Booyse v MEC for Health, Gauteng Province
| Jurisdiction | South Africa |
| Judge | Lukhaimane AJ |
| Judgment Date | 19 July 2019 |
| Docket Number | 16233/13 |
| Court | Gauteng Division, Pretoria |
| Hearing Date | 12 June 2019 |
| Citation | 2019 JDR 1510 (GP) |
Lukhaimane AJ:
The First and Second Plaintiffs instituted this action in their personal and representative capacities against the respondent, owing to the negligence
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Lukhaimane AJ
of certain staff members at the Tswane District hospital. On 8 February 2010, their son JJ sustained a brain injury that left him with very little voluntary functional movement and he is therefore, dependent on others for all activities of daily living. At the time of the trial, JJ was 10 years old. He has since passed away on 1 April 2019, after the hearing but before closing arguments. The trial had only proceeded on the question of quantum of damages only, as a finding had already been made that the defendant is 100% liable for the plaintiffs' proven or agreed damages in their personal and representative capacities. The initial claim was for an amount of R19 695 500 in the First Plaintiff's capacity as mother and natural guardian of JJ. In addition, she and the Second Plaintiff, JJ's father, in their personal capacity, jointly claimed an amount of R796 000. The damages that the First Plaintiff claims to have suffered in her representative capacity as set out in the Plaintiff's Particulars of Claim are as follows:
|
- |
Future medical and related expenses |
R14 065 000 |
|
- |
Future loss of earnings |
R2 040 000 |
|
- |
General damages |
R1 800 000 |
|
- |
Cost of protecting money |
R1 790 500 |
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Lukhaimane AJ
Damages claimed in their personal capacities as set out in the particulars of claim are as follows:
|
- |
Past hospital, medical and related expenses |
R50 000 |
|
- |
Future medical and related expenses |
R50 000 |
|
- |
Care giving beyond normal parenthood |
R576 000 |
|
- |
General damages (for shock and trauma) R60 000 for each of the Plaintiffs |
R120 000 |
Therefore as can be gleaned from the claims above, these are for costs of medical and related care for JJ and damages to the Plaintiffs' in their personal and representative capacities.
Owing to the fact that JJ has since passed away, the court is relieved of the responsibility to decide on the following claims:
Future medical and related expenses for JJ
Loss of earnings
Cost of protecting JJ's money; and
Care giving beyond normal parenthood for the Plaintiffs
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Lukhaimane AJ
The court is further relieved of the need to make a ruling on Defendant's first and second special defences, namely that instead of being directed to pay compensation in money, the Defendant be directed to provide the medical services to JJ whenever they would be required and that instead of being directed to pay the loss of earnings in a lumpsum, the Defendant be directed to pay those amounts in instalments from when this loss would eventuate, respectively.
This then leaves the issues to be decided upon as follows:
Past hospital, medical and related expenses suffered by the Plaintiffs in their personal capacities
Future medical and related expenses suffered by the Plaintiffs in their personal capacities.
General damages in respect of severe psychological shock and trauma and loss of amenities of life of the Plaintiffs in their personal capacity.
General damages claimed by the First Plaintiff in her representative capacity in respect of pain, suffering and discomfort, loss of amenities of life, permanent disability, severe
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Lukhaimane AJ
permanent psychological shock and trauma, lost years of life and permanent disfigurement suffered by JJ junior until date of his demise.
At the outset it should be mentioned that the parties agreed on a life expectancy of 17 years for JJ. Life expectancy refers to the additional years which a person is expected to live, as from the person's age at the date of calculating the person's expected additional years. A person's expected death age is arrived at by adding the additional years to the person's age at the calculation date (see AD and Another v MEC for Health and Development, Western Cape Provincial Government (27428/10) [2016] ZAWCHC 181 (7 September 2016) at paragraph 87). This has a bearing on the First Plaintiff's claim for general damages in her representative capacity.
General Damages
The Defendant's submissions in this respect are that their medical evidence points to the fact that JJ was in a permanent vegetative state and therefore is not entitled to an award of general damages. The Plaintiffs on the other
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Lukhaimane AJ
hand contend that JJ was not in a permanent vegetative state. The legal position on this issue seems settled in that, in instances of a brain injury, in order for a claim to be successful, the claimant must not be in a vegetative state (see NK v MEC for Health, Gauteng 2018 (4) SA 454 SCA).
What is left to be determined is whether on the facts, JJ was in a permanent vegetative state.
Prof Smuts, Associate Professor of Steve Biko Academic Hospital's Paediatric Neurology Unit and registered paediatric neurologist, testified that JJ had been under the care of their unit most of his life and his condition had deteriorated over time. Prof Smuts' evidence was based on a Quantum opinion report that she submitted for the Defendant's use. She testified that JJ's clinical features had gradually changed over time and his epilepsy has become increasingly difficult to control since 2016. She indicated that his ability to interact had deteriorated over time as he had previously always been able to respond to one's voice and even smiled. She indicated that at the time of compiling the report, 01 October 2018, although his eyes were open, he is hardly responding. She records that there is an occasional facial grimace, cry or "possible" smile.
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Lukhaimane AJ
The issues around JJ's gross motor function and manual ability classification are not in dispute.
Whilst the Defendant would like the court to accept that JJ was in a persistent vegetative state for some time prior to his death, this factor has never been pleaded, despite the pleadings being amended twice which might explain why the Plaintiffs did not bother to submit any evidence to counter this given the extensive joint minutes completed by various experts on behalf of both parties.
The rest of Prof Smuts' evidence was aimed at future medical expenses and is therefore not relevant. The medico legal analysis report dated 17 March 2017, was not considered as it sought to ascribe JJ's condition to something other than the Defendant's staff's negligence, which matter has been settled.
Plaintiffs' evidence was that until JJ's passing, he was in a state of severe spastic tetraplegia, extremely handicapped and totally dependent on care for every need. As per Prof Smuts' evidence, the parties are in agreement with her assessment of JJ's gross motor function and manual ability
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Lukhaimane AJ
classification. He had severe cortical blindness, was fed through a PEG tube as he could not swallow nor close his mouth and had an IQ of less than 20.They also confirmed that he suffered from epilepsy which became increasingly difficult to control since February 2016.
JJ junior's clinical features have gradually changed over time. However Prof Smuts conceded that on 26 April 2018 he was not in a vegetative state (see pg 247 par 20 record Volume 3 2019-02-25 - 2019-03-29).
Having regard to the video taken during October 2018 it was clear that JJ was not in a vegetative state. From the shower video "noises of joy" could be heard and from the motor car video it was clear that JJ junior was crying and from the music video it was clear that JJ junior ''was happy" (see pg 77 - 79 record 2018-10-22).
When the Second Plaintiff resumed his evidence on 25 March 2019, with reference to a visit by JJ junior to his Springs residence in December 2018 and March 2019, Second Plaintiff testified "...we never have a dull moment with my son. He is always friendly; he is always kind you can touch him he is always smiling. If you play music he will show reaction but he understands
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Lukhaimane AJ
what I am playing for him right now .....He will smile he knew where he was at home with us' (see pg 73 and 73 par 8 - 13 and par 25 Volume 1...
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