significant
depressive illness with a history of repeated overdose attempts. She has features of a
panic disorder with associated agoraphobia. Agoraphobia can have a slowly increasing
9
negative impact on her quality of life in that she may become increasingly confined to her
home due to her fear (phobia) of going out. Dr Shevel opined that the first respondent's
psychiatric condition is moderate to severe and many of her symptoms are entrenched
and will be difficult to treat successfully. It is noted that she requires psychiatric treatment
but is not keen to take medication. She requires psycho-education in terms of taking
psychotropic medication.
[20] It is stated that the first respondent will require long term, probably lifelong,
psychiatric treatment which will consist of the use of psychotropic medication, follow up
psychiatric consultations and psychotherapy. Even with an optimal response to
psychiatric treatment and psychotherapy, the first respondent is likely to remain with
residual symptoms of chronic PTSD, depression and panic attacks. Psychiatric treatment
and psychotherapy should improve her quality of life and help deal with crisis situations
that are very likely to occur from time to time. It is furthermore noted that there has almost
certainly been a loss of occupational potential and that the result of the trauma (emotional
and physical) has cqst the first respondent to miss out on the window of opportunity to
further her studies.
[21] In the medico-legal report compiled by Dr Lekalakala, it is noted that the first
respondent was assessed on 24 April 2023, in order to establish the nature and extent of
any psychological trauma which may have resulted from the incident and to establish
whether there were any attendant psychiatric or psychological sequelae and their impact
on the first respondent's psychological functioning . Lastly, it also determined and
assessed whether any psychiatric intervention may be required as a result of the incident.
[22] The following current complaints are recorded by Or Lekalakala:
'She currently continued to feel low and has lost trust in the public health care system. She
'She currently continued to feel low and has lost trust in the public health care system. She
reported having recurrent nightmares related to the incident, she had intrusive and distressing
memories of the encounter. No avoidance symptoms were established during the interview and
her memory of the events that occurred on the day were intact. She has been able to have positive
emotions of happiness and love and was able to engage in social activities.'
Dr Lekalakala noted that the first respondent displayed a depressed mood, lack of interest
in pleasurable activities and expressed feelings of worthlessness. She cited being suicidal
post-incident, struggled with her sleep and had poor concentration as well as low energy
10
levels. She did not have any manic symptoms. Dr Lekalakala opined that the first
respondent's psychiatric diagnosis did not result in any impairment that would hinder
employment. A psychiatric diagnosis of 'major depressive disorder-severe without
psychotic features' is recorded. A recommendation is made that the first respondent
would benefit from at least 30 sessions of cognitive behavioural therapy.
[23) Certain parts of the record, more specifically the transcription of the testimony of
Dr Shevel and that of Dr Lekalakala, are extremely unclear. It is attributed to the fact that
these experts testified virtually. In an effort to rectify the problem, a further transcription
was prepared and filed, referred to as the supplementary transcription of Dr Shevel's and
Dr Lekalakala's testimonies. Dr Shevel's evidence in chief could however not be
reconstructed .
[24) Dr Shevel testified that he considers the first respondent's chronic depression to
fall into the moderate to severe category. He furthermore confirmed the diagnosis made
as contained in the psychiatrists' Joint Minute. The diagnosis made by Dr Shevel, save
for the severity of the PTSD, was not challenged during cross-examination.
[25] In the Joint Minutes of a meeting between Ors Truter and Pienaar (clinical
psychologists) on 19 March 2022 regarding the first respondent the following points are,
inter alia, recorded:
(a) The first respondent did not suffer from predating diagnosed psychopathology. She
repeated Grade _11 and matriculated at Heatherdale High School. Before the incident she
applied at the South African National Defence Force (SANDF) for a nursing position. She
was reportedly successful in her application.
(b) During her period of recuperation, she still presented with medical complications and
could not accept her appointment. She was then employed by Mr Price as a sales lady.
She resigned after two months.
(c) The incident: when she was 38 weeks pregnant, she visited the Heidedal Clinic. She
(c) The incident: when she was 38 weeks pregnant, she visited the Heidedal Clinic. She
was transferred to Pelonomi Hospital and admitted on 3 August 2013 as a result of
gestational hypertension and pre-eclampsia. Her baby was born on 4 August 2013 (a
vaginal delivery) but died two days later on 6 August 2013 as a result of severe asphyxia.
(d) No disagreement of fact is noted. Under the heading 'Points of agreement of opinion'
the Clinical Psychologists noted as follows:
11
'3.1 The situation surrounding the birth contributes to her ongoing Post-traumatic Stress Disorder
(PTSD)-features.
