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[2018] ZASCA 13
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NK obo ZK v Member of the Executive Council for Health of the Gauteng Provincial Government (216/2017) [2018] ZASCA 13; 2018 (4) SA 454 (SCA) (15 March 2018)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 216/2017
In
the matter between:
NK
obo ZK
APPELLANT
and
THE
MEMBER OF THE EXECUTIVE COUNCIL FOR HEALTH
OF
THE GAUTENG PROVINCIAL GOVERNMENT
RESPONDENT
Neutral
citation:
NK
obo ZK v MEC for Health, Gauteng
(216/17)
[2018] ZASCA 13
(15 March 2018)
Coram:
Lewis,
Majiedt, Willis and Dambuza JJA and Pillay AJA
Heard:
2 March 2018
Delivered:
15
March 2018
Summary:
Medical
negligence – quantum of damages – court a quo erred in
this regard – award for general damages increased
–
contingency deduction for future loss of earnings reduced –
appeal upheld.
ORDER
On
appeal from:
Gauteng
Local Division, Johannesburg (Mashile J sitting as court of first
instance):
1
The appeal
is upheld, with costs, including the costs of two counsel.
2
Paragraphs
1 and 2 of the orders of the court a quo are set aside and are
replaced with the following:
‘
1
The Defendant shall pay an amount of R19 048 291 to the
plaintiff in her representative capacity, for and on behalf
of her
minor child, ZK, which amount is computed as follows:
(a)
Past medical expenses:
R1 375
(b)
Future hospital, medical and related expenses:
R14 490 799
(c)
Future loss of earnings:
R1 427 166
(d)
General damages:
R1 800 000
SUB-TOTAL:
R17 719 341
(e)
Trust (7.5% of R17 719 340.40):
R1 328 950
TOTAL
AMOUNT:
R19 048 291
2
The total amount mentioned in paragraph 1 above, less the amount of
R15 578 983.93 that was paid by the defendant on
29
February 2016, shall be paid in accordance with the provisions of
section 3
(a)
(i)
of the
State Liability Act 20 of 1957
within 30 days from the
date of this order directly into the trust account of the plaintiff’s
attorneys of record.
The banking details are as follows:
WIM
KRYNAUW ATTORNEYS TRUST
Bank:
ABSA – Trust account
Account
number: [….]
Reference:
H NORTJE I MEC0003
3
The amount of
R19 048 290.93 shall be retained by the plaintiff’s
attorneys in an interest-bearing account in terms
of section 78(2)(A)
of the Attorneys Act 53 of 1979 for the benefit of the minor child
.’
JUDGMENT
Willis
JA (Lewis, Majiedt and Dambuza JJA and Pillay AJA concurring):
Introduction
[1]
This appeal is concerned with two issues arising from a claim for
medical negligence. The first is the award made for general
damages,
and the second is the amount that should be deducted for
contingencies in respect of the loss of future earnings. For
general
damages, the court a quo awarded R200 000 but the appellant contends
that it should have been R1 800 000. The agreed loss
of future
earnings was R1 159 642. From this amount, the high court made a 35
per cent contingency deduction. The appellant submits
that the
deduction should have been 20 per cent. She appeals to this court
with the leave of the court a quo.
[2]
The appellant instituted the action as the parent and natural
guardian of her minor son, ZK. She gave birth to him at the Chris
Hani Baragwanath Hospital on 25 May 2008. The Gauteng Provincial
Government is responsible for the administration and management
of
the hospital. The respondent is the political head of the Provincial
Department of Health.
[3]
During the course of his birth, ZK experienced foetal distress, more
particularly a hypoxic-ischaemic incident, due to perinatal
asphyxia.
As a result, he has severe brain damage, which manifests itself in
spastic cerebral palsy, quadriplegia, mental retardation,
epilepsy,
marked delays in development, speech deficits, general spasticity,
compromised respiratory function, subluxation of the
hip, scoliosis
of the spine and behavioural problems. The appellant claimed that it
was the negligence of the staff at the hospital
which caused ZK’s
maladies and extensive suffering.
[4]
The parties agreed that there should be a separation of the merits of
the case from the quantum and an order was made to this
effect in
terms of Rule 33(4) of the Uniform Rules of Court. The merits
were adjudicated by Spilg J. On 2 February 2015,
he found that ZK’s
brain damage was indeed the result of the negligence of the staff at
the hospital and that the respondent
was liable for 100 per cent of
the plaintiff’s proven damages. The court a quo (Mashile J)
adjudicated the damages.
