The appellants, Gail Singh and Nashee Singh, sued the respondent, Dr Ashraff Ebrahim, a specialist gynaecologist, for damages arising from his admitted negligence during the birth of their son, Nico Singh. As a result of a hypoxic brain injury sustained at birth, Nico developed severe cerebral palsy and profound disabilities. The parents claimed damages in their personal capacities, on behalf of Nico, and on behalf of their other child, Gian. The litigation focused primarily on the quantification of damages, particularly Nico’s life expectancy, future care costs, and related actuarial calculations. During the protracted trial in the KwaZulu-Natal High Court, extensive expert evidence was led. The trial court awarded damages but, because the total award fell short of a prior settlement offer made by the respondent in terms of Uniform Rule 34, the costs order was adjusted against the appellants. The appellants appealed to the Supreme Court of Appeal, seeking to increase the damages award, to amend their pleadings on appeal (including a claim for ‘lost years’), and to challenge findings on life expectancy, costs, and alleged bias.
The appeal succeeded with costs, including the costs of two counsel. Limited amendments to the particulars of claim were granted, but the application to introduce further evidence and the claim for ‘lost years’ were dismissed. The High Court’s orders of 30 July 2008 and 15 December 2008 were set aside and replaced with revised orders increasing the damages awarded, regulating the creation and administration of a trust for Nico’s benefit, and restoring a costs order in favour of the appellants. The respondent’s cross-appeal was dismissed with costs.
The case is significant for its authoritative restatement of South African law rejecting claims for ‘lost years’ damages by living plaintiffs with reduced life expectancy. It provides important guidance on the assessment of life expectancy and future damages in cases of catastrophic medical negligence involving children with severe disabilities. The judgment also clarifies the limited role of constitutional provisions, particularly section 28(2), in altering established delictual principles, and underscores the approach appellate courts take to amendments and new evidence on appeal.