Jurisprudência e Ementário
| Autor | Editor Journal of Health Law |
| Páginas | 191-213 |
Jurisprudência & Ementário
R. Dir. sanit., São Paulo v.18 n.1, p. 191-213, mar./jun. 2017
DOI: http://dx.doi.org/10.11606/issn.2316-9044.v18i1p191-213
ÁFRICA DO SUL
DELICT. DAMAGES. COMPENSATION FOR FUTURE MEDICAL EXPENSES.
IMPERMISSIBLE TO TENDER SERVICES IN LIEU OF PAYMENT OF A MONE-
TARY AWARD. [1] e question in this appeal is whether plaintis in delictual claims
against a provincial government are obliged to mitigate their damages by accepting a
tender for future medical treatment at a provincial health facility rather than receiving
a monetary payment in respect of assessed future medical expenses. [2] e respon-
dent, Ms Rochelle Kiewitz, sued the Western Cape Provincial government for damages
suered by her minor child, Jaydin, who became blind as a result of retinopathy of
prematurity, negligently undetected at birth. e appellant, the Premier of the Western
Cape, in her capacity as overall head of Health Services in the Western Cape, including
Tygerberg Hospital where Jaydin was born, has conceded the merits. Save for a claim
in respect of future medical expenses, all other damages have been settled in the sum
of R7 million. e only issue for determination by the High Court was whether the
appellant’s so-called ‘plea in mitigation’ should be upheld. e High Court (Nuku AJ)
dismissed the plea with costs but granted leave to appeal to this court. [3] In its plea in
mitigation, the appellant undertook to provide all future healthcare, reasonably required
by Jaydin as a result of his sight impairment, at provincial healthcare institutions in
the Western Cape, at no cost. e appellant undertook to provide a designated repre-
sentative from the provincial health department to deal with Jaydin’s health needs and
proposed a dispute resolution mechanism in the event of disagreement as to the nature
of the treatment required. e appellant contends that failure to accept this under-
taking and mitigate the damages as set out, must result in a concomitant reduction of
the damages. In essence, the eect of the plea in mitigation is to deny the plainti any
monetary award in respect of future medical treatment. [4] Delictual damages have
been dened as the ‘monetary equivalent of damage awarded to a person with the
object of eliminating as fully as possible his or her past as well as future damage.’ It is
trite that the primary purpose of awarding delictual damages is to place the injured
party in the same position as they would have been in, absent the wrongful conduct.
As a general rule, restitution in kind is prohibited where patrimonial loss such as past
and future medical expenses, past and future loss of income and loss of support has
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Jurisprudência & Ementário
R. Dir. sanit., São Paulo v.18 n.1, p. 191-213, mar./jun. 2017
been suered as a result of personal injury. Claimants have a duty to mitigate their
damages but this goes no further than obliging a plainti to take reasonable steps to
minimise the loss, either by reducing the original loss or by averting further loss. [5]
In support of the plea, the appellant eschews any reliance on the development of the
common law. e somewhat disingenuous contention of the appellant is that the plea is
not an attempt to circumvent the common law: instead, so it is argued, the respondent
should mitigate the loss by accepting health services based not on the exorbitant cost
of private health care, but free of charge in the public health system. As the damages
in respect of future medical costs would be reduced to zero, Jaydin and his mother are
consequently under a duty to accept the tender. e result is that the plea absolves the
appellant from paying a monetary award. [6] Despite the appellant’s assertion that it
does not seek to develop the common law, this cannot be construed as anything other
than an attempt to abolish the long-established common law rule that compensation
for patrimonial loss should sound in money. e appellant seeks to provide restitution
in kind instead of making a monetary award, which is impermissible in delictual claims
for patrimonial loss as a result of bodily injuries. e purpose of an Aquilian claim
is to compensate a victim in money terms for any loss suered. [7] In any event the
acceptance of the appellant’s undertaking would not nally dispose of the issues between
the parties. e nature of the treatment Jaydin will require and whether his needs will
be adequately met by the services that the provincial health authorities will be able to
provide in future, are issues that remain undetermined. Indeed this will provide fertile
ground for future litigation, a situation that the ‘once and for all’ rule was designed
to avoid. [8] e rule is that a delictual claim is based on a single, indivisible cause of
action and a plainti must claim once, and be compensated, for all damage suered,
not only for loss already suered but prospective loss as well. is has been settled law
for over a century. In 1917 Solomon JA in Cape Town Council v Jacobs stated: ‘at in
an action at common law for damages for injuries sustained by an accident the plain-
ti is only entitled to sue once and for all cannot, I think, be questioned.’ [...] [10] e
court rejected the notion that the abolition of the rule would promote the constitutional
right of all individuals to health care as provided for in s 27 of the Constitution. e
court went on to state that this was an issue more appropriately dealt with by legislative
intervention: ‘[...] in exercising their power to develop the common law, judges have to
be ‘mindful of the fact that the major engine for law reform should be the Legislature
and not the Judiciary’. e Judiciary should conne itself to those incremental changes
which are necessary to keep the common law in step with dynamic and evolving fabric
of our society.’ e development of the common law sought by the appellant is not an
incremental change, but one of substance and more appropriately dealt with by the
legislature, being an issue of policy. Any legislated change in the common law rule
could only be eected aer the necessary process of public participation and debate.’
[11] Furthermore, in the event of a dispute over the treatment required for Jaydin, the
tender provides for the determination thereof by ‘a registered health professional agreed
to by the parties, and failing such agreement, by a person nominated by the Dean of
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