[5]
The damages were claimed under four separate heads: past hospital,
medical and related expenses; future hospital, medical and
related
expenses; future loss of earnings and general damages. The parties
agreed on past and future hospital, medical and related
expenses in
an aggregate amount of R14 490 799. This amount was to be paid into a
trust for the benefit of ZK. A further 7.5 per
cent of this amount
was allowed for the costs of establishing and administering the
trust. The parties agreed that the estimated
loss of future earnings
would be R1 783 958, subject to an appropriate contingency
deduction. Accordingly, the only issues
left for the court a quo to
determine were the quantum of general damages and the contingency
deduction from the agreed future
loss of earnings. The two issues are
now in contention before this court. The fact that there was no
cross-appeal indicates that
the respondent does not contend that
there should be no award for general damages. This was confirmed by
counsel for the respondent
during the course of oral argument.
The
Issue of Quantum for General Damages
[6]
The appellant’s expert witnesses testified that ZK will be
incontinent for his entire life. This will result in the perpetual
use of nappies. The wet and soiled nappies will have to be changed by
caregivers. Moreover, the experts said that he experiences
pain and
discomfort as well as unhappiness and frustration with his situation.
He will have to undergo physiotherapy, requiring
the regular use of a
hoist in later years. He dislikes being moved by others. He will lose
his entire mobility when he is about
37 years old. He has difficulty
eating and, at least to some extent, he has to be force-fed. This
evidence was not disputed. ZK
is not in a state of ‘unconscious
suffering’.
[7]
In
Marine
& Trade Insurance Co Ltd v Katz NO
,
[1]
Trollip JA pointed out that, in awards arising from brain injuries,
although a person may not have ‘full insight into her
dire
plight and full appreciation of her grievous loss’, there may
be a ‘twilight’ situation in which she is
not a so-called
‘cabbage’ and accordingly an award for general damages
would be appropriate.
[2]
This
case has been followed in numerous instances.
[3]
ZK’s awareness of his suffering, albeit diminished by his
reduced mental faculties, puts him in this ‘twilight’
situation. During the course of argument this became common cause.
This confirms that he is entitled to an award for general damages
and
that all that remains to be determined, under this head, is how much
would be suitable in all the circumstances.
[8]
In coming to its conclusions on the appropriate amount to award as
general damages, the court a quo said that the figure agreed
between
the parties relating to past, future and related medical and hospital
expenses took ZK’s loss of amenities of life
into
consideration. Accordingly, it held that a further award in that
regard would be a duplication of compensation.
[9]
As was said by Nicholas JA in
Southern
Insurance Association Ltd v Bailey NO
,
[4]
this court has not adopted a ‘functional’ determination
as to how general damages should be awarded. It has consistently
preferred a flexible approach, determined by the broadest general
considerations, depending on what is fair in all the circumstances
of
the case.
[5]
We do not have to
determine what the award will be used for – its purpose or
function. What we must consider is the child’s
loss of
amenities of life and his pain and suffering.
[10]
The appellant relied on the following unreported cases, dealing with
similar circumstances, in support of her contentions as
to the
appropriate amount to be awarded as ‘general damages’:
(a)
S
obo S v MEC for Health, Gauteng
[6]
in which Louw J on 12 August 2015 awarded R1 800 000; (b)
Matlakala
v MEC for Health, Gauteng
[7]
in which Keightley J on 2 October 2015 awarded R1 500 000; (c)
Mbhalate
v MEC for Health, Gauteng
[8]
in which Campbell AJ on 17 February 2016 awarded R1 800 000; and
(d)
PM
obo TM v MEC for Health, Gauteng Provincial Government
[9]
in which Meyer, Weiner and Monama JJ on 7 March 2017 in an appeal to
the full court, also awarded R1 800 000. In
PM
obo TM v MEC for Health
the
full court referred extensively to the judgment of Rogers J in
AD
& another v MEC for Health and Social Development, Western Cape
Provincial Government.
[10]
The appellant also
referred us to
The
Quantum Yearbook.
[11]
[11]
We endorse the following position which Rogers J held in
AD &
another v MEC for Health
and which was followed by the full court
in
PM obo TM v MEC for Health
:
‘
Money
cannot compensate IDT [the minor on behalf of whom the claim had been
made] for everything he has lost. It does, however,
have the power to
enable those caring for him to try things which may alleviate his
pain and suffering and to provide him with
some pleasures in
substitution for those which are now closed to him. These might
include certain of the treatments which I have
not felt able to allow
as quantifiable future medical costs . . .
’
[12]
[12]
Compensation for pain and suffering – to the extent that one
can ever ‘compensate’ for it – is neither
a
duplication of the amount awarded for past and future medical and
hospital expenses, nor for loss of amenities of life. The court
a quo
was clearly wrong in regard to the ‘duplication’ issue
and, accordingly, its award must be interfered with by
this court.
There is, moreover, a striking disparity between what the court a quo
has ordered and what this court thinks should
have been awarded.