3.2 The couple could not attend the funeral, which contributes to the persistent emotional
distress. Mrs Harris suffers from a mood disorder of depression. She has already attempted
suicide. Triggers for her low mood (and anxiety) are described in our respective reports.
3.3 We agree to the following grading: American Medical Association (AMA): Global
Assessment of Functioning Scale (GAF) impairment score: 10%-12% (ten to twelve).
3.4 Medical complications: She complains about physical discomfort (in her kidneys), is diet
sensitive and at times develops problems with her urinary flow. She has to rely on medication.
The opinion of a urologist is indicated. We agree that her psychological prognosis is inter-related
to her medical status. A detailed proposal in this regard was presented in our respective reports.
She remains vulnerable and relapses may occur from time to time.'
[26] Dr Pienaar interviewed and assessed the first respondent and the initial medico
legal report is dated 10 July 2017. On 22 February 2021, she interviewed and assessed
the first respondent for a clinical and psychological re-assessment. The re-assessment
report filed of record is dated 1 March 2021. In the re-assessment report, it is mentioned
that the self~report questionnaire highlighted that first respondent was experiencing
severe depressive symptoms the previous two weeks (Total Score= 40; 13 in 2017) . It is
noted that the first respondent's mood had deteriorated since 2017. Significant symptoms
were loss of pleasure, guilt feelings , and loss of interest. Suicidal ideation was reported .
Hypothalamic functions were disturbed (sleep, appetite, libido and energy) . The Trauma
Symptom Inventory (a test of posttraumatic stress) and other psychological sequelae of
traumatic events supported the observed clinical picture with depressive symptoms
traumatic events supported the observed clinical picture with depressive symptoms
above the T-score cut-off point of 65 for clinical significance .
[27) In Dr Pienaar's re-assessment report it is noted that the first respondent's anxiety
symptoms worsened since 2017. Dr Pienaar reported that the incident in August 2013
was very traumatic and unexpected. The incident and unfortunate facts surrounding the
trauma has set the stage for the development of chronic treatment-resistant mood
disorders (depression, anxiety and PTSD). According to Dr Pienaar, the first respondent
had in all probability reached Maximum Medical Improvement (MMI). It is recommended
that the first respondent be ordered by the court, and also monitor, referrals to a clinical
psychologist to assist her in dealing effectively with mood disorders and a psychiatrist to
12
treat the mood disorders pharmacologically due to the fact that the first respondent would
probably not choose this route voluntarily. According to Dr Pienaar, the probability that
the first respondent would opt for receiving intensive psychological and psychiatric
assistance is low due to lack of emotional insight, unwillingness and avoidance behaviour
which is part of PTSD.
[28] During his testimony in chief, Dr Lekalakala explained that as ten years had lapsed
since the incident and many of the acute symptoms had largely resolved at the time of
the assessment, he considered the symptoms to be mild to moderate. Regarding the
difference of opinion between himself (Dr Lekalakala) and Dr Shevel's extent of treatment
required revolves around his belief that psychotherapy is necessary whereas Dr Shevel
believes that both the use of psychiatric medication as well as psychotherapy will be
required. Dr Lekalakala once again replied that the severity of the symptoms was not as
Dr Shevel had reported it and enough time had lapsed so that pharmacological
intervention would not be necessary and psychotherapy would be the ideal mode of
treatment.
[29] During cross-examination by Mr Zietsman SC, Dr Lekalakala explained that the
diagnosis is that of major depressive disorder and not PTSD and the severity of the
symptoms is not as indicated by Dr Shevel. When questioned on his finding that the first
respondent's psychiatric diagnosis did not result in any impairment that would hinder
employment, Dr Lekalakala explained that she is employable and she has not received
any psychiatric care in any form. She only received one month of treatment after seeing
a general practitioner post the incident. When asked whether it would mean that there is
a good possibility that she will be treated both through medication as well as psychiatric
sessions, Dr Lekalakala replied that psychiatric sessions, at the moment, would be the
first line of treatment. The first respondent cannot be deemed to be unemployable if she
first line of treatment. The first respondent cannot be deemed to be unemployable if she
has not gone through all, or at most electroconvulsive therapy and clinical intervention.
