Siphokazi Mahlatshana v MEC for Health, Eastern Cape

The plaintiff instituted action against the defendant in 2015 in her personal and representative capacities, seeking damages arising from the defendant's negligent treatment of her daughter S, born on 1 October 2004. On 18 September 2018, the defendant conceded the merits. The plaintiff was born on 3 September 1986. In 2004, while in grade 11, she fell pregnant and left school. Her child S was diagnosed with TB spine in 2005-2006. The plaintiff completed grade 12 in 2007 and gave birth to a second child B in April 2008. In 2009, she enrolled for a diploma in Human Resource Management at Walter Sisulu University (a 3-year course). In 2010, S was again diagnosed with TB of the spine. In 2011, the child's condition deteriorated and she became fully paralysed in August 2011, while the plaintiff was in her third year of studies. The plaintiff repeated certain courses in 2012 (fourth year) and failed one course in 2013 (fifth year). NSFAS discontinued funding in 2014 as she exceeded the five-year funding limit. All previously obtained courses were invalidated in 2017 for failure to complete the diploma within stipulated timeframes. The plaintiff claimed she would have completed her diploma by 2012 at age 26 and entered the labour market in Human Resources, but her career was delayed due to caring for her ill daughter.

• Whether the plaintiff proved on a balance of probabilities that the defendant's negligent treatment of her child caused the delay in completion of her studies and consequent loss of income
• Whether expert testimony from an industrial psychologist (rather than an educational or clinical psychologist) was sufficient to establish the causal link between the child's injury and the plaintiff's academic performance
• What the quantum of damages for past and future loss of income should be
• What contingency deductions should be applied in calculating loss of earnings
• Whether the plaintiff contributed to the delay in her studies

1. The defendant is ordered to pay the plaintiff R9,658,088.00 in respect of her claim for loss of past and future income. 2. The defendant is ordered to pay the aforesaid amount within 14 days of date of judgment, failing which interest will accrue at the prevailing legal rate from 14 days after date of order to date of final payment. 3. The amount is to be paid into the trust account of Mpambaniso Attorneys. 4. The defendant is ordered to pay the costs of the hearing together with all reserved costs on scale C, together with interest thereon at the legal rate from 14 days after allocatur and/or agreement to date of payment, including: costs of two counsel where utilized; costs of hearings on specified dates; costs of preparing for consultations and trial; costs of obtaining court record; costs of preparing heads of argument; travelling and accommodation expenses of plaintiff's legal representatives; and reservation fees, qualifying fees, travelling and accommodation costs of plaintiff's expert witnesses Dr Gideon De Kock and IAC Actuaries.

The binding legal principles established are: (1) In medical negligence claims for loss of income caused by delay in completing studies due to caring for an injured child, the plaintiff bears the onus to prove causation on a balance of probabilities. (2) Industrial psychologists can provide relevant expert evidence on the impact of a child's medical condition on a parent's ability to complete studies, and their credentials need not be questioned where both parties rely on such experts and the claim does not involve psychological trauma or depression requiring clinical psychological expertise. (3) Where an expert changes their opinion in a subsequent report without new information and makes significant concessions during cross-examination that support their original opinion, the court may reject the subsequent opinion as insufficiently motivated. (4) In assessing damages for loss of earnings, courts must make estimates which are often rough and involve subjective judgment regarding contingencies, as predicting the future is inherently speculative. (5) Higher contingency deductions (such as 35% for future loss of income) may be justified in the post-morbid scenario where there are significant uncertainties including advanced age at career entry, high unemployment rates, and substantial educational delays. (6) The court will adopt actuarial calculations that favour the defendant where updated calculations significantly increase the claim amount.

The court observed that the plaintiff's high school failures were not relevant to the issues at hand. The court noted that the plaintiff's second child, being healthy and a daycare scholar, did not contribute to the delay in her studies. The court commented that NSFAS rules provide that funding is only available for a qualification within a five-year period, and students who exceed this timeline without completing their qualification become ineligible. The court noted that Dr De Kock referenced job grading systems and actuarial reports, explaining that individuals with tertiary qualifications typically fall within the C band, while graduates often start with B band and progress to skilled level within C. The court observed that age 45 is the age that people normally plateau in terms of their careers. The court commented that if the defendant's challenge to Dr De Kock's specialization were valid, one would expect the defendant to have called a clinical or educational psychologist rather than another industrial psychologist.

This case is significant for several reasons: (1) It clarifies that industrial psychologists can provide expert evidence on the impact of a child's medical condition on a parent's ability to complete studies, even without evidence from educational or clinical psychologists, where the claim does not involve psychological trauma or depression. (2) It demonstrates the court's approach to conflicting expert opinions in medical negligence cases, emphasizing examination of reasoning over credibility, and the importance of consistency in expert reports. (3) It illustrates how courts assess causation in claims for loss of income where a parent's educational and career progress is delayed due to caring for a child injured through medical negligence. (4) It provides guidance on the application of contingency deductions in calculating loss of earnings, particularly where there are significant uncertainties such as advanced age at career entry, unemployment rates, and substantial educational delays. (5) It confirms that where merits are conceded in medical negligence cases, the remaining issue of quantum must still be proved on a balance of probabilities by the plaintiff.