In a victory judgment for the mother of a child born with cerebral palsy due to the negligence of hospital staff, she won her longstanding legal battle for the provincial health department to pay her lump-sum damages, rather than to substitute some of the damages by providing future medical care.

The mother turned to the Supreme Court of Appeal against an order issued earlier by the Eastern Cape High Court, which allowed for some of the damages to be substituted by medical services.

The mother instituted a R23 million damages claim against the provincial health department, with the latter conceding liability. The only issue which served before the high court concerned the appropriate form of compensation for future medical care and related needs.

The amounts payable for general damages, future loss of earnings, and the costs of an adapted vehicle were agreed on. The MEC, however, asked that the common law be developed to permit the State to provide future medical care instead of allocating an amount in this regard.

Various experts testified for the State, including one who testified that the department had settled claims totalling R3,462 billion between April 2014 and March 31, 2021. These funds are not budgeted for, and the department had to utilise budgeted funds under its various programmes to comply with court orders and settlements, it was stated.

The court was told that if the department is required to pay such claims upfront, it would not be able to meet its health service delivery obligations.

Another expert testified that his investigation into allegations of misconduct by attorneys regarding medico-legal claims, particularly claims for children who sustained cerebral palsy, revealed that attorneys recovered excessive costs and fees.

In one case, it was said, the department paid a total amount of R480 million to a single firm between 2015 and 2021. Of this amount, only R115 million was paid to beneficiary trusts, and some R163 million (approximately 74% of monies paid by the Department) is unaccounted for. In addition, there was a shortfall of some R74.6 million in the attorney’s trust account.

The high court accepted this evidence and developed the common law governing damages for personal injury.

It departed from the long-established once-and-for-all rule, which requires that all damages, including future damages, be claimed in a single action and paid in lump-sum.

Instead, the high court ordered that future medical care be provided through a combination of state-delivered healthcare services and undertakings by the MEC, at her discretion, to pay or procure specified services as and when required.

The issue before the SCA was whether this development of the common law is permissible and whether the high court was justified in replacing a lump-sum damages award with public healthcare.

The high court reasoned that it is justified in ordering the public healthcare route, as it reasoned that more than 40% of damages awards are taken by lawyers as their fees. The high court stated that granting the remedies was an “incremental development” of the common law.

In disagreeing, the SCA held that the high court had radically restructured the law of damages, disregarded the impact of its order on rights such as equality and dignity, and ignored its role in the separation of powers.

The SCA pointed out that Parliament, and not the courts, are responsible for major law reform. It also found that on the evidence, it was irrational to conclude that the MEC would be able to provide lifelong future medical care for the child, or that future payments could be relied on, leaving the child vulnerable.

The SCA concluded that the high court’s development of the common law because attorneys were taking the bulk of damages awards as fees is a misdirection.

It set aside the high court’s order and replaced it with restoring the conventional damages framework of paying a lump-sum. The matter was remitted to the high court to determine the payment issues and to establish a trust to administer the money on behalf of the child.

zelda.venter@inl.co.za

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