[30] Dr Lekalakala explained that there are treatment algorithms recognised by various
institutions in mental health care and that he is not opposed to medication being
administered, but psychotherapy is first-line treatment both in respect to the first as well
as the second respondents and only if there is no response, then pharmacological
treatment should be administered. It was put to Dr Lekalakala that his opinion that
13
pharmacological treatment should be administered first was not put to Dr Shevel during
cross-examination with the result that Dr Shevel was not afforded the opportunity to
respond to his contention in this regard. Furthermore, his opinion regarding the severity
of the first respondent's major depressive disorder is not in line with the admitted opinion
of Dr Pienaar (being the clinical psychologist employed by the appellant) who evaluated
the first respondent during March 2021 and diagnosed severe depressive symptoms.
[31] The first respondent testified that her first attempt to commit suicide was during
November 2013. The second attempt was when her next born son was a year and six
months old. On both occasions she used medication (pills). She had lost a tremendous
amount of weight and had lost her appetite. She suffered from sleeplessness, had
problems with her memory and she and the second respondent did not engage in sexual
relations for a period of three years because she had suffered from constant bleeding
(menstrual cycle) and physical problems (internal stitches and a balloon being inserted to
support her womb). Mr Zietsman SC explained to the first respondent that her claim for
loss of income has been, to a large extent, settled, resulting in his questions to her being
curtailed. When questioned regarding her career ambitions, the first respondent replied
that she aspired to become a nurse because many of her family member where nurses,
including her mother and her uncle.
[32] During cross-examination, the first respondent explained that even though she
had been advised that the situation will get better with the passing of time, it has not been
her experience . She explained that she is still hurting. As to taking prescription medication
and therapy to assist her psychological functioning , the first respondent explained that if
medication and psychological intervention are prescribed and recommended, she is
willing to accept such advice and will take the medication.
willing to accept such advice and will take the medication.
[33] The evidence tendered by the second respondent during the trial, which is
relevant to the adjudication of the awards in respect of general damages to both
respondents, can concisely be summarised as follows: He was summoned to Pelonomi
Hospital at around 22h00 on the 3rd of August 2013 and found the first respondent on a
stretcher in the passage. She repeatedly apologised and mentioned to him that their baby
has brain damage. He pressed with his hands on the stretcher and felt that his hands
were wet. When he lifted the sheets, he noticed that his wife was lying in a pool of blood.
14
He entered a room/ward, while pushing the first respondent on the stretcher, where he
asked for help from the nursing staff. The nursing staff pushed back the stretcher
whereafter an argument ensued between him and the nursing staff during which the
nursing staff threatened to call the security personnel and police to remove him from the
premises. A security guard arrived and grabbed him. Thereafter the second respondent
collapsed. According to his testimony he suffered a stroke. He was unable to speak, to
see what was happening and his face appeared skew. The police arrived and asked him
and his parents, who were at the hospital with him, to leave. Subsequent to his mother
and father intervening, he was allowed to remain at the hospital.
[34) After being left on the bloodied stretcher during the night until 13h00 the following
day due to a lack of beds being available, the first respondent was only operated on at
15h00. The second respondent testified that he feared for his wife's life. The first
respondent was taken to surgery to stop the bleeding. Thereafter she was transferred to
the Universitas Hospital. Meanwhile, the second respondent was informed that the baby
had suffered severe brain damage (80% brain damage) and that the baby would probably
die. In the event of their baby surviving, his quality of life would be extremely poor. It was
explained to him that the APGAR score was 3 and then went down to 2 as a result of the
baby's head being crushed during the birth process. The first respondent was placed on
dialysis with treatment every second day until the 14th of August 2013. The baby died on
the 6th of August 2013, incidentally also the birthday of the first respondent.
[35) In the judgment of Gusha AJ it is stated that the facts giving rise to the litigation
between the parties are largely uncontroverted. In para 8 of the judgment the following
comment is made:
'I pause here to mention that, seeing and listening to the first plaintiff tender her evidence, was
the most agonizing and difficult experience in my judicial life. So emotional was she that it was
often difficult to hear or make sense of her evidence throughout the screams. To not be affected
by that, one would have to be devoid of all human emotion. No human being should ever be
subjected to the treatment that she was.'
In determining the award in respect of general damages the court a quo restated the
general applicable legal principles and held as follows: 'Attempting to determine an
adequate solatium for the plaintiffs' suffering is, of course a daunting task as no monetary
compensation can ever make up for the loss of their child and the resultant mental
15
anguish they suffered.'
(36] Expert witnesses are in principle required to support their opinions with valid
reasons. Much will depend on the nature of the issue and the presence or absence of an
attack on the opinion of the expert.6 It is settled law that the court is not bound by the view
of an expert witness.7 Of importance is that the facts on which the expert witness forms
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.8
The expert must satisfy the court that, because of his special skill, training or experience,
his views are acceptable.
