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Dani v MEC for Health (2018/2010) [2013] ZAECGHC 106 (3 October 2013)

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IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE, GRAHAMSTOWN


CASE NO: 2018/2010

Dates heard: 29 – 30 August 2013 and 4 September 2013

Date delivered: 3 October 2013


In the matter between:


ANELE THEOPHILUS DANI ........................................................Plaintiff



and


THE MEMBER OF THE EXECUTIVE

COUNCIL FOR HEALTH .........................................................Defendant



JUDGMENT





LOWE, J






Introduction:



  1. In this matter Plaintiff instituted action against Defendant for damages arising from negligent treatment at various public hospitals in the Eastern Cape, which resulted in an above knee amputation of Plaintiff’s left leg.


  1. The medical treatment required by Plaintiff had been as a result of injuries sustained in a motor vehicle accident, Plaintiff being a passenger in the vehicle.


  1. Plaintiff sustained fractures of both left and right knees, left ankle and left anterior knee dislocation. It would appear that the most serious injury and emergency was the left knee dislocation, with vascular complication. Improper treatment necessitated the left sided leg amputation.


  1. The injury to the right knee was a right – sided tibial plateau fracture which required open reduction and internal fixation. This was associated with injury to the articular cartilage of the femoral condyle and lateral tibial plateau. He will sustain degenerative changes in the right knee in the future (osteoarthritis) which will require (says Dr. Olivier in an agreed report) 20 years of conservative treatment, (analgesics, anti-inflammatories and physiotherapy). He will require a total knee replacement in the future, exactly when being unspecified. There is little further detail on the extent of any incapacity as a result of the right knee injury. I mention this as it is all relevant to defendant’s argument.


  1. As to the left above knee amputation, defendant conceded liability, the only issue for determination being the quantum of damages.


The Agreements:


  1. In successive agreements in terms of Rule 37 and at trial the following was agreed:


6.1. General Damages R 500 000.00


6.2. Future Loss of Earning Capacity R1 300 000.00


SUB TOTAL R1 800 000.00


6.3. Agreed items of expenditure as follows

(item numbers refer to the first actuarial

report dated 31 July 2013):

6.3.1. Item 25 (Stump revision) R 153 900.00

6.3.2. Item 26 (Fracture treatment: R 81 000.00

Reduced by agreement)

6.3.3. Item 27 (Lyrica) R 120 400.00

6.3.4. Item 28 (Physiotherapy : R 175 000.00

Reduced by agreement)

6.3.5. Items 32 to 42 (Issues relevant to occupational therapy) R 41 600.00

6.3.6. Items 47 to 60 (Further issues relevant to occupational therapy) R 125 500.00

6.3.7. Items 62 to 68 (Issues relevant to the genium knee) R 284 500.00

6.3.8. Items 90 to 96 (Refit primary prosthesis) R 742 800.00

6.3.9. Item 108 (Woollen stump socks) R 116 800.00



6.3.10. Items 109 to 111 (Skin Maintenance) R 107 900.00

SUB - TOTAL Future Medical

Expenses R1 949 400.00



GRAND TOTAL R3 749 400.00



    1. An overall contingency deduction in respect of future medical expenses of 25%.


The Issues:


  1. The remaining points of disagreement relate to:


7.1. whether the Plaintiff is entitled to the help of a domestic worker – and if so at what cost;

7.2. whether the Plaintiff is entitled to the help of a handyman- and if so at what cost;

7.3. whether the Plaintiff is entitled to a secondary prosthesis;

7.4. whether the Plaintiff is entitled to a sporting prosthesis;

7.5. the costs of refitting the secondary and sporting prostheses, if allowed;

7.6. whether the Plaintiff is entitled to a wheelchair – and if so at what level;

7.7. the appropriate cost of all the above and the extent of the quantification of the damages as a result thereof.


  1. In argument I was handed (by agreement) a second actuarial report, dated 5 September 2013 which considered and quantified various scenarios arising from the evidence and the above.


The Level of Compensation for Damages to be awarded:


  1. One of the issues to be decided in this matter relates to the level at which a plaintiff, such as this, is entitled to be compensated.


