MSM obo KBM v MEC for Health, Gauteng

• Jurisdiction: South Africa
• Judge: Keightley J
• Judgment Date: 18 December 2019
• Citation: 2020 (2) SA 567 (GJ)
• Docket Number: 4314/15
• Hearing Date: 18 December 2019
• Counsel: W Munro for the plaintiff. V Soni SC for the defendant.
• Court: Gauteng Local Division, Johannesburg

Keightley J:

Introduction

[1] It is tragic that this matter involves yet another claim against the MEC for Health, Gauteng (the MEC), for damages arising out of negligent conduct by medical staff in a public hospital resulting in the birth of a child who is now severely disabled by cerebral palsy. Judges in this division are now accustomed to presiding over these matters which are,

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unfortunately for all concerned, and particularly for the affected families, all too frequent. In this matter the child concerned is K. She is represented by her mother as the plaintiff.

[2] As this judgment demonstrates, there is a double tragedy inherent in matters of this nature. Not only are the disabled child and her family deeply and irreversibly affected, but so is the public healthcare system. This is because claims of this nature typically involve a substantial quantum of damages — often in excess of R20 million. These damages, if proven, are paid from the public healthcare purse, thus depleting badly needed resources that would otherwise be available for the healthcare needs of the residents of Gauteng, many of whom do not have the benefit of private healthcare.

[3] This dual tragedy falls starkly in the spotlight in the case before me. In his defence to the quantum aspect of the claim, the MEC has raised what have become known among practitioners in this field as 'the DZ defences'. The defences flow from the judgment of the Constitutional Court in MEC for Health and Social Development Gauteng v DZ obo WZ. [1]

[4] The MEC asks this court, based on the DZ judgment, to develop the common law as follows:

[4.1]

In the first instance, to permit the court to make an order of damages that does not sound wholly in money, and to include an order of compensation in kind. In essence, the MEC's case is that some of the future medical requirements of the minor child, K, can be provided to her by the Charlotte Maxeke Johannesburg Academic Hospital (CMJAH or the Hospital), and that the level of service she will receive there will be equal to that which she would otherwise receive in the private healthcare sector. The MEC contends that he should not be ordered to pay damages based on the costs of these services in the private healthcare sector. Instead of a damages award for these future medical expenses, the court should order that the Hospital provide the services to K.

[4.2]

In the second instance, to permit the court to order, insofar as any monetary award is made, that it be payable by way of periodic payments rather than in one lump sum.

[5] As far as the merits of the matter are concerned, these were settled in 2017. The MEC conceded liability for K's agreed or proven damages flowing from the neurological injury she sustained during her birth on 25 June 2012 and the resultant cerebral palsy she suffers. The MEC also obtained an order against K's mother, Ms M, for a contribution from her in her personal capacity, or an indemnification, as third party, of 40% of those damages. However, it is common cause between the parties that this aspect of the matter has no relevance to the issues before me. Whether or not the MEC ever seeks to press its order against Ms M in her

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personal capacity has no bearing on the MEC's liability to her in her capacity as K's guardian and her claim for damages in her representative capacity.

[6] The plaintiff, on behalf of K, opposes the development of the common law in this case. She presses for an order in accordance with the existing common law, viz an order for a lump sum payment of the full costs of her future medical expenses as calculated by the various experts.

[7] K is now 7 years old. It is common cause that she suffers from a severe form of cerebral palsy. Her agreed life expectancy is 24,6 years. Her mother has used the public healthcare system since K was born at the Leratong Hospital. K is already registered as a patient at the CMJAH, where she has attended the Neurodevelopmental Clinic over the years. She has also received some therapy, such as physiotherapy, at her local clinic.

[8] K's further treatment will depend on the outcome of this case. The MEC's proposal is that if the court makes an order in kind, K will receive all her treatments, including all therapies, at the CMJAH. She will be regarded as a special patient there and will receive all the therapies and other interventions the experts recommend from specialists at the Hospital. In addition, the Hospital will acquire for her the recommended equipment and other items, including medication and other disposables, through its procurement system. It is on this basis that the MEC moves for an order outside of the ordinary prescripts of the law of delict.