(37] Dr Lekalakala ended his expert report with the following disclaimer:
'This report is based on the history supplied by the client/informant, medical records and reports
of the client and an assessment of the client. I have the right to alter my opinions in the event of
new information coming afore. This report is valid for a period of three years after the assessment,
beyond that the client will have to be reassessed .'
The argument on behalf of the appellant is that Dr Lekalakala is the last expert to have
assessed the first respondent prior to the trial which was heard during October 2023. The
same argument applies to the second respondent. It is contended on behalf of the
appellant that there has been a marked improvement in the condition of the first
respondent when Dr Lekalakala assessed her during 2023. Ms Williams SC argued that
the court a quo therefore sh_ould not have accepted the opinion of Dr Shevel because of
the historic facts, as set out in the 2020 report by Dr Shevel, which had been surpassed
by later events, and once the court of appeal accepts this argument raised by the
appellant, it gives the court of appeal the right to intervene and to adjudicate upon the
awards made in respect of the first respondent. Ms Willams SC contends that it is clear
awards made in respect of the first respondent. Ms Willams SC contends that it is clear
from the evidence and report by Dr Lekalakala that the first respondent 'got better' and
had improved without any psychological or pharmacological intervention. It is argued by
the appellant that this was clearly not taken into consideration by the trial court in
assessing the evidence presented by Dr Shevel.
6 S v Mthimku/u 1975 (4) SA 759 (A).
7 Road Accident Appeal Tribunal v Gouws [2017] ZASCA 188; 2018 (3) SA 413 (SCA) para 33.
6 Bee v Road Accident Fund [2018] ZASCA 52; 2018 (4) SA 366 (SCA) para 23.
16
[38] Although the judgment of the trial court does not deal in detail with the evaluation
of the evidence presented by Dr Shevel and Dr Lekalakala, the contention on behalf of
the appellant is correct that the evidence of Dr Shevel was indeed accepted . In the joint
minutes by the psychiatrists , it was agreed that the first respondent was currently suffering
from a major depressive disorder. The only disagreement was regarding the severity of
her chronic depression and on the extent of the treatment required. The evidence
presented by Dr Lekalakala in chief was as follows:
'Adv Nhlapo-Merabe: And the extent of the treatment required differs in that you believe that
psychotherapy is necessary, whereas Dr Shevel believes that the use of psychiatric medication
and psychotherapy will be required. Can you please also relate to the court why you recommend
only that mode of treatment?
Dr Lekalakala: At the time of the assessment, the severity of the symptoms was not as Dr Shevel
had reported it. And enough time had lapsed, so that pharma logical intervention would not be
necessary. So psychotherapy, in order to assist her at the moment, would be an ideal mode of
treatment.'
The explanation provided by Dr Lekalakala was that the assessment of the first
respondent was conducted some ten years after the incident occurred and due to the
lapse of time many of the acute symptoms which happened at the time had largely
resolved at the time of the assessment. That was the reason why, at the time of the
assessment, he considered the symptoms to be mild to moderate . However, he agreed
with Dr Shevel that, at the time of the meeting between them for purposes of compiling
the joint minutes , the first respondent was currently suffering from a Major Depressive
Disorder . In this regard it is also important to note that Dr Lekalakala only assessed the
first respondent (and also the second respondent) once.
[39] During cross-examination by Mr Zietsman SC, Dr Lekalakala explained that he, in
[39] During cross-examination by Mr Zietsman SC, Dr Lekalakala explained that he, in
terms of clinical findings, also found severe anxiety symptoms and that the anxiety
symptoms had worsened as reported by Dr Pienaar. He agreed with the findings of Dr
Pienaar, that the first respondent displayed significant symptoms where loss of pleasure ,
guilt feelings and loss of interest were recorded . Dr Pienaar also noted suicidal
idealisation, similarly to what Dr Lekalakala found when he assessed the first respondent
during 2023. Dr Lekalakala agreed with the finding made by Dr Pienaar that hypothalamic
functions i.e. sleep , appetite , libido and energy , were disturbed . Dr Lekalakala however
differed with the findings by Dr Pienaar that the first respondent showed clinical symptoms
17
of PTSD. When asked whether he had pointed the discrepancy regarding his findings in
this regard to the appellant, he replied that he had not done so because he had received
the other reports and are of the view that his findings would relate in particular to those of
Dr Shevel rather than somebody of a different profession.
