Nkuna v MEC for Health Gauteng

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Cowen J
• Judgment Date: 11 September 2023
• Citation: 2023 JDR 3523 (GP)
• Hearing Date: 14 August 2023
• Docket Number: 80010/17
• Court: Gauteng Division, Pretoria

Cowen J:

1.

In this action, the plaintiff, Mrs Nkhesani Nkuna has instituted a claim against the MEC for Health, Gauteng, the defendant. She does so in her capacity as the mother and guardian of her daughter, Nyeleti Alice Nkuna, a girl born on 19 August 2009.

2.

Alice is now 14 years old. She is legally blind as a result of a condition called retinopathy of prematurity. She has navigational vision in her right eye which she will probably lose in time. She is completely blind in her left eye.

3.

On 24 February 2020, Collis J granted an order declaring the defendant 100% liable for the damage suffered by Alice as a result of her blindness. What remained to be determined is the quantum of damages, which is the issue that came before me as a special trial on 7 August 2023.

4.

The plaintiff’s claim has the following components:

4.1.

Past expenditure and fair compensation by Alice to the plaintiff for her caregiving to date;

4.2.

Future hospital, medical and related expenditure;

2023 JDR 3523 p3

Cowen J

4.3.

Loss of income and earning capacity;

4.4.

General damages;

4.5.

Costs of protection of the award.

5.

Shortly before the trial was due to commence, the parties approached me and requested that the matter stand down to enable the parties to engage further with each other to limit the issues for trial. In circumstances where the joint minutes reflected material agreement, the parties were committed to limiting any issues for evidence and the plaintiff did not appear at fault in delaying pre-trial engagement, I stood the matter down for this purpose. I was informed at the outset that even if the parties’ representatives could achieve consensus on a reasonable quantum, it was unlikely that the defendant would provide a mandate to settle the action.

6.

On 14 August 2023, the matter was argued before me on MS Teams in circumstances where the parties had agreed that the expert reports and joint minutes could serve as evidence and there was no need to call any witnesses to testify. To facilitate consideration of the matter, the plaintiffs’ counsel had prepared a detailed schedule of loss with reference to the expert reports and joint minutes and the parties had prepared detailed minutes of the pre-trial conferences that ensued while the matter stood down. Both parties’ counsel had, moreover, prepared detailed heads of argument dealing with their submissions on what amounts they contend were reasonable in respect of each item of loss and the basis therefore. Where necessary, counsel referred to relevant legal authority.

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