  1. In general terms in delict, a plaintiff is entitled to be placed (insofar as monetary compensation can do), in as good a position as if the wrong had not been committed.


  1. In this matter there is nothing before me to suggest that with adequate medical treatment the plaintiff would not have made a full recovery in respect of the injury to his left leg.



  1. I have considered the following cases, though these were not referred to me by counsel who preferred to deal with the matter, by way of figures, actuarial reports and argument only. I do not intend any criticism but prefer to set out some guiding principles in a matter such as this.




  1. In Burger v United National South British Insurance Company 1975 (4) SA 72 W at 74 F – 75 H Coleman J held as follows:


It was pressed upon me that, as the burden of proof was on the plaintiff, it would be for her to prove the effects of the collision, and that she was entitled to compensation only for those effects which she proved. In so far as that submission relates to pure questions of causation, I accept it, as other Courts have done in such cases as Ocean Accident and Guarantee Corporation Ltd. v Koch, 1963 (4) SA 147 (AD). It is on that basis that I exclude from consideration the black-outs, which have not been shown to my satisfaction to be causally related to the collision. I disregard for the same reason the plaintiff’s theory or suggestion that the collision was the primary cause, or a cause, of her matrimonial troubles.


I do not think, however, where the available evidence established a likelihood of some fact, situation or event as a consequence of the collision which is incapable of quantification within narrow limits, that I am obliged, because the onus is on the plaintiff, to act on the possibility least favourable to her. Causation is one thing and quantification is another, although I readily concede that it is not always possible to distinguish clearly between them in cases like the present one. It has never, within the range of my knowledge and experience, been the approach of our Courts, when charged with the assessment of damages, to resolve by an application of the burden of proof such uncertainties as I have referred to. I am not dealing with a case in which the Plaintiff could have called evidence to remove the uncertainty, but neglected to do so. I am referring to cases like Turkstra Ltd v Richards, 1926 T.P.D 276, in which the plaintiff has laid before the Court such evidence as was available, but that evidence has necessarily failed to remove uncertainties with regard to matters bearing upon the quantum of damage. The Court, in such a case, does the best it can with the material available. If it can do no better, it makes the “informed guess” referred to by Holmes, J A, in Anthony and Another v Cape Town Municipality, 1967 (4) SA 445 (AD).


What the Court will not do in such a case is to select, from the range of possibilities presented by the evidence, the possibility which is least favourable to the plaintiff because he bears the onus, and has not proved that a more favourable possibility ought to be preferred. In the familiar bone injury case, where the evidence is that the plaintiff will probably suffer from osteo-arthritis at some future time and that it may manifest itself at any time within the next ten years, it is not the practice to assume against the plaintiff, because he bears the onus, that he will be free of the symptom until ten years have elapsed. Similarly, when the possible remarriage of a widow is relevant to the assessment of damages, we do not assume against her that she will remarry in the immediate future, merely because she cannot discharge the onus of proving that she will not encounter romance round the next corner.


A related aspect of the technique of assessing damages is this one; it is recognised as proper in an appropriate case, to have regard to relevant events which may occur, or relevant conditions which may arise in the future. Even when it cannot be said to have been proved, on a preponderance of probability, that they will occur or arise, justice may require that what is called a contingency allowance be made for a possibility of that kind. If, for example, there is acceptable evidence that there is a 30 per cent chance that an injury to a leg will lead to an amputation, that possibility is not ignored because 30 per cent is less than 50 per cent and there is therefore no proved preponderance of probability that there will be an amputation. The contingency is allowed for by including in the damages a figure representing a percentage of that which would have been included if amputation had been a certainty. That is not a very satisfactory way of dealing with such difficulties, but no better way exists under our procedure.


I would refer, in regard to this aspect of the matter, to the remarks of Wessels J A, in Van Oudtshoorn v Northern Assurance Co. Ltd., 1963 (2) SA 642 (AD) at pp 650 – 651.


I have mentioned these general approaches, which do not appear to be as well covered by reported authority as one might have expected, because I shall be driven to apply them in the present case. In that connection I should perhaps say this, the Plaintiff could, of course, have called more medical evidence, but I have no reason to believe that that would have resolved the uncertainties which face me. Most of them I believe to be inherent in her condition and in the limitations to which medical evidence might well have added to the uncertainties. It is most improbable that it would have removed them.”