[40] In addition, Dr Lekalakala was confronted with the contents of the two industrial
psychologists' reports and their joint minute (Mr Peverett for the first respondent and Mr
van Pletzen for the appellant), who after having considered all the expert reports filed of
record, arrived at the conclusion that in the context of what has transpired post-incident,
the first respondent is deemed significantly compromised insofar as her employment is
concerned. Dr Lekalakala responded that he disagrees with their findings and remains of
the opinion that she is employable.
[41] The purpose of cross-examination is to elicit facts favourable to the cross
examiner's case and to challenge the truth or accuracy of the witness's version of the
disputed facts.9 A party has a duty to cross-examine on aspects which he disputes. A
party's failure to cross-examine may, in appropriate cases, have evidential consequences
in that an adverse inference may be drawn against him/her. A failure to cross-examine is
generally considered to be an indication that the party, who had the opportunity to cross
examine, did not wish to dispute the version or aspects of the version of the particular
witness who was, during the course of the trial, available for cross-examination.10 Dr
Shevel's diagnosis, save for the severity of the PTSD, was not challenged during cross
examination.
[42] The joint minute of the clinical psychologists disclose that they do not disagree on
any significant aspects insofar as their expert opinions are concerned. Dr Truter found
that the first respondent suffers from chronic low grade mood disorder of depression
that the first respondent suffers from chronic low grade mood disorder of depression
which is triggered by various factors. She also presents with an incomplete PTSD image
secondary to her chronic low grade mood disorder of depression. According to Dr Truter
the first respondent's depression is severe, she projected suicidal ideation and difficulty
in adhering to life's demands and in adhering frustrations. Dr Truter, who evaluated the
9 Carroll v Carroll 1947 (4) SA 37 (D).
10 President of the Republic of South Africa and Others v South African Rugby Football Union and Others
2000 (1) SA 1 (CC) para 61.
18
first respondent some six years after the incident, reported that the first respondent is not
malingering. She is found to be apprehensive and harbours persistent negative
expectations that harm may befall her family members. Her mental focusing ability has
been negatively impacted. Her ongoing grief regarding her son's death is confirmed in
the Grief Scales. Severe symptoms, related to panic disorder, were indicated on the
Severity Measure for Panic Disorder - Adult and her PTSD was confirmed in the
Posttraumatic Stress disorder Checklist.
[43] Having regard to the contents of the admitted report by Dr Pienaar, who
recommended that a psychiatrist treat the first respondent's mood disorders
pharmacologically , the admitted report of Dr Truter as well as the admitted reports of the
two industrial psychologists, it is evident that the opinion of Dr Shevel, with regards to the
severity of the first respondent's psychological condition and the treatment regime, is to
be preferred. Dr Shevel's findings are in line with the admitted evidence of both Dr Truter
and Dr Pienaar. Notwithstanding the fact that Dr Lekalakala was provided with the other
experts' medico-legal reports, he, quite strangely, decided not to discuss the differences
of opinion pertaining to the treatment of the first respondent and her employability with
the appellant prior to him testifying in court. Apparently neither did counsel, who appeared
during the trial, bother to discuss the apparent discrepancies with Dr Lekalakala in as afar
his opinion differs from their other expert witnesses.
[44] The further dilemma which the appellant did not deal with during the trial, is the
issue that the different opinion expressed by Dr Lekalakala was never put to Dr Shevel
during his cross-examination. Having regard to the opinion of Dr Pienaar, that the first
respondent's depressive mood disorder has deteriorated since 2017, the contents of the
joint minutes of both the clinical psychologists and the industrial psychologists, submitted
joint minutes of both the clinical psychologists and the industrial psychologists, submitted
by agreement between the parties, the acceptance of the opinion of Dr Shevel by the
court a quo then makes perfect sense.
[45] The contention on behalf of the appellant, which was also not addressed as a
ground of appeal, that the assessment of the first respondent by Dr Shevel was actually
outdated and that the court a quo relied upon historic facts by accepting Dr Shevel's
opinion, was not part of the contentions on behalf of the appellant during the initial trial.
On the contrary, the appellant agreed to the submission of the joint minutes by the experts
19
during the trial and was fully aware of the fact that the opinion of Dr Lekalakala regarding
the degree of the first respondent's major depressive disorder and the proposed treatment
was not in line with the opinion of Dr Pienaar, one of the appellant's expert witnesses and
the contents of the joint minutes by Dr Pienaar and Dr Truter. This problem caused a
delay in the initial trial, yet the appellant (defendant) decided to proceed with the trial
notwithstanding the glaring discrepancy and contradiction . Raising a new argument or
ground of appeal, that was not raised during the initial trial, is generally discouraged. The
finding by Dr Pienaar that the first respondent had on all probability reached maximum
medical improvement during 2021 already was not challenged in any way or addressed
by the appellant during the initial trial.
