MEC for Health and Social Development, Gauteng v DZ obo Wz

• Jurisdiction: South Africa
• Judge: Zondo DCJ, Cameron J, Froneman J, Jafta J, Kathree-Setiloane AJ, Kollapen AJ, Madlanga J, Mhlantla J, Theron J and Zondi AJ
• Judgment Date: 31 October 2017
• Citation: 2018 (1) SA 335 (CC)
• Docket Number: CCT 20/17 [2017] ZACC 37
• Hearing Date: 31 October 2017
• Counsel: VS Notshe SC (with AM Pheto) for the applicant. S Budlender (with M Coetzer and M Mbikiwa) for the respondent. A Dodson SC (with A Bodlani, P Seseane and M Finn) for the first amicus. G Budlender SC (with N Bawa SC) for the second amicus.
• Court: Constitutional Court

Froneman J (Zondo DCJ, Cameron J, Kathree-Setiloane AJ, Kollapen AJ, Madlanga J, Mhlantla J, Theron J and Zondi AJ concurring): H

Introduction

[1] On 19 November 2009 the respondent, DZ, [1] gave birth to WZ at the I Chris Hani Baragwanath Hospital, Johannesburg. WZ was born by

Froneman J (Zondo DCJ, Cameron J, Kathree-Setiloane AJ, Kollapen AJ, Madlanga J, Mhlantla J, Theron J and Zondi AJ concurring)

vaginal delivery, following prolonged labour, and was subsequently A diagnosed with cerebral palsy due to asphyxia during delivery. DZ instituted action in the High Court of South Africa, Gauteng Local Division, Johannesburg (High Court), on behalf of WZ for damages arising from the allegedly negligent conduct of the employees of the applicant, the Member of the Executive Council for Health and Social Development in B the Gauteng Province (Gauteng MEC), during his birth. The Gauteng MEC conceded negligence on the part of hospital staff and thus accepted vicarious liability on the merits of the claim. All that remained for determination by the High Court was the extent of the compensation to which WZ was entitled.

[2] That too was agreed, in the total sum of R23 272 303, of which C R19 970 631 was in respect of future medical expenses. But it was an agreement with a wrinkle. The wrinkle was contained in the Gauteng MEC's amended plea, in which she contended that she did not have to pay future medical expenses in a lump sum. Her alternative was an undertaking to pay service providers directly, within 30 days of presentation D of a written quotation, for future medical expenses as and when they might arise. She contended that the common law allowed her to do this, and that, if it did not, the court should develop it.

[3] The High Court dismissed the amended plea, as did the Supreme Court of Appeal. The Supreme Court of Appeal held that the 'once and E for all' rule at common law precludes payment of future medical expenses in the form sought by the Gauteng MEC and that, if intervention is necessary to correct this alleged defect, it would best be left to the legislature. In addition, it held that the Gauteng MEC failed to present any evidence why her preferred method would enhance access to healthcare. F

[4] In this court the Gauteng MEC seeks leave to appeal against the order of the Supreme Court of Appeal.

[5] The MEC for the Department of Health in the Eastern Cape Province (Eastern Cape MEC) and the MEC for the Department of Health in the G Western Cape Province (Western Cape MEC) sought, and were granted, admission as amici curiae (friends of the court).

[6] The Eastern Cape MEC sought to ensure that the decision in this matter does not prevent her from raising two defences in pending trials in the High Court of South Africa, Eastern Cape Local Division, H Mthatha. The first is a 'public healthcare defence', according to which claims for future medical expenses against public healthcare authorities may be satisfied through the provision of medical services in the public healthcare sector. The second is an 'undertaking-to-pay defence', according to which medical services or supplies that cannot be provided I

Froneman J (Zondo DCJ, Cameron J, Kathree-Setiloane AJ, Kollapen AJ, Madlanga J, Mhlantla J, Theron J and Zondi AJ concurring)

in A the public healthcare sector are paid for when they arise in the future. She contends that the first defence requires, at most, a limited development of the common law, while the second requires a more extensive development of the common law.

