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    SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this

    document in compliance with the law and SAFLII Policy

    HIGH COURT OF SOUTH AFRICA

    GAUTENG LOCAL DIVISION, JOHANNESBURG

    Case No: A5093/2014

    In the matter between:

    PM obo TM Appellant

    and

    MEC FOR HEALTH, GAUTENG PROVINCIAL GOVERNMENT Respondent Case Summary: Delictual damages medical negligence - Appeal against certain parts of trial courts assessment of damages ensuing as a result of hypoxic brain injury sustained during the perinatal period leaving the child severely disabled by quadriplegic cerebral palsy. The appeal concerns the estimation of life expectancy, claims that had been settled but not awarded, the contingency deduction percentages applied and the downward adjustment of 50% in respect of the award for loss of earnings. The latter is based on the findings that the provincial government is obliged to maintain the child for the rest of her days and that she would never be able to utilise any such damages, if awarded. The appeal also deals eith the dismissal of the claim for general damages based on the finding that her condition precludes any compensation for non-pecuniary damages, the disallowance of the costs of administering a trust for the benefit of the child, the disallowance of certain items of the claim for the costs of suit and the dismissal of certain of the appellants claims in her personal capacity, including her claims for past and future caregiving beyond the scope of duties of normal parenthood. The respondents cross-appeal raises the financial constraints of the Department of Health, Gauteng and everyones constitutionally entrenched right of access to health care services, which is alleged to be compromised by lump sum awards. The respondent utilizes this as the basis for courts, in matters such as these, to

    (1) REPORTABLE: Yes

    (2) OF INTEREST TO OTHER JUDGES: No.

    (3) REVISED.

    .. ...

    DATE SIGNATURE

    http://www.saflii.org/content/terms-use

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    develop the common law, and, instead of awarding a lump sum in respect of future medical and related expenses, to order the payment or provision of the required medical services and assistive devices by a defendant, such as the respondent, as and when they are required in the future.

    JUDGMENT

    MEYER J (WEINER and MONAMA JJ concurring)

    INTRODUCTION

    [1] This is an appeal and cross-appeal against certain parts of the judgment and

    order of the Gauteng Local Division of the High Court sitting in Johannesburg (Mayat

    J) assessing the quantum of damages that ensued because of a hypoxic brain injury

    sustained by the appellants daughter, TM, during the perinatal period, which left her

    severely disabled by quadriplegic cerebral palsy. TM, who was born at the Chris

    Hani Baragwanath Hospital on 17 March 2005, has very little voluntary functional

    movement and is dependent on others for all activities of daily living. She has no

    use of words and appears to have profound mental retardation. She requires

    constant and permanent care, a variety of therapies, assistive devices and medical

    interventions and treatment of a general and specialist nature. She was nine years

    and five months old at the time of the trial, and is now almost twelve.

    [2] The appellant instituted the action in her personal and representative

    capacities against the respondent, the Member of the Executive Council for Health,

    Gauteng Provincial Government. The negligence of certain members of staff at the

    Chris Hani Baragwanath Hospital, that TMs brain injury was caused by the

    negligence and that the respondent is liable for the ensuing damages have been

    admitted. The trial, accordingly, proceeded on the question of the quantum of

    damages only, from 12 to 29 August 2014. Judgment was delivered on 3 November

    2014 and a revised judgment on 14 November 2014. The appeal and cross-appeal

    are with the leave of the trial court.

    [3] The appeal concerns the estimation of TMs life expectancy, claims that had

    been settled between the parties but not awarded, the contingency deduction

    percentages applied, the downward adjustment of 50% to the award for loss of

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    earnings (based on the findings that the respondent is obliged to maintain the child

    for the rest of her days and that she would never be able to utilise any damages

    awarded her for loss of earnings), the dismissal of the claim for general damages

    based on the finding that her condition precludes her from being compensated for

    non-pecuniary damages, the disallowance of the costs of administering a trust for the

    benefit of TM, the disallowance of certain items of the claim for the costs of suit and

    the dismissal of certain of the appellants claims in her personal capacity, including

    her claims for past and future caregiving beyond the scope of duties of normal

    parenthood. The respondents cross-appeal raises the financial constraints of the

    Department of Health, Gauteng and everyones constitutionally entrenched right of

    access to health care services, which is alleged to be compromised by lump sum

    awards, such as the one that was made in this instance. The respondent contends

    that this is the basis for courts, in matters such as these, to develop the common

    law, and instead of making lump sum awards, to order the payment or provision of

    the required medical services and assistive devices by a defendant, such as the

    respondent, as and when they are required in the future.

    [4] The appellants appeal aims at having the award of damages made by the

    trial court increased and the respondents cross-appeal to have the trial award

    reduced. The approach to be followed by this court of appeal to the trial courts

    award of damages is this:

    It is settled law that a trial Court has a wide discretion to award, what it in the particular

    circumstances, considers to be fair and adequate compensation to the injured party for his

    bodily injuries and their sequelae. It follows that this Court will not, in the absence of any

    misdirection or irregularity, interfere with a trial Courts award of damages unless there is a

    substantial variation or a striking disparity between the trial Courts award and what this

    Court considers ought to have been awarded, or unless this Court thinks that no sound basis

    exists for the award made by the trial Court.

    AA Mutual Insurance Association Ltd v Maqula 1978 (1) SA 805 (A), at 809B-D.

    Also, Singh v Ebrahim (413/09) [2010] ZASCA 145, para 148.

    LIFE EXPECTANCY

    [5] Life expectancy refers to the additional years which a person is expected to

    live, as from the persons age at the date of calculating the persons expected

    additional years. A persons expected death age is arrived at by adding the

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    additional years to the persons age at the calculation date. (See AD and Another v

    MEC for Health and Social Development, Western Cape Provincial Government

    (27428/10) [2016] ZAWCHC 181 (7 September 2016), para 87.) Prof Strauss, a

    mathematician and statistician who has worked as a medical researcher in the

    sphere of life expectancy for many years, and Prof Cooper, a paediatrician

    specialising in neonatology, were called as expert witnesses by the appellant and the

    respondent respectively to assess TMs likely life expectancy. They differed in their

    estimations. Prof Strauss estimated her life expectancy at 29.2 additional years and

    Prof Cooper at about 18 years. This issue is of considerable importance because of

    the effect it has on the calculation of much of the appellants damages claims.

    Prof Strauss

    [6] Prof Strauss was a professor of statistics at the University of California for

    almost 30 years, and a fellow of the American Statistical Association. He has

    published more than 100 peer reviewed articles in the scientific and medical

    literature, most of these on life expectancy or related topics. He has been Director of

    the Life Expectancy Project in California since 1994, an internationally recognised

    research team based in San Francisco, who since 1980 had been focussing on

    statistical and epidemiological studies on children and adults with developmental

    disabilities (the California Group).

    [7] Prof Strauss was instrumental in developing a database, the Californian

    Disability Services Register, relating to individuals who suffer from cerebral palsy

    and other disabilities (the California database). That database, which falls under

    Prof Strauss authority, is by far the largest database of individuals with cerebral

    palsy in the world. It comprises about 300 000 individuals from California with

    childhood related disabilities, particularly cerebral palsy, but many other conditions

    too, such as down syndrome, autism and acquired traumatic brain injury. The

    California database includes more than 50 000 children with cerebral palsy, with very

    detailed information regarding their abilities, disabilities, the severity of their

    disabilities (inter alia in respect of walking, feeding, speech and mobility), psychiatric

    problems and social issues. Prof Strauss and his

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