[9] I should add, by way of introduction, that the plaintiff has agreed to a claw-back provision as regards any moneys paid to K for her future medical expenses. I will have more to say about this later in the judgment.

Preliminary issue: rule 16A

[10] When the counsel for the plaintiff submitted argument to the court, she raised, for the first time, the fact that the defendant had not complied with the provisions of rule 16A of the Uniform Rules of Court. In terms of this rule a person raising a constitutional issue in an action must give notice thereof to the registrar at the time of filing the relevant pleading. The purpose of the prescribed notice is to give any interested parties an opportunity to become involved in the matter and to express their points of view. The involvement of other interested parties in cases that raise constitutional issues is generally regarded to be of assistance to the court, and rule 16A facilitates this.

[11] It is common cause that the defence raised by the MEC in this case involves the development of the common law, and that this is a constitutional issue. The MEC does not dispute that notice ought to have been given under rule 16A. It seems, however, that both parties overlooked the requirements of rule 16A before the trial commenced, and indeed until, as I say, argument was advanced.

[12] The plaintiff submits that the MEC is to blame for this state of affairs. Not only because he failed to comply with rule 16A, but also because the

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plea introducing the DZ defences (and hence the constitutional issue) was raised late in the day, being some 10 days before the trial commenced.

[13] Rule 16A(9) permits a court to condone non-compliance with the rule where this is in the interests of justice. In my view, a court should not lightly condone the failure to comply with it. However, in this case it seems to me that such condonation is justified. The plaintiff did not object to the amendment of the MEC's plea to include the DZ defences nor did the plaintiff raise non-compliance with rule 16A at the start of the trial, or even while the trial was running. By the time the issue was raised, all the evidence had been heard, and all that remained was for argument to be presented. It was impossible for the MEC to comply with rule 16A at that stage. To try to turn back the clock would have caused a lengthy postponement of proceedings, with the possibility of needing to recall witnesses who had already testified. The plaintiff did not seek such measures to be put in place but relied instead on a technical objection to the fact that there was not compliance with the rule.

[14] In my view, it would not be in the interests of justice to uphold this technical objection and non-suit the MEC, when his defence, and the plaintiff's opposition thereto, has been fully ventilated by a large number of witnesses. It is in the interests of justice to condone the non-compliance with rule 16A, and I hereby do so.

[15] I turn now to consider the main issues in dispute. The obvious place to start is to understand what the legal position now is in light of the Constitutional Court's judgment in DZ.

The legal position as clarified in DZ

The existing common law

[16] In DZ the MEC had been ordered to pay a lump sum amount of R19 979 631 for the future medical expenses of a child who, like K, had suffered neurological injuries at birth due to the medical negligence of public healthcare staff, resulting in cerebral palsy. Both the High Court and the Supreme Court of Appeal had rejected the MEC's defence that the law did not require payment in money for damages for future medical expenses. The MEC had argued that it was within the existing ambit of the common law for the MEC to compensate for the harm caused by giving an undertaking to pay service providers directly, within 30 days, for the child's medical expenses, as and when they arose. The SCA had held that this was contrary to the 'once and for all' common-law rule and that, if development of the law was necessary, this should be left to the legislature.

[17] By the time the matter came before the Constitutional Court, two other MECs had been joined as amici in the appeal against the SCA's decision. Both of these MECs professed an interest in the appeal in that they sought to ensure that any decision of the Constitutional Court in DZ did not prevent them from raising certain defences they had raised in pending High Court trials.

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[18] The MEC for Health in the Eastern Cape sought to rely on two defences, the first being that claims for future medical expenses could be satisfied through the provision of medical services in the public healthcare sector as opposed to a once and for all lump sum award for damages for future medical expenses. The court referred to this as the 'public healthcare defence', and I will do the same. The second defence was an 'undertaking to pay' defence on the basis that a claim for future medical expenses could be satisfied by an undertaking by the MEC to pay for medical expenses as and when they arose in the future.

[19] It bears mentioning that the MEC in the matter before me raises...