[13]
[13]
Counsel for the respondent submitted that this court should not,
without further ado, make an award that accords with other
awards
made by the high court in various divisions and, especially, this
court should guard against assuming that all brain injury
cases
deserve the same award. Of course, this court will scrutinise past
awards carefully and, in each case before it, make its
own
independent assessment. It is trite that past awards are merely a
guide and are not to be slavishly followed, but they remain
a guide
nevertheless.
[14]
It is also
important that awards, where the sequelae of an accident are
substantially similar, should be consonant with one another,
across
the land. Consistency, predictability and reliability are intrinsic
to the rule of law. Apart from other considerations,
these principles
facilitate the settlement of disputes as to quantum. We have
had particular regard to the cases upon which
counsel for the
appellant has relied and, especially
AD
& another v MEC for Health
and
PM obo
TM v MEC for Health
,
where the issues are substantially similar to those before us. The
appellant has asked for an award of R1 800 000 as general
damages. This has been justified in all the circumstances of this
case.
The
Deduction for Contingencies
[14]
At the trial the appellant argued for 20 per cent and the respondent
50 per cent as a deduction for contingencies. The high
court decided
that ‘the best approach would be to divide the difference’
between the two, arriving at a figure of 35
per cent. Counsel for the
respondent defended the court a quo’s deduction of 50 per cent
for ‘contingencies’
on the basis that this had been the
deduction in
Katz
.
Two points operate to diminish the force of that argument. The first
is that the deduction for contingencies was made by agreement
between
the parties in that case.
[15]
The second is that the facts of that case were very different and, in
particular, the contingency deduction took into account the
likelihood of the patient’s remarriage.
[16]
[15]
As Nicholas JA said in
Bailey
[17]
the deduction for
contingencies is meant to take into account the ‘vicissitudes
of life’.
[18]
These
include:
‘
[T]he
possibility that the plaintiff may in the result have less than a
“normal” expectation of life; and that he may
experience
periods of unemployment by reason of incapacity due to illness or
accident, or to labour unrest or general economic
conditions
.’
[19]
Counsel
for the respondent also relied very strongly on the following, which
follows shortly after what Nicholas JA had to say about
the
vicissitudes of life: ‘The rate of the discount cannot of
course be assessed on any logical basis: the assessment must
be
largely arbitrary and must depend upon the Judge’s impression
of the case.’
[20]
He did
so to defend what he conceded may seem to have been an arbitrary
assessment of the appropriate deduction.
[16]
The leading case, in recent years, of the meaning of ‘arbitrary’
is
First
Nationa
l
Bank of
SA Ltd t/a Wesbank v Commissioner for the South African Revenue
Service & another; First National Bank of SA Ltd t/a
Wesbank v
Minister of Finance
.
[21]
Ackermann J, delivering the unanimous judgment of the court,
emphasised that although ‘arbitrary’ may often mean
without
any ‘rational connection between means and ends’,
it does not always carry the same meaning and context is
important.
[22]
Ackermann
J was also referring to the interpretation of a statute and not a
word used in a judgment. To my mind, simply taking
the median between
what the respective parties ask for on the deduction or contingencies
without any further explanation, is indeed
devoid of any rational
connection between the means by which the decision was made and the
result (or end) of the decision-making
process. Nevertheless, in
context, something more reasoned is required, not only if a court is
to depart from the normal range
of between 15 and 20 per cent, but
also simply to take the median of what the respective parties asked
for. It is like the rolling
of a dice. A court is not a casino. Of
particular relevance is that there are no special circumstances
present to indicate that,
but for his perinatal asphyxia, the
vicissitudes of ZK’s life are likely to be more adverse than
the norm. Conjecture may
be required in making a contingency
deduction, but it should not be done whimsically.
[17]
In regard to the deduction for contingencies, the appellant enjoined
us to have particular regard to the judgment of this court
in
Singh
v Ebrahim
,
[23]
in which a 15 per cent contingency deduction was approved, and
PM
obo TM v MEC for Health
in
which 20 per cent was deducted
.
[24]
The appellant made it plain that she would consider 20 per cent to be
eminently fair and reasonable to both parties.
[18]
As with the award for general damages, the disparity between what the
court a quo ordered and what this court thinks should
have been
awarded is again too striking to be left undisturbed. A 20 per cent
deduction for contingencies in respect of future
loss of earnings, as
asked for by the appellant, would be appropriate.
[19]
The order which follows is that which the parties agreed should be
made in the event that the appellant succeeded to the extent
that R1
800 000 was to be awarded as general damages and a 20 per cent
deduction for contingencies made from estimated future earnings:
1
The appeal
is upheld, with costs, including the costs of two counsel.
