By Lisa Swaine, Partner & Bronwyn Singh, Associate at Webber Wentzel
In a recent case of MM obo GM v the North West Province’s Department of Health MEC, (782/2022) [2024] ZASCA 52, an appellant’s claim for certain damages was struck from the roll by the Supreme Court of Appeal and her claim for personal damages was remitted to the trial court for determination.
The appeal arose from a medical negligence claim by the appellant (MM), a mother of a child (GM), who was born on 16 October 2010 and later diagnosed with cerebral palsy. MM alleged that the respondent’s staff at the two hospitals where she had been admitted for obstetric treatment and care were negligent, resulting in GM’s cerebral palsy. MM claimed compensation for her own emotional shock and trauma and, in her representative capacity on behalf of GM, she claimed for future medical expenses as well as future loss of earnings and general damages for pain and suffering. Her claims made in her representative capacity were dismissed by the trial court which found, that whilst the staff at the hospitals were negligent in certain aspects of MM’s treatment and care prior to GM’s birth, their negligence did not cause GM’s cerebral palsy. The trial court determined that GM’s cerebral palsy was caused by placental abruption – a complication that results in the placenta gradually separating from the uterus, thus reducing the foetus’ oxygen. MM appealed against this finding to a full bench and subsequently to the Supreme Court of Appeal (SCA). The issue on appeal was limited to causation, in other words, whether or not the negligence of the hospital staff caused GM’s cerebral palsy.
Prior to the hearing of the appeal in November 2023, it was discovered that GM passed away in August 2022. In light of GM’s passing, the SCA had to consider the effect of GM’s passing on the claims made by MM on his behalf.
MM’s personal claim for compensation for emotional shock and trauma
MM alleged that witnessing her first child with cerebral palsy had left her severely shocked and traumatised. She claimed to have suffered general damages for anguish, psychological trauma and loss of amenities of life. However, no evidence of a detectable psychiatric injury at the hearing in the trial court was presented on her behalf.
The SCA reiterated the legal principles set out in Road Accident Fund v Sauls[1] and Komape v Minister of Basic Education[2] that a plaintiff may only claim damages for emotional shock if a detectable psychiatric injury has been sustained and can be proven by way of evidence.
In the absence of evidence of a detectible psychiatric injury, MM failed to discharge this burden of proof. The judgment of the trial court focused solely on the issue of negligence and its causal relationship to GM’s cerebral palsy. The trial court ought to have dismissed MM’s claim for emotional shock or granted absolution from the instance, however, it did neither. MM’s claim in this regard appears not to have been dealt with by the trial court.
As the appeal was restricted to the issue of causation and the trial court failed to deal with MM’s personal claim, the SCA did not have the power to make a finding on her claim and had no option but to remit it to the trial court for determination.
The effect of GM’s death on the claims pursued on his behalf
In light of GM’s passing, the claims for future medical expenses and future loss of earnings fell away.
Non-pecuniary claims for general damages transfer to a deceased’s estate once Iitis contestatio has been reached. The SCA found that the claim for general damages was transmissible to GM’s estate as litis contestatio had been reached well before GM’s death. However, since the claim was transmitted to GM’s estate, only the executor of his estate could prosecute the claim. Because MM had not reported GM’s death to the Master, an executor was not appointed. MM therefore had no authority to act and lacked the necessary locus standi to pursue the claim for general damages. The claim for general damages had to be stayed pending the appointment of an executor. Due to this, the only viable order for the SCA under these circumstances was to strike the matter from the court roll. Following this, MM was ordered to pay the costs of the appeal.
This case serves as a harsh reminder of some of the intricacies of litigation. It underscores the fundamental principles of locus standi, the legal right to sue, and the burden of proof. One’s mind must be applied before separating or limiting the issues to be heard by the court.
For MM, the delay but perhaps not the denial of justice has probably come with a hefty price tag.
[1] Road Accident Fund v Sauls [2001] ZASCA 135; 2002 (2) SA 55 (SCA).
[2] Komape and Others v Minister of Basic Education [2019] ZASCA 192; 2020 (2) SA 347 (SCA).
