NK obo ZK v Member of the Executive Council for Health of the Gauteng Provincial Government (216/2017) [2018] ZASCA 13; 2018 (4) SA 454 (SCA) (15 March 2018)

NK obo ZK v Member of the Executive Council for Health of the Gauteng Provincial Government (216/2017) [2018] ZASCA 13; 2018 (4) SA 454 (SCA) (15 March 2018)

The Supreme Court of Appeal found that the court a quo erred in its approach to both general damages and the contingency deduction. The lower court incorrectly treated compensation for pain and suffering as a duplication of medical expenses, whereas these heads of damages are distinct. The evidence established that ZK suffered severe and lifelong disabilities, justifying an award of R1 800 000 for general damages, consistent with comparable cases. Regarding contingencies, the court a quo's method of simply splitting the difference between the parties' proposals was arbitrary and unsupported by reasoning. The normal range for contingency deductions in similar cases is 15-20%, and there...

Citation
[2018] ZASCA 13
Parties
Appellant: NK obo ZK; Respondent: Member of the Executive Council for Health of the Gauteng Provincial Government
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
15 March 2018
Case Number
216/2017
Procedural Posture
Civil Appeal / Appeal From Gauteng Local Division, Johannesburg
Outcome
Appeal upheld. Orders of the court a quo set aside and replaced with increased general damages and reduced contingency deduction.
Judges
Lewis, Majiedt, Willis, Dambuza, Pillay
Legal Topics
Medical Negligence, Quantum of Damages, Contingency Deduction, General Damages, Loss of Amenities, Trust for Minor
Delict Civil Procedure Family and Children Medical Negligence Quantum of Damages Contingency Deduction General Damages Loss of Amenities +1 more

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Parties

NK obo ZK

Appellant

Member of the Executive Council for Health of the Gauteng Provincial Government

Respondent

Procedural Posture

Civil Appeal / Appeal From Gauteng Local Division, Johannesburg

Legal Issues

  1. 1 Whether the quantum awarded for general damages was appropriate in light of the minor child's suffering and loss of amenities of life.
  2. 2 Whether the contingency deduction applied to future loss of earnings was justified and correctly calculated.

Ratio Decidendi

The Supreme Court of Appeal found that the court a quo erred in its approach to both general damages and the contingency deduction. The lower court incorrectly treated compensation for pain and suffering as a duplication of medical expenses, whereas these heads of damages are distinct. The evidence established that ZK suffered severe and lifelong disabilities, justifying an award of R1 800 000 for general damages, consistent with comparable cases. Regarding contingencies, the court a quo's method of simply splitting the difference between the parties' proposals was arbitrary and unsupported by reasoning. The normal range for contingency deductions in similar cases is 15-20%, and there...

Court Disposition

Appeal upheld. Orders of the court a quo set aside and replaced with increased general damages and reduced contingency deduction.

Orders

  • The appeal is upheld with costs, including the costs of two counsel.
  • The respondent shall pay R19 048 291 to the plaintiff in her representative capacity for the benefit of the minor child, ZK, computed as follows: past medical expenses R1 375; future hospital, medical and related expenses R14 490 799; future loss of earnings R1 427 166; general damages R1 800 000; trust...