[46] An appeal is a mechanism through which higher courts review decisions made by
lower courts to ensure that the law has been correctly applied and that justice has been
achieved in the original proceedings. It is not a forum for the introduction of facts,
arguments or evidence that could have been presented during the initial hearing but were
not. A party who takes a matter on appeal is bound by the record of the case in the court
a quo and cannot raise a new point by relying on a circumstance which does not appear
from, or which cannot be deduced from, the record. The role of the court of appeal is not
to serve as a second trial or to allow parties to retry their case, nor to entertain argument
that were not presented at the original hearing.11 The entire trial was conducted without
any issues being raised by the appellant that the expert report by Dr Shevel was outdated.
[47] In any event, the fact that the judgment of Gusha AJ does not deal in detail with
the evaluation of the evidence of Dr Shevel and Dr Lekalakala is not a self-standing
ground of appeal. An appeal is not aimed at the reasoning of the lower court but at the
order of the trial court.12
order of the trial court.12
[48] A further issue, pertaining to the calculation of the first respondent's loss of income,
raised by Ms Williams SC is the argument that the first respondent had ' . . . not worked
for years ... ' when she gave birth to their baby on 4 August 2013 and has ' . . . spent a
vast period of her working life unemployed'. It is furthermore contended that a scenario
20
11 Cooper and Others NNO v Syfrets Trust Ltd ZASCA 40; 2001 (1 ) SA 122 (SCA) at para 21 ; Road Accident
Fund v Mothupi (2000] ZASCA 27; 2000 (4) SA 38 (SCA).
12 Prinsloo NO and Others v Goldex 15 (Ply) Ltd and Another (2012] ZASCA 28; 2014 (5) SA 297 (SCA) at (17].
had been agreed upon which has never actually been part of the first respondent's
working history. The income agreed upon between the parties during the trial, has also
never been earnings that the first respondent has earned in the past. The contention on
behalf of the appellant is therefore that, although the first respondent was given the
benefit of the doubt regarding her earnings, how a 15% contingency could have been
applied remains inexplicable having regard to the facts of this matter and taking into
consideration the first respondent's inconsistent working history and the fact that she had
never worked in a permanent position prior to the incident.
[49] From the contents of the joint minutes by the industrial psychologists, it is evident
that having regard to the contents of their respective reports and based on the available
evidence, an agreement was reached on the probable earning scenario applicable to the
first respondent. The expert for the appellant, Mr van Pletzen, noted that he is of the
opinion that a higher contingency should be allowed for the fact that the first respondent
had limited work experience prior to the incident and there is also a chance that she could
have decided not to work, to dedicate the time to care of their children. The industrial
psychologists agreed that, concerning the expert opinions available and in the context of
what has transpired post-incident, the first respondent's pre-incident career and earnings
projection is deemed significantly compromised. Taking into consideration her prevailing
and entrenched psychiatric symptoms, it was agreed that he future earning capacity
would probably be similar to what transpired post-incident.
[50] The first respondent was born on 6 August 1991, and the incident occurred from
4-6 August 2013 when she was 22 years old. She attended high school in Bloemfontein
from 2005 to 2010. She repeated Grade 11 . During 2010 she was employed as a casual
from 2005 to 2010. She repeated Grade 11 . During 2010 she was employed as a casual
worker for approximately four months at Ackerman's and from December 2011 to January
2012 she worked at Mr Price as a casual worker. She applied to join the SANDF, was
accepted in February 2013, and passed the entrance exam during June 2013. Post
incident she was hospitalised from 4 August 2013 to 19 August 2013 and remained
unemployed until 2017 whereafter she was self-employed and generated a limited
income, selling home-made baked goods. Therefore, to a certain extent, the argument
raised by the appellant that the first respondent presented an inconsistent working history
pre-incident, is correct. The first respondent attended school until she was 19 years old
whereafter she worked as a casual worker for brief period of time while she was
21
approximately 20 years old. She was only 22 years old at the time of the incident and was
in the process of establishing a _career when all her ambitions and plans for the future
were tragically shattered by the conduct of the appellant's employees.