  1. This approach was approved in Blyth v Van den Heever 1980 (1) SA 191 (A) at 225


  1. In Dlamini v Government of RSA 1985 QOD Vol III 554 at 582 and 585 Kriegler J stated as follows:


Neither of the two cases referred to, nor any other authority of which I am aware, serves as authority for the proposition advanced, namely that an item of expenditure, in order to be recoverable, has to be established as a necessity. The test, as I understand it and which I intend applying in this case, is whether it has been established on a balance of probabilities that the particular item of expenditure is reasonable required to remedy a condition or to ameliorate it. Where (as in Broome and Another v Administrator, Natal 1966 (3) SA 505 (D), or Knight v Conroy, referred to in Corbett and Buchanan Vol I at 444), the expenditure was incurred for a different, albeit commendable, purpose or is out of proportion to the condition it was incurred to eliminate or abate, it will be irrecoverable. It will then not be regarded as reasonable. Thus a middle-aged artisan, who sustained a slight yet noticeable scar on the cheek, will not be allowed the luxury of expensive plastic surgery for its removal. In the case of a young girl, the position would probably be different.


Moreover, where there has been direct evidence, especially by a competent expert, to the effect that the expenditure ought reasonably to be incurred, and where that evidence has not been seriously challenged or controvertered, a court will ordinarily afford it substantial weight.”


And at 585:


The suggestion on behalf of the defendant that the plaintiff’s family and friends can continue to assist him, as they have done in the past, does not commend itself to me. They are not in law obliged to do so if the plaintiff can provide such services from his own resources. Properly compensated, he will be able to do so.”


  1. It is important to set out that:


16.1. An important contingency which may have to be considered is that the expense may have been incurred in any event – for example a domestic assistant may have been needed for old age anyway. Page and Another v Rondalia Assurance 1974 QOD Vol II 525 (E) at 532.


16.2. Only reasonable expenses are allowed and not necessarily every item recommended by an expert. The court is bound by the test of reasonableness. Ndlovu v Swaziland Royal Insurance 1989 QOD Vol IV E 2 - 1.


16.3. Reasonable compensation is not the same as indulgence. Shasha v President Insurance Co. Ltd. 1990 QOD Vol IV A2 – 8 at 2 – 17.


16.4. The court must do the best it can on the material before it and where necessary make an “informed guess” (See Burger supra).


16.5. A plaintiff’s friends and family are not in law, obliged to assist and especially so if properly compensated, the plaintiff will be able to pay for such assistance.





The Relevant Evidence


  1. The two experts led in evidence by Mr Cole for plaintiff, Mr Toogood (orthotist and prosthesis) and Miss Mdlokolo (Occupational Therapist) to a large extent mirrored their expert reports filed of record.


  1. I do not propose to set this evidence out in any detail, save to state what each said on the disputed issues in summary.


  1. Dealing firstly with the handyman and domestic worker issue Ms Mdlokolo, who was in my view an impressive witness, recorded that she had access to the report of Dr Olivier before drafting her report and that she has assessed Plaintiff. The report and assessment was done on 16 September and 21 August 2012 respectively, at a time (as now), when Plaintiff was using a very basic hospital issued prosthesis.


  1. It is clear that he was previously generally active and now is unable to play any sport. He becomes sad when watching friends play and thus spends time alone.


  1. He is unable to walk “long distances” and has trouble with prolonged standing. She confirms in her family interviews that Plaintiff used to be active in sport, for example rugby.


  1. He has become dependent on his parents. He has good balance within the limits of his injury.


  1. He is unable to run presently. He can walk about 480 m on his present leg in 6 minutes, which is under the able-bodied average of 540 m.


  1. He presently cannot assist with household chores and cannot, when shopping, carry heavy objects. She is firm in her evidence that should he live alone, he will benefit from a domestic worker at least three times per week at a rate of R150.00 per day. She says he will require a gardener/handyman once per week at R180.00 per day.


