Singh v Ebrahim

• Jurisdiction: South Africa
• Judge: Koen J
• Court: KwaZulu-Natal High Court, Durban
• Docket Number: 8027/2004

Koen, J

[1]

This is an action by the plaintiffs, Mr and Mrs Singh:

(a)

in their personal capacities; and

(b)

in their capacity as natural guardians of their sons Gian and Nico Singh, for damages sustained as a result of Nico suffering a hypoxic brain injury at birth. This injury has rendered him cerebral palsied and severely permanently disabled.

[2]

The plaintiffs claim in their personal capacities for:

(a)

past hospital, medical and related expenses in the sum of

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R186 304,09; and

(b)

future medical and related expenses amounting to R52 031,00 and R46 693,00 for parental guidance and individual psycho-therapy.

[3]

The plaintiffs' claim for Gian is for therapy in the sum of R13 608,00.

[4]

The plaintiffs' claim as parents of Nico relates to future hospital, medical and related expenses, future loss of earnings (or earning capacity) and general damages. This claim is for the sum of R50 949 443.

[5]

Liability was conceded by the defendant. The main issue for determination is the quantum of the plaintiffs' damages, as either proven or agreed.

[6]

Certain parts of the claims have been agreed, and others not pursued or abandoned:

(a)

In respect of the plaintiffs' past hospital, medical and related expenses claim in the sum of R186 304,09, the defendant admitted an amount of R94 955,37. Plaintiffs have accepted that amount and are not pursuing the balance.

(b)

The parties have agreed that any award made in respect of Nico's claim should be suitably protected and the defendant has agreed to

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pay an amount calculated at 7,5% of the capital amount awarded in respect of Nico's claim towards the cost of a curator bonis/trustee.

(c)

In respect of future medical and hospital expenses, the following items have been settled, namely:

(i)	Dr D A Shevel (psychiatric treatment)	R6 644,00
(ii)	Dr I Lissoos (neurological expenses)	R410 815,00
(iii)	Dr G Marus (treatment for epilepsy)	R6 081,00

(d)

A number of the items under hospital, medical and related expenses have been abandoned. These include:

(i)	Prof Cooper's allowance for hospitalization for episodes of aspiration pneumonia	R13 721,00
(ii)	Costs of electric toothbrush	R3194,00
(iii)	Costs of replacement brushes	R6 223,00
(iv)	Whizz Kids Special Schooling	R109 325,00
(v)	Dietary recommendations by Miss R Buys	R295 265,00
(vi)	Costs of a tonsillectomy and hospitalization	R21 250,00
(vii)	Treatment for epilepsy and by a neurologist	R216 661,00
(viii)	Costs of care relating to swallowing and eating, nappies and change of bed linen and insertion of a PEG tube (assumed at every 8 years)	R1 070 013,00
(ix)	Costs of medicines recommended by Dr Kathrada	R1 082 241,00

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These items have been abandoned from the amounts originally claimed and the figures have been adjusted accordingly.

(e)

The following items contended for by the mobility expert, Mr D Rademeyer, were conceded by the defendant as reasonably required and the cost of each item and the frequency of replacement admitted, namely:

(i)	Manual child's positioning wheelchair	R9 980
(ii)	Maintenance in respect thereof	R3 971
(iii)	Insurance in respect thereof	R1 876
(iv)	Manual intermediate positioning wheelchair R16 681
(vi)	Maintenance in respect thereof	R8 295
(vii)	Maintenance in respect thereof	R3 445
(viii)	Adult positioning wheelchair	R18 416
(ix)	Maintenance in respect thereof	R57 476
(x)	Insurance in respect thereof	R13 853
(xi)	First pediatric car seat	R4 750
(xii)	Second pediatric car seat at age 9	R4 323
(xiii)	Maintenance in respect of the two car seats	R2 987
(xiv)	Insurance in respect thereof	R1 494
(xv)	Unwin restraint system from age 13 and onwards	R14 465

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(f)

The defendant also admitted the actuarial basis and approach adopted in the actuarial calculation in respect of the investment return at 9,65%, inflation on earnings at 7%, the assumed rate of taxation, the consumer price inflation being at 6,5% and the application of the SA Life Tables of 1984/1986.

(g)

The defendant admitted that plaintiff would be entitled to the costs occasioned upon the employment of two counsel.