[51] During the proceedings in the court a quo, it was contended on behalf of the
defendant (appellant) that a 50% contingency deduction should be applied to the first
plaintiff's (respondent's) loss of income in the post-incident scenario. It was proposed that
the total loss of income in the amount of R3 933 384.50 be awarded to the first
respondent. Mr Zietsman SC argued that the amount proposed by the defendant
(appellant) is actually R 100 000 more than what the first plaintiff (first respondent)
suggests and the amount suggested by the opposing party cannot be supported on the
basis that the defendant applied a contingency deduction of 50% in the injured scenario,
which according to Mr Zietsman SC would be too favourable for the first respondent.
[52] The determination of a suitable contingency deduction falls within the discretion of
the trial court. Contingencies discount the vicissitudes of life, and it is a method used to
arrive at fair and reasonable compensation. The question of contingencies was dealt with
in Southern Insurance Association Ltd v Bailey N0: 13
'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, which is often a very rough estimate, of
the present value of the loss.'
In O/amini v Road Accident Fund14 the court dealt with and applied some guidelines
referred to by Koch in The Quantum Year Book:
'Normal contingencies" as deductions of 5% for past loss and 15% for future loss.
"Sliding scale": 1/2 % per year to retirement age, i.e. 25% for a child, 20°/o for a youth and 10% in
the middle age and relies on Goodall v President Insurance 1978 (1) SA 389.
"Differential contingencies" are commonly applied, that is to say one percentage applied to
earnings but for the accident, and a different percentage to earnings having regard to the
accident.'
[53] The contingency deductions applied by the court a quo amounted to 15% in the
13 Southern Insurance Association Ltd v Bailey NO 1984 (1) SA 98 {A) at 113G and 116G-117D.
14 0/amini v Road Accident Fund (59188/13) [2015) ZAGPPHC 646 (3 September 2015) paras 30-31.
22
uninjured scenario and 35% in the injured scenario amounting to a 20% spread between
the two scenarios. There is a plethora of case law dealing with a 15% deduction in cases
of a young person who has entered the labour market or is about to enter the labour
market.15 Having regard to the relative young age of the first respondent, who was only
22 years old at the time of the incident, I agree with the contention on behalf of the first
respondent that the contingency deduction of 35% in the prospective (future) income
scenario having regard to the incident cannot be faulted.
[54] The courts have acknowledged that the assessment of quantum for general
damages is fraught with difficulty, as few cases are similar.16 Previous authorities relating
to assessment of general damages serve as a useful guide to what other courts have
considered to be appropriate, but have no higher value than that.17 From the evidence,
more particularly, the expert evidence by Dr Shevel, Dr Pienaar and Dr Truter, and as
confirmed by the first and second respondents, it is clear that the respondents, but more
so the first respondent, have suffered psychological, emotional and behavioural sequelae
as a result of the traumatic events experienced at Pelonomi Hospital after the first
respondent was admitted for the birth of their first born son. Gusha AJ, in the judgment,
set out how the events impacted upon both the first and second respondents and their
marital relationship. As a result of the incident the first respondent attempted to end her
life on two occasions. The first respondent furthermore suffered physical injuries, further
hospitalisation and years of further mental anguish and distress.
[55] Taking into consideration the case law relied upon by the respondents18 as
opposed to the case law relied upon by the appellant19 it is evident that the cases referred
to by the appellant do not include any matters where the claimant (the first respondent)
to by the appellant do not include any matters where the claimant (the first respondent)
had actually also suffered any physical injuries apart from the mental anguish, trauma
and emotional shock subsequent to having been informed about the passing of a child.
23
15 Zarrabi v the Road Accident Fund 2006 (5) QOD 84-231 (T); Wright v Road Accident Fund 2011 (6A3) QOD
19 (ECP); Radebe v Road Accident Fund 2013 (6A4) QOD 220 (GNP).
16 Protea Assurance Co Ltd v Lamb 1971 (1) SA 535H-5368.
17 AA Onderlinge Assuransie Assosiasie Bpk v Sodoms 1980 (3) SA 134 (A) at 141G-H.
18 Komape & 3 Others v Minister of Basic Education & 3 Others 2020 (8K3) QOD 1 (SCA); 2020 (2) SA 347
(SCA); Siwayi v MEG of Health, Eastern Cape Province 2018 (7K3) QOD 26 (ECG) (Siway,); Povey v Road
Accident Fund 2022 (8K2) QOD 1 (GNP).
19 Mbhele v MEG for Health for the Gauteng Province (355/15) [2016] ZASCA 166 (18 November 2016) paras
13-18; Siwayi at K3-26.