2
Paragraphs
1 and 2 of the orders of the court a quo are set aside and are
replaced with the following:
‘
1
The Defendant shall pay an amount of R19 048 291 to the
plaintiff in her representative capacity, for and on behalf
of her
minor child, ZK, which amount is computed as follows:
(a)
Past medical expenses:
R1 375
(b)
Future hospital, medical and related expenses:
R14 490 799
(c)
Future loss of earnings:
R1 427 166
(d)
General damages:
R1 800 000
SUB-TOTAL:
R17 719 341
(e)
Trust (7.5% of R17 719 340.40):
R1 328 950
TOTAL
AMOUNT:
R19 048 291
2
The total amount mentioned in paragraph 1 above, less the amount of
R15 578 983.93 that was paid by the defendant on
29
February 2016, shall be paid in accordance with the provisions of
section 3
(a)
(i)
of the
State Liability Act 20 of 1957
within 30 days from the
date of this order directly into the trust account of the plaintiff’s
attorneys of record.
The banking details are as follows:
WIM
KRYNAUW ATTORNEYS TRUST
Bank:
ABSA – Trust account
Account
number: […]
Reference:
H NORTJE I MEC0003
3
The amount of
R19 048 290.93 shall be retained by the plaintiff’s
attorneys in an interest-bearing account in terms
of section 78(2)(A)
of the Attorneys Act 53 of 1979 for the benefit of the minor child
.’
______________________
N P WILLIS
Judge of Appeal
APPEARANCES:
For
Appellant:
N Van der Walt SC (with him, M Coetzer)
Instructed by:
Wim Krynauw Inc
Johannesburg
c/o Martins Attorneys
Bloemfontein
For
Respondent:
V
Soni SC
Instructed by:
The State Attorney
Johannesburg and
Bloemfontein
[1]
Marine & Trade Insurance Co
Ltd v Katz NO
1979
(4) SA 961 (A).
[2]
Ibid at 983A-G. Today we may prefer
to use the term ‘vegetative state’ to ‘cabbage’.
See, for example,
PM obo TM
v MEC for Health, Gauteng
Provincial
Government
[2017]
ZAGPJHC 346 (7 March 2017) para 55.
[3]
See, for example, more
recently,
Road Accident
Fund v Delport NO
2006 (3)
SA 172
(SCA) para 23; and
Mbele
v Road Accident
2017 (2)
SA 34 (SCA).
[4]
Southern
Insurance Association Ltd v Bailey NO
1984
(1) SA 98
(A)
at
119D-H. See also
Sandler v
Wholesale Coal Suppliers Ltd
1941 AD 194
at 199.
[5]
Ibid.
[6]
S obo S v MEC for Health Gauteng
(2009/27452)
[2015] ZAGPPHC 605.
[7]
Matlakala v MEC for Health,
Gauteng
Provincial
Government
(2011/11642)
[2015] ZAGPJHC 223 (2 October 2015).
[8]
Mbhalate v MEC for Health, Gauteng
Provincial
Government
(2012/45017/12)
(dated 17 February 2016).
[9]
PM obo TM v MEC for Health
supra fn 2.
[10]
AD & another v MEC for Health
and Social Development, Western Cape Provincial Government
(27428/10)
[2016]
ZAWCHC 116
(7 September 2016).
[11]
Robert J Koch
The
Quantum Yearbook
2017 at
126.
[12]
AD & another v MEC for Health
supra fn 12 para 618. See also
PM
v MEC for Health
supra fn
2 para 56
.
[13]
See, for example,
AA
Mutual Insurance Association Ltd v Maqula
1978 (1) SA 805
(A) at 809B-D;
Road
Accident Fund v Guedes
2006 (5) SA 583
(SCA) at 587B-D.
[14]
See, for example,
Minister
of Safety and Security v Seymour
2006 (6) SA 320
(SCA) paras 17-19; and
Minister
of Safety and Security v Tyulu
2009 (5) SA 85
(SCA) para 26.
[15]
Katz
supra
fn 1 at 979H.
[16]
Ibid at 979C-G.
[17]
Bailey
supra fn 4 1984
(1) SA 98 (A).
[18]
Ibid at 116H.
[19]
Bailey
supra
fn 4 at 116H-117A.
[20]
Ibid.
[21]
First National Bank of SA Ltd t/a
Wesbank v Commissioner for the South African Revenue Service &
another; First National Bank
of SA Ltd t/a
Wesbank
v Minister of Finance
[2002] ZACC 5
;
2002
(4) SA 768
(CC) para .
[22]
Ibid paras 61-69.
[23]
Singh & another v Ebrahim
(413/09)
[2010]
ZASCA 145
(26 November 2010); 2010 JDR 1431 (SCA).
[24]
PM obo TM v MEC
supra
fn 2 para 51
.