(h)

The defendant admitted that the Corporate Services General Staff Salary Survey at 1 February 2007, reflects the results of the survey with regard to salary and annual costs of employment.

(i)

The defendant has also admitted the correctness of the contents of the radiological reports of Dr S Ballaram, Dr M Pencharz and Dr A B Weinstein.

(j)

It was also conditionally agreed that the actuarial calculations performed are correct and may be used subject to the other party's right to challenge such calculations on reasonable notice and subject to an adjustment for contingencies to be made.

[7]

The issues remaining in dispute are therefore the following:

(a)

Nico's claim for treatment, therapy services, assistive devices and alterations to the home in the sum of R21 458 582;

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(b)

Nico's claim for caregivers, relief caregivers and mealtime compensation in the sums of R17 891 145, R4 869 577 and R1 900 122 respectively;

(c)

Nico's claim for future loss of earnings/ earning capacity, based on the assumption that Nico would have attained a 3 year degree and would probably have earned commensurate with that level of tertiary education, in the sum of R3 230 017;

(d)

Nico's claim for general damages in the sum of R1 600 000; (the defendant contending that an award of R900 000 would be reasonable in respect of general damages);

(e)

First Plaintiff's personal claim in the sum of R52 031;

(f)

Second Plaintiff's personal claim in the sum of R46 693;

(g)

The claim for psycho-therapy for Gian in the sum of R13 608.

[8]

A preliminary issue raised by the plaintiffs in argument in relation to the claims of Gian and Nico (especially Nico), is the effect of the provisions of the Constitution of the Republic of South Africa ("the Constitution") on their claims, being claims on behalf of minor children.

[9]

At common law, the basic principle underlying an award of damages of this nature in terms of the actio legis aquiliae, is that the compensation

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should be assessed with a view to place the injured party, as far as it is reasonably possible, in the position he would have been had the injury not occurred (Union Government (Minister of Railways and Harbours) v Warneke 1911 (AD) 657 at 665). The principle has been succinctly summarized by the Court of Appeal in Heil v Rankin and Another and other [2000] 3 All ER 138 at paragraph 22 as follows :

"… the aim of an award of damages for personal injuries is to provide compensation. The principle is that 'full compensation' should be provided … this principle of full compensation applies to pecuniary and non-pecuniary damage alike …"

And at paragraph 27 :

" … compensation must remain fair, reasonable and just. Fair compensation for the injured person. The level must also not result in injustice to the defendant and it must not be out of accord with what society as a whole would perceive as reasonable."

[10]

Damages include direct positive losses (damnum emergens) and also negative losses (lucrum cessans) - being that which the injured party is prevented from achieving - insofar as those losses flow from the delict – Whitfield v Phillips and ano. 1957 (3) SA 318 (A) at 329 and Guggenheim v Rosenbaum (2) 1961 (4) SA 21 (W) at 34.

[11]

Even where it may be difficult to determine an appropriate amount of damages, it is still required of any court to attempt to determine a reasonable amount on the available evidence, not necessarily one which is

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less favourable to the plaintiff because the plaintiff carries the onus and did not prove that a more favourable possibility should find application – Southern Insurance Association Ltd v Bailey N.O. 1984 (1) SA 98 (A) at 113 G – 114 E; Burger v Union National South British Insurance Company 1975 (4) SA 72 (W) at 74 H – 75 G. Nevertheless, traditionally claims for damages in the past inclined towards conservatism and where there is doubt whether an amount has been proved on a balance, to favour the defendant – Bay Passenger Transport Ltd v Franzen 1975 (1) SA 269 (A). Needless to say, there is no difference in the approach for determining an appropriate damages award for a millionaire or a pauper (Radebe v Hough 1949 (1) SA 380 (A) at 386). But, considerations of cultural or financial status may be relevant in determining the extent of non-pecuniary losses such as the loss of amenities – Gush v Pretoria Assurance Company Ltd quoted in The Quantum of Damages in Bodily and Fatal Injury Cases by Corbett and Buchanan ("C and B") vol. II 348 at 352.

[12]

Section 28(2) of the Constitution provides :

"A child's best interests are of paramount importance in every matter concerning the child."

[13]

The problems as to what is meant by "the best interests of the child" are legion and legendary.

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[14]

It has been held that the provisions of section 28(2) find a wide application "in every matter concerning the child" – Bannatyne v Bannatyne (Commissioner for Gender Equality...