[7] The Western Cape MEC similarly seeks to ensure that our decision in B this matter does not pre-empt consideration of the ambit of the 'once and for all' rule in relation to certain mechanisms that she is devising to deal with claims against public healthcare providers for alleged negligence. She presented statistical evidence indicating pressure on public C healthcare resources arising from claims in cerebral palsy related cases. Her proposal is to make each damages award conditional on the establishment of a ring-fenced trust administered by a case manager and a trustee who can ensure that the award is used only for its intended purpose: meeting the child's future medical expenses. The deed constituting each trust would include provisions providing for the 'topping-up' D of the fund if it becomes depleted as well as the reversion of the balance in the fund to the state upon the child's death. The High Court of South Africa, Western Cape Division, Cape Town, recently sanctioned the adoption of this model by settlement, but expressed the view that it was unnecessary to decide on the development of the common law in view of E the agreement of the parties. [2] The Western Cape MEC contends that, in a future case where there is no agreement, it may well be that the imposition of these mechanisms will require a development of the 'once and for all' rule.

Leave F to appeal

[8] The development of the common law, and the potential impact of damages awards in medical negligence claims against public healthcare authorities on their ability to discharge their constitutional obligation to provide access to healthcare to everyone, raises constitutional issues that G attract this court's jurisdiction. [3] As will be seen, there are some factual difficulties for the Gauteng MEC on the merits of the appeal, but the legal issues are important at a wider level. It is thus in the interests of justice H to grant leave to appeal.

Froneman J (Zondo DCJ, Cameron J, Kathree-Setiloane AJ, Kollapen AJ, Madlanga J, Mhlantla J, Theron J and Zondi AJ concurring)

The appeal A

Factual background

[9] The factual background is brief and needs no repetition. [4]

[10] In the High Court the Gauteng MEC elected not to lead any evidence on the damages issue. The High Court granted judgment in the B agreed sum and the Supreme Court of Appeal subsequently confirmed this.

Various defences

[11] The bare bones of the Gauteng MEC's amended plea were used in C argument to advance a number of different legal propositions, veering off in different directions and sometimes only tenuously connected, if at all, with the wording of the amended plea. It is necessary to attempt to distil the essence of these propositions, and those advanced as future defences by the amici, in order to assess the present state of the common law and whether it needs further development. D

[12] Two of the propositions advanced by the Gauteng MEC and the amici concern first principles of our law of delict. The first is that delictual compensation need not necessarily sound in money, but may also be paid in kind. The second is that the 'once and for all' rule applies only to the determination of liability on the merits of a delictual claim, E and not to the quantification of damages, which (it is said) lies within the trial judge's discretion. The third proposition, which is perhaps based on these general assertions, is less ambitiously formulated. This is that it is open to a defendant to challenge an amount claimed as damages on the basis that the sum is not reasonable because the plaintiff is likely to use F public healthcare rather than private healthcare, the former being as good as, and cheaper than, the latter. Allied to this is the argument that claims for future medical loss may sometimes best be satisfied by the provision of actual medical services, rather than the payment of money.

[13] The Eastern Cape MEC's 'public healthcare' defence may fall within G the third proposition since it is based on an assertion that public healthcare provides as good, and cheaper, medical services as private healthcare. But it may also go outside this proposition if it is based on the contention that damages awards in medical negligence claims against public healthcare authorities must also be assessed against the impact they may have on healthcare budgets and the adverse effect they may H have on the provision of access to public healthcare for everyone. Her alternative 'undertaking to pay' defence and the 'top-up/claw-back' mechanism of the Western Cape MEC may also be difficult to fit into the third category.

The current common law I

[14] In Standard Chartered Bank Harms JA, 'conscious of stating the obvious', pointed out that:

Froneman J (Zondo DCJ, Cameron J, Kathree-Setiloane AJ, Kollapen AJ, Madlanga J, Mhlantla J, Theron J and Zondi AJ concurring)

'The A purpose of an Aquilian claim is to compensate the victim in money terms for his loss. Bell J pointed out as long ago as 1863 that when damages are due by law they are to be awarded in money because money is the measure of all things [[5]] . . . . This rule still stands . . . .' [6]

There is little reason to doubt that the rule still stands today. [7]

[15] B Another rule that still forms part of our law is the 'once and for all' rule. [8] In Evins Corbett JA explained its import:

'Expressed in relation to delictual claims, the rule is to the effect that in general a plaintiff must claim in one action all damages, both already sustained and prospective, flowing from one cause of action . . . . This rule appears to have been introduced into our practice from English C law. . . . Its introduction and the manner of its application by our Courts have been subjected to criticism . . . but it is a well-entrenched rule. Its purpose is to prevent a multiplicity of actions based upon a single cause of action and to ensure that there is an end to litigation.

Closely allied to the once and for all rule is the principle of res judicata D which establishes that, where a final judgment has been given in a matter by a competent court, then subsequent litigation between the same parties, or their privies, in regard to the same subject-matter and based upon the same cause of action is not...