Premier, Western Cape v Kiewitz

• Jurisdiction: South Africa
• Judge: Leach JA, Tshiqi JA, Majiedt JA, Swain JA and Nicholls AJA
• Judgment Date: 30 March 2017
• Citation: 2017 (4) SA 202 (SCA)
• Docket Number: 158/2016 [2017] ZASCA 41
• Hearing Date: 22 February 2017
• Counsel: AC Oosthuizen SC (with B Joseph) for the appellant.JS Saner SC for the respondent.
• Court: Supreme Court of Appeal

Nicholls AJA (Leach JA, Tshiqi JA, Majiedt JA and Swain JA concurring):

[1] The question in this appeal is whether plaintiffs in delictual claims against a provincial government are obliged to mitigate their damages by D accepting a tender for future medical treatment at a provincial health facility rather than receiving a monetary payment in respect of assessed future medical expenses.

[2] The respondent, Ms Rochelle Kiewitz, sued the Western Cape Provincial Government for damages suffered by her minor child, Jaydin, E who became blind as a result of retinopathy of prematurity, negligently undetected at birth. The appellant, the Premier of the Western Cape, in her capacity as overall head of health services in the Western Cape, including Tygerberg Hospital, where Jaydin was born, has conceded the merits. Save for a claim in respect of future medical expenses, all other damages have been settled in the sum of R7 million. The only issue for F determination by the High Court was whether the appellant's so-called 'plea in mitigation' should be upheld. The High Court (Nuku AJ) dismissed the plea with costs but granted leave to appeal to this court.

[3] In its plea in mitigation the appellant undertook to provide all future healthcare, reasonably required by Jaydin as a result of his sight G impairment, at provincial healthcare institutions in the Western Cape, at no cost. The appellant undertook to provide a designated representative from the provincial health department to deal with Jaydin's health needs and proposed a dispute resolution mechanism in the event of disagreement as to the nature of the treatment required. The appellant contends H that failure to accept this undertaking and mitigate the damages as set out, must result in a concomitant reduction of the damages. In essence, the effect of the plea in mitigation is to deny the plaintiff any monetary award in respect of future medical treatment.

[4] Delictual damages have been defined as the 'monetary equivalent of I damage awarded to a person with the object of eliminating as fully as possible his or her past as well as future damage'. [1] It is trite that the primary purpose of awarding delictual damages is to place the injured

Nicholls AJA

party A in the same position as they would have been in, absent the wrongful conduct. As a general rule, restitution in kind is prohibited where patrimonial loss, such as past and future medical expenses, past and future loss of income and loss of support, has been suffered as a result of personal injury. [2] Claimants have a duty to mitigate their B damages but this goes no further than obliging a plaintiff to take reasonable steps to minimise the loss, either by reducing the original loss or by averting further loss. [3]

[5] In support of the plea, the appellant eschews any reliance on the development of the common law. The somewhat disingenuous contention C of the appellant is that the plea is not an attempt to circumvent the common law: instead, so it is argued, the respondent should mitigate the loss by accepting health services based not on the exorbitant cost of private healthcare, but free of charge in the public health system. As the damages in respect of future medical costs would...