[56] The principles applicable when a trial court adjudicates upon an award for General
Damages is succinctly set out in Road Accident Fund v Marunga20 by the Supreme Court
of Appeal as follows:
'This Court has repeatedly stated that in cases in which the question of general damages
comprising pain and suffering, disfigurement, permanent disability and loss of amenities of life
arises a trial court in considering all the facts and circumstances of a case has a wide discretion
to award what it considers to be fair and adequate compensation to the injured party.'21
I am of the view that the appellant has not demonstrated that the court a quo had
exercised its discretion capriciously or on a wrong principle or has brought an unbiased
judgment with regards to the awards in respect of General Damages to both the
respondents.
[57] The final aspect relates to the issue regarding future medical costs where the court
a quo awarded amounts to both the respondents in excess to what were claimed in the
particulars of claim. The first respondent claimed future medical costs in the amount of
R663 150 and an amount of R690 170 was awarded. The second respondent claimed
damages in the amount of R86 620 under this heading and an amount of R90 870 was
awarded by the court a quo. During argument, Mr Zietsman SC explained that these
discrepancies, on probabilities, came about as a result of the fact that fresh quantifications
were made during the trial and due to the interest component, the actuarial calculations
eventually amounted to more than the amounts claimed by the respective respondents.
[58] Unfortunately, the respondents did not seek an amendment of the amounts
claimed under the headings of future medical costs during the trial. Mr Zietsman SC
argued that the increased amounts where canvassed during the trial and with reliance on
Marine & Trade Insurance Co Ltd v Van der Schyff2-2 contended that the claim amounts
Marine & Trade Insurance Co Ltd v Van der Schyff2-2 contended that the claim amounts
be 'enlarged' to include the amounts awarded by the court a quo. In the alternative, Mr
Zietsman SC sought an amendment of the amounts claimed by the respondents in
respect of their medical costs to include awards made by the court a quo.
[59] A plaintiff can increase his/her amount claimed in respect of future medical costs
20 Road Accident Fund v Marunga 2003 (5) SA 164 (SCA).
21 Ibid para 23
22 Marine & Trade Insurance Co Ltd v Van der Schyff 1972 (1) SA 26 at 44H-45.
24
above the amount initially specified in the particulars of claim provided that the correct
procedural steps, as envisaged in rule 28 of the Uniform Rules of Court, has been
complied with. A notice of intention to amend must be served and the opposing party who
has ten days to object to the proposed amendment. The core test is whether the
amendment causes injustice to the other party. I am of the view that the application to
amend the claim amounts at appeal stage cannot be allowed and that the argument on
behalf of the respondents that the quantification of the claims for medical costs was
canvassed during the trial, does not assist the respondents where the specific amounts
awarded by the trial court exceeds the amounts claimed in the particulars of claim.
Therefore, the arguments on behalf of the appellant have merit and the awards under the
heading of medical costs in respect of both respondents should be decreased
accordingly.
[60) In all the circumstances I consider that the contingency deductions for loss of
earnings in respect of the first respondent and the amounts awarded to both respondents
in respect of general damages are fair and that the appeal in this regard ought to be
dismissed with costs. However, the amounts awarded by the court a quo in respect of
future medical expenses should be reduced and in this regard the appeal should be
upheld.
[61) Generally, in appeal cases, the successful party is entitled to their costs. Since the
appeal succeeds in part only, the costs of the appeal, including those incurred in respect
of the application for leave to appeal shall be borne by each party.
[62) I thus make the following order:
1 The appeal in respect of the respondents' future medical expenses is upheld.
2 The order of the court a quo is set aside and substituted with the following:
25
'2.1 Paragraph 30.1.3 of the trial court's order is amended by substituting the amount of
R690 170, in respect of future medical expenses, with R663 150.
R690 170, in respect of future medical expenses, with R663 150.
2.2 Paragraph 30.2.2 of the trial court's order is amended by substituting the amount of
R90 870, in respect of future medical expenses, with R86 620.'
26
3 Save as aforesaid, the appeal is di::M,issed.
4 Each party shall pay their own costs inciuaing ~hose costs incurred in respect of
the application tor leave to appeal.
I concur.
,., •••I • •
I concur.
Appearances
On behalf of the Appellant:
On behalf of the Respondents:
R Williams SC
The State Attorney
BLOEMFONTEIN
J Zietsman SC
On instruction of:
Honey Attorneys
BLOEMFONTEIN
27