  1. She says he can’t climb ladders. He is able to manage his own self-care and grooming.


  1. She said that the figures she suggested for the domestic worker were checked on an “ask around” basis, in respect of rates given by an industrial physiologist. When cross-examined on this, she said that the minimum wage legislation stipulated R72.24 per day but that this would effectively constitute an abuse and strongly resisted every attempt made to get her to lower the wages suggested in cross-examination.


  1. She said that a gardener was essential for house repairs, gardening, yard clean up and the like, once plaintiff lived on his own.


  1. When asked if Plaintiff’s injured right leg would compromise his sporting ability now, she said not, that he could (with a suitable prosthesis) walk and jog around the block. She suggested that plaintiff probably would leave home at age 30.


  1. She said climbing (for example to change a lamp bulb) should not be encouraged. It must be remembered that Dr Olivier suggests that plaintiff will in any event fall on occasions and that an allowance should be made for medical treatment in the event that he injures himself. This illustrates that even with a new genium knee and prosthesis, plaintiff will have to take extra care and should guard against standing on chairs and climbing ladders. She denied that the reduction in bend to 90° of the right knee would have limited his ability anyway.


  1. Her report was prepared whilst Plaintiff was using his old prosthesis. I asked her if the new knee and prosthesis would change her view. She said firmly that it would not.


  1. Perhaps in respect of the gardener/handyman she had some difficulty in meeting cross-examination.


  1. Her report and that of Mr Toogood (and the evidence) must not be seen in isolation and must necessarily all be considered simultaneously in reaching my final view.


  1. Mr Toogood dealt with the various prosthesis which he suggested were required, the need for a wheelchair, and the appropriate chair and cost.


  1. That a primary prosthesis was required with genium knee was common cause.


  1. The issue of the secondary prosthesis was disputed though counsel for defendant, whilst not conceding same, made no submissions in this regard – quite correctly in my view.


  1. I need only say that as a matter of logic and on the Toogood report, the secondary prosthesis is not a luxury but a necessity as the primary leg and knee would be subject to repair and possible damage and thus a standby prosthesis and knee is essential.


  1. The sporting prosthesis was absent from Mr Toogood’s initial report. In his second report it was added, Mr Bloem SC suggesting that this was as a result of plaintiff’s attorney having insisted on this. For my decision on this aspect of the matter I am prepared to accept that this was the origin of the addition, though I could not locate such evidence in my notes.


  1. Mr Toogood said in evidence that subsequent to his first report he had manufactured a trial socket and fitted this with an appropriate knee and prosthesis, and had then done a trial on plaintiff. Plaintiff, he said, exhibited the wish to have a sport prosthesis (on which he would be able to jog) and wanted to improve his fitness. The trial went well and confirmed Mr Toogood’s views as expressed in his second report.


  1. Plaintiff is a young man who on both reports was previously fit and interested in rugby and athletics. He is still in good shape and goes to the gym.


  1. Mr Toogood, as Mr Bloem SC points out, was very brief in his expert notice as to the need for a sports prosthesis, but in my view as amplified in his evidence and taking into account the Mdlokolo report, on the test propounded above, there can be no doubt that this young active man who had his sporting enjoyment rudely removed is more than entitled to the benefit of a sports prosthesis. This will give him the opportunity to make the best of his unfortunate situation. He will never again play competitive rugby, but he should not have the opportunity of realising at least some part of his former sporting potential removed. This he cannot do on the primary or secondary prosthesis - the result is inevitable.



The Result:


  1. I accept that Plaintiff is also entitled to move out of his family home by, say age 30, and that when he has done so he will still require assistance with domestic chores. The domestic worker at three times per week seems reasonable, though as I say hereafter, this worker will be expected to do the yard clean up (if required) and could certainly do minor repairs and day to day maintenance such as bulb replacement.


  1. In the result, I consider the claim for a handyman to be unsubstantiated and this falls to the rejected. Not only would this partly duplicate the domestic worker but would provide above the bar of reasonableness – and would compensate for matters and expenses which plaintiff would in any event probably have incurred uninjured. Further with his prosthesis, bar climbing, plaintiff is at least partially able to do what the domestic can’t manage.


  1. The cost of the domestic worker seems to me to be reasonably established at R150 per day. The minimum wage suggested is highly unlikely to attract the standard of worker to which Plaintiff is entitled, especially having regard to this person’s broadly described duties.


