Kriel NO obo S v Member of the Executive Council for Health, Gauteng Provincial Government (9407/2017) [2020] ZAGPJHC 273 (4 November 2020)

Kriel NO obo S v Member of the Executive Council for Health, Gauteng Provincial Government (9407/2017) [2020] ZAGPJHC 273 (4 November 2020)

The court found that the child suffered severe and permanent neurodevelopmental impairment due to medical negligence, resulting in total loss of earning capacity and lifelong dependency. Guided by comparable awards and legal principles, the court determined that R2,000,000 is a fair and reasonable amount for general damages. The actuarially calculated gross future loss of income of R5,133,756 was accepted, and a 20% contingency deduction was applied, resulting in R4,107,004 for future loss of earnings. The court held that the 7.5% trust administration fee should be calculated on the capital amount awarded. The court ordered the establishment of a special trust for the benefit of the child...

Citation
[2020] ZAGPJHC 273
Parties
Plaintiff: M; Plaintiff: Adv H Kriel N.O. o.b.o. S; Defendant: Member of the Executive Council for Health, Gauteng Provincial Government
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
4 November 2020
Case Number
9407/2017
Procedural Posture
Civil Trial / Quantification of Damages Following Liability Determination
Outcome
The court awarded the second plaintiff, in his representative capacity on behalf of the child, R6,107,004, comprising R4,107,004 for future loss of income and R2,000,000 for general damages, with interest and costs. The court ordered the establishment of a special trust for the benefit of the child and detailed the...
Judges
P.A. Meyer
Legal Topics
Medical Negligence, Quantification of General Damages, Loss of Earning Capacity, Contingency Deduction, Trust Creation for Minor, Interest on Awards
Delict Civil Procedure Medical Negligence Quantification of General Damages Loss of Earning Capacity Contingency Deduction Trust Creation for Minor Interest on Awards

Case Brief

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Parties

M

Plaintiff

Adv H Kriel N.O. o.b.o. S

Plaintiff

Member of the Executive Council for Health, Gauteng Provincial Government

Defendant

Procedural Posture

Civil Trial / Quantification of Damages Following Liability Determination

Legal Issues

  1. 1 What is the appropriate quantum for general damages for the child suffering cerebral palsy due to medical negligence.
  2. 2 What is the correct contingency deduction to apply to the calculation of future loss of earnings for the child.
  3. 3 Should the 7.5% trust administration fee be calculated on the capital amount awarded or the amount paid into the trust.

Ratio Decidendi

The court found that the child suffered severe and permanent neurodevelopmental impairment due to medical negligence, resulting in total loss of earning capacity and lifelong dependency. Guided by comparable awards and legal principles, the court determined that R2,000,000 is a fair and reasonable amount for general damages. The actuarially calculated gross future loss of income of R5,133,756 was accepted, and a 20% contingency deduction was applied, resulting in R4,107,004 for future loss of earnings. The court held that the 7.5% trust administration fee should be calculated on the capital amount awarded. The court ordered the establishment of a special trust for the benefit of the child...

Court Disposition

The court awarded the second plaintiff, in his representative capacity on behalf of the child, R6,107,004, comprising R4,107,004 for future loss of income and R2,000,000 for general damages, with interest and costs. The court ordered the establishment of a special trust for the benefit of the child and detailed the...

Orders

  • Quantification of the first plaintiff’s personal claim and the second plaintiff’s representative claim for future medical costs, hospital expenses and modalities is postponed sine die.
  • The defendant shall pay to the second plaintiff in his representative capacity on behalf of the child the amount of R6,107,004 together with interest a tempore morae, made up of R4,107,004 for future loss of income and R2,000,000 for general damages.