  1. As to the wheelchair, Mr Cole has wisely conceded that at best Plaintiff should have the most cost effective chair available – the standard chair.


  1. The question is whether he needs a chair at all.


  1. In my view he may well benefit from a standard chair in emergencies, ill health, as he becomes much older and if he is injured in a fall or in a manner which makes his crutches difficult to use. He cannot be expected at night to re-attach his prosthesis when perhaps needing to use the toilet. Such should thus be allowed.


  1. I am not convinced however that this will be much used and thus will allow same, but replaced only every 10 years. In this regard I have allowed an all in figure of R8 000.00.


  1. I have allowed the genium knee at a replacement rate every 7 years in accordance with concessions by Mr Toogood in this regard. The remaining amounts relevant to the further prosthesis requirements I have allowed on the basis contained in the first Munro report of 31 July 2013 as I find on the evidence this basis to be reasonably justified.


  1. In the result plaintiff has demonstrated an entitlement to the following compensation made up as set out below:


Utilising pages 227 to 231 of the report of Mr MUNRO and the adjusted amounts in his report of 5 September 2013, the total is:

49.1. Item 25 (Stump revision) R 153 900.00

49.2. Item 26 (Fracture treatment) R 81 000.00

49.3. Item 27 (Lyrica) R 120 400.00

49.4. Item 28 (Physiotherapy) R 175 000.00

49.5. Items 32 to 42 (Issues relevant to occupational therapy) R 41 600.00

49.6. Items 47 to 60 (Further issues relevant to occupational therapy) R 125 500.00

49.7 Items 62 to 68 (Issues relevant to the genium knee) R 284 500.00

49.8. Items 90 to 96(Refit primary prosthesis) R 742 800.00

49.9. Item 108 (Woollen stump socks) R 116 800.00

49.10. Items 109 to 111 (Skin Maintenance) R 107 900.00

49.11. Domestic Worker (Three times per week at R150.00 per day from age 30) R 501 400.00

49.12. Secondary Prosthesis R 726 800.00

(On the original Munro basis)

49.13. Sports Prosthesis R 631 100.00

(On the original Munro basis)

49.14. Refit of Secondary Prosthesis R 673 700.00

(On the original Munro basis)

49.15. Refit of Sport Prosthesis R 573 000.00

(On the original Munro basis)

49.16. Genium knee (replaced every 7 years) R3 125 200.00

(No additional contingency over and

above the 25% already agreed)

48.17 Wheelchair (Standard) R 8 000.00

TOTAL FURTURE MEDS R8 181 200.00

Less Agreed 25% contingency

On Future Meds R2 045 300.00

TOTAL R6 135 900.00

General Damages R 500 000.00

Loss of Earnings R1 300 000.00

TOTAL R7 935 900.00

Deduct Disability Grant R 51 086.78

GRAND TOTAL R7 884 813.22



Costs:

  1. Plaintiff is entitled to his costs of suit, such to include the qualifying expenses of the experts and costs referred to below.


Order:


  1. In the result I make the following Order:


1. Defendant is ordered to pay to plaintiff the amount of R7 884 813.22 as and for damages together with interest thereon at the legal rate from a date 14 days after date of judgment to date of payment.

2. The defendant is ordered to pay the plaintiff’s costs of suit together with the interest thereon at the legal rate from a date 14 days after taxation to date of payment.

3. The aforementioned costs will include:

3.1. The qualifying fees, if any, of the following experts:

3.1.1. Mr Toogood, orthotist and prosthesis;

3.1.2. Peliwe Mdlokolo, occupational therapist;

3.1.3. Dr van Daalen, industrial psychologist;

3.1.4. Dr Olivier, orthopaedic surgeon;

3.1.5. Munro Actuaries.

3.2. The reasonable cost of Adele van der Merwe in respect of the drawing of her report filed of record.






M.J LOWE

JUDGE OF THE HIGH COURT





Appearances: For the Plaintiff

Adv. S.H Cole

Instructed By: NN Dullabh & Co.

5 Bertam Street

GRAHAMSTOWN




For the Defendant

Adv. G.H Bloem SC and Adv. Boswell

Instructed By: Whitesides

53 African Street

GRAHAMSTOWN